Exhibit 99.1

EXECUTION VERSION

AMENDMENT NO. 2

TO AMENDED AND RESTATED CREDIT AGREEMENT

This AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment No. 2”), dated as of April 24, 2020, by and among Constellium Muscle Shoals LLC, a Delaware limited liability company (f/k/a Wise Alloys LLC) (“Muscle Shoals”), Constellium Rolled Products Ravenswood, LLC, a Delaware limited liability company (“Ravenswood”), Constellium Bowling Green LLC, a Delaware limited liability company (f/k/a Constellium-UACJ ABS LLC) (“Bowling Green” and together with Muscle Shoals and Ravenswood, the “Borrowers” and each, a “Borrower”), Constellium Holdings Muscle Shoals LLC, a Delaware limited liability company (f/k/a Wise Metals Group LLC) (“Muscle Shoals Holdings”), Constellium US Holdings I, LLC, a Delaware limited liability company (“Ravenswood Holdings”), Constellium Property and Equipment Company, LLC, a Delaware limited liability company (“CPEC”), Wells Fargo Bank, National Association (“Wells Fargo”), as Administrative Agent and Collateral Agent (in such capacities, the “Administrative Agent”), and the Lenders signatory hereto, amends that certain Amended and Restated Credit Agreement, dated as of February 20, 2019, as amended by Amendment No. 1 to Amended and Restated Credit Agreement, dated as of May 10, 2019 (the “Existing Credit Agreement”, and as amended hereby, the “Credit Agreement”), by and among the Borrowers, Muscle Shoals Holdings, Ravenswood Holdings, CPEC, Constellium International S.A.S. (the “Parent Guarantor”), acting as successor by merger to Constellium Holdco II B.V., the Administrative Agent, and the Lenders from time to time party thereto. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Credit Agreement.

WHEREAS, the Borrowers have requested that the Administrative Agent and the Lenders agree to make certain amendments to the Existing Credit Agreement; and

WHEREAS, the Lenders party hereto and the Administrative Agent have so agreed, subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree to enter into this Amendment No. 2.

1. Amendments to Credit Agreement. Subject to the satisfaction of the conditions precedent set forth in Section 2 of this Amendment No. 2, the Existing Credit Agreement (including certain Schedules thereto) is hereby amended 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) as set forth in Exhibit A hereto.

2. Amendment No. 2 Effective Date; Conditions Precedent to Amendments. The amendments set forth in Section 1 shall become effective as of the date (the “Amendment No. 2 Effective Date”) on which all of the conditions precedent set forth on Schedule 1 hereto have been satisfied.

3. Post-Closing Obligations. The Borrowers shall and shall cause each of their applicable Subsidiaries to, satisfy the requirements set forth on Schedule 2 on or before the date thereon specified for such requirement, as such date may be extended in the reasonable discretion of the Administrative Agent.

4. Miscellaneous.

(a) Headings. The various headings of this Amendment No. 2 are inserted for convenience of reference only, are not part of this Amendment No. 2 and shall not affect the meaning or interpretation of this Amendment No. 2 or any provisions hereof.

(b) Counterparts. This Amendment No. 2, any documents executed in connection herewith and any notices delivered under this Amendment No. 2 or the Credit Agreement, may be executed by the parties hereto by means of (i) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Administrative Agent reserves the right, in its reasonable discretion, to accept, deny, or condition acceptance of any electronic signature on this Amendment No. 2 or on any notice delivered to Administrative Agent under this Amendment No.2. This Amendment No.2 and any notices delivered hereunder and under the other Loan Documents may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which when taken together shall be deemed to be one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment No. 2 and any notices as set forth herein will be as effective as delivery of a manually executed counterpart of Amendment No. 2 or notice.

(c) Interpretation. No provision of this Amendment No. 2 shall be construed against or interpreted to the disadvantage of any party hereto by any court or other governmental or judicial authority by reason of such party’s having or being deemed to have structured, drafted or dictated such provision.

(d) Representations and Warranties. Each Loan Party party hereto hereby represents and warrants that, as of the date hereof and as of the Amendment No. 2 Effective Date:

(i) this Amendment No. 2 and the Credit Agreement constitute the legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with their respective terms, subject to (1) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (3) implied covenants of good faith and fair dealing;

(ii) its execution, delivery and performance of this Amendment No. 2 and its performance of the Credit Agreement have been duly authorized by all necessary corporate, stockholder, partnership or limited liability company action, and do not and will not: (1) violate (a) any provision of law, statute, rule or regulation, or of the certificate or articles of incorporation or other constitutive documents (including any partnership, limited liability company or operating agreements) or bylaws of such Loan Party, (b) any applicable order of any court or any rule, regulation or order of any Governmental Authority or (c) any provision of any indenture, certificate of designation for preferred stock, agreement or other instrument to which such Loan Party is a party or by which any of them or any of their property is or may be bound, (2) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, give rise to a right of or result in any cancellation or acceleration of any right or obligation (including any payment) or to a loss of a material benefit under any such indenture, certificate of designation for preferred stock, agreement or other instrument, where any such conflict, violation, breach or default referred to in clause (1) or (2) of this Section 4(d)(ii), would reasonably be expected to have, individually or in the aggregate a Material Adverse Effect, or (3) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by any such Loan Party, other than the Liens created by the Loan Documents and Permitted Liens;

 

2

(iii) as of the Amendment No. 2 Effective Date, the information included in the Beneficial Ownership Certification is true and correct in all respects; and

(iv) after giving effect to this Amendment No. 2, (1) no Default or Event of Default has occurred and is continuing and (2) each representation and warranty of such Loan Party contained in the Credit Agreement and in each other Loan Document to which it is a party is true and correct in all material respects (without duplication of any materiality qualifier contained therein), except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representation or warranty is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date).

(e) Ratification. Each Loan Party hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Credit Agreement and each other Loan Document to which it is a party, (ii) ratifies and reaffirms the grant of liens or security interests over its property pursuant to the Loan Documents and confirms that such liens and security interests continue to secure the ABL Finance Obligations, (iii) agrees that such ratification and reaffirmation is not a condition to the continued effectiveness of the Loan Documents and (iv) agrees that neither such ratification and reaffirmation, nor the Administrative Agent’s nor any Lender’s solicitation of such ratification and reaffirmation, constitutes a course of dealing giving rise to any obligation or condition requiring a similar or any other ratification or reaffirmation from each party to the Credit Agreement with respect to any amendment, consent or waiver with respect to the Credit Agreement or other Loan Documents.

(f) Governing Law. THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS OF ANOTHER JURISDICTION) SHALL GOVERN ALL MATTERS ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO, THIS AMENDMENT NO. 2.

(g) Effect. Upon the occurrence of the Amendment No. 2 Effective Date, 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 Credit Agreement and each reference in the other Loan Documents to the Existing Credit Agreement, “thereunder,” “thereof,” or words of like import shall mean and be a reference to the Credit Agreement. Except as expressly provided in this Amendment No. 2, all of the terms, conditions and provisions of the Existing Credit Agreement and the other Loan Documents shall remain the same. This Amendment No. 2 shall constitute a Loan Document for purposes of the Credit Agreement.

(h) No Other Waiver. Except as specifically set forth in this Amendment No. 2, the execution, delivery and effectiveness of this Amendment No. 2 shall not (a) limit, impair, constitute a waiver by, or otherwise affect any right, power or remedy of, the Administrative Agent or any Lender under the Credit Agreement or any other Loan Document, (b) constitute a waiver of any provision in the Credit Agreement or any other Loan Document or of any Default or Event of Default that may have occurred and be continuing or (c) alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or in any of the other Loan Documents, all of which are ratified and affirmed in all respects and shall continue in full force and effect.

(i) Administrative Agent’s Expenses. The Borrowers hereby agree to promptly reimburse the Administrative Agent for all of the reasonable and documented out-of-pocket expenses and customary administrative charges incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Amendment No. 2.

[SIGNATURE PAGES FOLLOW]

 

3

IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 as of the day and year first above written.

 

Signature Page to Amendment No. 2

to Amended and Restated Credit Agreement

Signature Page to Amendment No. 2

to Amended and Restated Credit Agreement

Signature Page to Amendment No. 2

to Amended and Restated Credit Agreement

Signature Page to Amendment No. 2

to Amended and Restated Credit Agreement

Signature Page to Amendment No. 2

to Amended and Restated Credit Agreement

Signature Page to Amendment No. 2

to Amended and Restated Credit Agreement

Signature Page to Amendment No. 2

to Amended and Restated Credit Agreement

Signature Page to Amendment No. 2

to Amended and Restated Credit Agreement

Signature Page to Amendment No. 2

to Amended and Restated Credit Agreement

Signature Page to Amendment No. 2

to Amended and Restated Credit Agreement

Signature Page to Amendment No. 2

to Amended and Restated Credit Agreement

EXHIBIT A

Attached.

AMENDED AND RESTATED CREDIT AGREEMENT

dated as of February 20, 2019

andas amended by Amendment No. 1 dated as of May 10, 20192019,

and

Amendment No. 2 dated April 24, 2020

among

CONSTELLIUM INTERNATIONAL S.A.S.,

as the Parent Guarantor,

CONSTELLIUM MUSCLE SHOALS LLC,

as a Borrower,

CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC,

as a Borrower,

CONSTELLIUM BOWLING GREEN LLC,

as a Borrower,

CONSTELLIUM HOLDINGS MUSCLE SHOALS LLC,

as a Loan Party,

CONSTELLIUM US HOLDINGS I, LLC,

as a Loan Party,

CONSTELLIUM PROPERTY AND EQUIPMENT COMPANY, LLC,

as a Loan Party,

THE LENDERS FROM TIME TO TIME PARTY HERETO,

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent and Collateral Agent

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

JPMORGAN CHASE BANK, N.A.,

BANK OF AMERICA, N.A., and

DEUTSCHE BANK SECURITIES INC.,

as Revolving Facility Joint Lead Arrangers and Joint Bookrunners,

and

JPMORGAN CHASE BANK, N.A., BANK OF AMERICA, N.A., and

DEUTSCHE BANK SECURITIES INC.,

as Revolving Facility Co-Syndication Agents

And

WELLS FARGO BANK, NATIONAL ASSOCIATION,

DEUTSCHE BANK SECURITIES INC., and

GOLDMAN SACHS BANK USA

as Term Facility Joint Lead Arrangers and Joint Bookrunners

TABLE OF CONTENTS

 

				Page
ARTICLE I DEFINITIONS					1
Section 1.01		Defined Terms			1
Section 1.02		Terms Generally			5562
Section 1.03		Effectuation of Transactions			5662
Section 1.04		Letter of Credit Amounts			5662
Section 1.05		Amendment and Restatement of the Existing Credit Agreement			5662
ARTICLE II THE CREDITS					63
Section 2.01		Revolving Facility Commitments			5663
Section 2.02		Revolving Facility Loans and Revolving Facility Loan Borrowings			5763
Section 2.03		Requests for Revolving Facility Borrowings			5864
Section 2.04		Swing Line Loans			5865
Section 2.05		Letters of Credit			6167
Section 2.06		Funding of Borrowings			7076
Section 2.07		Interest Elections			7076
Section 2.08		Termination and Reduction of Revolving Facility Commitments			7178
Section 2.09		Agreement to Repay Loans; Evidence of Debt			7278
Section 2.10		Repayment of Loans			7379
Section 2.11		Prepayment of Revolving Facility Loans and Term Loans			7379
Section 2.12		Fees			7482
Section 2.13		Interest			7583
Section 2.14		Payments Generally; Pro Rata Treatment; Sharing of Setoffs			7584
Section 2.15		Incremental Commitments Term Loans			7886
Section 2.16		Cash Collateral			7989
Section 2.17		Defaulting Lenders			8090
Section 2.18		Agent Advances			8292
Section 2.19		Settlement			8293
Section 2.20		Maintenance of Loan Account; Statement of Obligations			8494
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY					95
Section 3.01		Taxes			8495
Section 3.02		Illegality			8999
Section 3.03		Inability to Determine Rates			90100
Section 3.04		Increased Costs			91101
Section 3.05		Compensation for Losses			92102
Section 3.06		Mitigation Obligations; Replacement of Lenders			93103
Section 3.07		Survival			93103
ARTICLE IV REPRESENTATIONS AND WARRANTIES					103
Section 4.01		Organization; Powers			93103
Section 4.02		Authorization			94103
Section 4.03		Enforceability			94104
Section 4.04		Governmental Approvals			94104

 

- i -

Table of Contents (cont.)

 

				Page
Section 4.05		Financial Statements			94104
Section 4.06		No Material Adverse Effect			95104
Section 4.07		Title to Properties; Possession Under Leases			95105
Section 4.08		Subsidiaries			95105
Section 4.09		Litigation; Compliance with Laws			95105
Section 4.10		Federal Reserve Regulations			96106
Section 4.11		Investment Company Act			96106
Section 4.12		Use of Proceeds			96106
Section 4.13		Taxes			96106
Section 4.14		No Material Misstatements			97107
Section 4.15		Employee Benefit Plans			97107
Section 4.16		Environmental Matters			98108
Section 4.17		Security Documents			98108
Section 4.18		Location of Real Property and Leased Premises			99109
Section 4.19		Solvency			99109
Section 4.20		Labor Matters			100110
Section 4.21		Insurance			100110
Section 4.22		No Default			100110
Section 4.23		Intellectual Property; Licenses, Etc.			100110
Section 4.24		Senior Debt			101111
Section 4.25		Anti-Money Laundering and Economic Sanction Laws			101111
Section 4.26		Anti-Corruption Laws			101111
Section 4.27		Borrowing Base Matters			102112
Section 4.28		EEA Financial Institution			102112
ARTICLE V CONDITIONS OF LENDING					112
Section 5.01		All Credit Events			102112
Section 5.02		First Credit Event			103113
ARTICLE VI AFFIRMATIVE COVENANTS					116
Section 6.01		Existence; Businesses and Properties			105116
Section 6.02		Insurance			106116
Section 6.03		Taxes			107118
Section 6.04		Financial Statements, Reports, etc.			107118
Section 6.05		Litigation and Other Notices			109120
Section 6.06		Compliance with Laws			110120
Section 6.07		Maintaining Records; Access to Properties and Inspections			110120
Section 6.08		Use of Proceeds			110121
Section 6.09		Compliance with Environmental Laws			110121
Section 6.10		Further Assurances; Additional Security			111121
Section 6.11		Appraisals and Field Examinations			113124
Section 6.12		Collection of Accounts; Payments			114124
Section 6.13		Collateral Reporting			114124
Section 6.14		Anti-Money Laundering and Economic Sanction Laws; Anti-Corruption Laws			115125

 

- ii -

Table of Contents (cont.)

 

				Page
ARTICLE VII NEGATIVE COVENANTS					125
Section 7.01		Indebtedness			115125
Section 7.02		Liens			117128
Section 7.03		Sale and Lease Back Transactions			121131
Section 7.04		Investments, Loans and Advances			121132
Section 7.05		Mergers, Consolidations, Sales of Assets and Acquisitions			124135
Section 7.06		Dividends and Distributions			126137
Section 7.07		Transactions with Affiliates			128138
Section 7.08		Business of the Borrowers and their respective Subsidiaries			129140
Section 7.09		Limitation on Modifications of Indebtedness; Modifications of Certificate of Incorporation, By Laws and Certain Other Agreements; etc.			129140
Section 7.10		Margin Stock; Use of Proceeds			132143
Section 7.11		Holdcos Covenants			132143
Section 7.12		Financial Covenants			133143
ARTICLE VIII EVENTS OF DEFAULT					144
Section 8.01		Events of Default			133144
Section 8.02		Exclusion of Immaterial Subsidiaries			136146
Section 8.03		Application of Funds			136147
ARTICLE IX THE AGENCY PROVISIONS					151
Section 9.01		Appointment and Authority			137151
Section 9.02		Rights as a Lender			138152
Section 9.03		Exculpatory Provisions			138152
Section 9.04		Reliance by Administrative Agent			139153
Section 9.05		Delegation of Duties			139153
Section 9.06		Resignation of Administrative Agent			139153
Section 9.07		Non-Reliance on Administrative Agent and Other Lenders			140155
Section 9.08		No Other Duties, Etc.			141155
Section 9.09		Administrative Agent May File Proofs of Claim			141155
Section 9.10		Collateral and Guaranty Matters			141155
Section 9.11		Secured Hedge Agreements and Secured Cash Management Agreements			143157
Section 9.12		Certain ERISA Matters			143157
ARTICLE X MISCELLANEOUS					158
Section 10.01		Amendments, Etc.			144158
Section 10.02		Notices; Effectiveness; Electronic Communication			147161
Section 10.03		No Waiver; Cumulative Remedies; Enforcement			149163
Section 10.04		Expenses; Indemnity; Damage Waiver			149164
Section 10.05		Payments Set Aside			152167
Section 10.06		Successors and Assigns			153167
Section 10.07		Treatment of Certain Information; Confidentiality			157171
Section 10.08		Platform; Borrower Materials			158172
Section 10.09		Right of Setoff			158172
Section 10.10		Interest Rate Limitation			158173
Section 10.11		Counterparts; Integration; Effectiveness			159173
Section 10.12		Survival of Representations and Warranties			159173
Section 10.13		Severability			159173

 

- iii -

Table of Contents (cont.)

 

				Page
Section 10.14		Replacement of Lenders			159174
Section 10.15		Governing Law; Jurisdiction Etc.			160174
Section 10.16		Waiver of Jury Trial			161175
Section 10.17		No Advisory or Fiduciary Responsibility			161176
Section 10.18		Electronic Execution of Assignments and Certain Other Documents			162176
Section 10.19		USA Patriot Act Notice			162176
Section 10.20		Intercreditor Agreements			162177
Section 10.21		Field Audit and Examination Reports; Disclaimer by Lenders			163177
Section 10.22		Release of Liens and Guarantees			164178
Section 10.23		Headings			164178
Section 10.24		Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions			164179
Section 10.25		Power of Attorney			165179
Section 10.26		Acknowledgement Regarding Any Supported QFCs			165179

 

- iv -

Table of Contents (cont.)

 

Exhibits:
Exhibit A		– Form of Assignment and Assumption
Exhibit B-1		– Form of Solvency Certificate
Exhibit B-2		– Form of Borrowing Base Certificate
Exhibit C-1		– Form of Revolving Facility Borrowing Request
Exhibit C-2		– Form of Swing Line Loan Notice
Exhibit C-3		– Form of Letter of Credit Request
Exhibit C-4		– Form of Term Loan Request
Exhibit D-1		– U.S. Tax Compliance Certificate
Exhibit D-2		– U.S. Tax Compliance Certificate
Exhibit D-3		– U.S. Tax Compliance Certificate
Exhibit D-4		– U.S. Tax Compliance Certificate
Schedules:
Schedule 1.01(a)		– Certain U.S. Subsidiaries
Schedule 1.01(b)		– Mortgaged Properties
Schedule 1.01(c)		– Immaterial Subsidiaries
Schedule 1.01(d)		– Qualified Receivables
Schedule 1.01(e)		– Unrestricted Subsidiaries
Schedule 1.01(f)		– Acceptable Appraisers
Schedule 1.01(g)		– Bowling Green Property Description
Schedule 1.01(h)		– Account Debtor Restrictions
Schedule 2.01		– Revolving Facility Commitments
Schedule 2.15		Incremental Revolving Facility– Term Loan Commitments
Schedule 4.01		– Organization and Good Standing
Schedule 4.04		– Governmental Approvals
Schedule 4.07(b)		– Leased Properties
Schedule 4.08(a)		– Subsidiaries
Schedule 4.08(b)		– Subscriptions
Schedule 4.13		– Taxes
Schedule 4.16		– Environmental Matters
Schedule 4.21		– Insurance
Schedule 4.23		– Intellectual Property
Schedule 5.02(b)		– Local Counsel
Schedule 6.10		– Post-Closing Deliveries
Schedule 6.13		– Collateral Reporting Information
Schedule 7.01		– Indebtedness
Schedule 7.02(a)		– Liens
Schedule 7.04		– Investments
Schedule 10.02		– Notice Information

 

- v -

This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 20, 2019 (this “Agreement”), is entered into by and among CONSTELLIUM MUSCLE SHOALS LLC, a Delaware limited liability company (f/k/a Wise Alloys LLC) (“Muscle Shoals”), CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC, a Delaware limited liability company (“Ravenswood” together with Muscle Shoals, the “Existing Borrowers”), CONSTELLIUM BOWLING GREEN LLC, a Delaware limited liability company (f/k/a Constellium-UACJ ABS LLC) (“Bowling Green”), CONSTELLIUM HOLDINGS MUSCLE SHOALS LLC, a Delaware limited liability company (f/k/a Wise Metals Group LLC) (“Muscle Shoals Holdings”), CONSTELLIUM US HOLDINGS I, LLC, a Delaware limited liability company (“Ravenswood Holdings”), CONSTELLIUM PROPERTY AND EQUIPMENT COMPANY, LLC, a Delaware limited liability company (“CPEC”), CONSTELLIUM INTERNATIONAL S.A.S., a simplified joint-stock company (société par actions simplifiée) incorporated under French law, having its registered address at 40- 44 rue Washington, 75008 Paris, France, registered with the Trade and Companies Registry of Paris under number 832 509 418 (“Parent Guarantor”), acting as successor by merger to CONSTELLIUM HOLDCO II B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law having its corporate seat (statutaire zetel) in Amsterdam, the Netherlands, the LENDERS party hereto from time to time, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent (in such capacities, the “Administrative Agent”) for the Lenders.

WHEREAS, the Existing Borrowers, Muscle Shoals Holdings, Ravenswood Holdings, Bowling Green, Parent Guarantor, the lenders party thereto and Wells Fargo Bank, National Association, as administrative agent thereunder, are currently party to that Credit Agreement, dated as of June 21, 20172017, as amended by Amendment No. 1, dated May 10, 2019 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”);

WHEREAS, the Borrowers, the Lenders and the Administrative Agent have entered into this Agreement in order to, among other things, (i) amend and restate the Existing Credit Agreement in its entirety; (ii) add Bowling Green as a Borrower under this Agreement; (iii) increase the aggregate amount of the Revolving Facility Commitment from $300,000,000 to $350,000,000; and (iv) set forth the terms and conditions under which the Lenders will, from time to time, make loans and extend other financial accommodations to or for the benefit of the Borrowers, and (v) pursuant to Amendment No. 2, set forth the terms and conditions pursuant to which Borrowers may borrow up to $166,250,000 of Term Loans; and

WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities of the parties under the Existing Credit Agreement or be deemed to evidence or constitute full repayment of such obligations and liabilities, but that this Agreement amend and restate in its entirety the Existing Credit Agreement and re-evidence the obligations and liabilities of the Borrowers outstanding thereunder, which shall be payable in accordance with the terms hereof.

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties hereto agree that the Existing Credit Agreement is hereby amended and restated as follows:

ARTICLE IARTICLE I

DEFINITIONS

Section 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

“AB Receivables” means, collectively, Accounts for which the related Account Debtor is Anheuser-Busch and/or its Affiliates (other than Envases y Tapas Modelo, S. de R.L. de C.V.).

“AB Receivables Financing” means any transaction or series of transactions that may be entered into by any of Muscle Shoals or its Subsidiaries pursuant to which Muscle Shoals or such Subsidiary (any such Subsidiary, the “AB Receivables Subsidiary”) may sell, convey or otherwise transfer to any other Person (other than the Administrative Agent pursuant to the Loan Documents), or may grant a security interest in, any AB Receivables (whether now existing or arising in the future) of the AB Receivables Subsidiary, including all collateral securing such AB Receivables, all contracts and all guarantees or other obligations in respect of such AB Receivables, proceeds of such AB Receivables and other assets, in each case, which are customarily transferred in or in respect of which security interests are customarily granted in connection with asset securitization transactions or factoring transactions involving accounts receivable.

“AB Receivables Subsidiary” has the meaning set forth in the definition of “AB Receivables Financing”.

“ABL Credit Obligations” means, with respect to each Loan Party and the Parent Guarantor, without duplication:

(a) (i) in the case of each Borrower, all principal of, premium, if any, and interest (including, without limitation, any interest which accrues after the commencement of any proceeding under any Debtor Relief Law with respect to such Borrower, whether or not allowed or allowable as a claim in any such proceeding) on, any Loan or L/C Obligation under, or any Note issued pursuant to, this Agreement or any other Loan Document;

(b) (ii) all fees, expenses, indemnification obligations and other amounts of whatever nature now or hereafter payable by such Loan Party or Parent Guarantor (including, without limitation, any amounts which accrue after the commencement of any proceeding under any Debtor Relief Law with respect to such Loan Party, whether or not allowed or allowable as a claim in any such proceeding) pursuant to this Agreement or any other Loan Document;

(c) (iii) all expenses of the Administrative Agent as to which the Administrative Agent has a right to reimbursement by such Loan Party or Parent Guarantor under Section 10.04(a) of this Agreement or under any other similar provision of any other Loan Document, including, without limitation, any and all sums advanced by the Collateral Agent to preserve the Collateral or preserve its security interests in the Collateral to the extent permitted under any Loan Document or applicable Law;

(d) (iv) all amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement by such Loan Party or Parent Guarantor under Section 10.04(b) of this Agreement or under any other similar provision of any other Loan Document; and

(e) (v) in the case of the Holdcos, each Borrower and each Subsidiary Loan Party, all amounts now or hereafter payable by the Holdcos, such Borrower or such Subsidiary Loan Party and all other obligations or liabilities (including all amounts charged to the Loan Account pursuant to this Agreement) now existing or hereafter arising or incurred (including, without limitation, any amounts which accrue after the commencement of any proceeding under any Debtor Relief Law with respect to any Borrower, the Holdcos or such Subsidiary Loan Party, whether or not allowed or allowable as a claim in any such proceeding) on the part of the Holdcos, such Borrower or such Subsidiary Loan Party pursuant to this Agreement, the Guaranty or any other Loan Document; together in each case with all renewals, modifications, consolidations or extensions thereof; provided, that, notwithstanding the foregoing, the ABL Credit Obligations guaranteed by Parent Guarantor pursuant to the Collateral Agreement shall not include the Term Loan A-2 Obligations.

 

- 2 -

“ABL Finance Obligations” means, at any date, (i) all ABL Credit Obligations and (ii) all Swap Obligations of any Borrower or any Material Subsidiary then owing under any Secured Hedge Agreement to any Hedge Bank and (iii) all obligations of any Borrower or any Material Subsidiary then owing under any Secured Cash Management Agreement to any Cash Management Bank.

“ABL Priority Collateral” has the meaning given to the term in the Intercreditor Agreement.

“Acceptable Appraiser” means (a) any Person listed on Schedule 1.01(f) or (b) any other experienced and reputable appraiser reasonably acceptable to the Administrative Agent.

“Accepting Lenders” has the meaning assigned to such term in Section 10.01.

“Account” has the meaning assigned to such term in the Collateral Agreement.

“Account Debtor” has the meaning assigned to such term in the Collateral Agreement.

“Accounts Availability Triggering Event” shall occur at any time that (a) Availability is less than 12.5% of the Maximum CreditRevolving Loan Limit for a period of five (5) consecutive Business Days or (b) an Event of Default shall have occurred and be continuing. Once occurred, an Accounts Availability Triggering Event shall be deemed to be continuing until such time as either (x) Availability exceeds 12.5% of the Maximum CreditRevolving Loan Limit for a period of at least 30 consecutive days or (y) such Event of Default has been cured or waived in accordance with the terms hereof, as applicable.

“Additional Mortgage” has the meaning assigned to such term in Section 6.10(c).

“Adjusted Eurodollar Rate” means the quotient obtained (expressed as a decimal, carried out to five decimal places) by dividing (A) the applicable Eurodollar Base Rate by (B) 1.00 minus the Eurodollar Reserve Percentage (rounded upwards, if necessary, to the next 1/100 of 1%).

“Administrative Agent” has the meaning assigned to such term in the preamble to this Agreement.

“Administrative Agent Fees” has the meaning assigned to such term in Section 2.12(c).

“Administrative Agent’s Account” means the Deposit Account of the Administrative Agent identified on Schedule 10.02 to this Agreement (or such other Deposit Account of the Administrative Agent that has been designated as such, in writing, by the Administrative Agent to Borrowers and the Lenders).

“Administrative Agent’s Office” means the Administrative Agent’s address set forth on Schedule 10.02, or such other address as the Administrative Agent may from time to time notify the Borrowers and the Lenders.

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

 

- 3 -

“Advance Agreement” means the Advance Extension Agreement, dated as of August 21, 2012, between Muscle Shoals and Rexam, as amended by the Amendment to Advance Extension Agreement dated as of December 11, 2013 and as may be further amended, restated, supplemented, otherwise modified, extended, renewed, or replaced from time to time.

“Affected Facility” has the meaning assigned to such term in Section 10.01.

“Affected Financial Institution” means (a) any EEA Financial Institution and (b) any UK Financial Institution.

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

“Agent Advance” shall have the meaning assigned to such term in Section 2.18.

“Agreement” means, on any date, this Agreement as originally in effect on the Effective Date and as thereafter amended, supplemented, amended and restated or otherwise modified from time to time and in effect on such date.

“Airbus” means Airbus Group SE and its successors and assigns.

“Amendment No. 1 Effective Date” means May 10, 2019, after giving effect to the amendments to this Agreement contemplated by that certain Amendment No. 1 hereto among the Loan Parties, the Lenders and the Administrative Agent dated as of May 10, 2019.

“Amendment No. 2 Effective Date” means April 24, 2020, after giving effect to the amendments to this Agreement contemplated by that certain Amendment No. 2 hereto among the Loan Parties, the Lenders and the Administrative Agent dated as of April 24, 2020.

“Amendment No. 2 Fee Letter” means that certain fee letter, dated as of April 24, 2020 among the Administrative Agent and the Borrowers.

“Amendment Fee Letter” means that certain fee letter dated as of May 10, 2019 among the Administrative Agent and the Borrowers.

“Anheuser-Busch” means Anheuser-Busch, LLC and its successors and assigns.

“Anti-Money Laundering Laws “ means any and all laws, judgments, orders, executive orders, decrees, ordinances, rules, regulations, statutes, case law or treaties applicable to a Loan Party, its subsidiaries or Affiliates related to terrorism financing or money laundering, including any applicable provision of Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001 (Title III of Pub. L. 107-56) and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).

“Applicable Accounting Rules” means GAAP or IFRS, as applicable to the applicable Person in the applicable context; provided, that for purposes of the definitions of “Indebtedness” and “Capital Lease Obligations”, the determination whether a lease is a capital lease or an operating lease, the capitalized amount of any lease, and whether any obligations under such lease constitute a liability on the balance sheet of any person shall, in each case, be made on the basis of GAAP or IFRS (as applicable) as in effect on the Original Closing Date, without giving effect to any subsequent change in GAAP or IFRS (including, for the avoidance of doubt, IFRS 16).

 

- 4 -

“Applicable Margin” means, with respect to

(a) Revolving Facility Loans, Agent Advances, and Swing Line Loans, a percentage per annum equal to the rate set forth below opposite the then-applicable Average Quarterly Excess AvailabilityLeverage Ratio for the calendarfiscal quarter immediately preceding the calendarfiscal quarter in which the date of determination falls:

 

Applicable Margin		Applicable Margin
Pricing Level		Average Quarterly Excess Availability		Leverage Ratio		Applicable  Margin for Eurodollar Rate Loans which are Revolving Facility Loans and Letter of Credit Fees (“Revolving Facility LIBOR Rate Margin”)		Applicable Margin for Base Rate Loans which are Revolving Facility Loans (“Revolving Facility Base Rate Margin”)
I		> 66.67% of the Maximum CreditRevolving Loan Limit		<3.50:1.00		1.501.75%		0.500.75%
II		< 66.67% of the Maximum CreditRevolving Loan Limit but > 33.33% of the Maximum CreditRevolving Loan Limit		³ 3.50:1.00 £ 4.75:1.00		1.752.00%		0.751.00%
III		< 33.33% of the Maximum CreditRevolving Loan Limit		>4.75:1.00		2.002.25%		1.001.25%

Provided, that, the Applicable Margin, shall be established at Pricing Level III of the pricing grid above until the Term Loan Commitment Expiration Date. To the extent that Term Loans are outstanding on such date, and at all times thereafter that Term Loans remain outstanding, the Applicable Margin shall be determined based upon the “Leverage Ratio” portion of the pricing grid above, and shall be calculated once each fiscal quarter based on the financial statements delivered to Administrative Agent pursuant to Section 6.04(b) for the immediately preceding fiscal quarter based on the Leverage Ratio as of the end of such fiscal quarter and shall remain in effect until adjusted for the next fiscal quarter. Upon changes in the Applicable Margin resulting from a change in the Leverage Ratio for any fiscal quarter shall become

 

- 5 -

effective as to all applicable Revolving Facility Loans and Letter of Credit Fees on the first day of the next fiscal quarter following delivery of such financial statements except in the case of financial statements that are delivered pursuant to Section 6.04(c) for any fiscal quarter that ends on the last day of a fiscal year, in which case such change shall become effective on the first day of the fiscal quarter in which such compliance certificate is required to be delivered. After the Term Loan Commitment Expiration Date and the repayment in full of the Term Loans, the Applicable Margin in respect of Revolving Facility Loans shall be determined based on the “Average Quarterly Excess Availability” portion of the foregoing pricing grid.

For the avoidance of doubt, (ai) Agent Advances and Swing Line Loans shall bear interest as Revolving Facility Loans which are Base Rate Loans, and (bii) upon either changes in the Applicable Margin resulting from a change in the Average Quarterly Excess Availability or the Leverage Ratio, as applicable, as calculated in a compliance certificate delivered pursuant to Section 6.04(c), for any calendarfiscal quarter shall become effective as to all applicable Revolving Facility Loans and Letter of Credit Fees on the first day of the next calendarfiscal quarter following delivery of such compliance certificate except in the case of compliance certificates that are delivered pursuant to Section 6.04(c) for any calendarfiscal quarter that ends on the last day of a fiscal year, in which case such change shall become effective on the first day of the calendarfiscal quarter in which such compliance certificate is required to be delivered; provided, however, that if a compliance certificate is not delivered when due in accordance with such Section 6.04(c), then Pricing Level III shall apply from the first day of the next calendarfiscal quarter following the date on which such compliance certificate was due through the date on which such compliance certificate is delivered, after which the pricing level corresponding to the Average Quarterly Excess Availability or the Leverage Ratio, as applicable, set forth in such compliance certificate shall apply; provided, further, that, until the first day of the calendar quarter following the delivery of the compliance certificate for the calendar quarter ending on March 31, 2019, Pricing Level I shall apply. Notwithstanding the calculation of the Applicable Margin for any period as set forth above, if, as a result of any error in the calculation of the Average Quarterly Excess Availability or Leverage Ratio, as applicable, for any quarter or for any other reason, the Borrowers or the Lenders determine that (i1) the Average Quarterly Excess Availability or Leverage Ratio, as applicable, as calculated for such quarter was inaccurate and (ii2) a proper calculation of the Average Quarterly Excess Availability or Leverage Ratio, as applicable, for such quarter would have resulted in higher pricing for such period, the Borrowers shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the L/C Issuers, as the case may beapplicable, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or any L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or any L/C Issuer, as the case may be, under Section 2.13(c) or 2.05(h) or under Article VIII.; and

(b) Term Loans, a percentage per annum equal to (i) three (3.00%) percent, in the case of a Base Rate Loan which is a Term Loan (the “Term Loan Base Rate Margin”), and (ii) four (4.00%) percent in the case of a LIBOR Rate Loan which is a Term Loan (the “Term Loan LIBOR Rate Margin”).

“Application Event” means the occurrence of (a) a failure by Borrowers to repay all of the ABL Finance Obligations in full on the Facility Maturity Date, and (b) an Event of Default and the election by Administrative Agent or the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to Section 8.03(b) and (c) of this Agreement.

 

- 6 -

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

“Asset Sale” means any loss, damage, destruction or condemnation of, or any sale, transfer or other disposition (including any sale and leaseback of assets and any mortgage or lease of Real Property) to any person of any asset or assets of any Borrower or any Subsidiary (including to a Divided LLC pursuant to a Division).

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee, and accepted by the Administrative Agent, the L/C Issuers, the Swing Line Lender and the Borrowers (in each case, if required by such assignment and acceptanceassumption), in the form of Exhibit A or such other form as shall be approved by the Administrative Agent, the L/C Issuers, the Swing Line Lender and the Borrowers (such approval not to be unreasonably withheld or delayed).

“Auto-Extension Letter of Credit” shall have the meaning specified in Section 2.05(b)(iii).

“Auto-Reinstatement Letter of Credit” shall have the meaning specified in Section 2.05(b)(iv).

“Availability” means, at any time, (a) the lesser of the Maximum CreditRevolving Loan Limit and the Borrowing Base in effect at such time minus (b) the aggregate Outstanding Amounts under the Revolving Facility.

“Availability Period “ shall mean the period from and including the Closing Date to but excluding the earlier of (x) the Facility Maturity Date and (y) the date of termination of the Revolving Facility Commitments.

“Availability Triggering Event” shall occur at any time that (a) Availability is less than 12.5% of the Maximum CreditRevolving Loan Limit or (b) a Default or an Event of Default shall have occurred and be continuing. Once occurred, an Availability Triggering Event shall be deemed to be continuing until such time as (A) in the case of an Availability Triggering Event described in clause (a), Availability exceeds 12.5% of the Maximum CreditRevolving Loan Limit for 30 consecutive days or (B) in the case of an Availability Triggering Event described in clause (b), the applicable Default or Event of Default has been cured or waived in accordance with the terms hereof, as applicable.

“Average Quarterly Excess Availability” means, at any time, an amount (expressed as a percentage) equal to the quotient of (A) the average daily Availability during the immediately preceding quarter divided by (B) the average daily Maximum CreditRevolving Loan Limit for the immediately preceding quarter.

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

“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act of 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

- 7 -

“Bank Product Obligations” means the obligations owing to any Hedge Bank and Cash Management Bank described in clauses (ii) and (iii) of the definition of ABL Finance Obligations.

“Bank Product Reserves” means, as of any date of determination, those Reserves that Administrative Agent deems necessary or appropriate to establish and maintain, in its Permitted Discretion in respect of Bank Product Obligations provided by Revolving Facility Lenders or their Affiliates (in their capacities as a Cash Management Bank or a Hedge Bank, as the case may be) then provided or outstanding based on the determination of the applicable Cash Management Bank or Hedge Bank, of the liabilities and obligations of each Loan Party and its Subsidiaries in respect of such Bank Product Obligations.

“Base Rate” means, for any day, the greater of (a) zeroone (0.001.00 %) per annum and (b) a rate per annum equal to the highest of (i) the Prime Rate for such day, (ii) the sum of 0.50% plus the Federal Funds Rate for such day and (iii) the sum of the Eurodollar Base Rate for a one-month interest period (which rate shall be determined on a daily basis) plus 1.00%.

“Base Rate Borrowing” means either a Borrowing comprised of Base Rate LoansBase Rate Revolving Facility Borrowing or a Base Rate Term Loan Facility Borrowing.

“Base Rate Loan” means a Loan that bears interest based on the Base Rate.

“Base Rate Revolving Facility Borrowing” means a Revolving Facility Borrowing comprised of Base Rate Loans.

“Base Rate Term Loan Facility Borrowing” means a Term Loan Facility Borrowing comprised of Base Rate Loans.

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

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

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

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

“Board of Directors” means, as to any person, the board of directors or other governing body of such person, or if such person is owned or managed by a single entity, the board of directors or other governing body of such entity.

“Borrowers” means, collectively, Bowling Green, Ravenswood and Muscle Shoals. Unless the context otherwise requires, “Borrower” shall mean one or all of the foregoing Persons, jointly, severally, and collectively.

“Borrower Materials” has the meaning assigned to such term in Section 10.08.

 

- 8 -

“Borrowing “ means a group of Loans of a single Type under the Revolving Facility and made on a single date and, in the case of Eurodollar Rate Loans, as to which a single Interest Period is in effect Revolving Facility Borrowing or a Term Loan Facility Borrowing.

“Borrowing Base” means, at any time, an amount equal to:

the result of

(a) (x) the sum of:

(i) (i) 85.0% of the Net Amount of Eligible Accounts, plus

(ii) (ii) the lesser of:

(A) (A) 80.0% of the lesser of the original cost or market value of Eligible Inventory (valued at any date based on average cost method of accounting), and

(B) (B) 85.0% of the Orderly Liquidation Value of Eligible Inventory, minus

(b) (y) all Reserves which the Administrative Agent deems necessary in the exercise of its Permitted Discretion to maintain with respect to any Loan Party, including Reserves for any amounts which the Administrative Agent or any Lender may be obligated to pay in the future for the account of any Loan Party.

The specified percentages set forth in this definition will not (except as otherwise specified herein) be reduced without the consent of each Borrower (not to be unreasonably withheld or delayed). Any determination by the Administrative Agent in respect of the Borrowing Base shall be based on the Administrative Agent’s Permitted Discretion. The parties understand that the exclusionary criteria in the definitions of Eligible Accounts and Eligible Inventory, any Reserves that may be imposed as provided herein, any deductions or other adjustments to determine “lesser of cost or market value” and Net Amount of Eligible Accounts and factors considered in the calculation of Orderly Liquidation Value of Eligible Inventory have the effect of reducing the Borrowing Base, and, accordingly, whether or not any provisions hereof so state, all of the foregoing shall be determined without duplication so as not to result in multiple reductions in the Borrowing Base for the same facts or circumstances.

“Borrowing Base Certificate” means a certificate by a Responsible Officer of the Borrowers, substantially in the form of Exhibit B- 2 (or another form acceptable to the Administrative Agent) setting forth the calculation of the Borrowing Base, including a calculation of each component thereof (including, to the extent any Borrower has received notice of any such Reserve from the Administrative Agent, any of the Reserves included in such calculation pursuant to clause (y) of the definition of the Borrowing Base), all in such detail as shall be reasonably satisfactory to the Administrative Agent. All calculations of the Borrowing Base in connection with the preparation of any Borrowing Base Certificate shall be made by the Borrowers and certified to the Administrative Agent.

“Borrowing Minimum” means $1,000,000, except in the case of Swing Line Loans, in which case it means $250,000.

“Borrowing Multiple” means $250,000.

 

- 9 -

“Borrowing Request” means a request by a Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit C-1 or otherwise in form and substance satisfactory to the Administrative Agent.

“Bowling Green Current Assets Access Agreement” means an agreement providing access and use rights to the Administrative Agent with respect to any Collateral located at the Bowling Green Property described on Schedule 1.01(g), on terms substantially similar to Section 9 of the Secured NotesRavenswood Intercreditor Agreement, or other terms reasonably satisfactory to the Administrative Agent.

“Bowling Green Intercompany Indebtedness” means the Indebtedness incurred by Bowling Green pursuant to each of the CF Credit Facility Agreement, the CF Intercompany Loan Agreement and the Ravenswood Holdings Intercompany Loan Agreement.

“Bowling Green Property” means all Real Property owned by Bowling Green and located in Bowling Green, Kentucky, including without limitation the property described on Schedule 1.01(g).

“Bowling Green Real Estate Intercreditor Arrangements” means an intercreditor agreement and any other documents, agreements or instruments to be executed in connection therewith, subordinating, on terms substantially similar to the Secured Notes Intercreditor Agreement, or other terms reasonably satisfactory to the Administrative Agent, the Administrative Agent’s Liens on all or any portion of the Bowling Green Property securing the ABL Finance Obligations to the Liens permitted by Section 7.02.

“Budget” has the meaning assigned to such term in Section 6.04(e).

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located, except that if such day relates to any Eurodollar Rate Loan, such day shall also be a London Banking Day.

“Capital Expenditures “ means, for any person in respect of any period, the aggregate of all expenditures incurred by such person during such period that, in accordance with Applicable Accounting Rules, are or should be included in “additions to property, plant or equipment” or similar items reflected in the statement of cash flows of such person; provided, however, that Capital Expenditures for the Ultimate Parent and its Subsidiaries shall not include:

(a) (i) expenditures to the extent they are made with proceeds of the issuance of Equity Interests of the Ultimate Parent after the Closing Date or funds that would have constituted any Net Proceeds under the definition of the term “Net Proceeds” (but for the application of the first proviso thereof);

(b) (ii) expenditures with proceeds of insurance settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property to the extent such expenditures are made to replace or repair such lost, destroyed, damaged or condemned assets, equipment or other property or otherwise to acquire, maintain, develop, construct, improve, upgrade or repair assets or properties useful in the business of the Ultimate Parent and its Subsidiaries within 15 months of receipt of such proceeds (or, if not made within such period of 15 months, are committed to be made during such period);

(c) (iii) interest capitalized during such period;

 

- 10 -

(d) (iv) expenditures that are accounted for as capital expenditures of such person and that actually are paid for by a third party (excluding the Ultimate Parent or any Subsidiary thereof) and for which neither the Ultimate Parent nor any Subsidiary thereof has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other person (whether before, during or after such period);

(e) (v) the book value of any asset owned by such person prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided that (A) any expenditure necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period that such expenditure actually is made and (B) such book value shall have been included in Capital Expenditures when such asset was originally acquired;

(f) (vi) the purchase price of equipment purchased during such period to the extent the consideration therefor consists of any combination of (A) used or surplus equipment traded in at the time of such purchase and (B) the proceeds of a concurrent sale of used or surplus equipment, in each case, in the ordinary course of business;

(g) (vii) Investments in respect of a Permitted Business Acquisition; or

(h) (viii) the purchase of property, plant or equipment made or contractually committed to be made within 15 months of the sale of any asset (other than inventory) to the extent purchased with the proceeds of such sale.

“Capital Lease Obligations” of any person means the obligations of such person to pay rent or other amounts under any lease of (or other similar arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such person under Applicable Accounting Rules and, for purposes hereof, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with Applicable Accounting Rules.

“CARES Act—Title I” means Title I of the Coronavirus Aid, Relief and Economic Security Act, as amended (including any successor thereto), and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, regardless of the date enacted, adopted, issued or implemented.

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

“Cash Management Agreement” means any agreement to provide an overdraft line or other cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer, automated clearinghouse transactions and other cash management arrangements.

 

- 11 -

“Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.

“CF Credit Facility Agreement” means that certain Credit Facility Agreement dated as of January 10, 2019 between Bowling Green, as borrower, and Constellium Finance, as lender, evidencing an uncommitted revolving credit facility available to Bowling Green for advances up to a maximum principal amount at any one time of $ 20,000,000 (as amended, amended and restated, supplemented, replaced, or otherwise modified from time to time in compliance with Section 7.09(b)(ii)).

“CF Intercompany Loan Agreement” means that certain Intragroup Loan Agreement dated as of January 10, 2019 between Bowling Green, as borrower, and Constellium Finance, as lender, evidencing a term loan to Bowling Green in an initial principal amount of $63,000,000 (as amended, amended and restated, supplemented, replaced, or otherwise modified from time to time in compliance with Section 7.09(b)(ii)).

“CFC” means a “controlled foreign corporation” as defined in Section 957 of the Code.

“Change in Control” shall be deemed to occur if:

(a) (i) at any time (A) Ultimate Parent shall fail to own, directly or indirectly, beneficially and of record, 100% of the issued and outstanding Equity Interests of any Holdco, (B) a majority of the seats (other than vacant seats) on the Board of Directors of Ultimate Parent shall at any time be occupied by persons who were neither (i) nominated by the Board of Directors of Ultimate Parent nor (ii) appointed by directors so nominated, (C) except as permitted pursuant to Section 7.11(y), the Constellium Holding Companies (or any one or more of them) shall fail to collectively own, directly or indirectly, beneficially and of record, 100% of the issued and outstanding Equity Interests of each Borrower, (D) a majority of the seats (other than vacant seats) on the Board of Directors of any Holdco shall at any time be occupied by persons who were neither (i) nominated by the Board of Directors of such Holdco nor (ii) appointed by directors so nominated, or (E) a “change of control” (or similar event) shall occur under any Material Indebtedness; or

(b) (ii) any person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date) (other than in the case of any Holdco’s Equity Interests, Ultimate Parent or any Subsidiary thereof) shall have acquired beneficial ownership of 50% or more on a fully diluted basis of the voting interest in Ultimate Parent’s Equity Interests or any Holdco’s Equity Interests.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (iii) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

- 12 -

“Closing Date” means the first date on or after the Effective Date when all the conditions precedent in Section 5.02 are satisfied or waived in accordance with Section 10.01.

“Coca-Cola” means Coca-Cola Bottlers’ Sales and Services Company LLC, a Delaware limited liability company, and its successors and assigns.

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

“Collateral” means all the “Collateral” as defined in any Security Document and shall also include the Mortgaged Properties and all other property that is subject to any Lien in favor of the Collateral Agent or any Subagent for the benefit of the Lenders pursuant to any Security Document.

“Collateral Agent” means the party acting as collateral agent for the Secured Parties under the Security Documents. On the Closing Date, the Collateral Agent is the same person as the Administrative Agent. Unless the context otherwise requires, the term “Administrative Agent” as used herein shall include the Collateral Agent, notwithstanding various specific references to the Collateral Agent herein.

“Collateral Agreement” means the Amended and Restated Guarantee and Collateral Agreement, dated as of the Closing Date, by and among the Borrowers, the Guarantors, the Parent Guarantor and the Administrative Agent.

“Collateral and Guarantee Requirement” means the requirement, subject to the Intercreditor Agreements, that:

(a) (i) on the Closing Date, the Collateral Agent shall have received (A) from each Borrower and each Guarantor, a counterpart of the Collateral Agreement duly executed and delivered on behalf of such person and (B) an Acknowledgment and Consent in the form attached to the Collateral Agreement, executed and delivered by each issuer of Pledged Stock (as defined in the Collateral Agreement), if any, that is a Subsidiary of any Borrower (other than any Receivables Subsidiary) but is not a Loan Party;

(b) (ii) on or before the Closing Date, (A) the Collateral Agent shall have received, to the extent not previously received under the Existing Credit Agreement, a pledge of all the issued and outstanding Equity Interests of each Borrower and (B) the Collateral Agent shall have received, to the extent not previously received under the Existing Credit Agreement, all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;

(c) (iii) on or before the Closing Date, (A) all Indebtedness of each Borrower and each Subsidiary constituting Pledged Debt Securities (as defined in the Collateral Agreement) (other than (i) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Holdcos and their Subsidiaries or (ii) to the extent that a pledge of such promissory note or instrument would violate applicable law) that is owing to any Loan Party shall have been pledged pursuant to the Collateral Agreement (or other applicable Security Document as reasonably required by the Collateral Agent), and (B) the Collateral Agent shall, if any such Indebtedness is evidenced by a promissory note or an instrument, have received, to the extent not previously received under the Existing Credit Agreement, all such promissory notes or instruments, together with note powers or other instruments of transfer with respect thereto endorsed in blank; provided, however, that on and after the Amendment No. 1 Effective Date, the Industrial Revenue Bond shall no longer be required to be pledged pursuant to the Collateral Agreement and the Collateral Agent shall promptly return such Industrial Revenue Bond, together with any note powers or instruments of transfer with respect thereto endorsed in blank, to the Borrowers, and the Lenders hereby authorize such return and release of the Collateral Agent’s security interest therein;

 

- 13 -

(d) (iv) in the case of any person that becomes a Subsidiary Loan Party after the Closing Date, the Collateral Agent shall have received a supplement to the Collateral Agreement, in the form specified therein, duly executed and delivered on behalf of such Subsidiary Loan Party, provided, that, (i) Administrative Agent shall not accept delivery of any joinder to any Loan Document with respect to any Subsidiary of any Loan Party that is not a Loan Party, if such Subsidiary qualifies as a “legal entity customer” under the Beneficial Ownership Regulation unless such Subsidiary has delivered a Beneficial Ownership Certification in relation to such Subsidiary and Administrative Agent and each Lender, has completed its Patriot Act searches, OFAC/PEP searches and customary individual background checks for such Subsidiary, the results of which shall be satisfactory to Administrative Agent and each Lender; and (ii) no Default or Event of Default shall arise in respect of this clause (d) if such Subsidiary Loan Party has executed the applicable supplement and, if requested by the Administrative Agent or any Lender, as the case may be, delivered a Beneficial Ownership Certification and other information required for such searches and checks as contemplated hereby;

(e) (v) after the Closing Date, (A) all the outstanding Equity Interests of (i) any person that becomes a Subsidiary Loan Party after the Closing Date (and which are owned by a Borrower) and (ii) subject to Section 6.10(g), any other Person that is acquired by a Borrower after the Closing Date (other than to the extent that a pledge of such Equity Interest would violate applicable law or regulation) shall have been pledged pursuant to the Collateral Agreement; provided that (x) in no event shall more than 65% of the issued and outstanding voting Equity Interests of any FSHCO or “first tier” Foreign Subsidiary that is a CFC (other than a “first tier” Foreign Subsidiary of a FSHCO) be pledged to secure ABL Credit Obligations, (y) in no event shall any of the issued and outstanding Equity Interests of any direct or indirect Subsidiary of a FSHCO or a Foreign Subsidiary that is a CFC be pledged to secure ABL Credit Obligations and (z) in no event shall the Equity Interests of any Receivables Subsidiary be pledged, and (B) the Collateral Agent shall have received all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;

(f) (vi) except as otherwise contemplated by any Security Document and subject to Section 5.02(d), all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Documents (in each case, including any supplements thereto) and perfect such Liens to the extent required by, and with the priority required by, the Security Documents, shall have been filed, registered or recorded or delivered to the Collateral Agent for filing, registration or the recording concurrently with, or promptly following, the execution and delivery of each such Security Document, and all taxes, fees, charges and costs in connection with the filing and recording of such Security Documents shall be incurred by the Borrowers;

(g) (vii) (1) the Collateral Agent shall have received (A) counterparts of each Mortgage to be entered into with respect to each Mortgaged Property set forth on Schedule 1.01(b) duly executed and delivered by the record owner of such Mortgaged Property and suitable for recording or filing and, if such Mortgaged Property is an improved Real Property, no later than 15 days prior to the execution and delivery of such Mortgage (or such later date as the Collateral Agent shall determine in its sole discretion), address and other identifying information with respect to such Mortgaged Property reasonably satisfactory to the Collateral Agent and (i) if any improvements on such Mortgaged Property are located within any area designated by the Director of the Federal Emergency Management Agency as a “special flood hazard” area (as may be established by a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such Mortgaged Property), no later than 5

 

- 14 -

days prior to the execution and delivery of such Mortgage (or such later date as the Collateral Agent shall determine in its sole discretion), evidence of a flood insurance policy (if such insurance is required by Law and commercially reasonably available) from a company and in an amount satisfactory to the Collateral Agent for the applicable portion of the premises, naming the Collateral Agent, for the benefit of the Lenders, as mortgagee, or (ii) a certification from a registered engineer or land surveyor in a form reasonably satisfactory to the Collateral Agent or other evidence reasonably satisfactory to the Collateral Agent that none of the improvements on such Mortgaged Property is located within any area designated by the Director of the Federal Emergency Management Agency as a “special flood hazard” area and (B) such other documents that the Collateral Agent may reasonably request, in form and substance reasonably satisfactory to the Collateral Agent, including, but not limited to, any consents, agreements, opinions and confirmations of third parties, surveys, insurance policies, and appraisals (but without duplication of the documents described in clause (viii) below), as the Collateral Agent may reasonably request with respect to any such Mortgage or Mortgaged Property and (2) for the avoidance of doubt, no Real Property shall be taken as Collateral unless each Lender confirms to the Administrative Agent and the Collateral Agent that it has completed all flood due diligence, received copies of all flood insurance documentation and confirmed flood insurance compliance as required by the Flood Laws or as otherwise satisfactory to such Lender; provided, however, that the provisions of this paragraph (vii) shall not apply with respect to Real Property if the Collateral Agent shall reasonably determine that the costs of obtaining or perfecting such a security interest or adhering to the provisions of this paragraph (vii) are excessive in relation to the value of the security to be afforded thereby;

(h) (viii) the Collateral Agent shall have received an American Land Title Association Lender’s Extend Coverage policy or policies or marked-up unconditional binder of title insurance, as applicable, paid for by the applicable Borrower, each policy in an amount not less than 100% or lesser percentage of the fair market value of the applicable Mortgaged Property as reasonably determined by the Collateral Agent, issued by a nationally recognized title insurance company approved by the Collateral Agent, insuring the Lien of each Mortgage in respect of the Mortgaged Property set forth on Schedule 1.01(b) as a valid Lien on the Mortgaged Property described therein, free of any Liens and other title defects except Permitted Liens, together with such customary endorsements (including zoning endorsements where reasonably appropriate and available), coinsurance and reinsurance as the Collateral Agent may reasonably request, including with respect to any such property located in a state in which a zoning endorsement is not available, a zoning compliance letter from the applicable municipality in a form reasonably acceptable to the Collateral Agent;

(i) (ix) upon or prior to the delivery of the Mortgages, the Collateral Agent shall have received evidence of the insurance required by the terms of the Mortgages;

(j) (x) except as otherwise contemplated by any Security Document, each Loan Party shall have obtained all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder; and

(k) (xi) except as otherwise approved in writing by the Administrative Agent, (i) each Subsidiary of any Borrower (other than any Receivables Subsidiary) that incurs Guarantees to support any Indebtedness for borrowed money in an amount in excess of $15,000,000 of any Loan Party or any Affiliate of any Loan Party shall, within 30 days (or such longer time as the Administrative Agent may agree) after incurring such Guarantees, guaranty the ABL Finance Obligations and (ii) each such Person that grants Liens to support any Indebtedness for borrowed money in an amount in excess of $15,000,000 of any Loan Party or any Affiliate of any Loan Party (including to secure Guarantees of such Person that support such Indebtedness) to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in, subject to the limitations set forth herein and in the Security Documents, all of such Person’s property to secure the ABL Finance Obligations within 30 days (or such longer time as the Administrative Agent may agree) after granting such Liens; and

 

- 15 -

(l) (xii) after the Closing Date, the Collateral Agent shall have received (A) such other Security Documents as may be required to be delivered pursuant to Section 6.10, and (B(B) (i) Administrative Agent shall not accept delivery of any joinder to any Loan Document with respect to any Subsidiary of any Loan Party that is not a Loan Party, if such Subsidiary qualifies as a “legal entity customer” under the Beneficial Ownership Regulation unless such Subsidiary has delivered a Beneficial Ownership Certification in relation to such Subsidiary and Administrative Agent and each Lender has completed its Patriot Act searches, OFAC/PEP searches and customary individual background checks for such Subsidiary, the results of which shall be satisfactory to Administrative Agent and each Lender ; and (ii) no Default or Event of Default shall arise in respect of this clause (l) if the applicable Loan Party has executed the applicable Security Document and, if requested by the Administrative Agent or any Lender, as the case may be, delivered a Beneficial Ownership Certification and other information required for such searches and checks as contemplated hereby; and (C) upon reasonable request by the Collateral Agent, evidence of compliance with any other requirements of Section 6.10.

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to the term “Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Security Documents. The Administrative Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Effective Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Effective Date) where it reasonably determines that either (i) such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents or (ii) such extension of time is otherwise reasonable, necessary or appropriate, and each Lender hereby consents to any such extensions of time. Without limitation of the foregoing, in no event shall a Mortgage with respect to the Specified Mill Assets or Bowling Green Property be required; provided, that if at any time on or after the Amendment No. 1 Effective Date Bowling Green shall grant a Lien on all or any portion of the Bowling Green Property permitted under Section 7.02(b)(ii) or 7.02(u), (x) Bowling Green shall grant an Additional Mortgage in respect of the Bowling Green Property and take all of the other actions described in Section 6.10(b) and (c) of the Credit Agreement with respect thereto (treating the Bowling Green Property as Real Property acquired by Bowling Green after the Closing Date) no later than the date that is 90 days after the granting of any Lien on all or any portion of the Bowling Green Property permitted under Section 7.02(b)(ii) or 7.02(u) and (y) the Administrative Agent shall, at the request of Bowling Green, enter into the Bowling Green Real Estate Intercreditor Arrangements with respect thereto.

“Commitments” means (a) with respect to any Lender, such Lender’s Revolving Facility Commitment (including any Incremental Revolving Facility Commitment)or its Term Loan Commitment, as the context requires, and, with respect to all Lenders, their Revolving Facility Commitments or their Term Loan Commitments, as the context requires, in each case as such Dollar amounts are set forth beside such Lender’s name under the applicable heading on Schedule 2.01 to this Agreement, in respect of Revolving Facility Commitments, and Schedule 2.15, in the case of Term Loan Commitments or in the Assignment and Assumption pursuant to which such Lender became a Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 10.06 of this Agreement, and in the case of Term Loan and (b) with respect to the Swing Line Lender, its Swing Line Commitment.

“Commitment Fee” has the meaning assigned to such term in Section 2.12(a).

 

- 16 -

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

“Consolidated Adjusted EBITDA” means, for any period, an amount determined for Ultimate Parent and its Subsidiaries, on a consolidated basis, equal to EBITDA plus, to the extent reducing EBITDA, or minus, to the extent increasing EBITDA the sum, without duplication, of amounts for:

(a) Unrealized non-cash gains or losses from the re-measurement of monetary assets and liabilities, and

(b) Income taxes on items excluded from Consolidated Net Income pursuant to clauses (a), (e), (f), and (g) of the definition of “Consolidated Net Income.”

“ Consolidated Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of:

(a) (1) consolidated interest expense of such Person and its Subsidiaries for such period, to the extent such expense was deducted in computing Consolidated Net Income (including amortization of original issue discount, noncash interest payments, the interest component of Capital Lease Obligations, and net payments and receipts (if any) pursuant to interest rate Swap Obligations (but excluding unrealized mark-to-market gains and losses attributable to such Swap Obligations, amortization of deferred financing fees and expensing of any bridge or other financing fees), and excluding interest expense attributable to the Factoring Facilities or any Qualified Receivables Financing or other factoring arrangements (to the extent accounted for as interest expense under Applicable Accounting Rules), amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and expensing of any bridge commitment or other financing fees); plus

(b) (2) consolidated capitalized interest of such Person and its Subsidiaries for such period, whether paid or accrued; plus

(c) (3) preferred stock dividends paid in cash in respect of Disqualified Stock of the Ultimate Parent held by persons other than the Ultimate Parent or a Subsidiary; plus

(d) (4) Commissions based on draws, discounts and yield (but excluding other fees and charges, including commitment fees) incurred in connection with any Receivables Financing which are payable to Persons other than the Ultimate Parent and its Subsidiaries; minus

(e) (5) interest income for such period.

For purposes of this definition, interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Ultimate Parent to be the rate of interest implicit in such Capital Lease Obligation in accordance with Applicable Accounting Rules.

“Consolidated Net Income “ means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis; provided, however, that:

(a) (1) any net after-tax extraordinary, nonrecurring or unusual gains or losses or income, expenses or charges, in each case, other than those which could be categorized under clause (4) of the definition of “EBITDA” (less all fees and expenses relating thereto), including, without limitation,

 

- 17 -

any expenses related to any reconstruction of fixed assets and any fees, expenses or charges related to any equity offering, Investment permitted hereunder, acquisition, disposition, receivables financing, recapitalization or issuance, repayment, incurrence, refinancing, amendment or modification of Indebtedness permitted to be incurred by this Agreement (in each case, whether or not successful), in each case, shall be excluded;

(b) (2) any increase in amortization or depreciation or any non-cash charges, in each case resulting from purchase accounting in connection with any acquisition that is consummated after the Closing Date shall be excluded;

(c) (3) the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period;

(d) (4) any net after-tax income or loss from disposed, abandoned, transferred, closed or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed or discontinued operations shall be excluded;

(e) (5) any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to business dispositions or asset dispositions other than in the ordinary course of business (as determined in good faith by the Borrowers) shall be excluded;

(f) (6) any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to the early extinguishment of Indebtedness or Swap Obligations or other derivative instruments shall be excluded;

(g) (7) the Net Income for such period of any Person that is not a Subsidiary of such Person, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be included only to the extent of the amount of dividends or distributions or other payments paid in cash (or to the extent converted into cash) to the referent Person or a Subsidiary thereof in respect of such period;

(h) (8) [Reserved];

(i) (9) any non-cash impairment charges or asset write-offs resulting from the application of Applicable Accounting Rules and the amortization of intangibles arising pursuant to Applicable Accounting Rules shall be excluded;

(j) (10) any non-cash expense realized or resulting from stock option plans, employee benefit plans or post-employment benefit plans, grants and sales of stock, stock appreciation or similar rights, stock options or other rights of such Person or any of its Subsidiaries shall be excluded;

(k) (11) any (a) severance or relocation costs or expenses, (b) one-time non-cash compensation charges, (c) the costs and expenses related to employment of terminated employees, (d) [Reserved] or (e) costs or expenses realized in connection with or resulting from stock appreciation or similar rights, stock options or other rights existing on the Closing Date of officers, directors and employees, in each case of such Person or any of its Subsidiaries, shall be excluded;

(l) (12) accruals and reserves that are established or adjusted in accordance with Applicable Accounting Rules or changes as a result of the adoption or modification of accounting policies shall be excluded;

 

- 18 -

(m) (13) (a)(i) the non-cash portion of “straight line” rent expense shall be excluded and (ii) the cash portion of “straight line” rent expense which exceeds the amount expensed in respect of such rent expense shall be included and (b) non-cash gains, losses, income and expenses resulting from fair value accounting shall be excluded;

(n) (14) unrealized gains and losses relating to hedging transactions and mark-to-market of Indebtedness denominated in foreign currencies shall be excluded;

(o) (15) solely for the purpose of calculating Restricted Payments, the difference, if positive, of the Consolidated Taxes of the Ultimate Parent calculated in accordance with Applicable Accounting Rules and the actual Consolidated Taxes paid in cash by the Ultimate Parent during any reference period shall be included;

(p) (16) non-cash charges for deferred tax asset valuation allowances shall be excluded;

(q) (17) an adjustment (which may be a negative number) shall be made to the extent that Net Income was calculated on an average cost basis with respect to inventory, in order to reflect the additional Net Income (or the reduction to Net Income) which would have been recognized using an approximation of last in first out inventory accounting; and

(r) (18) any loss on sale of receivables and related assets in a Factoring Facility or other Qualified Receivables Financing shall be excluded.

“Consolidated Non-cash Charges” means, with respect to any Person for any period, the aggregate depreciation, amortization, accretion and other non-cash expenses of such Person and its Subsidiaries reducing Consolidated Net Income of such Person for such period on a consolidated basis and otherwise determined in accordance with Applicable Accounting Rules, but excluding any such charge which consists of or requires an accrual of, or cash reserve for, anticipated cash charges for any future period.

“Consolidated Taxes” means provision for taxes based on income, profits or capital, including, without limitation, state, franchise and similar taxes.

“Consolidated Total Assets” means, as of any date, the total assets of the Borrowers and their consolidated Subsidiaries, determined in accordance with the Applicable Accounting Rules, as set forth on the consolidated balance sheet of the Borrowers as of such date.

“Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of Ultimate Parent and its consolidated Subsidiaries (or, if higher, the par value or stated face amount of all such Indebtedness (other than zero coupon Indebtedness) determined on a consolidated basis in accordance with GAAP, reduced by the aggregate stated balance sheet amount of all unrestricted Cash and Cash Equivalents on such balance sheet of the Ultimate Parent and its consolidated Subsidiaries up to € 300,000,000.

“Constellium Entities” means, collectively, Ultimate Parent and its Subsidiaries other than the Holdcos and the Borrowers.

“Constellium Holding Company” means, any of Ravenswood Holdings, Muscle Shoals Holdings and CPEC or, in each case, any permitted successor thereto.

 

- 19 -

“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 ownership of voting securities, by contract or otherwise, and “Controlling” and “Controlled” have meanings correlative thereto.

“Controlled Account” means each Deposit Account that is subject to a Deposit Account Control Agreement in form and substance satisfactory to the Administrative Agent and, in the event that such Deposit Account holds Cash Collateral, the L/C Issuers.

“Co-Syndication Agents” means with respect to the Revolving Facility, each of JPMorgan Chase Bank, N.A., Bank of America, N.A., and Deutsche Bank Securities Inc., in its capacity as a co-syndication agent.

“COVID-19 Relief Laws” mean CARES Act- Title I and all other similar Laws of the United States or other applicable jurisdictions from time to time in effect together with all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, regardless of the date enacted, adopted, issued or implemented to address the economic effects of the Coronavirus.

“CPEC” has the meaning assigned to such term in the preamble hereto.

“Credit Event” has the meaning assigned to such term in Article V.

“Credit Facility” means collectively, the Revolving Facility and Term Loan Facility.

“Crown” means Crown Holdings, Inc., a Pennsylvania corporation, and its successors and assigns.

“Debtor Relief Laws “ means the U.S. Bankruptcy 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.

“Default” means any event or condition that upon notice, lapse of time or both would constitute an Event of Default.

“Default Rate” has the meaning assigned to such term in Section 2.13(c).

“Defaulting Lender” means any Lender that (i) has failed (A) to fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender has notified the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (B) to pay to the Administrative Agent, an L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans or Agent Advances) within two Business Days of the date when due, (ii) has notified the applicable Borrower, the Administrative Agent, an L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied),

 

- 20 -

(iii) has generally defaulted on its funding obligations under other loan agreements or credit agreements or other similar financing agreements, (iv) has failed, within three Business Days after written request by the Administrative Agent or the applicable Borrower, to confirm in writing to the Administrative Agent and such Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (iv) upon receipt of such written confirmation by the Administrative Agent and such Borrower), or (v) has, or has a direct or indirect parent company that has, (A) become insolvent, or become generally unable to pay its debts as they become due, or admitted in writing its inability to pay its debts as they become due, or made a general assignment for the benefit of its creditors, (B) become the subject of a proceeding under any Debtor Relief Law, (C) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (D) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (i) through (v) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrowers and, to the extent permitted by law, each L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.

“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.

“Deposit Account” means a “deposit account” (as defined in the Uniform Commercial Code) and also means and includes all demand, time, savings, passbook or similar accounts maintained by a Loan Party with a bank or other financial institution, whether or not evidenced by an instrument, all cash and other funds held therein and all passbooks related thereto and all certificates and instruments, if any, from time to time representing, evidencing or deposited into such deposit accounts.

“Deposit Account Control Agreement “ means a deposit account control agreement among the Collateral Agent, any Borrower or other Loan Party maintaining a Deposit Account at any bank or financial institution (an “Account Bank”) and such Account Bank, which agreement shall be on terms reasonably satisfactory to the Administrative Agent, as the same may be amended, supplemented or otherwise modified from time to time.

“Designated Non-Cash Consideration” means the fair market value (as determined in good faith by the applicable Borrower) of non-cash consideration received by such Borrower or one of its Subsidiaries in connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer, setting forth the basis of such valuation, less the amount of cash or cash equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.

 

- 21 -

“Disqualified Stock” means, with respect to any person, any Equity Interests of such person that, by their terms (or by the terms of any security or other Equity Interests into which such Equity Interests are convertible or for which they are redeemable or exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other ABL Credit Obligations that are accrued and payable and the termination of the Commitments), (ii) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (iii) provide for the scheduled payments of dividends in cash, or (iv) are or become convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Stock, in each case, prior to the date that is ninety-one (91) days after the earlier of (x) the Facility Maturity Date and (y) the date on which the Loans and all other ABL Credit Obligations that are accrued and payable are repaid in full and the Commitments are terminated; provided, however, that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or are so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided, further, however, that if such Equity Interests are issued to any employee or to any plan for the benefit of employees of the Borrowers or their respective Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely because they may be required to be repurchased by the applicable Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided, further, however, that any class of Equity Interests of such person that by its terms authorizes such person to satisfy its obligations by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock.

“Divided LLC” means any Delaware LLC which has been formed as a consequence of a Division (excluding any dividing Delaware LLC that survives a Division).

“Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.

“Dollars” or “$“means the lawful currency of the United States of America.

“Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary or a subsidiary listed on Schedule 1.01(a).

“EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person and its Subsidiaries for such period plus, without duplication, to the extent the same was deducted in calculating Consolidated Net Income:

(a) (1) Consolidated Taxes; plus

(b) (2) Consolidated Interest Expense; plus

(c) (3) Consolidated Non-cash Charges; plus

(d) (4) business optimization expenses and other restructuring charges or expenses (which, for the avoidance of doubt, shall include, without limitation, the effect of inventory optimization programs, plant closures, facility consolidations, retention, severance, systems establishment costs, contract termination costs, future lease commitments and excess pension charges); provided that the aggregate amount of business optimization expenses and other restructuring charges or expenses added pursuant to this clause (4) shall not exceed the greater of (i) €20.0 million and (ii) 10% of EBITDA for such period;

 

- 22 -

lessminus, without duplication,

(e) (5) non-cash items increasing Consolidated Net Income for such period (excluding the recognition of deferred revenue or any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period and any items for which cash was received in a prior period).

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

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority “ means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Effective Date” means the date this Agreement becomes effective in accordance with Section 10.11.

“Eligible Accounts” means all Accounts of each Borrower reflected in the most recent Borrowing Base Certificate (but, with respect to each such Account, solely to the extent of the unpaid portion of the obligations stated on the respective Account invoices issued to a customer of such Borrower with respect to inventory sold and shipped or services performed in the ordinary course of business, in each case net of any credits, rebates or offsets owed by such Borrower to the respective customer, and any unapplied cash), except any Account with respect to which any of the exclusionary criteria set forth below applies:

(a) (a) Accounts of Account Debtors set forth on Schedule 1.01(h);

(b) (b) with respect to which any of the representations, warranties, covenants, and agreements contained in Section 4.05 of the Collateral Agreement are not or have ceased to be correct or have been breached;

(c) (c) with respect to which Account (or any other Account due from such Account Debtor), in whole or in part, a check, promissory note, draft, trade acceptance, or other instrument for the payment of money has been received, presented for payment, and returned uncollected for any reason;

(d) (d) (i) as to which such Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial process or (ii) which represents a progress billing; provided that for the purposes hereof, “progress billing” means any invoice for goods sold or leased or services rendered under a contract or agreement pursuant to which the Account Debtor’s obligation to pay such invoice is conditioned upon completion of any further performance under the contract or agreement or is subject to the equitable lien of a surety bond issuer;

 

- 23 -

(e) (e) with respect to which any one or more of the following events has occurred to the Account Debtor on such Account: (i) death or judicial declaration of incompetency of an Account Debtor who is an individual; (ii) the filing by or against the Account Debtor of a request or petition for liquidation, reorganization, arrangement, adjustment of debts, adjudication as a bankrupt, winding-up, or other relief under any Debtor Relief Law; (iii) the making of any general assignment by the Account Debtor for the benefit of creditors; (iv) the appointment of a receiver or trustee for the Account Debtor or for any of the assets of the Account Debtor, including, without limitation, the appointment of or taking possession by a “custodian”, as defined in the U.S. Bankruptcy Code; (v) the institution by or against the Account Debtor of any other type of insolvency proceeding (under the U.S. Bankruptcy Code, another Debtor Relief Law or otherwise) or of any formal or informal proceeding for the dissolution or liquidation of, settlement of claims against, or winding up of affairs of, the Account Debtor; (vi) the sale, assignment, or transfer of all or substantially all of the assets of the Account Debtor; (vii) the nonpayment generally by the Account Debtor of its debts as they become due; or (viii) the cessation of the business of the Account Debtor as a going concern;

(f) (f) if fifty percent (50.0%) or more of the aggregate Dollar amount of outstanding Accounts owed at such time by the Account Debtor thereon is classified as ineligible under clause (a) preceding;

(g) (g) owed by an Account Debtor which: (i) does not maintain its chief executive office in the United States or Canada; (ii) is not organized under the laws of the United States or Canada or any political subdivision, state, or province thereof; or (iii) is the government of any foreign country or sovereign state, or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof; except to the extent that (x) such Account is insured by the Export-Import Bank of the United States or other credit insurer acceptable to the Administrative Agent or secured or payable by a letter of credit satisfactory to the Administrative Agent as to form, amount and issuer in its reasonable discretion or (y) such Account is an Eligible Foreign Account; provided that to the extent the aggregate amount of such Eligible Foreign Accounts exceeds $30,000,000 at any time, such excess shall be excluded;

(h) (h) Intercompany Accounts or other Accounts owed by an Account Debtor which is an Affiliate or employee of any Borrower or Subsidiary;

(i) (i) except as agreed by the Administrative Agent as provided in clause (g) preceding or clause (l) following regarding political subdivisions of the United States of America but not the U.S. federal government, with respect to which either the perfection, enforceability, or validity of the Collateral Agent’s Lien in such Account, or the Collateral Agent’s right or ability to obtain direct payment to the Collateral Agent of the proceeds of such Account, is governed by any federal, state, or local statutory requirements other than those of the UCC;

(j) (j) owed by an Account Debtor to which a Loan Party or any of their respective Subsidiaries is indebted in any way, or which is subject to any right of set-off or recoupment by the Account Debtor, unless the Account Debtor has entered into an agreement that the Collateral Agent has accepted in writing in its reasonable discretion to waive set-off rights; or if the Account Debtor thereon has disputed liability or made any claim with respect to any other Account due from such Account Debtor; but in each such case only to the extent of such indebtedness, set-off, recoupment, dispute, or claim;

(k) (k) with respect to which such Borrower at the time of determination deems such Account as uncollectible;

(l) (l) owed by the United States of America, any state or county thereof or any municipality or other political subdivision, department, agency, public corporation or other instrumentality of any of the foregoing (unless such Borrower complies with any applicable assignment of claims act restricting the assignment thereof with respect to such obligation if the Collateral Agent reasonably determines that its Lien therein is not or cannot be otherwise perfected);

 

- 24 -

(m) (m) which represents a sale on a bill-and-hold, guaranteed sale, sale and return, sale on approval, consignment, or other repurchase or return basis or other terms by reason of which the payment by the Account Debtor is conditional;

(n) (n) which is evidenced by a promissory note or other instrument, by judgment or by chattel paper;

(o) (o) (i) at any time that the senior, unsecured, non-credit enhanced long term Indebtedness of Anheuser-Busch InBev SA/NV receives a rating less than BBB- from S&P, less than BBB- from Fitch or less than Baa3 from Moody’s, with respect to the AB Receivables, such Accounts exceed a percentage of the aggregate Eligible Accounts determined by the Administrative Agent in its Permitted Discretion and (ii) when aggregated with all other Accounts (other than AB Receivables) owing by an Account Debtor, such Accounts exceed 25% of the aggregate Eligible Accounts;

(p) (p) in the Administrative Agent’s Permitted Discretion upon thirty (30) days’ prior notice to the Borrowers, with respect to which the Account Debtor is located in any state requiring the filing of a “Notice of Business Activities Report” or similar report in order to permit the applicable Borrower to seek judicial enforcement in such state of payment of such Account, unless such Borrower has qualified to do business in such state or has filed a “Notice of Business Activities Report” or equivalent report for the then current year;

(q) (q) which arises out of a sale of goods or performance of services not made in the ordinary course of such Borrower’s business, including sales of equipment and bulk sales;

(r) (r) with respect to which the goods giving rise to such Account have not been shipped and delivered to, or have been rejected or objected to, by the Account Debtor or the services giving rise to such Account have not been performed by such Borrower, and, if applicable, accepted by the Account Debtor, or the Account Debtor revokes its acceptance of such goods or services, but, in each case, only to the extent of the portion of such Account applicable to goods or services in question;

(s) (s) which arises out of an enforceable contract or order which, by its terms, validly forbids, restricts, or makes void or unenforceable the granting of a Lien by such Borrower to the Collateral Agent with respect to such Account;

(t) (t) which is not subject to a first priority and perfected security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, or which is subject to any other Lien other than (i) Liens securing Indebtedness that is permitted to be incurred and secured pursuant to the terms of this Agreement and that are subject to the applicable Intercreditor Agreements (or any additional intercreditor agreements, reasonably satisfactory to the Administrative Agent), providing that such Liens are subordinated in right of priority to the Liens securing the ABL Finance Obligations and (ii) Permitted Liens arising by operation of law as described in clauses (d), (e) and (k) of the definition thereof;

(u) (u) which is an Account owed to a Borrower acquired in a Permitted Business Acquisition under this Agreement, unless either (i) the Administrative Agent has been given the opportunity for a reasonable period (which shall not be required to be longer than thirty (30) days and which shall, at the request of such Borrower, be completed prior to the consummation of such Permitted Business Acquisition; provided that the Administrative Agent shall have been given, for a period of at least thirty (30) days prior to such consummation, all information and access to the properties, records,

 

- 25 -

files and books of account of such Borrower as the Administrative Agent reasonably deems necessary) to complete such due diligence as the Administrative Agent deems, in the exercise of Permitted Discretion, to be necessary in the circumstances, or (ii) at the time of such Permitted Business Acquisition, the sum of the Eligible Accounts and Eligible Inventory of such Borrower then being acquired is less than $5,000,000;

(v) (v) prior to the Incremental Facility Effective Date, any AB Receivables (other than AB Receivables for which an Eligible Foreign Account Debtor is the Account Debtor);

(w) (w) any Qualified Receivables subject to a Qualified Receivables Financing;

(x) (x) with respect to which an invoice has not been sent to the applicable Account Debtor;

(y) (y) that arise with respect to goods that are sold on a cash-on-delivery basis;

(z) (z) that are payable in any currency other than Dollars; and

(aa) (aa) that are not true and correct statements of bona fide indebtedness incurred in the amount of such Account for merchandise sold to or services rendered and accepted by the applicable Account Debtor.

If any Account at any time ceases to be an Eligible Account, then such Account shall promptly be excluded from the calculation of the Borrowing Base; provided, however, that if any Account ceases to be an Eligible Account because of the adjustment of or imposition of new exclusionary criteria pursuant to the succeeding paragraph, the Administrative Agent will not require exclusion of such Account from the Borrowing Base until fifteen (15) days following the date on which the Administrative Agent gives notice to the Borrowers of such ineligibility, except for calculations of the Borrowing Base for purposes of Section 5.01(c)(ii)(B), in which case such exclusion shall be immediate.

The Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to adjust any of the exclusionary criteria set forth above and to establish new criteria, in its Permitted Discretion (based on an analysis of material facts or events first occurring, or first discovered by the Administrative Agent, after the Closing Date), subject to the approval of Supermajority Revolving Facility Lenders in the case of adjustments or new criteria which have the effect of making more credit available than would have been available based upon the criteria in effect on the Closing Date.

“Eligible Equipment” shall mean the Equipment identified in, and subject to, the appraisal dated as of April 18, 2020 by Great American Appraisal and Valuation Services, L.L.C., received by Administrative Agent prior to the Amendment No. 2 Effective Date and any other Equipment acquired after the Amendment No. 2 Effective Date and identified in, and subject to, any appraisal received by to Administrative Agent thereafter pursuant to, and in accordance with Section 6.11, which satisfies the criteria below as determined by Administrative Agent. In general, Equipment shall be Eligible Equipment if:

(a) such Equipment is located in-place at a location in the United States of America and is included in an appraisal of Equipment received by Administrative Agent in accordance with the requirements of Section 6.11;

(b) such Equipment is in working order, repair, running and marketable condition (ordinary wear and tear excepted);

 

- 26 -

(c) such Equipment is subject to the first priority, valid and perfected security interest of Administrative Agent for the benefit of the Secured Parties and is not subject to a Lien (including any lease but excluding the Equipment located at the Bowling Green Property to the extent the lessor thereof has granted to the Administrative Agent a security interest in such Equipment) in favor of any other Person unless such Lien (i) is the subject of an Intercreditor Agreement, in form and substance reasonably satisfactory to Administrative Agent, including pursuant to which such Lien is subordinated to the Lien in favor of Administrative Agent, (ii) such Lien is a subordinate Lien arising by operation of Law, or (ii) the NOLV of such Equipment used for purposes of this Agreement is reduced by the amount of the Indebtedness and other obligations secured by such other Lien;

(e) such Equipment is not worn-out, obsolete, damaged or defective Equipment and such Equipment is used or usable in the ordinary course of Borrowers’ business as presently conducted; and

(f) such Equipment is not computer hardware.

“Eligible Foreign Account” means an Account of any Borrower with respect to which an Eligible Foreign Account Debtor is the Account Debtor and that would constitute an Eligible Account but for clause (g) of the definition of “Eligible Accounts”, so long as such Account satisfies each of the following criteria: (i) such Account is at all times billed and payable in Dollars, (ii) all payments in respect of such Account are made by such Eligible Foreign Account Debtor to the applicable Borrower in the United States or to an account located in the United States that is subject to a Deposit Account Control Agreement (subject to the post-closing timing requirement specified in Section 6.10(h) of this Agreement) and (iii) such Account is subject to a first priority valid and perfected security interest of the Administrative Agent in the United States; provided that such Borrower shall, promptly upon request of the Administrative Agent, execute and deliver, or cause to be executed and delivered to the Administrative Agent such agreements, documents and instruments as may be required by the Administrative Agent to perfect the security interest of the Administrative Agent in such Account in accordance with the applicable laws of the jurisdiction of formation of such Eligible Foreign Account Debtor and take, or cause to be taken, such other and further actions as the Administrative Agent may request to enable the Administrative Agent, as secured party with respect thereto, to collect such Account under the applicable laws of such jurisdiction of formation.

“Eligible Foreign Account Debtors” means Persons designated by the Administrative Agent as “Eligible Foreign Account Debtors” from time to time in its Permitted Discretion, which Persons shall initially be (i) the foreign Affiliates of Coca-Cola, (ii) the foreign Affiliates of Rexam and Ball Corporation, (iii) the foreign Affiliates of Crown (including NAFCEL), (iv) ThyssenKrupp AG and its foreign Affiliates, (v) Anheuser-Busch and its foreign Affiliates that are not subject to an AB Receivables Financing and (vi) Airbus and its foreign Affiliates for so long as the senior, unsecured, non-credit enhanced long term Indebtedness of Airbus receives a rating greater than or equal to BBB- from S&P, greater than or equal to BBB- from Fitch and greater than or equal to Baa3 from Moody’s. For purposes of clarity, the Administrative Agent may from time to time in its Permitted Discretion remove such designation with respect to any Person that was previously designated as an “Eligible Foreign Account Debtor,” after which time such Person shall no longer constitute an “Eligible Foreign Account Debtor” (unless the Administrative Agent subsequently redesignates such Person as an “Eligible Foreign Account Debtor” in its Permitted Discretion).

“Eligible Inventory” means all Inventory of each Borrower reflected in the most recent Borrowing Base Certificate, except any Inventory with respect to which any of the exclusionary criteria set forth below applies:

(a) (a) Inventory that is not owned by any Borrower;

 

- 27 -

(b) (b) Inventory that is not subject to the Collateral Agent’s Liens, or is subject to any other Lien, other than (i) Liens securing Indebtedness that is permitted to be incurred and secured pursuant to the terms of this Agreement and that are subject to the applicable Intercreditor Agreements (or an additional intercreditor agreement, reasonably satisfactory to the Administrative Agent) providing that such Liens are subordinated in right of priority to the Liens securing the ABL Finance Obligations and (ii) Permitted Liens arising by operation of law as described in clauses (d), (e), (k) and (r) of the definition thereof; provided that, unless such Permitted Liens (A) are junior in priority to the Collateral Agent’s Liens (other than statutory landlord’s Liens to the extent provided otherwise by a requirement of applicable Law) and (B) do not impair directly or indirectly the ability of the Collateral Agent to realize on or obtain the full benefit of the Collateral, the Administrative Agent may, in the exercise of Permitted Discretion, establish a Reserve against Availability with respect to any Inventory subject to such Permitted Liens in an amount not to exceed (on an aggregate basis for all Inventory from time to time subject to such Permitted Liens) (1) in the case of Inventory subject to Liens described in clause (e) of the definition of Permitted Liens, the greater of (x) an amount equal to the amount which would have to be paid to such Lien claimant in order to obtain a release of such Liens, and (y) with respect to landlords’ liens, an amount equal to sixty (60) days’ rent for the properties or facilities on or at which the applicable Inventory is located, (2) in the case of Inventory subject to Liens described in clause (d) or (r) of the definition of Permitted Liens, the amount of such Taxes, fees, assessments, duties or other charges, and (3) in the case of Inventory subject to Liens described in clause (k) of the definition of Permitted Liens, the amount specified in such judgments or notices;

(c) (c) Inventory that does not consist of finished goods or raw materials (except that “work-in-process” shall constitute Eligible Inventory, other than any cost relating to a conversion of “work-in-process” to finished Inventory);

(d) (d) Inventory that consists of chemicals, supplies, spare parts, packing and shipping materials, or advertising or marketing materials (including samples), other than coatings and lubricants which shall constitute Eligible Inventory;

(e) (e) Inventory that is not in good condition, is unmerchantable or fails to meet all material standards imposed by any Governmental Authority having regulatory authority over such goods, its use, or sale;

(f) (f) Inventory that is not currently either usable or salable in the normal course of any Borrower’s business;

(g) (g) Inventory that is not located within the United States, other than (x) Eligible In-Transit Inventory not exceeding $25,000,000, and (y) Inventory in which the Collateral Agent’s Liens are continuously perfected pursuant to documentation reasonably acceptable to the Collateral Agent;

(h) (h) if such Inventory is located in a public warehouse or in possession of a bailee or in a facility leased by such Borrower; provided that such Inventory will be Eligible Inventory if the warehouseman, the bailee, or the lessor has delivered to the Collateral Agent, if requested by the Collateral Agent, a subordination agreement in form and substance reasonably satisfactory to the Collateral Agent (or if such Borrower is unable to obtain any such subordination or such Borrower has notified the Administrative Agent of such warehouse, bailment or lease and such subordination has not been requested, such Inventory shall be Eligible Inventory but the Administrative Agent may, in the exercise of Permitted Discretion, establish a Reserve with respect to any Inventory so located or possessed in an amount not to exceed (on an aggregate basis for all Inventory from time to time so located or possessed) (A) in the case of Inventory located in a public warehouse or leased facility, the greater of

 

- 28 -

(x) an amount equal to the amount which would have to be paid to such claimant in order to obtain a release of any Permitted Lien held by such claimant, or (y) an amount equal to sixty (60) days’ rent or storage fee for the warehouses or facilities on or at which the applicable Inventory is located and (B) in the case of Inventory otherwise in the possession of a bailee, the amount necessary to complete any work being performed on such Inventory and/or to obtain a surrender of the Inventory to the possession of such Borrower or the Collateral Agent);

(i) (i) if such Inventory contains or bears any Intellectual Property Rights licensed to such Borrower by any third party, the Collateral Agent shall not be reasonably satisfied that it may sell or otherwise dispose of such Inventory in accordance with Article VIII without infringing the rights of the licensor of such Intellectual Property Rights or violating any contract with such licensor (and without payment of any royalties other than any royalties due with respect to the sale or disposition of such Inventory pursuant to the existing license agreement), and, if the Collateral Agent deems it necessary, such Borrower shall deliver to the Collateral Agent a consent or sublicense agreement from such licensor in form and substance reasonably acceptable to the Collateral Agent;

(j) (j) Inventory that is owned by a Borrower acquired in a Permitted Business Acquisition under this Agreement, unless either (i) the Administrative Agent has been given the opportunity for a reasonable period (which shall not be required to be longer than thirty (30) days and which shall, at the request of such Borrower, be completed prior to the consummation of such Permitted Business Acquisition provided that the Administrative Agent shall have been given, for a period of at least thirty (30) days prior to such consummation, all information and access to the properties, records, files, and books of account of such Borrower as the Administrative Agent reasonably deems necessary for such completion) to complete such due diligence as it deems, in the exercise of Permitted Discretion, to be necessary in the circumstances, or (ii) at the time of such Permitted Business Acquisition, the sum of the Eligible Accounts and Eligible Inventory of such Borrower then being acquired is less than $5,000,000;

(k) (k) Inventory that is unsalable, but solely to the extent the book value of such Inventory exceeds its scrap value;

(l) (l) Inventory is located at any site if the aggregate book value of Inventory at any such location is less than $100,000;

(m) (m) Inventory subject to any licensing, trademark, trade name or copyright agreements with any third parties which would require any consent of any third party for the sale or disposition of that Inventory (which consent has not been obtained) or the payment of any monies to any third party upon such sale or other disposition (to the extent of such monies);

(n) (n) Inventory that consists of packing or shipping materials, or manufacturing supplies;

(o) (o) Inventory that consists of tooling or replacement parts;

(p) (p) Inventory that consists of display items;

(q) (q) Inventory that consists of goods which have been returned by the buyer; provided that, Inventory shall not be excluded from Eligible Inventory pursuant to this clause if such Inventory has been inspected and re-valued by the applicable Borrower upon return and is able to be resold or reused in the ordinary course of business;

 

- 29 -

(r) (r) Inventory that consists of Hazardous Materials or goods that can be transported or sold only with licenses that are not readily available; or

(s) (s) Inventory that is not covered by casualty insurance reasonably acceptable to the Administrative Agent.

If any Inventory at any time ceases to be Eligible Inventory, such Inventory shall promptly be excluded from the calculation of the Borrowing Base; provided that if any Inventory ceases to be Eligible Inventory because of the adjustment of or imposition of new exclusionary criteria pursuant to the succeeding paragraph, the Administrative Agent will not require exclusion of such Inventory from the Borrowing Base until fifteen (15) days following the date on which the Administrative Agent gives notice to the Borrowers of such ineligibility, except for calculations of the Borrowing Base for purposes of Section 5.01(c)(ii)(B), in which case such exclusion shall be immediate.

The Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to adjust any of the exclusionary criteria set forth above and to establish new criteria, in its Permitted Discretion (based on an analysis of material facts or events first occurring, or first discovered by the Administrative Agent, after the Closing Date), subject to the approval of the Supermajority Revolving Facility Lenders in the case of adjustments or new criteria which have the effect of making more credit available than would be available based upon the criteria in effect on the Closing Date.

“Eligible In-Transit Inventory” means all raw materials and finished goods Inventory owned by a Borrower, which Inventory is in transit to the United States or to an Eligible Foreign Account Debtor and (a) for which title and risk of loss has been transferred to or remains with such Borrower, (b) is fully insured as required by Section 6.02, (c) is subject to a first priority perfected security interest in and lien upon such goods in favor of the Collateral Agent (except for any possessory lien upon such goods in the possession of a freight carrier or shipping company securing only the freight charges for the transportation of such goods) pursuant to documentation reasonably acceptable to the Collateral Agent and (d) is evidenced or deliverable pursuant to documents that have been delivered to the Collateral Agent, as reasonably requested by the Collateral Agent from time to time.

“Embargoed Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by any Governmental Authority of the United States of America, including without limitation, OFAC or the U.S. Department of State, or by Her Majesty’s Treasury or the European Union, (b) any Person located, operating, organized or resident in a Sanctioned Country, (c) the government or an agency of the government of a Sanctioned Country or (d) any Person owned or Controlled by any Persons or agencies described in any of the preceding clauses (a) through (c).

“Engagement Letter” means that certain Engagement Letter dated as of May 15, 2017 by and among Wells Fargo Capital Finance, LLC and the Existing Borrowers.

“environmentEnvironment ” means ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources such as flora and fauna, the workplace or as otherwise defined in any Environmental Law.

“Environmental Laws” means all applicable laws (including common law), rules, regulations, codes, ordinances, orders, decrees or judgments, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the generation, management, Release or threatened Release of, or exposure to, any Hazardous Material or to occupational health and safety matters (to the extent relating to the environment or Hazardous Materials).

 

- 30 -

“Environmental Liabilities” means all Liabilities (including costs of natural resource damages and costs and expenses of investigation and feasibility studies, including the cost of environmental consultants and the cost of attorney’s fees) that may be imposed on, incurred by or asserted against any Loan Party or any Subsidiary of any Loan Party as a result of, or related to, any claim, suit, action, investigation, proceeding or demand by any Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law or otherwise, arising under any Environmental Law or in connection with any environmental, health or safety condition or with any Release and resulting from the ownership, lease, sublease or other operation or occupation of property by any Loan Party or any Subsidiary of any Loan Party, whether on, prior or after the date hereof.

“Equipment” means equipment (as that term is defined in the UCC).

“ Equity Interests” of any person means any and all shares, interests, rights to purchase or otherwise acquire, warrants, options, participations or other equivalents of or interests in (however designated) equity or ownership of such person, including any preferred stock, any limited or general partnership interest and any limited liability company membership interest, and any securities or other rights or interests convertible into or exchangeable for any of the foregoing.

“ERISA” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time and any final regulations promulgated and the rulings issued thereunder.

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Holdcos, the Borrowers or a Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

“ERISA Event ” means (i) any Reportable Event or the requirements of Section 4043(b) of ERISA apply with respect to a Plan, other than in respect of an event for which advance notice is waived under applicable regulations; (ii) the failure to meet the minimum funding standards of Sections 412 and 430 of the Code and Sections 302 and 303 of ERISA; (iii) a determination that any Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (iv) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (v) the incurrence by the Holdcos, a Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA; (vi) the receipt by the Holdcos, a Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan under Section 4042 of ERISA; (vii) a determination that any Multiemployer Plan is, or is reasonably expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (viii) the incurrence by the Holdcos, a Borrower, a Subsidiary or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (ix) the receipt by the Holdcos, a Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Holdcos, a Borrower, a Subsidiary or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Title IV of ERISA; or (x) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan.

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

 

- 31 -

“Eurodollar Base Rate” means the greater of (a) 1.00% or (b) the rate per annum as published by ICE Benchmark Administration Limited (or any successor page or, if unavailable, other commercially available source as the Administrative Agent may designate from time to time) as of 11:00 a.m., London time, two Business Days prior to the commencement of the requested Interest Period, for a term, and in an amount, comparable to the Interest Period and the amount of the Eurodollar Rate Loan requested (whether as an initial Eurodollar Rate Loan or as a continuation of a Eurodollar Rate Loan or as a conversion of a Base Rate Loan to a Eurodollar Rate Loan) by a Borrower in accordance with this Agreement (and, if any such published rate is below zero, then the rate shall be deemed to be zero). Each determination of the Eurodollar Base Rate shall be made by the Administrative Agent and shall be conclusive in the absence of manifest error.

“Eurodollar Rate Borrowing” means a Revolving Facility Borrowing or a Term Loan Facility Borrowing comprised of Eurodollar Rate Loans.

“Eurodollar Rate Loan” means, at any date, a Loan which bears interest at a rate based on the Adjusted Eurodollar Rate.

“Eurodollar Reserve Percentage” means for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any other entity succeeding to the functions currently performed thereby) for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to “Eurocurrency liabilities”). The Adjusted Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically on and as of the effective date of any change in the Eurodollar Reserve Percentage.

“Event of Default” has the meaning assigned to such term in Section 8.01.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient: (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (A) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (B) that are Other Connection Taxes, (ii) U.S. withholding Taxes imposed on amounts payable to or for the account of any Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (A) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrowers under Section 10.1410.04) or (B) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii) or Section 3.01(cb), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (iii) Taxes attributable to such Recipient’s failure to comply with Section  3.01(ec ) or Section 3.06(a) and (iv) any U.S. federal withholding Taxes imposed pursuant to FATCA.

“Exempt Deposit Accounts” means (i) Deposit Accounts the balance of which consists exclusively of (A) withheld income taxes and federal, state or local employment taxes in such amounts as are required in the reasonable judgment of the applicable Borrower to be paid to the Internal Revenue Service or state or local government agencies with respect to employees of any of the Loan Parties; or (B) amounts required to be paid over to an employee benefit plan pursuant to DOL Reg. Sec. 2510.3-102 on

 

- 32 -

behalf of or for the benefit of employees of one or more Loan Parties, (ii) all segregated Deposit Accounts constituting (and the balance of which consists solely of funds set aside in connection with) taxes accounts, payroll accounts, trust or similar accounts and (iii) other non-concentration accounts containing less than $1,000,000 individually and in the aggregate for all such other non-concentration accounts.

“Existing Credit Agreement” has the meaning assigned to such term in the recitals hereto.

“Existing Factoring Agreement” means that certain Recourse Factoring Agreement, dated as of September 6, 2017, between Bowling Green and Wells Fargo, in its capacity as purchaser thereunder.

“Existing Letters of Credit” means, collectively or individually as the context may require, the letters of credit outstanding as of the Closing Date under the Existing Credit Agreement.

“Facility Maturity Date” means the earlier of (i) June 21, 2022 and (ii) 90 days prior to the maturity date of the Secured Notes Obligations; provided, that the foregoing clause (ii) shall not be applicable in the event that the Secured Notes Obligations are repaid in full, the maturity date is extended to a date that is at least 90 days after the date set forth in clause (i) of this definition or the outstanding principal balance thereof has been permanently reduced prior to such 90th day to an amount which does not exceed $ 50,000,000.any Indebtedness (other than Loans) of any Borrower or any Borrower’s Subsidiaries in an aggregate amount exceeding $50,000,000 (but excluding for this purpose the Indebtedness of Borrowers pursuant to their guarantees of the existing unsecured notes issued by Constellium SE).

“Facility Termination Date” means the date on which (A) the Commitments have terminated, (B) all ABL Credit Obligations (other than contingent indemnification obligations) have been paid in full, (C) all ABL Finance Obligations arising under Secured Cash Management Agreements and Secured Rate Contracts that the Administrative Agent has theretofore been notified in writing by the holder of such Obligation are then due and payable, have been paid in full in cash and (D) all Letters of Credit have expired or terminated (other than Letters of Credit as to which other arrangements, including cash collateralization or backstopping, reasonably satisfactory to the Administrative Agent and the L/C Issuers shall have been made).

“Factoring Facilities” means the receivables purchase facilities granted to certain Subsidiaries of Ultimate Parent pursuant to (a) the agreement dated as of December 3, 2015 between GE Factofrance S.A.S. as purchaser, Constellium Issoire S.A.S., Constellium Neuf Brisach S.A.S. and Constellium Extrusions France S.A.S. as sellers, Parent Guarantor and Constellium Switzerland AG, (b) the agreement dated as of May 27, 2016 between GE Capital Bank AG as purchaser and Constellium Rolled Products Singen GmbH as seller, (c) the agreement dated as of March 26, 2014 between GE Capital Bank AG as purchaser and Constellium Singen GmbH as seller, (d) the agreement dated as of December 16, 2010 between GE Capital Bank AG as purchaser and Constellium Extrusions Deutschland GmbH as seller, (e) the agreement dated as of December 16, 2010 between GE Capital Bank AG as purchaser and Constellium Valais AG as seller, (f) the agreement dated as of June 26, 2015 between GE Capital Bank AG as purchaser and Constellium Extrusions Decin S.R.O. as seller, (g) the agreement dated as of December 15, 2015 between Deutsche Bank Trust Company Americas as purchaser and Constellium Automotive USA, LLC as seller, in each case, as such agreement may be amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original parties or otherwise), restructured, or otherwise modified from time to time. On July 20, 2016, the Banque Fédérative du Crédit Mutuel purchased the Equipment Finance and Receivable Finance businesses of GE. Pursuant to this transaction, GE Factofrance S.A.S. was renamed Factofrance and GE Capital Bank AG was renamed Targo Commercial Financing AG.

 

- 33 -

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

“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.

“Federal Funds Rate” means, for any dayperiod, the greater of (a) zero (0.00%) per annum and (b) thea fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published on the next succeeding Business Day by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that, (i), or, if such dayrate is not so published for any day which is a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and, (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Wells Fargo onaverage of the quotations for such day on such transactions as determined by the Administrative Agentreceived by Agent from three Federal funds brokers of recognized standing selected by it (and, if any such rate is below zero, then the rate determined pursuant to this definition shall be deemed to be zero).

“Fee Letter” means that certain Fee Letter dated as of the Closing Date by and among the Administrative Agent, Bowling Green, Ravenswood and Muscle Shoals.

“Fees ” means, collectively, the Revolving Facility Commitment Fees, the Incremental Facility Commitment Fees, the Incremental Facility Exercise Fees, the Letter of Credit Fees, the L/C Issuer Fees, the Administrative Agent Fees and, the Term Loan Facility Fees, the fees set forth in the Fee Letter and, the Amendment Fee Letter, the Amendment No. 2 Fee Letter.

“Final Term Loan Funding Date” means the earlier of (a) the date that the Term Loan Commitments have been reduced to zero and (b) the Term Loan Commitment Expiration Date.

“Financial Covenant Triggering Event” shall occur at any time that Availability is less than 10% of the Maximum Credit; provided that if such10.0% of the Revolving Loan Limit and shall continue for the period until Availability has been greater than such amount for a period of at least 30 consecutive days; provided that (a) if Availability shortfall is less than such amount solely as the result of a contractionreduction in the amount of the Borrowing Base (as opposed to an increase of the outstanding Revolving Facility Loans or Letters of Credit Exposure), no Event of Default shall be deemed to have occurred with respect to the breach of Section 7.12 unless such Availability shortfall continuesis less than the required amount for a period of five (5) consecutive Business Days (and, for the avoidance of doubt, no Credit Event shall be permitted in any event no Loans will be made or Letters of Credit issued or increased or extended during such 5 Business Day period); provided further that and (b) a Default with respect to the breach of Section 7.12, if applicable, will occur immediately upon the occurrence of any such Availability shortfallbeing less than the specified amount and shall continue during such 5 Business Day period unless waived or cured during such period.

“Financial Officer” of any person means the Chief Financial Officer, Treasurer, or Controller of such person.

 

- 34 -

“Fitch” means Fitch Ratings, Inc.

“Fixed Charge Coverage Ratio “ means the ratio of (i) EBITDA of the Ultimate Parent and its Subsidiaries for the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Sections 6.04(a) or (b) hereof minus the income taxes paid in cash by the Ultimate Parent and its Subsidiaries and included in the determination of Consolidated Net Income for such period minus Unfinanced Capital Expenditures of the Ultimate Parent and its Subsidiaries during such period to (ii) the sum of (A) scheduled principal payments required to be made during such period in respect of Indebtedness for borrowed money of the Ultimate Parent and its Subsidiaries, including the Term Loans plus (B) the Consolidated Interest Expense (excluding amortization of any original issue discount, interest paid in kind or added to principal and other noncash interest) of the Ultimate Parent and its Subsidiaries, in each case to the extent paid in cash for such period.

“Flood Laws” means, collectively, (i) the National Flood Insurance Act of 1968,Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, and related laws, rules and regulations, including any amendments or successor provisions1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

“Foreign Lender” means a Lender or L/C Issuer that is not a U.S. Person.

“Foreign Subsidiary” means any Subsidiary that is incorporated or organized under the laws of any jurisdiction other than the United States of America, any State thereof or the District of Columbia.

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

“FSHCO” means any Subsidiary of the Borrowers all or substantially all of the assets of which are Equity Interests (or Equity Interests and Indebtedness) in one or more CFCs and/or one or more FSHCOs, so long as such Subsidiary (i) does not conduct any material amount of business or activity other than the ownership of such Equity Interests or Indebtedness and (ii) does not incur, and is not otherwise liable for, any Indebtedness or other liabilities.

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on the Closing Date. For purposes herein, the term “consolidated” means such Person consolidated with the Subsidiaries and shall not include any Unrestricted Subsidiary, but the interest of such Person in an Unrestricted Subsidiary will be accounted for as an Investment.

 

- 35 -

“Governmental Authority” means any federal, state, provincial, territorial, municipal, local or foreign court or governmental agency, authority, instrumentality or regulatory or legislative body, including any supra-national bodies such as the European Union or the European Central Bank.

“Guarantee” of or by any person (the “guarantor”) means (i) any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (A) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take-or- pay or otherwise) or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness or other obligation, (B) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (C) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, (D) entered into for the purpose of assuring in any other manner the holders of such Indebtedness or other obligation of the payment thereof or to protect such holders against loss in respect thereof (in whole or in part) or (E) as an account party in respect of any letter of credit, bank guarantee or other letter of guaranty issued to support such Indebtedness or other obligation, or (ii) any Lien on any assets of the guarantor securing any Indebtedness (or any existing right, contingent or otherwise, of the holder of Indebtedness to be secured by such a Lien) of any other person, whether or not such Indebtedness or other obligation is assumed by the guarantor; provided, however, the term “Guarantee” shall not include endorsements of instruments for deposit or collection 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 or disposition of assets permitted by 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 Indebtedness in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such person is required to perform thereunder) as determined by such person in good faith.

“guarantor” has the meaning assigned to such term in the definition of the term “Guarantee.”

“Guarantor” means any of the Borrowers, the Holdcos and the Subsidiary Loan Parties, and “Guarantors” means two or more of them, collectively.

“Guaranty” means, collectively, the guaranty made by the Guarantors under the Collateral Agreement in favor of the Secured Parties, together with each other guaranty and guaranty supplement delivered pursuant to Section 6.10.6.10; provided, that, notwithstanding anything to the contrary set forth in the Collateral Agreement, the ABL Finance Obligations guaranteed by Parent Guarantor pursuant to the Collateral Agreement shall not include the Term Loan A-2 Obligations.

“Hazardous Materials” means all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including, without limitation, explosive or radioactive substances or petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls or radon gas, of any nature subject to regulation or which can give rise to liability under any Environmental Law.

“Hedge Bank” means any Person that, at the time it enters into a Swap Contract permitted under Article VII, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Swap Contract.

 

- 36 -

“Holdcos” means, collectively or individually as the context may require, (a) the Parent Guarantor, and (b) with respect to each Borrower, any Constellium Holding Company that owns directly any of the issued and outstanding Equity Interests of such Borrower.

“Honor Date” has the meaning specified in Section 2.05(c)(i).

“IFRS” means the accounting and financial reporting standards issued by the International Accounting Standards Board.

“Immaterial Subsidiary” means any Subsidiary that, as of the last day of the fiscal quarter of the Borrowers most recently ended, (i) did not have assets with a value in excess of 2.5% of the Consolidated Total Assets or revenues representing in excess of 2.5% of total revenues of the Borrowers and their Subsidiaries on a consolidated basis as of such date and (ii) when taken together with all other Immaterial Subsidiaries as of such date, did not have assets with a value in excess of 5.0% of the Consolidated Total Assets or revenues representing in excess of 5.0% of total revenues of the Borrowers and their Subsidiaries on a consolidated basis as of such date. Each Immaterial Subsidiary as of the Closing Date shall be set forth in Schedule 1.01(c).

“Incremental Amount” means $200,000,000.

“Incremental Facility Commitment Fee” has the meaning assigned to such term in Section 2.12(d).

“Incremental Facility Effective Date” has the meaning assigned to such term in Section 2.15.

“Incremental Facility Exercise Fee” has the meaning assigned to such term in Section 2.15.

“Incremental Revolving Facility “ means the Incremental Revolving Facility Commitments and the extensions of credit made hereunder by the Incremental Revolving Facility Lenders.

“Incremental Revolving Facility Lender” means a Lender with an Incremental Revolving Facility Commitment.

“Incremental Revolving Facility Commitment” means, with respect to each Revolving Facility Lender, the commitment of such Revolving Facility Lender to increase its Revolving Facility Commitment pursuant to Section 2.15. The amount of each Lender’s Incremental Revolving Facility Commitment is set forth on Part I of Schedule 2.15 and the amount of each Lender’s Revolving Facility Commitment on and after the Incremental Facility Effective Date is set forth on Part II of Schedule 2.15, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Revolving Facility Commitment, as applicable. The aggregate amount of the Lenders’ Incremental Revolving Facility Commitments on the Closing Date is $200,000,000.

“Incremental Revolving Facility Percentage” means, with respect to any Incremental Revolving Facility Lender, the percentage of the total Incremental Revolving Facility Commitments represented by such Lender’s Incremental Revolving Facility Commitment.

 

- 37 -

“Indebtedness” of any person means, without duplication, (i) all obligations of such person for borrowed money, (ii) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations of such person under conditional sale or other title retention agreements relating to property or assets purchased by such person, (iv) all obligations of such person issued or assumed as the deferred purchase price of property or services, to the extent that the same would be required to be shown as a long term liability on a balance sheet prepared in accordance with the Applicable Accounting Rules, (v) all Capital Lease Obligations of such person, (vi) all net payments that such person would have to make in the event of an early termination, on the date Indebtedness of such person is being determined, in respect of outstanding Swap Contracts, (vii) the principal component of all obligations, contingent or otherwise, of such person as an account party in respect of letters of credit and bank guarantees, (viii) the principal component of all obligations of such person in respect of bankers’ acceptances, (ix) all Guarantees by such person of Indebtedness described in clauses (i) through (viii) above and (x) the amount of all obligations of such person with respect to the redemption, repayment or other repurchase of any Disqualified Stock (excluding accrued dividends that have not increased the liquidation preference of such Disqualified Stock); provided that Indebtedness shall not include (A) trade payables, accrued expenses and intercompany liabilities arising in the ordinary course of business, (B) prepaid or deferred revenue arising in the ordinary course of business, (C) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy unperformed obligations of the seller of such asset or (D) earn-out obligations, except to the extent such obligations constitute a liability on the balance sheet of such person in accordance with the Applicable Accounting Rules. The Indebtedness of any person shall include the Indebtedness of any partnership in which such person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such person in respect thereof.

“Indemnified Taxes “ means (i) 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 (ii) to the extent not otherwise described in clause (i) above, Other Taxes.

“Indemnitee” has the meaning assigned to such term in Section 10.04(b).

“Industrial Revenue Bond” means the industrial revenue bond identified on Schedule 7.04 hereto.

“Information” has the meaning assigned to such term in Section 10.07.

“Information Memorandum” means the Confidential Information Memorandum dated May 2017, as modified or supplemented prior to the Original Closing Date.

“Intellectual Property Rights” has the meaning assigned to such term in Section 4.23.

“Intercompany Accounts” means all obligations and liabilities, however arising, which are due to any Loan Party from, which are due from any Loan Party to, or which otherwise arise from any transaction by any Loan Party with, any Affiliate of such Loan Party.

“Intercompany Subordination Agreement “ means that certain Intercompany Subordination Agreement dated as of the Closing Date made by Constellium Finance in favor of the Administrative Agent.

“Intercreditor Agreement” means, collectively or individually as the context may require, the PBGC Intercreditor Agreement, the Muscle Shoals Intercreditor Agreement, the Ravenswood Intercreditor Agreement, the Bowling Green Real Estate Intercreditor Arrangements,and each other intercreditor agreement, including each Secured Debt Intercreditor Agreement, and each other intercreditor agreement entered into by the Administrative Agent and any Loan Party in connection with the Loan Documents.

 

- 38 -

“Interest Election Request” means a request by a Borrower to convert or continue a Revolving Facility Borrowing in accordance with Section 2.07.

“Interest Payment Date” means (i) with respect to any Eurodollar Rate Loan, the last day of each Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Rate Borrowing with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing and, in addition, the date of any refinancing or conversion of such Borrowing with or to a Borrowing of a different Type and (ii) with respect to any Base Rate Loan, the first day of each April, July, October and January.

“Interest Period” means, as to any Eurodollar Rate Borrowing, the period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as applicable, and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter (or 12 months, if at the time of the relevant Borrowing, all relevant Lenders consent to such interest periodInterest Period), as a Borrower may elect, or the date any Eurodollar Rate Borrowing is converted to a Base Rate Borrowing in accordance with Section 2.07 or repaid or prepaid in accordance with Section 2.09, 2.10 or 2.11; provided, however, that if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.

“Inventory” has the meaning assigned to such term in the Collateral Agreement.

“Investment” has the meaning assigned to such term in Section 7.04.

“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 Request, 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 the L/C Issuer and relating to such Letter of Credit.

“Joint Bookrunners “ means (a) in respect of the Revolving Facility, Wells Fargo, JPMorgan Chase Bank, N.A., Bank of America, N.A. and Deutsche Bank Securities Inc., in their capacities as joint bookrunners, and (b) in respect of the Term Facility, Wells Fargo, Deutsche Bank Securities Inc., and Goldman Sachs Bank USA in their capacities as joint bookrunners.

“Joint Lead Arrangers” means (a) in respect of the Revolving Facility, Wells Fargo, JPMorgan Chase Bank, N.A., Bank of America, N.A. and Deutsche Bank Securities Inc., in their capacities as joint lead arrangers, and (b) in respect of the Term Facility, Wells Fargo, Deutsche Bank Securities Inc., and Goldman Sachs Bank USA, in their capacities as joint lead arrangers.

“Junior Financing” means (x) Indebtedness which by its terms is subordinated in right or payment to the ABL Credit Obligations and which Indebtedness is incurred pursuant to Section 7.01(k) and (y) the Bowling Green Intercompany Indebtedness, and, in each case, any subordinated Permitted Refinancing Indebtedness in respect thereof, any preferred Equity Interests and any Disqualified Stock.

 

- 39 -

“L/C Advance “ means, with respect to each Revolving Facility Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Revolving Facility Percentage.

“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Facility 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 increase of the amount thereof.

“L/C Issuer” means (i) Wells Fargo in its capacity as issuer of Letters of Credit under Section 2.05(b) and its successor or successors in such capacity and (ii) any other Lender which the Borrowers shall have designated (with such Lender’s consent) as an “L/C Issuer” by notice to the Administrative Agent (including any Lender designated as such as a replacement for any L/C Issuer who is at the time of such appointment a Defaulting Lender) that is reasonably acceptable to the Administrative Agent.

“L/C Issuer Fees” has the meaning specified in Section 2.05(i).

“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 1.04. 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.

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

“Lender” means each financial institution listed on Schedule 2.01 (other than any such person that ceased to be a party hereto pursuant to an Assignment and Assumption in accordance with Section 10.06), as well as any person that becomes a “Lender” hereunder pursuant to Section 10.06; and shall include, as the context may require, the Swing Line Lender in such capacity.

“Lending Office” means with respect to any Lender and for each Type of Loan, the “Lending Office” of such Lender (or of an Affiliate of such Lender) designated for such Type of Loan in such Lender’s Administrative Questionnaire or in any applicable Assignment and Assumption pursuant to which such Lender became a Lender hereunder or such other office of such Lender (or of an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrowers as the office by which its Loans of such Type are to be made and maintained.

“Letter of Credit” means any letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder, including, for the avoidance of doubt, any Existing Letter of Credit. A Letter of Credit may be a commercial letter of credit (including a trade letter of credit in support of trade obligations of a Borrower and its Subsidiaries) or a standby letter of credit.

 

- 40 -

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

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

“Letter of Credit Fee” has the meaning specified in Section 2.05(h).

“Letter of Credit Sublimit” means an amount equal to $35,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Facility.

“Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated Total Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four (4) Fiscal Quarter period ending on such date.

“ Lien” means, with respect to any asset, (i) any mortgage, deed of trust, lien, hypothecation, pledge, charge, security interest or similar encumbrance in or on such asset or (ii) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset, provided that in no event shall an operating lease or an agreement to sell be deemed to constitute a Lien.

“Loan Account” has the meaning specified therefor in Section 2.20 of this Agreement.

“Loan Documents “ means this Agreement, the Letters of Credit, the Security Documents, the Intercreditor Agreements, the Intercompany Subordination Agreement and any Note issued under Section 2.09(e) , and solely for the purposes of Sections 5.02 and 8.01 hereof, the Engagement Letter, the Fee Letter, the Amendment Fee Letter, and the Amendment No. 2 Fee Letter.

“Loan Modification Agreement” has the meaning assigned to such term in Section 10.01.

“Loan Modification Offer” has the meaning assigned to such term in Section 10.01.

“Loan Parties” means, collectively or individually as the context may require, the Holdcos (other than the Parent Guarantor), the Borrowers and the Subsidiary Loan Parties.

“Loans” means the Revolving Facility Loans, Term Loans, and the Swing Line Loans.

“Local Time” means New York City time.

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

“Margin Stock” has the meaning assigned to such term in Regulation U.

“Material Adverse Effect” means a material adverse effect on the business, property, operations or condition of the Borrowers and their respective Subsidiaries, taken as a whole (other than resulting from any event, development or circumstance related to the COVID-19 pandemic that was disclosed in writing to the Administrative Agent and Lenders, or otherwise publicly disclosed, in each case, on or prior to April 10, 2020), or the validity or enforceability of any of the material Loan Documents or the rights and remedies of the Administrative Agent and the Lenders thereunder.

 

- 41 -

“Material Indebtedness” means Indebtedness (other than Loans) of any one or more of (i) Ultimate Parent or any Subsidiary thereof (other than the Borrowers and their Subsidiaries) in an aggregate principal amount exceeding $50,000,000 and (ii) any Borrower and its Subsidiaries in an aggregate amount exceeding $15,000,000.

“Material Subsidiary” means any Subsidiary other than an Immaterial Subsidiary.

“Maximum Credit” means, at any time, the total Revolving Facility Commitments in effect at such time. For the avoidance of doubt, the total Incremental Revolving Facility Commitments shall not be included in the Maximum Credit unless and until the Incremental Revolving Facility is exercised and becomes effective in accordance with Section 2.15.

“Maximum Rate” has the meaning assigned to such term in Section 10.10.

“Minimum Borrower EBITDA Contribution” means, for any period, the ratio (expressed as a percentage) of (x) the combined EBITDA of the Borrowers and their Subsidiaries for such period to (y) the consolidated EBITDA of the Ultimate Parent and its Subsidiaries for such period.

“Minimum Collateral Amount” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 103% of the Fronting Exposure of an L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.16(a)(i), (a)(ii) or (a)(iii), an amount equal to 103% of the Outstanding Amount of all L/C Obligations, and (iii) otherwise, an amount determined by the Administrative Agent and the applicable L/C Issuer in their sole discretion.

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

“Mortgaged Properties” means the Real Properties owned in fee simple by the Loan Parties and encumbered by a Mortgage that are set forth on Schedule 1.01(b) and each additional Real Property encumbered by a Mortgage pursuant to Section 6.10.

“Mortgages” means, collectively, the mortgages, trust deeds, deeds of trust, deeds to secure debt, assignments of leases and rents, and other security documents delivered with respect to Mortgaged Properties, each in a form reasonably acceptable to the Administrative Agent, as amended, supplemented or otherwise modified from time to time.

“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which any Borrower, the Holdcos or any Subsidiary or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding six plan years made or accrued an obligation to make contributions, or otherwise has any outstanding liability.

“Muscle Shoals Holdings” has the meaning assigned to such term in the preamble hereto.

“Muscle Shoals Intercreditor Agreement” means that certain Intercreditor Agreement dated as of December 11, 2013 among Wells Fargo, in its capacity thereunder as ABL agent, the Secured Notes Collateral Agent, and Rexam, and acknowledged and agreed to by Muscle Shoals and the other grantors from time to time party thereto.

 

- 42 -

“NAFCEL” means National Factory for Can Ends Ltd., a limited liability company formed under the laws of Saudi Arabia.

“Net Amount of Eligible Accounts” means, at any time, the gross amount of Eligible Accounts less sales, excise, or similar taxes, and less returns, discounts, claims, credits, and allowances of any nature at any time issued, owing, granted, outstanding, available, or claimed (in each case without duplication, whether of the exclusionary criteria set forth in the definition of Eligible Accounts, of any Reserve, or otherwise).

“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with the Applicable Accounting Rules and before any reduction in respect of preferred stock dividends.

“NOLV” means, as of any date of determination, with respect to Eligible Equipment of any Person, the value of such Eligible Equipment that is estimated to be recoverable in an orderly liquidation of such Eligible Equipment “in-place”, net of all associated costs and expenses of such liquidation, as determined based upon the most recent appraisal of Equipment received by Administrative Agent from an Acceptable Appraiser in accordance with Section 6.11, provided, that, if such appraisal does not provide the costs and expenses of such liquidation on an item by item basis, then costs and expenses of liquidation for each item of Eligible Equipment will be such amount as determined by Administrative Agent in its Permitted Discretion.

“Net Proceeds “ means 100% of the cash proceeds actually received by any Borrower or any Subsidiary Loan Party (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards, but only as and when received) from any Asset Sale (other than those pursuant to Section 7.05(a), (b), (c), (d), (e), (f), (h), (i), (j), (m), (n) or (o)), net of (A) attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer Taxes, deed or mortgage recording Taxes, required debt payments and required payments of other obligations relating to the applicable asset to the extent such debt or obligations are secured by a Lien permitted hereunder (other than pursuant to the Loan Documents) on such asset, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (B) Taxes paid or payable as a result thereof, and (C) the amount of any reasonable reserve established in accordance with the Applicable Accounting Rules against any adjustment to the sale price or any liabilities (other than any Taxes deducted pursuant to clause (A) above) (x) related to any of the applicable assets and (y) retained by any Borrower or any of its Subsidiaries including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (however, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such Asset Sale occurring on the date of such reduction); provided that, if no Event of Default exists and the applicable Borrower shall deliver a certificate of a Responsible Officer of such Borrower to the Administrative Agent promptly following receipt of any such proceeds setting forth such Borrower’s intention to use any portion of such proceeds, to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of such Borrower and its Subsidiaries or to make investments in Permitted Business Acquisitions, in each case within 15 months of such receipt, such portion of such proceeds shall not constitute Net Proceeds except to the extent not, within 15 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds are not so used within such 15-month period but within such 15-month period are contractually committed to be used, then, upon the termination of such contract, such remaining portion shall constitute Net Proceeds as of the date of such termination or expiry without giving effect to this proviso); provided, further, that (x) no proceeds of an Asset Sale (other than an Asset Sale of any Eligible

 

- 43 -

Equipment) realized in a single transaction or a series of related transactions shall constitute Net Proceeds unless such proceeds shall exceed $5,000,000, and (y) no proceeds shall constitute Net Proceeds in any fiscal year until10,000,000 in the aggregate amount of all such proceeds in such in any fiscal year shall exceed $10,000,000.. For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to a Borrower or any Affiliate of a Borrower shall be disregarded.

“Non-Consenting Lender” has the meaning assigned to such term in Section 10.01.

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

“Non-Extension Notice Date” has the meaning specified in Section 2.05(b)(iii).

“Non-Reinstatement Deadline” has the meaning specified in Section 2.05(b)(iv).

“Note” has the meaning assigned to such term in Section 2.09(e).

“OFAC” means, the U.S. Treasury Department’s Office of Foreign Assets Control.

“Orderly Liquidation Value “ means an amount equal to the most recently determined Orderly Liquidation Value Factor multiplied by the book value of all Eligible Inventory of the Borrowers.

“Orderly Liquidation Value Factor” means, with respect to Eligible Inventory of the Borrowers, the net orderly liquidation value thereof (expressed as a percentage of book value) as determined by an Acceptable Appraiser in accordance with Section 6.11, net of all associated costs and expenses of such liquidation.

“Original Closing Date” means June 21, 2017.

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of such Recipient engaging or having engaged in a trade or business in the jurisdiction imposing such Tax or any other present or former connection between such Recipient and such jurisdiction; provided that no such Recipient shall be deemed to be engaged in a trade or business in, or to have any other connection with, any jurisdiction solely as a result of such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document pursuant to an assignment request by the Borrowers under Section 10.14.

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06). Other Taxes shall not include any Taxes imposed on, or measured by reference to, gross income, net income or gain.

“Outstanding Amount” means, (i) with respect to Revolving Facility Loans , and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Facility Loans and Swing Line Loans, as the case may be, occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any

 

- 44 -

reimbursements by the applicable Borrower of Unreimbursed Amounts or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date, and (iii) with respect to Term Loans, on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, as the case may be, occurring on such date.

“Parent Entity” means any direct or indirect parent of Parent Guarantor.

“Parent Guarantor” has the meaning assigned to such term in the preamble hereto.

“Participant” has the meaning assigned to such term in Section 10.06(d).

“Participant Register” has the meaning assigned to such term in Section 10.06(d).

“Payment Conditions” means, with respect to and after giving effect to any proposed Payment Event on a Pro Forma Basisbasis, (1) prior to the Incremental Facility Effective Date, either (a) (i) Availability is not less than 15% of the Maximum Credit and (ii) the Fixed Charge Coverage Ratio is not less than 1.0 to 1.0 or (b) Availability is not less than 20% of the Maximum Credit and (2) on and after the Incremental Facility Effective Date, either (a)a) either (i) Availability is not less than 12.5% of the Maximum CreditRevolving Loan Limit and (ii) the Fixed Charge Coverage Ratio is not less than 1.01.00 to 1.01.00 or (b) Availability is not lessequal to or greater than 15% of the Maximum CreditRevolving Loan Limit, and, in each case, to the extent that Availability is less than 5% more than the minimum Availability required under the relevant preceding clause, the applicable Borrower shall have given prior written notice of such Payment Event to the Administrative Agent (for example, in the case of the preceding clause (1)(a)(ib), prior written notice shall be required if Availability is less than 20% of the Maximum Credit). Revolving Loan Limit).

“Payment Event” means a Permitted Business Acquisition, a designation of a Subsidiary or a Subsidiary Redesignation pursuant to the definition of “Unrestricted Subsidiary”, any Liens permitted pursuant to Section 7.02(u), any Investment permitted pursuant to Section 7.04(i), any Restricted Payment permitted pursuant to Section 7.06(f) or any prepayment of Indebtedness permitted pursuant to Section 7.09(b)(i)(D) or (E).

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

“PBGC Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of October 16, 20122012, among PBGC, Wells Fargo, as successor in interest to Deutsche Bank Trust Company Americas, in its capacity thereunder as ABL collateral agent, and acknowledged and agreed to by Ravenswood.

“PBGC Lien” means the Lien granted by Ravenswood to the PBGC pursuant to that certain Settlement Agreement, dated as of January 26, 2001, by and between the PBGC and Ravenswood, as in effect on the date hereof.

“Perfection Certificate” means the Perfection Certificate dated as of the Effective Date with respect to the Borrowers and the other Loan Parties in a form reasonably satisfactory to the Administrative Agent.

“Permitted Amendment” has the meaning assigned to such term in Section 10.01.

 

- 45 -

“Permitted Business Acquisition” means any acquisition of all or substantially all the assets of, or all or substantially all the Equity Interests (other than directors’ qualifying shares) in (or that results in a Borrower or its Subsidiaries owning all or substantially all the Equity Interests in), or merger, consolidation or amalgamation with, a person or division or line of business of a person (or any subsequent investment made in a person, division or line of business previously acquired in a Permitted Business Acquisition), but only if: (i) no Event of Default shall have occurred and be continuing or would result therefrom; (ii) all transactions related thereto shall be consummated in accordance with applicable laws; (iii) with respect to any such acquisition or investment with a fair market value (as determined in good faith by the applicable Borrower) in excess of $10,000,000, the Payment Conditions shall have been satisfied; (iv) any acquired or newly formed Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by Section 7.01; and (v) to the extent required by Section 6.10, any person acquired in such acquisition, if acquired by a Borrower or a Domestic Subsidiary, shall be merged into such Borrower or a Subsidiary Loan Party or become upon consummation of such acquisition a Subsidiary Loan Party.

“Permitted Discretion “ means the reasonable credit judgment of the Administrative Agent exercised in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment, and, as it relates to the establishment of Reserves or the adjustment or imposition of exclusionary criteria, is based upon its consideration of any factor, including, without limitation, any factor that (a) it reasonably believes could adversely affect the quantity, quality, mix or value of Collateral (including any applicable Laws that may inhibit collection of an Account), the enforceability or priority of the Liens on the Collateral or the amount that the Administrative Agent and the Lenders could receive in liquidation of any Collateral; (b) suggests that any collateral report or financial information delivered by any Loan Party or the Parent Guarantor is incomplete, inaccurate or misleading in any material respect; (c) materially increases the likelihood of any bankruptcy or insolvency proceeding involving a Loan Party or the Parent Guarantor; or (d) creates or could reasonably be expected to result in a Default or Event of Default. In exercising such judgment, the Administrative Agent may consider any factors that could increase the credit risk of lending to any Borrower on the security of the Collateral.

“Permitted Investments” means:

(a) (i) direct obligations of the United States of America or any member of the European Union or any agency thereof or obligations guaranteed by the United States of America or any member of the European Union or any agency thereof, in each case with maturities not exceeding two years;

(b) (ii) bank deposits, checking accounts, time deposit accounts, certificates of deposit and money market deposits maturing within 180 days of the date of acquisition thereof issued by a bank or trust company that is organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of America having capital, surplus and undivided profits in excess of $250,000,000 and whose long term debt, or whose parent holding company’s long term debt, is rated A (or such similar equivalent rating or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act));

(c) (iii) repurchase obligations with a term of not more than 180 days for underlying securities of the types described in clause (i) above entered into with a bank meeting the qualifications described in clause (ii) above;

(d) (iv) commercial paper, maturing not more than one year after the date of acquisition, issued by a corporation (other than an Affiliate of any Borrower) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America with a rating at the time as of which any investment therein is made of P-1 (or higher) according to Moody’s, or A-1 (or higher) according to S&P;

 

- 46 -

(e) (v) securities with maturities of two years or less from the date of acquisition issued or fully guaranteed by any State, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least A by S&P or A by Moody’s;

(f) (vi) shares of mutual funds whose investment guidelines restrict 95% of such funds’ investments to those satisfying the provisions of clauses (i) through (v) above;

(g) (vii) money market funds that (A) comply with the criteria set forth in Rule 2a-7 under the Investment Company Act of 1940, (B) are rated AAA by S&P and Aaa by Moody’s and (C) have portfolio assets of at least $5,000,000,000;

(h) (viii) time deposit accounts, certificates of deposit and money market deposits (in each case with or from a bank meeting the qualifications described in clause (ii) above) in an aggregate face amount not in excess of 0.50% of the total assets of the Borrowers and their Subsidiaries, on a consolidated basis, as of the end of the Borrowers’ most recently completed fiscal year; and

(i) (ix) instruments equivalent to those referred to in clauses (i) through (viii) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above and commonly used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction.

“Permitted Liens” has the meaning assigned to such term in Section 7.02.

“Permitted Refinancing Indebtedness” means any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (i) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses), (ii) the weighted average life to maturity of such Permitted Refinancing Indebtedness is greater than or equal to the earlier of (x) the weighted average life to maturity of the Indebtedness being Refinanced and (y) 90 days after the Facility Maturity Date, (iii) if the Indebtedness being Refinanced is subordinated in right of payment to the ABL Credit Obligations, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to such ABL Credit Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced, (iv) no Permitted Refinancing Indebtedness shall have different obligors (other than entities that are not the Borrowers or Subsidiaries thereof), or greater guarantees or security (other than from entities that are not the Borrowers or Subsidiaries thereof), than the Indebtedness being Refinanced (provided that (x) Indebtedness (A) of any Loan Party may be Refinanced to add or substitute as an obligor another Loan Party that is reasonably satisfactory to the Administrative Agent and (B) of any Subsidiary that is not a Loan Party may be Refinanced to add or substitute as an obligor another Subsidiary that is not a Loan Party and is reasonably satisfactory to the Administrative Agent and (y) other guarantees and security may be added to the extent then independently permitted under Article VII) and (v) if the Indebtedness being Refinanced is secured by any collateral owned by Ravenswood Holdings, Muscle Shoals Holdings, CPEC, the Borrowers or a Subsidiary of the Borrowers (whether equally and ratably with, or junior to, the Secured Parties or otherwise), such Permitted Refinancing

 

- 47 -

Indebtedness may be secured by such collateral (including in respect of working capital facilities of Foreign Subsidiaries otherwise permitted under this Agreement only, any collateral pursuant to after acquired property clauses to the extent any such collateral secured the Indebtedness being Refinanced) on terms no less favorable to the Secured Parties than those contained in the documentation governing the Indebtedness being Refinanced; provided, further, that, with respect to a Refinancing of subordinated Indebtedness permitted to be incurred herein, such Permitted Refinancing Indebtedness shall (x) be subordinated to the guarantee by the Holdcos and the Subsidiary Loan Parties of the Revolving Facility, and (y) be otherwise on terms not materially less favorable to the Lenders than those contained in the documentation governing the Indebtedness being refinanced.

“Person” and “person” mean any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company or government, individual or family trusts, or any agency or political subdivision thereof.

“Plan” shall mean any employee pension benefit plan, as such term is defined in Section 3(2) of ERISA (other than a Multiemployer Plan) (i) subject to the provisions of Title IV of ERISA, (ii) sponsored or maintained (at the time of determination or at any time within the five years prior thereto) by the Holdcos, any Borrower or any ERISA Affiliate, or (iii) in respect of which the Holdcos, any Borrower, any Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Platform” has the meaning assigned to such term in Section 10.08.

“Pledged Collateral” has the meaning assigned to such term in the Collateral Agreement.

“Primary Payment Accounts” has the meaning ascribed to it in Section 6.12.

“Prime Rate” means, for any day, the rate of interest in effect for such day as publicly announced from time to time within Wells Fargo at its principal office in San Francisco as its “prime rate”, with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate (and, if any such announced rate is below zero, then the Prime Rate shall be deemed to be zero).

“Pro Forma Basis “ means, for purposes of making any computation hereunder, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations (as determined in accordance with Applicable Accounting Rules), in each case with respect to an operating unit of a business, and any operational changes that the Ultimate Parent or any of its Subsidiaries has determined to make and/or made during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the applicable calculation date (each, for purposes of this definition, a “pro forma event”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, discontinued operations and operational changes (and the change of any associated fixed charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period. If since the beginning of such period any Person that subsequently became a Subsidiary or was merged with or into the Borrowers or any Subsidiary since the beginning of such period shall have made any Investment, acquisition, disposition, merger, amalgamation, consolidation, discontinued operation or operational change, in each case with respect to an operating unit of a business, that would have required adjustment pursuant to this definition, then the applicable computation shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, is continued operation, merger, amalgamation, consolidation or operational change had occurred at the beginning of the applicable four-quarter period.

 

- 48 -

Pro forma calculations made pursuant to the definition of this term “Pro Forma Basis” shall be determined in good faith by a Responsible Officer of the Borrowers. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of the Borrowers, to reflect operating expense reductions, other operating improvements, synergies or such operational changes or restructurings described above reasonably expected to result from the applicable pro forma event in the 18-month period following the consummation of the pro forma event.

If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the applicable calculation date had been the applicable rate for the entire period (taking into account any Swap Obligations applicable to such Indebtedness if such Swap Obligation has a remaining term in excess of 12 months). Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a Responsible Officer of the Borrowers to be the rate of interest implicit in such Capital Lease Obligation in accordance with Applicable Accounting Rules. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on 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 deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrowers may designate.

“Pro Rata Share” means, as of any date of determination:

(a) with respect to a LenderRevolving Facility Lender’s obligation to make all or a portion of the Revolving Facility Loans, with respect to such Lender’s right to receive payments of interest, fees, and principal with respect to the Revolving Facility Loans, and with respect to all other computations and other matters related to the Revolving Facility Commitments or the Revolving Facility Loans, a fraction (expressed as a percentage), the numerator of which is the sum of the amounts of such Lender’s Revolving Facility Commitment and Incremental Revolving Facility Commitment, if any (whether or not exercised or effective pursuant to Section 2.15) and the denominator of which is the sum of the amounts of all of the Lenders’ Revolving Facility Commitments and Incremental Revolving Facility Commitments, or if no Revolving Facility Commitments are outstanding, a fraction (expressed as a percentage), the numerator of which is the principal amount of ABL Revolving Facility Credit ObligationsExposure owed to such Lender and the denominator of which is the aggregate principal amount of the ABLRevolving Facility Credit Obligations owed to theExposure for all Revolving Facility Lenders, in each case giving effect to a Lender’s participation in Letters of Credit, Swing Line Loans and Agent Advances.,

(b) with respect to a Term Loan Lender’s obligation to make all or a portion of the Term Loans, with respect to such Lender’s right to receive payments of interest, fees, and principal with respect to the Term Loans, and with respect to all other computations and other matters related to the Term Loan Commitments or the Term Loans, a fraction (expressed as a percentage), the numerator of which is the sum of the amount of such Lender’s unfunded Term Loan Commitment, if any (which are not exercised and otherwise effective pursuant to Section 2.15) plus the outstanding principal amount of the Term Loans owed to such Lender and the denominator of which is the sum of the amounts of all of the Lenders’ unfunded Term Loan Commitments, and the aggregate principal amount of Term Loans owed to all Lenders or if no Commitments are outstanding, a fraction (expressed as a percentage), the numerator of which is the principal amount of Term Loan Exposure owed to such Lender and the denominator of which is the aggregate principal amount of the Term Loan Exposure owed to the Lenders, and

 

- 49 -

(c) with respect to all other matters and for all other matters as to a particular Lender (including the indemnification obligations arising under Section 10.04), the percentage obtained by dividing (i) the sum of the Revolving Facility Credit Exposure and Term Loan Exposure of such Lender, by (ii) the aggregate Revolving Facility Credit Exposure and Term Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to Section 10.06.

“Projections” means any projections and any forward looking statements (including statements with respect to booked business) of the Holdcos, the Borrowers and their respective Subsidiaries with respect to the 2019 fiscal year and each fiscal year thereafter through 2023 furnished to the Lenders or the Administrative Agent by or on behalf of the Holdcos, the Borrowers or any of their respective Subsidiaries on January 28, 2019 and February 5, 2019.

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

“Qualified Equity Interests” means any Equity Interests other than Disqualified Stock.

“Qualified Receivables “ means, collectively, Accounts for which the related Account Debtor is the entity set forth on Schedule 1.01(d) and/or its Affiliates; provided that, solely for purposes of Sections 7.02(ee) and 7.05(o), “Qualified Receivables” shall include related assets that are customarily transferred in or in respect of which security interests are customarily granted in connection with asset securitization transactions or factoring transactions involving accounts receivable.

“Qualified Receivables Financing” means (A) the Receivables Financing pursuant to the Factoring Facilities (including any increase in the amount thereof); (B) prior to the Incremental Facility Effective Date, the AB Receivables Financing and (C and (B) any Receivables Financing that meets the following conditions:

(a) (1) the Ultimate Parent or the applicable Subsidiary thereof shall have determined in good faith that such Receivables Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Ultimate Parent or the applicable Subsidiary thereof in question;

(b) (2) all sales of accounts receivable and related assets are made at fair market value;

(c) (3) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Ultimate Parent or the applicable Subsidiary thereof) and may include Standard Undertakings;

(d) (4) if requested by the Administrative Agent, the lender or purchaser in connection with such Qualified Receivables Financing shall have entered into an intercreditor agreement with the Administrative Agent, in form and substance reasonably acceptable to the Administrative Agent, relating to payments received in respect of the Qualified Receivables; and

 

- 50 -

(e) (5) payments received in respect of Qualified Receivables that constitute Collateral shall be deposited in accounts and otherwise handled in a manner reasonably acceptable to the Administrative Agent.

“Ravenswood Holdings” has the meaning assigned to such term in the preamble hereto.

“Ravenswood Holdings Intercompany Loan Agreement” means that certain Intragroup Loan Agreement dated as of January 10, 2019 between Bowling Green, as borrower, and Ravenswood Holdings, as lender, evidencing a term loan to Bowling Green in an initial principal amount of $142,521,221.25 (as amended, amended and restated, supplemented, replaced, or otherwise modified from time to time in compliance with Section 7.09(b)(ii)).

“Ravenswood Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the Original Closing Date, among Ravenswood, Ravenswood Holdings, Wells Fargo, in its capacity thereunder as ABL agent, and the Secured Notes Collateral Agent.

“Real Property” means, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned in fee or leased by any Loan Party, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures incidental to the ownership or lease thereof.

“Receivables Financing” means any transaction or series of transactions that may be entered into by the Ultimate Parent or its respective Subsidiaries pursuant to which Ultimate Parent or any such Subsidiary may sell, convey or otherwise transfer to any other Person, or may grant a security interest in, any accounts receivable (whether now existing or arising in the future) of such Subsidiary, and any assets related thereto including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets, in each case, which are customarily transferred in or in respect of which security interests are customarily granted in connection with asset securitization transactions or factoring transactions involving accounts receivable.

“Receivables Subsidiary” means the AB Receivables Subsidiary and any Specified Receivables Subsidiary.

“Recipient” means the Administrative Agent, any Lender, 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.

“Refinance” has the meaning assigned to such term in the definition of the term “Permitted Refinancing Indebtedness,” and “Refinanced” has a meaning correlative thereto.

“Refinancing” means the refinancing of loans outstanding under the Existing Credit Agreements to occur on the Closing Date in accordance with the terms of this Agreement.

“Register” has the meaning assigned to such term in Section 10.06(c).

“Regulation U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Regulation X” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 

- 51 -

“Related Parties” means, with respect to any specified person, such person’s Affiliates and the respective directors, trustees, officers, representatives, employees, agents and advisors of such person and such person’s Affiliates.

“Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, emanating or migrating in, into, onto or through the environment. “Released” has a meaning correlative to the foregoing.

“Remaining Present Value” means, as of any date with respect to any lease, the present value as of such date of the scheduled future lease payments with respect to such lease, determined with a discount rate equal to a market rate of interest for such lease reasonably determined at the time such lease was entered into.

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

“Report” has the meaning assigned to such term in Section 10.21.

“Reportable Event” means any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30 day notice period referred to in Section 4043(a) of ERISA has been waived under applicable regulations, with respect to a Plan.

“Required Lenders” means, at any time, (1) at any time that there are three or more Lenders under this Agreement, at least two Lenders that are not Affiliates of each other and (2) Lenders having (i) Loans (other than Swing Line Loans) outstanding, (ii) L/C Obligations outstanding (with the aggregate amount of each Lender’s risk participation and funded participation in funded L/C Obligations being deemed “held” by such Lender), (iii) Swing Line Loans outstanding (with the aggregate amount of each Lender’s risk participation and funded participation in funded Swing Line Loans being deemed “held” by such Lender), and (iv) Revolving Facility Commitments, that taken together, represent more than 50% of the sum of all (A) Loans (other than Swing Line Loans) outstanding, (B) L/C Obligations outstanding, (C) Swing Line Loans outstanding, and (D) Revolving Facility Commitments at such time. The Loans of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.the Required Revolving Facility Lenders and the Required Term Loan Lenders.

“Required Revolving Facility Lenders” means, at any time, Lenders having or holding more than fifty (50%) of the sum of the aggregate Revolving Facility Credit Exposure of all Lenders, provided, that, (i) the Revolving Facility Credit Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Revolving Facility Lenders, and (ii) at any time there are three (3) or more Revolving Facility Lenders, “Required Revolving Facility Lenders” must include at least two (2) Revolving Facility Lenders (who are not Affiliates of one another).

 

- 52 -

“Required Term Loan Lenders” means, at any time, Lenders having or holding more than fifty (50%) of the sum of the aggregate Term Loan Exposure of all Lenders, provided, that, (i) the Term Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Term Loan Lenders, and (ii) at any time there are three (3) or more Term Loan Lenders, “Required Term Loan Lenders” must include at least two (2) Term Loan Lenders (who are not Affiliates of one another).

“Reserves” means all reserves against the Borrowing Base that the Administrative Agent has, in the exercise of its Permitted Discretion, established from time to time upon, provided, that, Administrative Agent shall give written notice to the Borrowers in the case of any new categories of reserves that may be established after the Closing Date or changes in methodology for a then existing reserve (except after a (i) Event of Default or (ii) for changes to any Reserves resulting solely by virtue of mathematical calculations of the amount of the Reserve in accordance with the methodology of calculation previously utilized (such as, but not limited to a rent Reserve), or (iii) for changes to Reserves or establishment of additional Reserves if a Material Adverse Effect has occurred or it would be reasonably likely that a Material Adverse Effect to the Lenders would occur were such Reserve not changed or established) and shall include the right of Administrative Agent to establish (A) a Reserve after written notice to Borrowers in the event that at any time the then outstanding aggregate principal amount of the Term Loans exceeds 50% of the NOLV of Eligible Equipment in place as set forth in the then most recent appraisal received by Administrative Agent from an Acceptable Appraiser in accordance with Section 6.11 and (B) Bank Product Reserves.

“Resolution Authority” means any EEA Resolution Authority, or with respect to any UK Financial Institution, a UK Resolution Authority.

“Responsible Officer” of any person means any executive officer or Financial Officer of such person and any other officer or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement.

“Restricted Payments” has the meaning assigned to such term in Section 7.06.

“Revolving Facility” means the Revolving Facility Commitments (including any Incremental Revolving Facility Commitments) and the extensions of credit made hereunder by the Revolving Facility Lenders.

“Revolving Facility Base Rate Margin” has the meaning set forth in the definition of Applicable Margin.

“Revolving Facility Borrowing” means a Borrowing comprisedgroup of Revolving Facility Loans of a single Type under the Revolving Facility and made on a single date and, in the case of Eurodollar Rate Loans, as to which a single Interest Period is in effect.

“Revolving Facility Borrowing Request” means a request by a Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit C-1 or otherwise in form and substance satisfactory to the Administrative Agent.

“Revolving Facility Commitment” means, with respect to each Revolving Facility Lender, the commitment of such Revolving Facility Lender to make Revolving Facility Loans pursuant to Section 2.01, expressed as an amount representing the maximum aggregate permitted amount of such Revolving Facility Lender’s Revolving Facility Credit Exposure hereunder, as such commitment may be (i) reduced from time to time pursuant to Section 2.08, (ii) reduced or increased from time to time pursuant to assignments by or to such Lender under Section 10.06, and (iii) increased as provided under Section 2.15 and set forth on Schedule 2.15.10.06. The amount of each Lender’s Revolving Facility Commitment as of the Amendment No.  12 Effective Date is set forth on Schedule 2.01. The aggregate amount of the Lenders’ Revolving Facility Commitments on the Amendment No. 12 Effective Date is $400,000,000.

 

- 53 -

“Revolving Facility Commitment Fee” has the meaning assigned to such term in Section 2.12(a).

“Revolving Facility Credit Exposure” means, at any time, the sum of (a) the aggregate principal amount of the Revolving Facility Loans outstanding at such time, (b) the aggregate principal amount of the Swing Line Loans outstanding at such time and (c) the aggregate principal amount of L/C Obligations outstanding at such time. The Revolving Facility Credit Exposure of any Revolving Facility Lender at any time shall be the product of (xi) such Revolving Facility Lender’s Revolving Facility Percentage and (yii) the aggregate Revolving Facility Credit Exposure of all Revolving Facility Lenders, collectively, at such time.

“Revolving Facility Lender” means a Lender (including an Incremental Revolving Facility Lender) with a Revolving Facility Commitment and/or with outstanding Revolving Facility Loans.

“Revolving Facility LIBOR Rate Margin” has the meaning set forth in the definition of Applicable Margin.

“Revolving Facility Loan” means a Loan made by a Revolving Facility Lender pursuant to Section 2.01.

“Revolving Loan Priority Collateral” means all Collateral other than Term Loan Priority Collateral.

“Revolving Loan Limit” means, at any time, the aggregate amount of Revolving Facility Commitments in effect at such time.

“ Revolving Facility Percentage” means, with respect to any Revolving Facility Lender, the percentage of the total Revolving Facility Commitments represented by such Lender’s Revolving Facility Commitment, subject to adjustment as provided in Section 2.15 and Section 2.17. If the Revolving Facility Commitments have terminated or expired, the Revolving Facility Percentages shall be determined based upon the Revolving Facility Commitments most recently in effect, giving effect to any subsequent assignments pursuant to Section 10.06.

“Rexam” means Rexam Beverage Can Company, a Delaware corporation, and its successors and assigns.

“Rexam Financing Documents” means, collectively, the Advance Agreement, the “Security Agreement” (as defined in the Advance Agreement) and all other agreements, documents and instruments executed and/or delivered by any Loan Party or any of their respective Affiliates in connection therewith or related thereto.

“S&P” means Standard & Poor’s Ratings Group, Inc.

“Sanction” has the meaning assigned to such term in Section 4.25(b).

“Sale and Lease Back Transaction” has the meaning assigned to such term in Section 7.03.

 

- 54 -

“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Borrower or any Subsidiary of a Borrower that is a Loan Party and any Cash Management Bank.

“Secured Debt Intercreditor Agreement” has the meaning assigned to such term in Section 10.20.

“Secured Hedge Agreement” means any Swap Contract that is entered into by and between any Borrower or any Subsidiary of a Borrower that is a Loan Party and any Hedge Bank.

“Secured Notes Collateral Agent” means Deutsche Bank Trust Company Americas, in its capacity (a) with respect to the Ravenswood Intercreditor Agreement, as notes collateral agent under the Ravenswood Intercreditor Agreement and (b) with respect to the Muscle Shoals Intercreditor Agreement, as successor noteholder collateral agent under the Muscle Shoals Intercreditor Agreement.

“Secured Notes Documents” means, collectively, the “Notes Documents” as defined in the Ravenswood Intercreditor Agreement and the “Noteholder Documents” as defined in the Muscle Shoals Intercreditor Agreement.

“Secured Notes Intercreditor Agreement” means, collectively, the Ravenswood Intercreditor Agreement and the Muscle Shoals Intercreditor Agreement.

“Secured Notes Obligations” means, collectively, the “Notes Obligations” as defined in the Ravenswood Intercreditor Agreement and the “Noteholder Obligations” as defined in the Muscle Shoals Intercreditor Agreement.

“Secured Notes Priority Collateral” means, collectively, the “Notes Priority Collateral” as defined in the Ravenswood Intercreditor Agreement and the “Noteholder Priority Collateral” as defined in the Muscle Shoals Intercreditor Agreement.

“Secured Notes Secured Parties” means, collectively, the “Notes Secured Parties” as defined in the Ravenswood Intercreditor Agreement and the “Noteholder Secured Parties” as defined in the Muscle Shoals Intercreditor Agreement.

“Secured Parties” means the “Secured Parties” as defined in the Collateral Agreement.

“Securities Act” means the Securities Act of 1933, as amended.

“Security Documents” means the Mortgages, the Collateral Agreement and each of the security agreements and other instruments and documents executed and delivered pursuant to any of the foregoing or pursuant to Section 6.10.

“Specified Mill Assets” has the meaning set forth in the Muscle Shoals Intercreditor Agreement.

“Specified Person” has the meaning assigned to such term in Section 4.25(b).

“Specified Receivables Subsidiary” means a Wholly Owned Subsidiary of any Borrower which engages in no activities other than in connection with the financing or sale of such Qualified Receivables of such Borrower and its Subsidiaries, all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the applicable Borrower as a Specified Receivables Subsidiary and:

 

- 55 -

(a) (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Borrowers or any other Subsidiary of a Borrower (excluding guarantees of obligations (other than the principal of and interest on, Indebtedness) pursuant to Standard Undertakings), (ii) is recourse to or obligates the Borrowers or any other Subsidiary of a Borrower in any way other than pursuant to Standard Undertakings, or (iii) subjects any property or asset of the Borrowers or any other Subsidiary of a Borrower, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Undertakings;

(b) (b) with which neither the Borrowers nor any other Subsidiary of a Borrower has any material contract, agreement, arrangement or understanding other than on terms which the applicable Borrower reasonably believes to be no less favorable to the Borrowers or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the applicable Borrower; and

(c) (c) to which neither the Borrowers nor any other Subsidiary of a Borrower has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.

“Standard Letter of Credit Practice” means, for any L/C Issuer, any domestic or foreign law or letter of credit practices applicable in the city in which such L/C Issuer issued the applicable Letter of Credit or, for its branch or correspondent, such laws and practices applicable in the city in which it has advised, confirmed or negotiated such Letter of Credit, as the case may be, in each case, (a) which letter of credit practices are of banks that regularly issue letters of credit in the particular city, and (b) which laws or letter of credit practices are required or permitted under ISP or UCP, as chosen in the applicable Letter of Credit.

“Standard Undertakings” means representations, warranties, covenants, indemnities and guarantees of performance entered into by the Borrowers or any Subsidiary of a Borrower that are determined by the Borrowers in good faith to be customary for a Receivables Financing, including, without limitation, those relating to the servicing of assets of a Subsidiary.

“subsidiary” means, with respect to any person (herein referred to as the “parent”), any corporation, partnership, association or other business entity (i) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, directly or indirectly, owned, controlled or held, or (ii) that is, at the time any determination is made, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

“Subsidiary” means, unless the context otherwise requires, a subsidiary of a Borrower, provided that (except for purposes of Sections 4.09, 4.13, 4.15, 4.16, 6.03, 6.09 and 8.01(k), and the definition of Unrestricted Subsidiary contained herein) an Unrestricted Subsidiary shall be deemed not to be a Subsidiary of a Borrower or any of its Subsidiaries for purposes of this Agreement.

“Subsidiary Loan Party” means (i) each Wholly Owned Domestic Subsidiary of any Borrower (which itself is not a Borrower), whether existing on the Closing Date or formed or acquired thereafter that, in each case, guarantees any other Indebtedness for borrowed money in excess of $15,000,000 of any Loan Party or any Affiliate of any Loan Party, and (ii) each other Subsidiary of any Borrower (which itself is not a Borrower) that, in the sole discretion of such Borrower, becomes a party to the Collateral Agreement (or a comparable agreement mutually agreed, each in their sole discretion, by such Borrower and the Administrative Agent) after the Closing Date; provided, however, that in no event shall a Receivables Subsidiary be a Subsidiary Loan Party.

 

- 56 -

“Subsidiary Redesignation” has the meaning provided in the definition of “Unrestricted Subsidiary” contained in this Section 1.01.

“Supermajority Revolving Facility Lenders” means, at any time, (1) at any time thatLenders having or holding more than sixty-six and two-thirds percent (66 2/3%) of the sum of the aggregate Revolving Facility Credit Exposure of all Lenders, provided, that, (i) the Revolving Facility Credit Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Revolving Facility Lenders, and (ii) at any time there are three (3) or more Revolving Facility Lenders under this Agreement, “Required Supermajority Revolving Facility Lenders” must include at least two (2) Revolving Facility Lenders that are not Affiliates of each other and (2) Lenders having (i) Loans (other than Swing Line Loans) outstanding, (ii) L/C Obligations outstanding (with the aggregate amount of each Lender’s risk participation and funded participation in funded L/C Obligations being deemed “held” by such Lender), (iii) Swing Line Loans outstanding (with the aggregate amount of each Lender’s risk participation and funded participation in funded Swing Line Loans being deemed “held” by such Lender), and (iv) Revolving Facility Commitments, that taken together, represent more than 66.67% of the sum of all (A) Loans (other than Swing Line Loans) outstanding, (B) L/C Obligations outstanding, (C) Swing Line Loans outstanding, and (D) Revolving Facility Commitments at such time. The Loans(who are not Affiliates of one another).

“Supermajority Term Loan Lenders” means, at any time, Lenders having or holding more than sixty-six and two-thirds percent (66 2/3%) of the sum of the aggregate Term Loan Exposure of all Lenders, provided, that, the Term Loan Exposure of any Defaulting Lender shall be disregarded in determining Supermajority Lenders at any timethe determination of the Required Term Loan Lenders.

“Swap Contract” means (i) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (ii) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement; provided that (i) no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Holdcos, the Borrowers or any of their respective Subsidiaries, and (ii) no contract for the purchase of natural gas of which any Loan Party intends to take delivery from a counterparty in the business of supplying natural gas, shall be a Swap Contract.

“Swap Obligations” of any Person means all obligations (including, without limitation, any amounts which accrue after the commencement of any bankruptcy or insolvency proceeding with respect to such Person, whether or not allowed or allowable as a claim under any proceeding under any Debtor Relief Law) of such Person in respect of any Swap Contract.

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

 

- 57 -

“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.

“Swing Line Commitment” means the commitment of any Lender, established pursuant to Section 2.04, to make Swing Line Loans to the Borrowers.

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

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

“Swing Line Loan Notice “ means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit C-2.

“Swing Line Sublimit” means $35,000,000. The Swing Line Sublimit is part of, and not in addition to, the Revolving Facility.

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

“Term Loan” means, collectively, Term Loans A-1 and Term Loans A-2.

“Term Loan Amount” means $166,250,000.

“Term Loan A-2 Obligations” means all ABL Credit Obligations arising in respect of Term Loans A-2, including all principal, interest and fees owing in respect thereof.

“Term Loan Commitment” means, with respect to each Term Loan Lender, its Term Loan Commitment, and, with respect to all Lenders, their Term Loan Commitments, in each case as such Dollar amounts are set forth beside such Lender’s name under the applicable heading on Schedule 2.15 to this Agreement or in the Assignment and Assumption pursuant to which such Lender became a Term Loan Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 10.06 of this Agreement. The aggregate amount of the Lenders’ Term Loan Commitments on the Amendment No. 2 Effective Date is $166,250,000.

“Term Loan Commitment Expiration Date” means November 1, 2020.

“Term Loan Facility” means the Term Loan Commitments and the extensions of credit made hereunder by the Term Loan Lenders.

“Term Loan Facility Borrowing” means a group of term loans of a single Type under the Term Loan Facility and made on a single date and, in the case of Eurodollar Rate Loans, as to which a single Interest Period is in effect.

 

- 58 -

“Term Loan Exposure” means, with respect to any Term Loan Lender, as of any date of determination (a) prior to the Term Loan Commitment Expiration Date, the sum of (i) the unused amount of such Term Loan Lender’s Term Loan Commitment plus (ii) the outstanding amount of all Term Loans made by such Term Loan Lender, and (b) after the Term Loan Commitment Expiration Date, the outstanding aggregate outstanding principal amount of all Term Loans made by such Term Loan Lender.

“Term Loan Facility Fee” has the meaning assigned to such term in Section 2.12(d).

“Term Loan Facility Percentage” means with respect to any Term Loan Lender, (i) prior to the Final Term Loan Funding Date, the percentage of aggregate Unutilized Term Loan Commitments represented by such Lender’s Term Loan Commitment and (ii) if the Term Loan Commitments have terminated or expired, the fraction (expressed as a percentage), the numerator of which is the aggregate outstanding principal amount of Term Loans owed to such Lender and the denominator of which is aggregate outstanding principal amount of Term Loans owed to all Term Loan Lenders.

“Term Loan Funding Date” means the date on which Administrative Agent determines that all of the conditions set forth in Section 2.15(f) have been satisfied.

“Term Loan Lender” means a Lender that has a Term Loan Commitment or that has funded any Term Loan hereunder.

“Term Loan LIBOR Rate Margin” has the meaning set forth in the definition of Applicable Margin.

“Term Loan Priority Collateral” means (i) the equipment of Borrowers, (ii) the Mortgaged Properties, and (iii) all collateral security and guarantees with respect to any Term Loan Priority Collateral and all cash, money, instruments, securities, financial assets and deposit accounts directly received as proceeds of any Term Loan Priority Collateral.

“Term Loan Request” means a request by a Borrower for Term Loans in accordance with the terms of Section 2.15(f) and substantially in the form of Exhibit C-4 or otherwise in form and substance satisfactory to the Administrative Agent.

“Term Loans A-1” means all of the term loans made pursuant to Section 2.15 of this Agreement by the Term Loan Lenders identified on Schedule 2.15 as “Term Loan A-1 Lenders.”

“Term Loans A-2” means all of the term loans made pursuant to Section 2.15 of this Agreement by the Term Loan Lenders identified on Schedule 2.15 as Term Loan A-2 Lenders.

“ Transactions” means, collectively, the transactions to occur pursuant to the Loan Documents, including (i) the execution and delivery of the Loan Documents, the creation of the Liens pursuant to the Security Documents, and the initial borrowings hereunder; (ii) the repurchase under and termination of, or refinancing (or discharge) of Indebtedness under, the Existing Factoring Agreement, and (iii) the payment of all fees and expenses to be paid on or prior to the Closing Date and owing in connection with the foregoing.

“Type” means, when used in respect of any Loan or Borrowing, the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, the term “Rate” shall include the Adjusted Eurodollar Rate and the Base Rate.

 

- 59 -

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

“UK Financial Institution” means any BRRD Undertaking (as defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain financial affiliates of such credit institutions or investment firms.

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

“Ultimate Parent” means Constellium N.VSE, a Societas Europea, domiciled in Paris, France.

“Unfinanced Capital Expenditures “ means Capital Expenditures not paid with the proceeds of Indebtedness (other than with the proceeds of Revolving Facility Loans) or with the proceeds of the sale of Equity Interests of Ultimate Parent.

“Unfunded Pension Liability” means the amount by which the present value of a Plan’s obligations (based on the assumptions used for purposes of the Applicable Accounting Rules), as of the date of the most recent financial statements reflecting such amounts, exceeds the fair market value of the Plan’s assets.

“Uniform Commercial Code or UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.

“Unreimbursed Amount” has the meaning specified in Section 2.05(c)(i).

“Unrestricted Subsidiary” means (i) any subsidiary of a Borrower identified on Schedule 1.01(e) and (ii) any subsidiary of a Borrower that is itself not a Borrower and is designated by such Borrower as an Unrestricted Subsidiary hereunder by written notice to the Administrative Agent; provided that a Borrower shall only be permitted to so designate a new Unrestricted Subsidiary after the Closing Date and so long as (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) immediately after giving effect to such designation (as well as all other such designations theretofore consummated after the first day of such reference period), the Payment Conditions shall have been satisfied, (C) such Unrestricted Subsidiary shall be capitalized (to the extent capitalized by a Borrower or any of its Subsidiaries) through Investments as permitted by, and in compliance with, Section 7.04(i), and any prior or concurrent Investments in such Subsidiary by such Borrower or any of its Subsidiaries shall be deemed to have been made under Section 7.04(i), (D) without duplication of clause (C) above, any assets owned by such Unrestricted Subsidiary at the time of the initial designation thereof shall be treated as Investments pursuant to Section 7.04(i), and (E) such Subsidiary shall have been designated an “unrestricted subsidiary” (or otherwise not be subject to the covenants and defaults) under any applicable Indebtedness permitted to be incurred hereby and all applicable Permitted Refinancing Indebtedness in respect of any of the foregoing and all applicable Disqualified Stock. A Borrower may designate any Unrestricted Subsidiary to be a Subsidiary for purposes of this Agreement (each, a “Subsidiary Redesignation”); provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) immediately after giving effect to such Subsidiary Redesignation (as well as all other Subsidiary Redesignations theretofore consummated after the first day of such reference period), the

 

- 60 -

Payment Conditions shall have been satisfied, and (iii) the applicable Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by a Responsible Officer of such Borrower, certifying to the best of such officer’s knowledge, compliance with the requirements of preceding clauses (i) and (ii), inclusive, and containing the calculations and information demonstrating compliance with the preceding clause (i).

“Unutilized Revolving Commitments” means, at any time, the Maximum CreditRevolving Loan Limit at such time minus the sum of (a) the aggregate principal amount of Revolving Facility Loans outstanding at such time and (b) the aggregate principal amount of L/C Obligations outstanding at such time.

“Unutilized Term Loan Commitments” means, at any time, prior to the Final Term Loan Funding Date, the Term Loan Amount minus the sum of the aggregate principal amount of Term Loans outstanding at such time.

“ U.S. Bankruptcy Code” means Title 11 of the United States Code, as amended, or any similar federal or state law for the relief of debtors.

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

“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(ec )(ii)(B)(3).

“Wells Fargo” means Wells Fargo Bank, National Association and its successors and assigns.

“Wholly Owned Domestic Subsidiary” of any person means a subsidiary of such person that is both a Domestic Subsidiary and a Wholly Owned Subsidiary.

“Wholly Owned Foreign Subsidiary” of any person means a subsidiary of such person that is both a Foreign Subsidiary and a Wholly Owned Subsidiary.

“Wholly Owned Subsidiary” of any person means a subsidiary of such person, all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such person or another Wholly Owned Subsidiary of such person.

“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part 1 of Subtitle E of Title IV of ERISA.

“Write- Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write- down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right hand had been exercised under it to or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

- 61 -

Section 1.02 Terms Generally. The definitions set forth or referred to in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, any reference in this Agreement to any Loan Document shall mean such document as amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements hereof and thereof. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with the Applicable Accounting Rules, as in effect from time to time; provided that, if the Borrowers notify the Administrative Agent that the Borrowers request, or the Administrative Agent requests or the Required Lenders request, an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in the Applicable Accounting Rules or in the application thereof on the operation of such provision, regardless of whether any such notice is given before or after such change in the Applicable Accounting Rules or in the application thereof, then such provision shall be interpreted on the basis of the Applicable Accounting Rules 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.

Section 1.03 Effectuation of Transactions. Each of the representations and warranties of the Holdcos and the Borrowers contained in this Agreement (and all corresponding definitions) are made after giving effect to the Transactions, unless the context otherwise requires.

Section 1.04 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar stated amount of such Letter of Credit at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

Section 1.05 Amendment and Restatement of the Existing Credit Agreement. The parties to this Agreement agree that, on the Effective Date, the terms and provisions of the Existing Credit Agreement shall be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Agreement. This Agreement is not intended to be, and shall not constitute, a novation. All Swing Line Loans and Revolving Facility Loans made, and all ABL Finance Obligations, incurred, under the Existing Credit Agreement which are outstanding on the Effective Date shall continue as Swing Line Loans, Revolving Facility Loans and ABL Finance Obligations, respectively, under (and shall be governed by the terms of) this Agreement and the other Loan Documents.

(b) Without limiting the foregoing, upon the effectiveness of the amendment and restatement contemplated hereby on the Effective Date:

(c) (i) all references in the “Loan Documents” (as defined in the Existing Credit Agreement) to the “Administrative Agent”, the “Credit Agreement” and the “Loan Documents” shall be deemed to refer to the Administrative Agent, this Agreement and the Loan Documents;

(i) (ii) the “Revolving Facility Commitments” (as defined in the Existing Credit Agreement) shall be redesignated as Revolving Facility Commitments hereunder as set forth on Schedule 2.01; and

 

- 62 -

(ii) (iii) the Existing Letters of Credit which remain outstanding on the Closing Date shall continue as Letters of Credit under (and shall be governed by the terms of) this Agreement.

ARTICLE IIARTICLE II

THE CREDITS

Section 2.01 Revolving Facility Commitments. Prior to the Effective Date, certain “Loans” were made to the Existing Borrowers under the Existing Credit Agreement (such outstanding “Revolving Facility Loans,” the “Existing Revolving Facility Loans” and such outstanding “Swing Line Loans,” the “Existing Swing Line Loans” and together with the Existing Revolving Facility Loans, the “Existing Loans”). As of the Effective Date and prior to the funding of any Loans hereunder on the Effective Date, the outstanding principal balance of the Existing Revolving Facility Loans is $160,518,198.76 and the outstanding principal balance of the Existing Swing Line Loans is $0. Subject to the terms and conditions set forth in this Agreement, each Borrower and each of the Lenders agree that on the Effective Date the Existing Revolving Facility Loans shall be re-evidenced as Revolving Facility Loans under this Agreement and the Existing Swing Line Loans shall be re-evidenced as Swing Line Loans under this Agreement and the terms of the Existing Loans shall be restated in their entirety and shall be evidenced by this Agreement. Subject to the terms and conditions set forth herein each Revolving Facility Lender severally and not jointly agrees to make Revolving Facility Loans to the Borrowers in Dollars from time to time on any Business Day during the Availability Period in an aggregate principal amount not to exceed at any time outstanding the amount of such Lender’s Revolving Facility Commitment; provided, however, that, after giving effect to any Revolving Facility Borrowing, (i) the Revolving Facility Credit Exposure shall not exceed the lesser of the Maximum CreditRevolving Loan Limit and the Borrowing Base, (ii) the Revolving Facility Credit Exposure of any Revolving Facility Lender shall not exceed such Lender’s Revolving Facility Commitment and (iii) the aggregate outstanding principal balance of Revolving Facility Loans made to Bowling Green shall not exceed the greater of (a) $75,000,000 and (b) the portion of the Borrowing Base pertaining to the assets (net of Reserves) of Bowling Green. Within the limits of each Lender’s Revolving Facility Commitment, and subject to the other terms and conditions hereof, each Borrower may borrow under this Section 2.01, prepay under Section 2.11 and reborrow under this Section 2.01. Revolving Facility Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

Section 2.02 Revolving Facility Loans and Revolving Facility Loan Borrowings. (a) Each Revolving Facility Loan shall be made as part of a Revolving Facility Borrowing consisting of Revolving Facility Loans under the Revolving Facility and of the same Type made by the Lenders ratably in accordance with their respective Commitments under the Revolving Facility (or in the case of Swing Line Loans, in accordance with their respective Swing Line Commitments); provided, however, that Revolving Facility Loans shall be made by Revolving Facility Lenders ratably in accordance with their respective Revolving Facility Percentages on the date such Revolving Facility Loans are made hereunder. The failure of any Lender to make any Revolving Facility Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Revolving Facility Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Revolving Facility Loans as required.

(b) Subject to Section 3.03, each Revolving Facility Borrowing shall be comprised entirely of Base Rate Loans or Eurodollar Rate Loans as a Borrower may request in accordance herewith. Each Swing Line Borrowing shall be a Base Rate Borrowing. Each Lender at its option may make any Base Rate Loan or Eurodollar Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of such Borrower to repay such Revolving Facility Loan in accordance with the terms of this Agreement and such Lender shall not be entitled to any amounts payable under Section 3.01 or 3.04 solely in respect of increased costs resulting from such exercise and existing at the time of such exercise.

 

- 63 -

(c) At the commencement of each Interest Period for any Eurodollar Rate Borrowing, such Revolving Facility Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum. At the time that each Base Rate Borrowing is made, such Revolving Facility Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided that a Base Rate Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Revolving Facility Commitments or that is required to finance the reimbursement in respect of Letters of Credit as contemplated by Section 2.05(c). Each Swing Line Borrowing shall be in an amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum. Revolving Facility Borrowings of more than one Type may be outstanding at the same time; provided that there shall not at any time be more than a total of 15 Eurodollar Rate Borrowings outstanding under the Revolving Facility.

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

Section 2.03 Requests for Revolving Facility Borrowings. To request a Revolving Facility Borrowing, the applicable Borrower shall notify the Administrative Agent of such request in writing by delivery of a Revolving Facility Borrowing Request (which may be delivered through Administrative Agent’s electronic platform or portal) (a) in the case of a Eurodollar Rate Borrowing, not later than 12:00 p.m., Local Time, three Business Days before the date of the proposed Revolving Facility Borrowing or (b) in the case of a Base Rate Borrowing of Revolving Facility Loans, not later than 11:00 a.m., Local Time, on the date of the proposed Revolving Facility Borrowing; provided that any such notice of a Base Rate Borrowing to finance the reimbursement in respect of a Letter of Credit as contemplated by Section 2.05(c) may be given not later than 10:00 a.m., Local Time, on the date of the proposed Revolving Facility Borrowing. All Revolving Facility Borrowing Requests which are not made on-line via Administrative Agent’s electronic platform or portal shall be subject to (and unless Administrative Agent elects otherwise in the exercise of its sole discretion, such Revolving Facility Borrowings shall not be made until the completion of) a customary authentication process by the Administrative Agent (with results reasonably satisfactory to Administrative Agent) prior to the funding of any such requested Revolving Facility Loan. Each such Revolving Facility Revolving Facility Borrowing Request shall be irrevocable and shall specify the following information in compliance with Section 2.02:

(i) the name of the applicable Borrower;

(ii) the aggregate amount of (A) the requested Revolving Facility Borrowing and (B) the Revolving Facility Credit Exposure (after giving effect to the requested Revolving Facility Borrowing);

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

(iv) whether such Revolving Facility Borrowing is to be a Base Rate Borrowing or a Eurodollar Rate Borrowing;

 

- 64 -

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

(vi) the location and number of such Borrower’s account to which funds are to be disbursed.

If such Borrower fails to specify a Type of Revolving Facility Loan in a Revolving Facility Borrowing Request or if such Borrower fails to give a timely notice requesting a conversion or continuation, then the Revolving Facility Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If no Interest Period is specified with respect to any requested Eurodollar Rate Borrowing, then such Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Revolving Facility Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

Section 2.04 Swing Line Loans.

(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, may make loans (each such loan, a “Swing Line Loan”) to a Borrower in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit; provided, however, that, (x) after giving effect to any Swing Line Loan, (i) the Revolving Facility Credit Exposure shall not exceed the lesser of the Maximum CreditRevolving Loan Limit and the Borrowing Base at such time, and (ii) the Revolving Facility Credit Exposure of any Lender (including the Swing Line Lender) shall not exceed such Lender’s Revolving Facility Commitment, (y) the applicable Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan and (z) the Swing Line Lender may choose not to make any Swing Line Loan if it has, or by making of such Swing Line Loan may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, each Borrower may borrow under this Section 2.04, prepay under Section 2.11, and reborrow under this Section 2.04. Each Swing Line Loan shall bear interest only at the Base Rate plus the Applicable Margin for Base Rate Loans. Immediately upon the making of a Swing Line Loan, each Revolving Facility Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Revolving Facility Percentage multiplied by the principal amount of such Swing Line Loan.

(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the applicable Borrower’s irrevocable written notice to the Swing Line Lender and the Administrative Agent, which may be delivered electronically. Each such notice must be in the form of a Swing Line Loan Notice and be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m., Local Time, on the requested borrowing date or such later time on the requested borrowing date as may be approved by the Swing Line Lender in its sole discretion, and shall specify (i) the amount to be borrowed, which shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum, and (ii) the requested borrowing date, which shall be a Business Day. Promptly after receipt by the Swing Line Lender of any Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent of the contents thereof. Unless the Swing Line Lender has received notice from the Administrative Agent (including at the request of any Revolving Facility Lender) prior to 2:00 p.m., Local Time, on the date of the proposed

 

- 65 -

Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article V is not then satisfied or waived (and one or more such conditions are not in fact satisfied or waived), then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m., Local Time, on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to such Borrower in immediately available funds either by (i) crediting the account of such Borrower on the books of the Swing Line Lender with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to the Swing Line Lender by such Borrower.

(c) Refinancing of Swing Line Loans.

(i) The Swing Line Lender at any time in its sole discretion may request, on behalf of any Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Facility Lender make a Base Rate Loan in an amount equal to such Lender’s Revolving Facility Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Revolving Facility Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to sufficient Availability, the unutilized portion of the Revolving Facility and the conditions set forth in Section 5.01. The Swing Line Lender shall furnish such Borrower with a copy of the applicable Revolving Facility Borrowing Request promptly after delivering such notice to the Administrative Agent. Each Revolving Facility Lender shall transfer an amount equal to its Revolving Facility Percentage of the amount specified in such Revolving Facility Borrowing Request to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender to the Administrative Agent’s Account not later than 1:00 p.m., Local Time, on the day specified in such Revolving Facility Borrowing Request, whereupon, subject to Section 2.04(c)(ii), each Revolving Facility Lender that so makes funds available shall be deemed to have made a Base Rate Loan to such Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.

(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Facility Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Facility Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Facility Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.

(iii) If any Revolving Facility Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Facility Loan included in the relevant Revolving Facility Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

 

- 66 -

(iv) Each Revolving Facility Lender’s obligation to make Revolving Facility Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, any Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Facility Lender’s obligation to make Revolving Facility Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 5.01.

(d) Repayment of Participations.

(i) At any time after any Revolving Facility Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Facility Lender its Revolving Facility Percentage thereof in the same funds as those received by the Swing Line Lender.

(i) (ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving Facility Lender shall pay to the Swing Line Lender its Revolving Facility Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the ABL Credit Obligations and the termination of this Agreement.

(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the applicable Borrower for interest on the Swing Line Loans. Until each Revolving Facility Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Revolving Facility Lender’s Revolving Facility Percentage of any Swing Line Loan, interest in respect of such Revolving Facility Percentage shall be solely for the account of the Swing Line Lender.

(f) Payments Directly to Swing Line Lender. The applicable Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.

(g) Defaulting Lenders. Notwithstanding anything to the contrary contained in this Section 2.04, the Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Revolving Facility Lender is a Defaulting Lender, unless the Swing Line Lender has entered into arrangements satisfactory to it to eliminate its Fronting Exposure (after giving effect to Section 2.16) with respect to any Defaulting Lender’s risk participations in, and all other obligations in respect of, Swing Line Loans, including by cash collateralizing such Defaulting Lender’s Revolving Facility Percentage of all Swing Line Loans outstanding or to be outstanding hereunder.

Section 2.05 Letters of Credit.

(a) The Letter of Credit Commitment.

 

- 67 -

(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Facility Lenders set forth in this Section 2.05, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of any Borrower or its Subsidiaries, and to amend or (solely in the case of standby Letters of Credit) extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Facility Lenders severally and not jointly agree to participate in Letters of Credit issued for the account of any Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Revolving Facility Credit Exposure shall not exceed the lesser of the Maximum CreditRevolving Loan Limit and the Borrowing Base at such time, (y) the Revolving Facility Credit Exposure of any Lender shall not exceed such Lender’s Revolving Facility Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by such Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Anything contained herein to the contrary notwithstanding, each L/C Issuer may, but shall not be obligated to, issue a Letter of Credit that supports an obligation of a Borrower in respect of (x) a lease of real property or (y) an employment contract. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly any Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. As of the Closing Date, the Existing Letters of Credit shall be deemed to have been issued under (and shall be governed by the terms of) this Agreement.

(ii) No L/C Issuer shall issue any Letter of Credit if:

(A) subject to Section 2.05(b)(iii), the expiry date of the requested Letter of Credit would occur, (1) with respect to each standby Letter of Credit, more than twelve months after the date of issuance or last extension or, (2) with respect to each commercial Letter of Credit, more than 180 days after the date of issuance, unless, in each case, the Required Lenders have approved such expiry date; or

(B) unless such L/C Issuer has otherwise agreed, the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date; provided that if any such Letter of Credit is outstanding on the Letter of Credit Expiration Date, the applicable Borrower shall Cash Collateralize the Outstanding Amount of all L/C Obligations with respect to such Letter of Credit.

(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:

(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;

 

- 68 -

(B) the issuance of the Letter of Credit would violate in any material respect one or more policies of the L/C Issuer applicable to letters of credit generally and customary for other issuers of letters of credit;

(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;

(D) the Letter of Credit is to be denominated in a currency other than Dollars; or

(E) any Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the applicable Borrower or such Lender to eliminate the L/C Issuer’s actual or reasonably determined potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or reasonably determined potential Fronting Exposure.

(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.

(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.

(vi) Each L/C Issuer shall act on behalf of the Revolving Facility Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and such L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.

(vii) It is agreed that, in the case of the issuance of any commercial or trade Letter of Credit, such Letter of Credit shall in no event provide for time drafts or bankers’ acceptances, unless a proper Reserve has been established with respect thereto.

(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.

(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the applicable Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Request, appropriately completed and signed by a Responsible Officer of such Borrower. Such Letter of Credit Request may be sent by fax or by electronic transmission using the system provided by the applicable L/C Issuer or by any other means acceptable to such L/C Issuer and shall be subject to customary authentication procedures by such L/C Issuer with results reasonably satisfactory to such L/C Issuer. Such Letter of Credit Request must be received by the L/C Issuer and the Administrative Agent not later than 2:00 p.m., Local Time, at least two Business Days

 

- 69 -

(or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Request shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other customary matters as the L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Request shall specify in form and detail reasonably satisfactory to the L/C Issuer: (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other customary matters as the L/C Issuer may reasonably require. Additionally, such Borrower shall furnish to the L/C Issuer and the Administrative Agent such other customary documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.

(ii) Promptly after receipt of any Letter of Credit Request, the L/C Issuer will confirm with the Administrative Agent that the Administrative Agent has received a copy of such Letter of Credit Request from the applicable Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless one or more applicable conditions contained in Article V shall not then be satisfied or waived, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of such Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Facility Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Revolving Facility Percentage times the amount of such Letter of Credit.

(iii) If any Borrower so requests in any applicable standby Letter of Credit Request, the L/C Issuer may, in its sole and absolute discretion, agree to issue a standby Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that (x) any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued and (y) such prior notice shall be deemed to have been given by the L/C Issuer on the effective date of its resignation as L/C Issuer in accordance with Section 10.06(f). Unless otherwise directed by the applicable L/C Issuer, the applicable Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Facility Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date (unless the applicable L/C Issuer has otherwise agreed, in which case such expiry date may be later than the Letter of Credit Expiration Date, and if any such Letter of Credit is outstanding on the Letter of Credit Expiration Date, such Borrower shall Cash Collateralize the Outstanding Amount of all L/C Obligations with respect to such Letter of Credit); provided, however, that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.05(a) or otherwise), or (B) one or more of the applicable conditions specified in Section 5.01 is not then satisfied or waived.

 

- 70 -

(iv) If any Borrower so requests in any applicable Letter of Credit Request, the L/C Issuer may, in its sole and absolute discretion, agree to issue a standby Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by the L/C Issuer, such Borrower shall not be required to make a specific request to the L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Revolving Facility Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “Non-Reinstatement Deadline”), the L/C Issuer shall not permit such reinstatement if it has received a notice on or before the day that is seven Business Days before the Non-Reinstatement Deadline (A) that the Administrative Agent has reasonably determined not to permit such reinstatement or (B) from the Administrative Agent, any Lender or such Borrower that one or more of the applicable conditions specified in Section 5.01 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the L/C Issuer not to permit such reinstatement.

(v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the applicable Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

(c) Drawings and Reimbursements; Funding of Participations.

(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the applicable Borrower and the Administrative Agent thereof. Not later than 2:00 p.m., Local Time, on the Business Day (each such date, an “Honor Date”) following the date upon which such Borrower receives such notice from the L/C Issuer of a payment by the L/C Issuer under a Letter of Credit, such Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If such Borrower fails to so reimburse the L/C Issuer by such time, the L/C Issuer shall notify the Administrative Agent who shall promptly notify each Revolving Facility Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Revolving Facility Lender’s Revolving Facility Percentage thereof. In such event, such Borrower shall be deemed to have requested a Revolving Facility Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.01 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Revolving Facility Commitments and the conditions set forth in Section 5.01 (other than the delivery of a Revolving Facility Borrowing Request).

(ii) Each Revolving Facility Lender shall, upon any notice pursuant to Section 2.05(c)(i), make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the L/C Issuer at the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders, in an amount equal to its Revolving Facility Percentage of the Unreimbursed Amount not later than 1:00 p.m., Local Time, on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.05(c)(iii), each Revolving Facility Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.

 

- 71 -

(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Facility Borrowing of Base Rate Loans because the conditions set forth in Section 5.01 cannot be satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Facility Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.05(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.05.

(iv) Until each Revolving Facility Lender funds its Revolving Facility Loan or L/C Advance pursuant to this Section 2.05(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Revolving Facility Percentage of such amount shall be solely for the account of the L/C Issuer.

(v) Each Revolving Facility Lender’s obligation to make Revolving Facility Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.05(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, any Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Facility Lender’s obligation to make Revolving Facility Loans pursuant to this Section 2.05(c) is subject to the conditions set forth in Article V (other than delivery by a Borrower of a Revolving Facility Borrowing Request). No such making of an L/C Advance shall relieve or otherwise impair the obligation of any Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.

(vi) If any Revolving Facility Lender fails to make available to the Administrative Agent for the account of any L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.05(c) by the time specified in Section 2.05(c)(ii), then, without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Facility Loan included in the relevant Revolving Facility Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Revolving Facility Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.05(c)(vi) shall be conclusive absent manifest error.

(d) Repayment of Participations.

(i) At any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Facility Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.05(c), if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the applicable Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Revolving Facility Percentage thereof in the same funds as those received by the Administrative Agent.

 

- 72 -

(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.05(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Facility Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Revolving Facility Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the ABL Credit Obligations and the termination of this Agreement.

(e) Obligations Absolute. The obligation of each Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, any Issuer Document or any other Loan Document, or any term or provisions therein or herein;

(ii) the existence of any claim, counterclaim, setoff, defense or other right that any Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

(iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

(v) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Borrower or any of its Subsidiaries.

(f) Role of L/C Issuer. Each Lender and each Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties or any correspondent, participant or assignee of the applicable L/C Issuer

 

- 73 -

shall be liable to any Lender for: (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Facility Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. Each Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude such Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.05(e); provided, however, that anything in such clauses to the contrary notwithstanding, the applicable Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be liable to such Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by such Borrower which such Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

(g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer and the applicable Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, the L/C Issuer shall not be responsible to any Borrower for, and the L/C Issuer’s rights and remedies against any Borrower shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade—International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

(h) Letter of Credit Fees. Each Borrower shall pay to the Administrative Agent for the account of each Revolving Facility Lender, in accordance with its Revolving Facility Percentage, a Letter of Credit fee (the “Letter of Credit Fee”) (i) for each commercial Letter of Credit issued at the request of such Borrower equal to the ApplicableRevolving Facility LIBOR Rate Margin for Eurodollar Rate Borrowings effective for each day during any quarter times the daily amount available to be drawn under such Letter of Credit and (ii) for each standby Letter of Credit issued at the request of such Borrower equal to the Applicable Margin for Eurodollar Rate Borrowings effective for each day during any quarter times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.04. Letter of Credit Fees shall be (i) due and payable on the first Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date

 

- 74 -

and thereafter on demand, (ii) computed on a quarterly basis in arrears on the basis of a year of 360 days and (iii) payable for the actual number of days elapsed (including the first day but excluding the last day). If there is any change in the Applicable Margin during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that such Applicable Margin was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.

(i) Fronting Fee and Documentary and Processing Charges to L/C Issuers. Each Borrower shall pay directly to each L/C Issuer for its own account a fronting fee (i) with respect to each commercial Letter of Credit issued at the request of such Borrower, at the rate of 0.125 % per annum (or such lesser amount to any respective L/C Issuer as such Borrower may agree in writing with such L/C Issuer), computed on the amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit issued at the request of such Borrower, at a rate separately agreed between such Borrower and the L/C Issuer, computed on the amount of such increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit issued at the request of such Borrower, at the rate of 0.125% per annum (or such lesser amount to any respective L/C Issuer as such Borrower may agree in writing with such L/C Issuer), computed on the daily amount available to be drawn under such Letter of Credit, and payable upon each Credit Event with respect thereto. In addition, each Borrower shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit requested by such Borrower as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable. The fees in this paragraph are referred to collectively as “L/C Issuer Fees”.

(j) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

(k) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the applicable Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit in accordance with the terms hereof. Each Borrower hereby acknowledges that the issuance of Letters of Credit for the account of its Subsidiaries inures to the benefit of such Borrower, and that such Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

(l) Reporting. Each L/C Issuer will report in writing to the Administrative Agent (i) on the first Business Day of each week, the aggregate face amount of Letters of Credit issued by it and outstanding as of the last Business Day of the preceding week, (ii) on or prior to each Business Day on which such L/C Issuer expects to issue, amend, renew or extend any Letter of Credit, the date of such issuance, amendment, renewal or extension and the aggregate face amount of Letters of Credit to be issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and such L/C Issuer shall advise the Administrative Agent on such Business Day whether such issuance, amendment, renewal or extension occurred and whether the amount thereof changed), (iii) on each Business Day on which such L/C Issuer makes any L/C Borrowing, the date and amount of such L/C Borrowing and (iv) on any Business Day on which the applicable Borrower fails to reimburse an L/C Borrowing required to be reimbursed to such L/C Issuer on such day, the date and amount of such failure.

 

- 75 -

(m) Standard of Care. Each L/C Issuer shall be deemed to have acted with due diligence and reasonable care if such L/C Issuer’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement.

(n) Power of Attorney. Each Borrower irrevocably appoints the L/C Issuer of any commercial Letter of Credit as its attorney-in-fact and authorizes such L/C Issuer, without notice to Borrowers, to take such reasonable actions to execute and deliver ancillary documents and letters customary in the letter of credit business that may include but are not limited to advisements, indemnities, checks, bills of exchange and issuance documents. The power of attorney granted by the Borrowers is limited solely to such actions related to the issuance, confirmation or amendment of any commercial Letter of Credit and to ancillary documents or letters customary in the letter of credit business. This appointment is coupled with an interest.

Section 2.06 Funding of Borrowings. (a)

(a) Each Revolving Facility Lender shall make each Revolving Facility Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 p.m., Local Time, to the Administrative Agent’s Account; provided that Swing Line Revolving Facility Loans shall be made as provided in Section 2.04. The Administrative Agent will make such Revolving Facility Revolving Facility Loans available to the applicable Borrower by promptly crediting the amounts so received, in like funds, to an account of such Borrower as specified in the Revolving Facility Borrowing Request; provided that Base Rate Revolving Facility LoansBorrowings and Swing Line Borrowings made to finance the reimbursement in respect of Letters of Credit and Swing Line Revolving Facility Loans shall be remitted by the Administrative Agent to the applicable L/C Issuer or the Swing Line Revolving Facility Lender, as applicable.

(b) Unless the Administrative Agent shall have received notice from a Revolving Facility Lender prior to the proposed date of any Borrowing that such Revolving Facility Lender will not make available to the Administrative Agent such Revolving Facility Lender’s share of such Borrowing, the Administrative Agent may assume that such Revolving Facility Lender has made such share available on such date in accordance with paragraph (a) of this Section 2.06 and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Revolving Facility Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Revolving Facility Lender and such Borrower severally and not jointly agree to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Revolving Facility Lender, the greater of (A) the Federal Funds Rate and (B) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of such Borrower, the interest rate applicable to Base Rate Revolving Facility Loans at such time. If such Revolving Facility Lender pays such amount to the Administrative Agent, then such amount shall constitute such Revolving Facility Lender’s Revolving Facility Loan included in such Borrowing. In the event such Borrower pays such amount to the Administrative Agent, then such amount shall reduce the principal amount of such Borrowing (but exclusive of any accrued and unpaid interest thereon).

Section 2.07 Interest Elections. (a)

(a) Each Borrowing initially shall be of the Type specified in the applicable Revolving Facility Borrowing Request and, in the case of a Eurodollar Rate Borrowing, shall have an initial Interest Period as specified in such Revolving Facility Borrowing Request or, if no Interest Period

 

- 76 -

is specified in such Revolving Facility Borrowing Request, an initial Interest Period of one month’s duration. Thereafter, the applicable Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Rate Borrowing, may elect Interest Periods therefor, all as provided in this Section. The applicable Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Revolving Facility Loans comprising such Borrowing, and the Revolving Facility Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Swing Line Borrowings which may not be converted or continued.

(b) To make an election pursuant to this Section, the applicable Borrower shall notify the Administrative Agent of such election in writing (which may be delivered electronically) by the time that a Revolving Facility Borrowing Request would be required under Section 2.03 if such Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Interest Election Request shall be irrevocable.

(c) Each Interest Election Request shall be irrevocable and shall specify the following information in compliance with Section 2.02:

(i) the name of the applicable Borrower and the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii) whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar Rate Borrowing; and

(iv) if the resulting Borrowing is a Eurodollar Rate Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period.”

(v) If any such Interest Election Request requests a Eurodollar Rate Borrowing but does not specify an Interest Period, then the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration.

(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender to which such Interest Election Request relates of the details thereof and of such Lender’s portion of each resulting Borrowing.

(e) If the applicable Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Rate Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to a Base Rate Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the written request (including a request through electronic means) of the Required Lenders, so notifies the Borrowers, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Rate Borrowing and (ii) unless repaid, each Eurodollar Rate Borrowing shall be converted to a Base Rate Borrowing at the end of the Interest Period applicable thereto.

 

- 77 -

Section 2.08 Termination and Reduction of Revolving Facility Commitments. (a)

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

(b) The Borrowers may at any time terminate, or from time to time permanently reduce, the Revolving Facility Commitments and/or the Incremental the Revolving Facility Commitments; provided that (i) each reduction of the Revolving Facility Commitments and/or the Incremental Revolving Facility Commitments shall be in an amount that is an integral multiple of $5,000,000 and not less than $10,000,000 (or, if less, the remaining amount of the Revolving Facility Commitments and/or the Incremental Revolving Facility Commitments) and), (ii) the Borrowers shall not terminate or reduce the Revolving Facility Commitments and/or the Incremental Revolving Facility Commitments if, after giving effect to any concurrent prepayment of the Revolving Facility Loans in accordance with Section 2.11, the Revolving Facility Credit Exposure would exceed the Maximum CreditRevolving Loan Limit, and (iii) it is after the Final Term Loan Funding Date and no Term Loans are outstanding.

(c) The Borrowers shall notify the Administrative Agent of any election to terminate or permanently reduce the Revolving Facility Commitments and/or the Incremental Revolving Facility Commitments under paragraph (b) of this Section 2.08 at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrowers pursuant to this Section shall be irrevocable; provided that, notwithstanding the foregoing, a notice of termination or reduction of the Revolving Facility Commitments and/or the Incremental Revolving Facility Commitments delivered by the Borrowers may state that such notice is conditioned upon the happening or non-happening of one or more events, including, without limitation, the effectiveness of other credit facilities, receivables financing facilities or the consummation of a Change in Control, in which case such notice may be revoked by the Borrowers (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of the Commitments shall be made ratably among the Lenders in accordance with their respective Commitments.

Section 2.09 Agreement to Repay Loans; Evidence of Debt. (a)

(a) The Borrowers hereby unconditionally promise to pay (i) to the Administrative Agent for the account of each Revolving Facility Lender the then unpaid principal amount of each Revolving Facility Loan of such Lender on the Facility Maturity Date and, (ii) to the Swing Line Lender the then unpaid principal amount of each Swing Line Loan on the Facility Maturity Date., and (iii) to the Administrative Agent for the account of each Term Loan Lender the then unpaid principal amount of each Term Loan of such Lender on the Facility Maturity Date. The Borrowers are jointly and severally liable for all ABL Credit Obligations.

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

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

 

- 78 -

(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section 2.09 shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of any Borrower to repay the Loans in accordance with the terms of this Agreement.

(e) Any Lender may request that Loans made by it be evidenced by a promissory note (a “Note”). In such event, each Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) in a form approved by the Administrative Agent and reasonably acceptable to such Borrower. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 10.06) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

Section 2.10 Repayment of Loans. (a)

(a) To the extent not previously paid, outstanding Revolving Facility Loans and Term Loans shall be due and payable on the Facility Maturity Date.

(b) Prior to any repayment of any Revolving Facility Loans, the Borrowers shall select the Borrowing or Borrowings under the Revolving Facility to be repaid and shall notify the Administrative Agent in writing (which may be delivered electronically) of such selection not later than 1:00 p.m., Local Time, (i) in the case of a Base Rate Borrowing, one Business Day before the scheduled date of such repayment and (ii) in the case of a Eurodollar Rate Borrowing, three Business Days before the scheduled date of such repayment. Each repayment of a Borrowing shall be applied to the Revolving Facility Loans included in the repaid Borrowing such that each Revolving Facility Lender receives its ratable share of such repayment (based upon the respective Revolving Facility Credit Exposures of the Revolving Facility Lenders at the time of such repayment). Notwithstanding anything to the contrary in the immediately preceding sentence, prior to any repayment of a Swing Line Loan hereunder, the Borrowers shall select the Borrowing or Borrowings to be repaid and shall notify the Administrative Agent in writing (which may be delivered electronically) of such selection not later than 1:00 p.m., Local Time, on the scheduled date of such repayment. Repayments of Eurodollar Rate Borrowings shall be accompanied by accrued interest on the amount repaid, together with any additional amounts required pursuant to Section 3.05.

Section 2.11 Prepayment of Revolving Facility Loans and Term Loans. (a)

 

(a)

Optional Prepayments.

(i) The Borrowers shall have the right at any time and from time to time to prepay any Revolving Facility Loan in whole or in part, without premium or penalty (but subject to Section 3.05), in an aggregate principal amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum or, if less, the amount outstanding, subject to prior notice in accordance with Section 2.10(b), which notice shall be irrevocable except to the extent conditioned on the occurrence of one or more events, including, without limitation, a change of control or a refinancing of all or any portion of the RevolvingCredit Facility.

 

- 79 -

(ii) The Borrowers shall have the right at any time and from time to time, upon at least three (3) Business Days prior written notice to Administrative Agent, to prepay the aggregate outstanding principal amount of the Term Loans, in whole or in part, without premium or penalty (but subject to Section 3.05), in an aggregate principal amount of not less than $5,000,000 and increments of $1,000,000 in excess thereof, or, if less, the amount outstanding, subject to prior notice in accordance with Section 2.10(c), which notice shall be irrevocable except to the extent conditioned on the occurrence of one or more events, including, without limitation, a change of control or a refinancing of all or any portion of the Credit Facility, provided, that, with respect to, and after giving effect to, any such proposed prepayment of any principal amount of the Term Loans, on a Pro Forma basis, either (A) Availability is not less than 10.0% of Revolving Loan Limit and the Fixed Charge Coverage Ratio is not less than 1.00 to 1.00 or (B) Availability is equal to or greater than 12.5% of the Revolving Loan Limit. Each such prepayment shall be applied against the remaining installments of principal due (and including breakage or similar costs, if any) on the outstanding Term Loans as directed by Borrowers (for the avoidance of doubt, any amount that is due and payable on the Facility Maturity Date shall constitute an installment).

 

(b)

Mandatory Prepayments.

(i) (b) In the event and on each occasion that the total Revolving Facility Credit Exposure exceeds the lesser of (iA) the Maximum CreditRevolving Loan Limit and (iiB) the Borrowing Base in effect at such time (including any reduction of the Borrowing Base as a result of the receipt of Net Proceeds from a sale or other disposition of inventory or receivables outside the ordinary course of business as specified in clause (iii) of the last paragraph of Section 7.05),; the Borrowers shall immediately prepay Revolving Facility Borrowings or Swing Line Borrowings (or, if no such Borrowings are outstanding, deposit Cash Collateral pursuant to Section 2.16) in an aggregate amount equal to such excess.

(ii) (c) In the event and on each occasion that the L/C Obligations exceed (iA) the Letter of Credit Sublimit or (iiB) the lesser of the Maximum CreditRevolving Loan Limit and the Borrowing Base in effect at such time (including any reduction of the Borrowing Base as a result of the receipt of Net Proceeds from a sale or other disposition of inventory or receivables outside the ordinary course of business as specified in clause (iii) of the last paragraph of Section 7.05), the Borrowers shall immediately deposit Cash Collateral pursuant to Section 2.16 in an amount equal to such excess.

(iii) (d) In the event and on each occasion that the Swing Line Loans exceed (iA) the Swing Line Sublimit or (iiB ) the lesser of the Maximum CreditRevolving Loan Limit and the Borrowing Base in effect at such time (including any reduction of the Borrowing Base as a result of the receipt of Net Proceeds from a sale or other disposition of inventory or receivables outside the ordinary course of business as specified in clause (iii) of the last paragraph of Section 7.05), the Borrowers shall immediately prepay Swing Line Borrowings in an aggregate amount equal to such excess.

(iv) Subject to clause (v) below, in the event and on each occasion of the receipt by any Loan Party or any of its Subsidiaries of the Net Proceeds of any Asset Sale, of such Loan Party or Subsidiary, Borrowers shall promptly after such receipt, but in any event within five (5) Business Days after the receipt thereof), prepay the outstanding principal amount of the ABL Credit Obligations in an amount equal to 100% of such Net Proceeds received by such Person in connection with such sales or other dispositions; provided that, if no (A) Event of Default exists, (B) the monies are held in a Deposit Account in which Administrative Agent has a perfected first-priority security interest, and (C) the applicable Borrower shall deliver a certificate of a Responsible Officer of such Borrower to the Administrative Agent promptly following receipt of any such proceeds setting forth such Borrower’s intention to use any portion of such proceeds up to an amount not exceeding $100,000,000 in any fiscal

 

- 80 -