Exhibit 10.5

 

DEED OF INDEMNITY

 

This deed (“ Deed ”) is made as of           , 2016 by and between Adient plc, a public limited company organized under the laws of Ireland (“ Adient ”), and                (“ Indemnitee ”).  Except as provided herein, this Deed supersedes and replaces any and all previous agreements between Adient and Indemnitee covering the subject matter of this Deed.

 

RECITALS

 

WHEREAS, it is essential to Adient that Adient retain and attract as directors and secretary the most capable persons available;

 

WHEREAS, due to restrictions imposed by the laws of Ireland, the Articles of Association of Adient (the “ Adient Articles ”) do not confer indemnification and advance rights on its directors and secretary as broad as the indemnification and advance rights that are customarily provided to the directors and secretary of a company organized under the laws of the State of Delaware;

 

WHEREAS, the Board of Directors of Adient believes that highly competent persons have become more reluctant to serve publicly-held corporations as directors or officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation;

 

WHEREAS, Adient has requested that the Indemnitee serve as an Official of Adient, and, if requested to do so by Adient, as an Official of another foreign or domestic corporation, partnership, limited liability company, joint venture, employee benefit plan, trust, or other Enterprise;

 

WHEREAS, it is reasonable, prudent and necessary for Adient contractually to obligate itself to indemnify, and to advance expenses to, the Indemnitee to the fullest extent permitted by applicable law, including the Act, so that he or she will serve or continue to serve Adient free from undue concern that he or she will not be so indemnified;

 

WHEREAS, in recognition of Indemnitee’s need for (a) substantial protection against personal liability, (b) specific contractual assurance that such protection will be available to Indemnitee, Adient wishes to provide in this Deed for the indemnification by Adient of and the advancing by Adient of expenses to Indemnitee as set forth in this Deed; and

 

WHEREAS, this Deed is a supplement to and in furtherance of any insurance maintained by Adient and the Adient Articles, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.

 

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, Adient and Indemnitee do hereby covenant and agree as follows:

 

 

Section 1.                                  Definitions .  As used in this Deed:

 

(a)                                  The “ Act ” shall mean the Irish Companies Act 2014 as amended from time to time.

 

(b)                                  References to “ agent ” shall mean, with respect to any Enterprise, any person who is or was a director, officer, or employee of such Enterprise or a subsidiary of the Enterprise or other person authorized by the Enterprise to act for the Enterprise, to include such person serving in such capacity as an Official of another corporation, partnership, limited liability company, joint venture, trust or other enterprise at the request of, for the convenience of, or to represent the interests of the Enterprise or a subsidiary of the Enterprise.

 

(c)                                   “ Associated Company ” shall mean a company formed under the Act, or any predecessor to the Act, that is a subsidiary, under the Act, of Adient.

 

(d)                                  “ Beneficially Own ” and “ Beneficial Ownership ” shall have the meanings given to such terms in Rule 13d-3 under the Exchange Act.

 

(e)                                   “ Board ” shall mean the board of directors of Adient.

 

(f)                                    A “ Change in Control ” shall be deemed to occur upon the earliest to occur after the date of this Deed of any of the following events:

 

i.                                           the acquisition by any Person (as defined below) of Beneficial Ownership, directly or indirectly, of securities of Adient representing twenty percent (20%) or more of either (1) the then outstanding ordinary shares of Adient (the “ Outstanding Adient Shares ”) or (2) the combined voting power of the then outstanding voting securities of Adient entitled to vote generally in the election of directors (the “ Outstanding Adient Voting Securities ”); provided , that for purposes of this subsection (i), the following acquisitions shall not constitute a Change in Control: (1) any acquisition directly from Adient, (2) any acquisition by Adient or any of its subsidiaries, (3) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Adient or any of its subsidiaries or (4) an acquisition by any Person pursuant to a transaction that complies with clauses (A), (B) and (C) of subsection (iii) of this Section 1(f);

 

ii.                                        individuals who, as of the date of this Deed, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board; provided , that any individual becoming a director of the Board after the date of this Deed whose election, or nomination for election by Adient’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest, a resolution proposed under Section 338 of the Act, or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

 

iii.                                     consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving Adient or any of its subsidiaries with any Person other than its subsidiaries or other disposition of all or substantially all of the assets

 

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of Adient to a Person other than a subsidiary of Adient (a “ Business Combination ”), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals, and entities who were the beneficial owners, respectively, of the Outstanding Adient Shares and Outstanding Adient Voting Securities immediately prior to such Business Combination Beneficially Own, directly or indirectly, more than 50% of, respectively, the then outstanding shares of voting securities and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Adient Shares and Outstanding Adient Voting Securities, as the case may be; (B) no Person (excluding any entity resulting from such Business Combination or any parent of such entity, and excluding any employee benefit plan (or related trust) of Adient, such entity resulting from such Business Combination or such parent) Beneficially Owns, directly or indirectly, more than 50%, respectively, of the then outstanding voting securities of the entity resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination, and (C) at least a majority of the members of the board of directors or equivalent governing body of the entity resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or

 

iv.                                    the approval by the shareholders of Adient of a complete liquidation or dissolution of Adient.

 

For purposes of this Section 1(f), the term “ Person ” shall have the meaning as set forth in Sections 13(d)(3) and 14(d)(2) of the Exchange Act; provided , that Person shall exclude (i) Adient, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of Adient, and (iii) any corporation owned, directly or indirectly, by the shareholders of Adient in substantially the same proportions as their ownership of ordinary shares of Adient.

 

(g)                                   “ Corporate Status ” describes the status of a person who is or was an Official of an Enterprise.

 

(h)                                  The term “ Criminal Proceeding ” shall mean any threatened, actual or completed proceedings brought in any jurisdiction concerning a criminal offence, whether committed by way of act or omission, in which Indemnitee was, is or will be involved as a party, or potential party to such proceedings, by reason of any act or omission taken by Indemnitee or of any action or omission on Indemnitee’s part while acting pursuant to Indemnitee’s Corporate Status.

 

(i)                                      “ Disinterested Director ” shall mean a director of the Board who is not and was not a party to the Proceeding or Criminal Proceeding in respect of which indemnification is sought by Indemnitee, and who has no conflict of interest under the duties laid down in the Act, in relation to such Proceeding or Criminal Proceeding.

 

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(j)                                     “ Enterprise ” shall mean Adient and any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of Adient as an Official.

 

(k)                                  “ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended.

 

(l)                                      “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time.

 

(m)                              “ Expenses ” shall include all reasonable fees of attorneys, solicitors, barristers and other counsel, retainers, court costs, transcript costs, fees of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Deed, ERISA excise taxes and penalties, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, claiming, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding.  Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent.  Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of Judgments.

 

(n)                                  “ Fines ” shall mean any fine imposed in Criminal Proceedings, or any sum or fine payable to any regulatory authority regardless of whether such authority has a statutory footing or not, by way of a penalty in respect of non-compliance with any requirement of a regulatory nature however so arising.

 

(o)                                  “ Independent Counsel ” shall mean a law firm, or a member of a law firm, that is experienced in matters of Irish company law and US corporation law and neither presently is, nor in the past three (3) years has been, retained to represent:  (i) Adient or Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Deed, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder.  Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing Adient or Indemnitee in an action to determine Indemnitee’s rights under this Deed.

 

(p)                                  “ Judgment ” shall mean any ruling of any civil or administrative court in any jurisdiction that directs the Indemnitee to pay a fixed sum to the other party whether for costs, damages or other monies.

 

(q)                                  “ Official ” shall mean a director, officer, secretary, employee, trustee, agent, partner, managing member, fiduciary or other official of Adient or another Enterprise.

 

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(r)                                     The term “ Proceeding ” shall include any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of Adient or otherwise and whether of a civil, administrative, legislative, or investigative (formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party, potential party, non-party witness or otherwise by reason of the Indemnitee’s Corporate Status, by reason of any action taken by Indemnitee (or a failure to take action by Indemnitee) or of any action (or failure to act) on Indemnitee’s part while acting pursuant to Indemnitee’s Corporate Status, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification, reimbursement, or advance of Expenses can be provided under this Deed. For the avoidance of doubt, Proceedings shall not include Criminal Proceedings.

 

(s)                                    “ Prohibited Expense Payment ” shall mean any direct or indirect payment by way of indemnification by Adient or an Associated Company to Indemnitee of Expenses or any arrangement by which Adient or Associated Company enables Indemnitee to avoid incurring Expenses, where Indemnitee is defending any Criminal Proceedings or any Proceedings or other claims in connection with any alleged negligence, default, breach of duty, or breach of trust by Indemnitee in relation to Adient or Associated Company, or applying for relief under either section 233 or 234 of the Act (until such time as such relief is granted, subject to the provisions of this Deed).

 

(t)                                     References to “ serving at the request of Adient ” shall include any service as a director, officer, employee or agent of Adient that imposes duties on, or involves services by, such director, officer, secretary, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “ not opposed to the best interests of Adient ” as referred to in this Deed.

 

Section 2.                                  Indemnity in Third-Party Proceedings .  Adient shall indemnify Indemnitee in accordance with the provisions of this Section 2 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of Adient or an Associated Company, to procure a judgment in its favor, by reason of Indemnitee’s Corporate Status (“ Third Party Proceedings ”).  Pursuant to this Section 2, Indemnitee shall be indemnified to the fullest extent permitted by applicable law, including the Act, against all Expenses, Judgments and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, Judgments, and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Third Party Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of Adient.  The parties hereto intend that this Deed (a) shall provide to the fullest extent permitted by law, including the Act, for indemnification in excess of that expressly permitted by statute, including, without limitation, any indemnification provided by the Adient Articles, a vote of Adient’s shareholders, disinterested directors or applicable law, including the Act and (b) shall not be deemed a substitute for, nor to diminish or abrogate any rights of Indemnitee under any insurance maintained by Adient. Nothing in this Section 2 or this Deed

 

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shall indemnify an Indemnitee in respect of any liability incurred by the Indemnitee prohibited in the Act, including the payment of Fines, Judgments against Indemnitee or Prohibited Expense Payments.

 

Section 3.                                  Advancement of Expenses to directors in Proceedings and Criminal Proceedings . Adient may, to the fullest extent permitted by applicable law, advance such funds to Indemnitee as Adient, in its reasonable discretion, considers appropriate for Indemnitee to cover Expenses incurred or to be incurred by Indemnitee, (a) in defending any Criminal Proceedings, (b) in defending any Proceedings in connection with any alleged negligence, default, breach of duty or breach of trust by the Indemnitee in relation to Adient or Associated Company, (c) in connection with any application for relief under either section 233 or 234 of the Act or (d) any other Proceedings. If Adient considers it appropriate to make any advance pursuant to this Section 3, such advance is to be repaid or any liability of Adient incurred in any transaction connected with the thing done is to be discharged in the event of (i) the Indemnitee being convicted in Criminal Proceedings, (ii) judgment being given against the Indemnitee in Proceedings or (iii) the court refusing to grant relief in the circumstances set out in either section 233 or 234 of the Act.

 

Section 4.                                  Indemnification for Expenses of a Party Who is Wholly or Partly Successful . Notwithstanding any other provisions of this Deed, to the fullest extent permitted by applicable law, including the Act, and to the extent that Indemnitee is defending any Proceedings  or Criminal Proceedings or making any application for relief under either section 233 or 234 of the Act and is wholly successful, on the merits or otherwise, in any Proceedings, Criminal Proceedings or in defense of any claim, issue or matter therein, Adient shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection therewith. If Indemnitee is not wholly successful in Proceedings but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, but not Criminal Proceedings, Adient shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with or related to each successfully resolved claim, issue or matter to the fullest extent permitted by law, including the Act.  For the purposes of this Section 4 and without limitation, the termination of any claim, issue or matter in Proceedings or Criminal Proceedings by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter. Nothing in this Section 4 or this Deed shall indemnify an Indemnitee in respect of any liability incurred by the Indemnitee prohibited in the Act.

 

Section 5.                                  Indemnification For Expenses of a Witness .  Notwithstanding any other provision of this Deed, to the fullest extent permitted by applicable law, including the Act, and to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a witness or otherwise asked to participate in any Proceeding or Criminal Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.

 

Section 6.                                  Partial Indemnification .  If Indemnitee is entitled under any provision of this Deed to indemnification by Adient for some or a portion of Expenses, but not, however, for the total amount thereof, Adient shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.

 

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Section 7.                                  Exclusions .  Notwithstanding any provision in this Deed, Adient shall not be obligated under this Deed to make any indemnification payment in connection with any Proceedings or Criminal Proceedings involving Indemnitee:

 

(a)                                  for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision;

 

(b)                                  for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of Adient within the meaning of Section 14(b) of the Exchange Act or similar provisions of state statutory law or common law, (ii) any reimbursement of Adient by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of Adient, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of Adient pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley Act ”), or Section 904 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the payment to Adient of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act) or (iii) any reimbursement of Adient by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or

 

(c)                                   in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against Adient and its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) Adient provides the indemnification, in its sole discretion, pursuant to the powers vested in Adient, as applicable, under applicable law, including the Act;

 

(d)                                  in respect of any Fines; or

 

(e)                                   in respect of any Prohibited Expense Payment.

 

Notwithstanding any other provision of this Deed, Adient shall not indemnify and does not intend to indemnify Indemnitee in respect of Proceedings, Criminal Proceedings or any other action, except as to the fullest extent permitted by the Act.

 

Section 8.                                  Procedure for Notification and Defense of Claim; Exhaustion of Remedies .

 

(a)                                  Indemnitee shall notify Adient in writing of any matter with respect to which Indemnitee intends to seek indemnification or an advance under this Deed, of Expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof.  The written notification to Adient shall include a description of the nature of the Proceeding or Criminal Proceeding and the facts underlying the Proceeding or Criminal Proceeding.  To obtain indemnification under this Deed, Indemnitee shall submit to Adient a written request, including therein or therewith such documentation and information as is

 

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reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of such Proceeding. The omission by Indemnitee to notify Adient hereunder will not relieve Adient from any liability which it may have to Indemnitee hereunder or otherwise than under this Deed except to the extent that such delay materially and adversely affects Adient’s ability to participate in the defense of such Proceeding or Criminal Proceeding, and any delay in so notifying Adient shall not constitute a waiver by Indemnitee of any rights under this Deed.  The Secretary of Adient shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.

 

(b)                                  Adient will be entitled to participate in the Proceeding or Criminal Proceeding at its own expense and, except as otherwise provided below, to the extent Adient so wishes, it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee.  After notice from Adient to Indemnitee of its election to assume the defense of any such claim, Adient shall not be liable to Indemnitee under this Deed or otherwise for any Expenses subsequently directly incurred by Indemnitee in connection with Indemnitee’s defense of such claim except as otherwise provided below and allowed under applicable law, including the Act. Indemnitee shall have the right to employ its own legal counsel in such claim, but all Expenses related to such counsel incurred after notice from Adient of its assumption of the defense shall be at Indemnitee’s own expense; provided , that if (i) Indemnitee’s employment of its own legal counsel has been authorized by Adient, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and Adient in the defense of such claim, (iii) after a Change in Control, Indemnitee’s employment of its own counsel has been approved by the Independent Counsel or (iv) Adient shall not in fact have employed counsel to assume the defense of such claim, then Indemnitee shall be entitled to retain its own separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any such claim) and all Expenses related to such separate counsel shall be borne by Adient provided such payment does not amount to a Prohibited Expense Payment.

 

(c)                                   Prior to making a written request for indemnification or an advance pursuant to Section 8(a), Indemnitee shall (i) seek such indemnification or advance of Expenses, as applicable, under any applicable insurance policy and (ii) request that Adient consider in its discretion, and as permitted by this Deed and applicable law, including the Act, whether to make such indemnification or advance of Expenses, as applicable.  Upon any such request by Indemnitee of Adient, Adient shall consider whether to make such indemnification or advance of Expenses, as applicable, based on the facts and circumstances related to the request. Adient may require, as a condition to making any indemnification or advance of Expenses, as applicable, that Indemnitee enter into an agreement providing for such indemnification or advance of Expenses, as applicable, to be made subject to substantially the same terms and conditions applicable to an indemnification or advance of Expenses, as applicable, by Adient under this Deed.  If indemnification or advance of Expenses, as applicable, is not received pursuant to an insurance policy, or from Adient, within five (5) business days of the later of Indemnitee’s request of the insurer and Indemnitee’s request of Adient pursuant to the first sentence of this Section 8(c), Indemnitee may make written demand on Adient for indemnification pursuant to Section 8(a) or make a request for an advance of Expenses pursuant to Section 3, as applicable.

 

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Section 9.                                  Procedure Upon Application for Indemnification .

 

(a)                                  Upon written request by Indemnitee for indemnification or an advance pursuant to Section 8(a), a determination, if required by applicable law, including the Act, with respect to Indemnitee’s entitlement thereto shall be made in the specific case:  (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee (collectively, the “ Reviewing Party ”); and, if it is so determined that Indemnitee is entitled to indemnification or an advance, payment by way of indemnification or an advance, as applicable, to Indemnitee shall be made within ten (10) days after such determination.  Indemnitee shall cooperate with the Reviewing Party with respect to Indemnitee’s entitlement to indemnification, including providing to the Reviewing Party upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination.

 

(b)                                  If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 9(a), the Independent Counsel shall be selected as provided in this Section 9(b).  If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and Adient shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected.  If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to Adient advising it of the identity of the Independent Counsel so selected.  In either event, Indemnitee or Adient, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to Adient or to Indemnitee, as the case may be, a written objection to such selection; provided , that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 1, and the objection shall set forth with particularity the factual basis of such assertion.  Absent a proper and timely objection, the person so selected shall act as Independent Counsel.  If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the Irish Court has determined that such objection is without merit.  If, within twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 9(a) and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either Adient or Indemnitee may petition the Irish Court for resolution of any objection which shall have been made by Adient or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 9(a).  Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 11(a), Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

 

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Section 10.                           Presumptions and Effect of Certain Proceedings .

 

(a)                                  In making a determination with respect to entitlement to indemnification hereunder, the Reviewing Party shall, to the fullest extent not prohibited by law, including the Act, presume that Indemnitee is entitled to indemnification under this Deed if Indemnitee has submitted a request for indemnification in accordance with Section 8(a), and the Reviewing Party shall, to the fullest extent not prohibited by law, including the Act, have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.  Neither the failure of the Reviewing Party to have made a determination prior to the commencement of any action pursuant to this Deed that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Reviewing Party that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

 

(b)                                  The termination of any Proceeding or Criminal Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or its equivalent, shall not (except as otherwise expressly provided in this Deed) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of Adient or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.

 

(c)                                   For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, officers or other Officials of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser, financial advisor or other expert selected with reasonable care by or on behalf of such Enterprise as to matters Indemnitee reasonably believes are within such Person’s professional or expert competence.  The provisions of this Section 10(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Deed.

 

(d)                                  The knowledge and/or actions, or failure to act, of any Official of any Enterprise or any other person shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Deed.

 

Section 11.                           Remedies of Indemnitee .

 

(a)                                  Subject to Section 11(e), if (i) a determination is made pursuant to Section 9 of this Deed that Indemnitee is not entitled to indemnification under this Deed, (ii) an advance of Expenses is not timely made pursuant to Section 3 of this Deed, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 9(a) of this Deed within ninety (90) days after receipt by Adient of a request for indemnification (after Indemnitee has exhausted the procedures set forth in Section 8(c)), (iv) payment of indemnification is not made

 

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pursuant to Section 4, 5 or 6 within ten (10) days after receipt by Adient of a written request therefor (after Indemnitee has exhausted the procedures set forth in Section 8(c)), or (v) payment of indemnification pursuant to Section 2 is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, or (vi) if Adient or any other person takes or threatens to take any action to declare this Deed void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to the Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by the Irish Court of Indemnitee’s entitlement to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association.  Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 11(a). Adient shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.

 

(b)                                  If a determination shall have been made pursuant to Section 9(a) of this Deed that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 11 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination.  In any judicial proceeding or arbitration commenced pursuant to this Section 11, Adient shall have the burden of proving Indemnitee is not entitled to indemnification or an advance of Expenses, as the case may be.

 

(c)                                   If a determination shall have been made pursuant to Section 9(a) that Indemnitee is entitled to indemnification, Adient shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 11, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, but only to the extent that the misstatement or omission affected such determination, or (ii) a prohibition of such indemnification under applicable law, including the Act.

 

(d)                                  Adient shall, to the fullest extent not prohibited by law, including the Act, be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 11 that the procedures and presumptions of this Deed are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that Adient is bound by all the provisions of this Deed.

 

(e)                                   Notwithstanding anything in this Deed to the contrary, no determination as to entitlement of Indemnitee to indemnification under this Deed shall be required to be made prior to the final disposition of the Proceeding or Criminal Proceeding.

 

Section 12.                           Non-exclusivity; Survival of Rights; Insurance; Subrogation .

 

(a)                                  The rights of  Indemnitee under this Deed shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law,

 

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including the Act, the Adient Articles, any agreement, a vote of Adient’s shareholders, a resolution of directors, any insurance maintained by Adient or otherwise.  No amendment, alteration or repeal of this Deed or of any provision hereof shall limit or restrict any right of Indemnitee under this Deed in respect of any action taken or omitted by Indemnitee in Indemnitee’s Corporate Status prior to such amendment, alteration or repeal.  To the extent that a change in Irish Law, including the Act, or any other applicable laws, whether by statute or judicial decision, permits greater indemnification or advance of Expenses than would be afforded currently under the Adient Articles, and this Deed, it is the intent of the parties hereto that Indemnitee shall enjoy by this Deed the greater benefits so afforded by such change.  No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

 

(b)                                  To the extent that Adient maintains an insurance policy or policies providing liability insurance for directors, officers, secretaries, employees, or agents of any Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, secretary, employee or agent under such policy or policies.  If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, Adient has director and officer liability insurance in effect, Adient shall give prompt notice of such claim or of the commencement of a Proceeding or Criminal Proceeding, as the case may be, to the insurers in accordance with the procedures set forth in the respective policies.  Adient shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.

 

(c)                                   In the event of any payment made by Adient under this Deed, Adient shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable Adient to bring suit to enforce such rights.

 

(d)                                  Adient shall not be liable under this Deed to make any payment of amounts otherwise indemnifiable (or provide an advance pursuant to Section 3 of this Deed) hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.  Notwithstanding the foregoing, Adient shall be required to make payments under this Deed within the time periods set forth in this Deed regardless of whether, at the time such payments are due, the Indemnitee is pursuing recovery under any such policy, contract, agreement or other means.

 

(e)                                   Adient’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of Adient as an Official of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advance of Expenses from such Enterprise.  Notwithstanding the foregoing, Adient shall be required to make payments under this Deed within the time periods set forth in this Deed regardless of

 

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whether, at the time such payments are due, the Indemnitee is pursuing recovery from such other Enterprise.

 

Section 13.                           Duration of this Deed; Successors and Assigns .  All agreements and obligations of Adient contained in this Deed shall continue for so long as Indemnitee shall be subject to, or involved in, any Proceeding for which indemnification is provided pursuant to this Deed.  Notwithstanding the foregoing, no legal action shall be brought and no cause of action shall be asserted by or on behalf of Adient or any of its subsidiaries against Indemnitee, Indemnitee’s spouse, heirs, executors, or personal or legal representatives after the expiration of two (2) years from the date of accrual of such cause of action, or such longer period as may be required by the laws of Ireland under the circumstances.  Any claim or cause of action of Adient or any of its subsidiaries shall be extinguished and deemed released unless asserted by the timely filing and notice of a legal action within such period; provided , that if any shorter period of limitations is otherwise applicable to any such cause of action, the shorter period shall govern.  The indemnification and advance of expenses rights provided by or granted pursuant to this Deed shall be binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of Adient), shall continue as to an Indemnitee who has ceased to be an Official of Adient or of any other Enterprise, and shall inure to the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.

 

Section 14.                           Severability .  If any provision or provisions of this Deed shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Deed (including each portion of any section of this Deed containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law, including the Act; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law, including the Act and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Deed (including each portion of any section of this Deed containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.

 

Section 15.                           Enforcement .

 

(a)                                  Adient expressly confirms and agrees that it has entered into this Deed and assumed the obligations imposed on it hereby to induce Indemnitee to serve as a director or officer of Adient, and Adient acknowledges that Indemnitee is relying upon this Deed in serving or continuing to serve as a director or officer of Adient.  Accordingly, the parties hereto agree that in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Deed, Indemnitee shall have the right to specific performance and injunctive or other equitable relief in respect of his or her rights under this Deed, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The parties hereto also agree that the remedies at law for any breach or threatened breach of this Deed, including monetary damages, are inadequate compensation for any loss and

 

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that any defense in any action for specific performance that a remedy at law would be adequate is waived. Any requirements for the securing or posting of any bond with such remedy are waived by each of the parties hereto.

 

(b)                                  This Deed constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided , that this Deed is a supplement to and in furtherance of the Adient Articles, any insurance maintained by Adient and applicable law, including the Act, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.

 

Section 16.                           Modification and Waiver .  No supplement, modification or amendment of this Deed shall be binding unless executed in writing by the parties hereto.  No waiver of any of the provisions of this Deed shall be deemed or shall constitute a waiver of any other provisions of this Deed nor shall any waiver constitute a continuing waiver.

 

Section 17.                           Notice by Indemnitee .  Indemnitee agrees promptly to notify Adient in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or Criminal Proceeding or matter which may be subject to indemnification or advance of Expenses covered hereunder.  The failure of Indemnitee to so notify Adient shall not relieve Adient of any obligation which it may have to the Indemnitee under this Deed or otherwise, except to the extent that Adient is materially and adversely prejudiced by such failure.

 

Section 18.                           Notices .  All notices, requests, demands and other communications under this Deed shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, (c) mailed by reputable overnight courier and receipted for by the party to whom said notice or other communication shall have been directed or (d) sent by facsimile transmission, with receipt of oral confirmation that such transmission has been received:

 

(a)                                  If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide to Adient.

 

(b)                                  If to Adient to:

 

Adient plc

833 East Michigan Street
Milwaukee, Wisconsin 53202
Attn: General Counsel
Email:

 

or to any other address as may have been furnished to Indemnitee by Adient.

 

Section 19.                           Applicable Law and Consent to Jurisdiction .  This Deed is to be governed by and construed in accordance with Irish law. Any matter, claim or dispute arising out of or in

 

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connection with this Deed, whether contractual or non-contractual, is to be governed by and determined in accordance with Irish law.  Except with respect to any arbitration commenced by Indemnitee pursuant to Section 11(a), Adient and Indemnitee hereby irrevocably and unconditionally (i) agree that the courts of Ireland (the “ Irish Court ”) are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed, and any action or proceeding arising out of or in connection with this Deed shall be brought only in the Irish Court and not in any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Irish Court for purposes of any action or proceeding arising out of or in connection with this Deed and (iii) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Irish Court has been brought in an improper or inconvenient forum.  The Indemnitee irrevocably and unconditionally appoints to the extent such a party is not otherwise subject to service of process in Ireland,            as its agent in Ireland for the acceptance of legal process in connection with any action or proceeding against the Indemnitee with the same legal force and validity as if served upon such party personally within Ireland.

 

Section 20.                           The Act . Adient’s obligations under this Deed remain subject at all times to the provisions of section 235 of the Act.

 

Section 21.                           Identical Counterparts .  This Deed may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Deed.  Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Deed.  Signatures to this Deed transmitted by facsimile transmission, by electronic mail in “portable document format” (“ pdf ”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signatures.

 

Section 22.                           Miscellaneous .  Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate.  The headings of this Deed are inserted for convenience only and shall not be deemed to constitute part of this Deed or to affect the construction thereof.  Unless otherwise specified, references to a Section or clause refer to Sections or clauses of this Deed.  The word “including” and words of similar import shall mean “including without limitation” unless otherwise specified.  The word “or” shall not be exclusive.  Any reference to “days” means calendar days unless Business Days are expressly specified.

 

[ Remainder of page intentionally left blank ]

 

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IN WITNESS WHEREOF, the parties have caused this Deed to be executed and delivered as of the day and year first above written.

 

Given under the common seal of	)
Adient plc	)
the presence of:	)
	)	Authorized signatory
Executed as a deed by	)
in the presence of:	)	(Signature of individual)
Witness’s signature:
Witness’s name (print):
Witness’s occupation:
Witness’s address:

 

[ Signature Page to Deed of Indemnity ]

 

Exhibit 10.6

 

INDEMNIFICATION AGREEMENT

 

This Indemnification Agreement (“ Agreement ”) is made as of            , 2016 by and between Adient Holdings LLC, a Delaware limited liability company (“ Company ”), and                (“ Indemnitee ”).  Except as provided herein, this Agreement supersedes and replaces any and all previous agreements between the Company and Indemnitee covering the subject matter of this Agreement.

 

RECITALS

 

WHEREAS, the Company is a subsidiary of Adient plc, a public limited company organized under the laws of Ireland (“ Adient ”);

 

WHEREAS, it is essential to the Company and Adient that Adient retain and attract as directors and secretary the most capable persons available;

 

WHEREAS, due to restrictions imposed by the laws of Ireland, the Articles of Association of Adient (the “ Adient Articles ”) do not confer indemnification and advancement rights on its directors and secretary as broad as the indemnification and advancement rights that are customarily provided to the directors and secretary of a company organized under the laws of the State of Delaware;

 

WHEREAS, the Board of Directors of the Company believes that highly competent persons have become more reluctant to serve publicly-held corporations as directors, officers, secretaries or in other capacities unless they are provided with adequate protection through insurance and adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation;

 

WHEREAS, the Company has requested that the Indemnitee serve as an Official of Adient, and, if requested to do so by the Company, as an Official of another foreign or domestic corporation, partnership, limited liability company, joint venture, employee benefit plan, trust, or other Enterprise;

 

WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, the Indemnitee to the fullest extent permitted by applicable law so that he or she will serve or continue to serve Adient or the Company free from undue concern that he or she will not be so indemnified;

 

WHEREAS, in recognition of Indemnitee’s need for (a) substantial protection against personal liability, (b) specific contractual assurance that such protection will be available to Indemnitee (regardless of, among other things, any amendment to or revocation of the Adient Articles, the limited liability company operating agreement of the Company (the “ Operating Agreement ”) or any change in the composition of the Board of Directors of the Company or acquisition transaction relating to Adient), the Company wishes to provide in this Agreement for

 

 

the indemnification by the Company of and the advancing by the Company of expenses to Indemnitee as set forth in this Agreement;

 

WHEREAS, this Agreement is a supplement to and in furtherance of any insurance maintained by Adient or the Company, the Adient Articles, the Deed of Indemnity which Indemnitee has with Adient (the “ Adient Deed of Indemnity ”), the Operating Agreement and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; and

 

WHEREAS, Indemnitee does not regard the protection available under the Adient Articles, the Adient Deed of Indemnity, the Operating Agreement and insurance as adequate in the present circumstances, and may not be willing to serve or continue to serve as an officer or director of Adient without adequate protection, and the Company desires Indemnitee to serve or continue to serve in such capacity.

 

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:

 

Section 1.                                            Definitions.   As used in this Agreement:

 

(a)                                  References to “ agent ” shall mean, with respect to any Enterprise, any person who is or was a director, officer, or employee of such Enterprise or a subsidiary of the Enterprise or other person authorized by the Enterprise to act for the Enterprise, to include such person serving in such capacity as an Official of another corporation, partnership, limited liability company, joint venture, trust or other enterprise at the request of, for the convenience of, or to represent the interests of the Enterprise or a subsidiary of the Enterprise.

 

(b)                                  “ Beneficially Own ” shall have the meanings given to such terms in Rule 13d-3 under the Exchange Act.

 

(c)                                   “ Board ” shall mean the board of directors of Adient.

 

(d)                                  A “ Change in Control ” shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following events:

 

i.                                           The acquisition by any Person (as defined below) of Beneficial Ownership, directly or indirectly, of securities of Adient representing twenty percent (20%) or more of either (1) the then outstanding ordinary shares of Adient (the “ Outstanding Adient Shares ”) or (2) the combined voting power of the then outstanding voting securities of Adient entitled to vote generally in the election of directors (the “ Outstanding Adient Voting Securities ”); provided , that for purposes of this subsection (i), the following acquisitions shall not constitute a Change in Control: (1) any acquisition directly from Adient, (2) any acquisition by Adient or any of its subsidiaries, (3) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Adient or any of its subsidiaries or (4) an acquisition by any Person pursuant to a transaction that complies with clauses (A), (B) and (C) of subsection (iii) of this Section 1(d);

 

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ii.                                        Individuals who, as of the date of this Agreement, constitute the Board (the “ Incumbent Board ”) cease for any reason to constitute at least a majority of the Board; provided , that any individual becoming a director of the Board after the date of this Agreement whose election, or nomination for election by Adient’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

 

iii.                                     Consummation of a reorganization, merger, statutory share exchange or consolidation or similar transaction involving Adient or any of its subsidiaries with any Person other than Adient or its subsidiaries or other disposition of all or substantially all of the assets of Adient to a Person other than a subsidiary of Adient (a “ Business Combination ”), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals, and entities who were the beneficial owners, respectively, of the Outstanding Adient Shares and Outstanding Adient Voting Securities immediately prior to such Business Combination Beneficially Own, directly or indirectly, more than 50% of, respectively, the then outstanding shares of voting securities and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Adient Shares and Outstanding Adient Voting Securities, as the case may be; (B) no Person (excluding any entity resulting from such Business Combination or any parent of such entity, and excluding any employee benefit plan (or related trust) of Adient, such entity resulting from such Business Combination or such parent) Beneficially Owns, directly or indirectly, more than 50%, respectively, of the then outstanding voting securities of the entity resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such entity, except to the extent that such ownership existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors or equivalent governing body of the entity resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or

 

iv.                                    The approval by the shareholders of Adient of a complete liquidation or dissolution of Adient.

 

For purposes of this Section 1(d), the term “ Person ” shall have the meaning as set forth in Sections 13(d)(3) and 14(d)(2) of the Exchange Act; provided , that Person shall exclude (i) Adient, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of Adient, and (iii) any corporation owned, directly or indirectly, by the shareholders of Adient in substantially the same proportions as their ownership of ordinary shares of Adient.

 

(e)                                   “ Corporate Status ” describes the status of a person who is or was an Official of an Enterprise.

 

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(f)                                    “ Delaware Act ” shall mean the Delaware Limited Liability Company Act, 6 Del C. Section 18-101, et seq. , as amended, supplemented or restated from time to time, and any successor to such statute.

 

(g)                                   “ Disinterested Director ” shall mean a director of the Board who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.

 

(h)                                  “ Enterprise ” shall mean Adient, the Company and any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as an Official.

 

(i)                                      “ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended.

 

(j)                                     “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time.

 

(k)                                  “ Expenses ” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, ERISA excise taxes and penalties, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding.  Expenses also shall include (i) judgments, fines and amounts paid in settlement, (ii) Expenses incurred in connection with any appeal resulting from any Proceeding, including the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, (iii) for purposes of Section 12(d) only, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise and (iv) including all interest, assessments and other charges paid or payable in connection with or in respect of Expenses.

 

(l)                                      “ Independent Counsel ” shall mean a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past three (3) years has been, retained to represent:  (i) Adient, the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder.  Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing Adient, the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.

 

(m)                              “ Official ” shall mean a director, officer, secretary, employee, trustee, agent, partner, managing member, fiduciary or other official of the Company, Adient or another Enterprise.

 

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(n)                                  The term “ Proceeding ” shall include any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of Adient, the Company or otherwise and whether of a civil, criminal, administrative, legislative, or investigative (formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party, potential party, non-party witness or otherwise by reason of the Indemnitee’s Corporate Status, by reason of any action taken by Indemnitee (or a failure to take action by Indemnitee) or of any action (or failure to act) on Indemnitee’s part while acting pursuant to Indemnitee’s Corporate Status, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification, reimbursement, or advancement of Expenses can be provided under this Agreement.

 

(o)                                  References to “ fines ” shall include any excise tax assessed with respect to any employee benefit plan; references to “ serving at the request of the Company ” shall include any service as a director, officer, secretary, employee or agent of Adient or the Company that imposes duties on, or involves services by, such director, officer, secretary, employee or agent with respect to an employee benefit plan, its participants or beneficiaries.

 

Section 2.                                  Indemnity in Third-Party Proceedings.   The Company shall indemnify Indemnitee in accordance with the provisions of this Section 2 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by reason of Indemnitee’s Corporate Status.  Pursuant to this Section 2, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue or matter therein; provided that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful.  The parties hereto intend that this Agreement (a) shall provide to the fullest extent permitted by law for indemnification in excess of that expressly permitted by statute, including any indemnification provided by the Adient Articles, the Adient Deed of Indemnity, the Operating Agreement, vote of Adient’s shareholders, vote of the Company’s members or disinterested directors or applicable law and (b) shall not be deemed a substitute for, nor to diminish or abrogate any rights of Indemnitee under any insurance maintained by Adient or the Company.

 

Section 3.                                  Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provisions of this Agreement, to the fullest extent permitted by applicable law and to the extent that Indemnitee is a party to (or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection therewith.  If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on

 

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Indemnitee’s behalf in connection with or related to each successfully resolved claim, issue or matter to the fullest extent permitted by law.  For purposes of this Section 3 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.

 

Section 4.                                  Indemnification For Expenses of a Witness.   Notwithstanding any other provision of this Agreement, to the fullest extent permitted by applicable law and to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a witness or otherwise asked to participate in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.

 

Section 5.                                  Partial Indemnification.   If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.

 

Section 6.                                  Additional Indemnification.

 

(a)                                  Notwithstanding any limitation in Sections 2 or 3, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law if Indemnitee is a party to or threatened to be made a party to any Proceeding by reason of Indemnitee’s Corporate Status.

 

(b)                                  For purposes of Section 6(a), the meaning of the phrase “ to the fullest extent permitted by applicable law ” shall include, but not be limited to:

 

i.                                           to the fullest extent permitted by the provision of the Delaware Act that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the Delaware Act; and

 

ii.                                        to the fullest extent authorized or permitted by any amendments to or replacements of the Delaware Act adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors.

 

Section 7.                                  Exclusions.   Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnification payment in connection with any claim involving Indemnitee:

 

(a)                                  for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision;

 

(b)                                  for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of Adient within the meaning of Section 14(b) of the Exchange Act or similar provisions of state statutory law or common law, (ii) any reimbursement of Adient by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of Adient, as required in each case under the Exchange Act (including any such reimbursements that arise from an

 

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accounting restatement of Adient pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley Act ”), or Section 904 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the payment to Adient of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act) or (iii) any reimbursement of Adient by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or

 

(c)                                   except as provided in Section 12(d) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against Adient, the Company or their respective directors, officers, secretary, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) Adient or the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in Adient or the Company, as applicable, under applicable law.

 

Section 8.                                  Advances of Expenses.   Notwithstanding any provision of this Agreement to the contrary (other than Section 12(d)), the Company shall advance, to the extent not prohibited by law, the Expenses (other than judgments, fines and amounts paid in settlement) incurred and paid by Indemnitee in connection with any Proceeding (or any part of any Proceeding) not initiated by Indemnitee or any Proceeding initiated by Indemnitee with the prior approval of the Board as provided in Section 7(c), and such advancement shall be made within thirty (30) days after the receipt by the Company of a statement or statements requesting such advances from time to time, whether prior to or after final disposition of any Proceeding.  Advances shall be unsecured and interest free.  Advances shall be made without regard to Indemnitee’s ability to repay such Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement.  In accordance with Section 12(d), advances shall include any and all reasonable Expenses (other than judgments, fines and amounts paid in settlement) incurred pursuing an action to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed.  The Indemnitee shall qualify for advances upon the execution and delivery to the Company of this Agreement, which shall constitute an undertaking providing that the Indemnitee undertakes to repay the amounts advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company.  No other form of undertaking shall be required other than the execution of this Agreement.  This Section 8 shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 7.

 

Section 9.                                  Procedure for Notification and Defense of Claim; Exhaustion of Remedies.

 

(a)                                  Indemnitee shall notify Adient and the Company in writing of any matter with respect to which Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof.  The written notification to Adient and the Company shall include a description of the nature of the Proceeding and the facts underlying the Proceeding.  To obtain indemnification

 

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under this Agreement, Indemnitee shall submit to Adient and the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of such Proceeding.  The omission by Indemnitee to notify Adient and the Company hereunder will not relieve the Company from any liability which it may have to Indemnitee hereunder or otherwise than under this Agreement except to the extent that such delay materially and adversely affects the Company’s ability to participate in the defense of such Proceeding, and any delay in so notifying Adient and the Company shall not constitute a waiver by Indemnitee of any rights under this Agreement.  The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.

 

(b)                                  The Company will be entitled to participate in the Proceeding at its own expense and, except as otherwise provided below, to the extent the Company so wishes, it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee.  After notice from the Company to Indemnitee of its election to assume the defense of any such claim, the Company shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses (other than judgments, fines and amounts paid in settlement) subsequently directly incurred by Indemnitee in connection with Indemnitee’s defense of such claim other than reasonable costs of investigation or as otherwise provided below.  Indemnitee shall have the right to employ its own legal counsel in such claim, but all Expenses related to such counsel incurred after notice from the Company of its assumption of the defense shall be at Indemnitee’s own expense; provided , that if (i) Indemnitee’s employment of its own legal counsel has been authorized by the Company, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of such claim, (iii) after a Change in Control, Indemnitee’s employment of its own counsel has been approved by the Independent Counsel or (iv) the Company shall not in fact have employed counsel to assume the defense of such claim, then Indemnitee shall be entitled to retain its own separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any such claim) and all Expenses related to such separate counsel shall be borne by the Company.

 

(c)                                   Prior to making a written request for indemnification pursuant to Section 9(a) or making a request for advancement of Expenses pursuant to Section 8, Indemnitee shall (i) seek such indemnification or advancement of such Expenses, as applicable, under any applicable insurance policy and (ii) request that Adient consider in its discretion whether to make such indemnification or advancement of such Expenses, as applicable.  Upon any such request by Indemnitee of Adient, it is expected that Adient will consider whether to make such indemnification or advancement of such Expenses, as applicable, based on the facts and circumstances related to the request.  Adient may require, as a condition to making any indemnification or advancement of Expenses, as applicable, that Indemnitee enter into an agreement providing for such indemnification or advancement of such Expenses, as applicable, to be made subject to substantially the same terms and conditions applicable to an indemnification or advancement of Expenses, as applicable, by the Company under this Agreement (including conditioning any advancement of Expenses upon delivery to Adient of an undertaking of the type described in Section 8).  If indemnification or advancement of Expenses (other than judgments, fines and amounts paid in settlement), as applicable, is not received pursuant to an insurance policy, or from Adient, within five (5) business days of the later of

 

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Indemnitee’s request of the insurer and Indemnitee’s request of Adient pursuant to the first sentence of this Section 9(c), Indemnitee may make written demand on the Company for indemnification pursuant to Section 9(a) or make a request for advancement of Expenses pursuant to Section 8, as applicable.

 

Section 10.                           Procedure Upon Application for Indemnification.

 

(a)                                  Upon written request by Indemnitee for indemnification pursuant to Section 9(a), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case:  (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, or (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee (collectively, the “ Reviewing Party ”); and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination.  Indemnitee shall cooperate with the Reviewing Party with respect to Indemnitee’s entitlement to indemnification, including providing to the Reviewing Party upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination.  Any costs or Expenses (including reasonable attorneys’ fees and disbursements, but excluding judgments, fines and amounts paid in settlement) incurred by Indemnitee in so cooperating with the Reviewing Party shall be borne by the Company irrespective of the determination as to Indemnitee’s entitlement to indemnification, and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.  The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied.

 

(b)                                  If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 10(a), the Independent Counsel shall be selected as provided in this Section 10(b).  If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising Indemnitee of the identity of the Independent Counsel so selected.  If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to Adient and the Company advising it of the identity of the Independent Counsel so selected.  In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been given, deliver to Adient and the Company or to Indemnitee, as the case may be, a written objection to such selection; provided , that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 1, and the objection shall set forth with particularity the factual basis of such assertion.  Absent a proper and timely objection, the person so selected shall act as Independent Counsel.  If such written objection is so made and substantiated, the Independent

 

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Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the Delaware Court has determined that such objection is without merit.  If, within twenty (20) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 9(a) and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such court or by such other person as such court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 10(a).  Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 12(a), Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

 

Section 11.                           Presumptions and Effect of Certain Proceedings.

 

(a)                                  In making a determination with respect to entitlement to indemnification hereunder, the Reviewing Party shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 9(a), and the Reviewing Party shall, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption.  Neither the failure of the Reviewing Party to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Reviewing Party that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

 

(b)                                  The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo   contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful.

 

(c)                                   Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, officers or other Officials of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser, financial advisor or other expert selected with reasonable care by or on behalf of such Enterprise as to matters Indemnitee reasonably believes are within such Person’s professional or expert competence.  The provisions of this Section 11(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

 

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(d)                                  The knowledge and/or actions, or failure to act, of any Official of any Enterprise or any other person shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.

 

Section 12.                           Remedies of Indemnitee.

 

(a)                                  Subject to Section 12(e), if (i) a determination is made pursuant to Section 10 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses (other than judgments, fines and amounts paid in settlement) is not timely made pursuant to Section 8 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 10(a) of this Agreement within ninety (90) days after receipt by Adient and the Company of a request for indemnification (after Indemnitee has exhausted the procedures set forth in Section 9(c)), (iv) payment of indemnification is not made pursuant to Section 3, 4 or 5 or the second to last sentence of Section 10(a) within ten (10) days after receipt by Adient and the Company of a written request therefor (after Indemnitee has exhausted the procedures set forth in Section 9(c)), (v) payment of indemnification pursuant to Section 2 or 6 is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, or (vi) if Adient, the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to the Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by the Delaware Court of Indemnitee’s entitlement to such indemnification or advancement of Expenses.  Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association.  Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 12(a).  Neither Adient nor the Company shall oppose Indemnitee’s right to seek any such adjudication or award in arbitration.

 

(b)                                  If a determination shall have been made pursuant to Section 10(a) that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de   novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination.  In any judicial proceeding or arbitration commenced pursuant to this Section 12, the Company shall have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.

 

(c)                                   If a determination shall have been made pursuant to Section 10(a) that Indemnitee is entitled to indemnification, Adient and the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, but only to the extent that the misstatement or omission affected the such determination, or (ii) a prohibition of such indemnification under applicable law.

 

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(d)                                  Adient and the Company shall, to the fullest extent not prohibited by law, be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all of the provisions of this Agreement.  It is the intent of the Company that, to the fullest extent permitted by law, the Indemnitee not be required to incur Expenses associated with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder.  The Company shall, to the fullest extent permitted by law, indemnify Indemnitee against any and all Expenses (other than judgments, fines and amounts paid in settlement) and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefor) advance, to the extent not prohibited by law, such Expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advancement of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company if Indemnitee is successful in such action.

 

(e)                                   Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement of Indemnitee to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.

 

Section 13.                           Non-exclusivity; Survival of Rights; Insurance; Subrogation.

 

(a)                                  The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Adient Articles, the Adient Deed of Indemnity, the Operating Agreement, any agreement, a vote of Adient shareholders, a vote of the Company’s stockholders, a resolution of directors, any insurance maintained by Adient or the Company or otherwise.  No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by Indemnitee in Indemnitee’s Corporate Status prior to such amendment, alteration or repeal.  To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Adient Articles, the Adient Deed of Indemnity, the Operating Agreement and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.  No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

 

(b)                                  To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, secretaries, employees, or agents of any Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, secretary, employee or agent under such policy or policies.  If, at the time of the receipt of a notice of a

 

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claim pursuant to the terms hereof, Adient or the Company has director and officer liability insurance in effect, the Company shall give prompt notice of such claim or of the commencement of a Proceeding, as the case may be, to the insurers in accordance with the procedures set forth in the respective policies.  The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.

 

(c)                                   In the event of any payment made by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

 

(d)                                  The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable (or for which advancement is provided hereunder) hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.  Notwithstanding the foregoing, the Company shall be required to make payments under this Agreement within the time periods set forth in this Agreement regardless of whether, at the time such payments are due, the Indemnitee is pursuing recovery under any such policy, contract, agreement or other means.

 

(e)                                   The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as an Official of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such other Enterprise.  Notwithstanding the foregoing, the Company shall be required to make payments under this Agreement within the time periods set forth in this Agreement regardless of whether, at the time such payments are due, the Indemnitee is pursuing recovery from such other Enterprise.

 

Section 14.                           Duration of Agreement; Successors and Assigns.   All agreements and obligations of the Company contained in this Agreement shall continue for so long as Indemnitee shall be subject to, or involved in, any proceeding for which indemnification is provided pursuant to this Agreement.  Notwithstanding the foregoing, no legal action shall be brought and no cause of action shall be asserted by or on behalf of Adient, the Company or any of their subsidiaries against Indemnitee, Indemnitee’s spouse, heirs, executors, or personal or legal representatives after the expiration of two (2) years from the date of accrual of such cause of action, or such longer period as may be required by the laws of Delaware under the circumstances.  Any claim or cause of action of Adient, the Company or any of their subsidiaries shall be extinguished and deemed released unless asserted by the timely filing and notice of a legal action within such period; provided , that if any shorter period of limitations is otherwise applicable to any such cause of action, the shorter period shall govern.  The indemnification and advancement of expenses rights provided by or granted pursuant to this Agreement shall be binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), shall continue as to an Indemnitee who has ceased to be an Official of Adient, the Company or of any other Enterprise, and shall

 

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inure to the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.

 

Section 15.                           Severability.   If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.

 

Section 16.                           Enforcement.

 

(a)                                  The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby to induce Indemnitee to serve as a director or officer of Adient or the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving or continuing to serve as a director or officer of Adient or the Company, as applicable.  Accordingly, the parties hereto agree that in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, Indemnitee shall have the right to specific performance and injunctive or other equitable relief in respect of his or her rights under this Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative.  The parties hereto also agree that the remedies at law for any breach or threatened breach of this Agreement, including monetary damages, are inadequate compensation for any loss and that any defense in any action for specific performance that a remedy at law would be adequate is waived.  Any requirements for the securing or posting of any bond with such remedy are waived by each of the parties hereto.

 

(b)                                  This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided , that this Agreement is a supplement to and in furtherance of the Adient Articles, the Adient Deed of Indemnity, the Operating Agreement, any insurance maintained by Adient or the Company and applicable law, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.

 

Section 17.                           Modification and Waiver.   No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the parties hereto.  No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing waiver.

 

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Section 18.                           Notice by Indemnitee.   Indemnitee agrees promptly to notify Adient and the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder.  The failure of Indemnitee to so notify Adient and the Company shall not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement or otherwise, except to the extent that the Company is materially and adversely prejudiced by such failure.

 

Section 19.                           Notices.   All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, (c) mailed by reputable overnight courier and receipted for by the party to whom said notice or other communication shall have been directed or (d) sent by facsimile transmission, with receipt of oral confirmation that such transmission has been received:

 

(a)                                  If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide to the Company.

 

(b)                                  If to the Company to:

 

Adient Holdings LLC

833 East Michigan Street

Milwaukee, Wisconsin 53202

Attn:  General Counsel

Email:

 

or to any other address as may have been furnished to Indemnitee by the Company.

 

Section 20.                           Contribution.   To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the Expenses incurred by Indemnitee in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding to reflect (i) the relative benefits received by Adient and the Company, on the one hand, and Indemnitee, on the other hand, as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of Adient and the Company (and their respective directors, officers, employees and agents), on the one hand, and Indemnitee, on the other hand, in connection with such event(s) and/or transaction(s).

 

Section 21.                           Applicable Law and Consent to Jurisdiction.   This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules.  Except with respect to any arbitration commenced by Indemnitee pursuant to Section 12(a), the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Court of Chancery of the

 

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State of Delaware (the “ Delaware Court ”), and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) appoint, to the extent such party is not otherwise subject to service of process in the State of Delaware, irrevocably The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801 as its agent in the State of Delaware as such party’s agent for acceptance of legal process in connection with any such action or proceeding against such party with the same legal force and validity as if served upon such party personally within the State of Delaware, (iv) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court, and (v) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.

 

Section 22.                           Identical Counterparts.   This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement.  Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.  Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“ pdf ”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signatures.

 

Section 23.                           Miscellaneous.   Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate.  The headings of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.  Unless otherwise specified, references to a Section or clause refer to Sections or clauses of this Agreement.  The word “including” and words of similar import shall mean “including without limitation” unless otherwise specified.  The word “or” shall not be exclusive.  Any reference to “days” means calendar days unless business days are expressly specified.

 

[Remainder of page intentionally left blank]

 

16

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year first above written.

 

ADIENT HOLDINGS LLC				INDEMNITEE
By:				By:
Name:				Name:
Office:				Address:

 

[ Signature Page to Indemnification Agreement ]

 

---

Exhibit 10.8

 

EXECUTION VERSION

 

CREDIT AGREEMENT

 

dated as of July 27, 2016

 

among

 

ADIENT GLOBAL HOLDINGS LTD,
as the Initial Borrower,

 

THE LENDERS PARTY HERETO,

 

JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent,

 

BANK OF AMERICA, N.A.,
as Syndication Agent,

 

BARCLAYS BANK PLC, CITIBANK, N.A., CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, WELLS FARGO BANK, NATIONAL ASSOCIATION, THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., U.S. BANK NATIONAL ASSOCIATION, COMMERZBANK AG, ING CAPITAL LLC, UNICREDIT BANK AG, INTESA SANPAOLO S.P.A., GOLDMAN SACHS BANK USA AND THE TORONTO-DOMINION BANK,
as Documentation Agents,

 

JPMORGAN CHASE BANK, N.A.. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, BARCLAYS BANK PLC, CITIGROUP GLOBAL MARKETS INC. AND CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as Joint Lead Arrangers and Joint Bookrunners,

 

 

TABLE OF CONTENTS

 

		Page
ARTICLE I
Definitions
Section 1.01	Defined Terms	1
Section 1.02	Terms Generally; GAAP	64
Section 1.03	Effectuation of Transactions	65
Section 1.04	Timing of Payment or Performance	65
Section 1.05	Times of Day	65
Section 1.06	Classification of Loans and Borrowings	65
Section 1.07	Change of Currency	65
Section 1.08	Exchange Rates; Currency Equivalents; Basket Calculations	65
Section 1.09	Letter of Credit Amounts	66
Section 1.10	Additional Alternative Currencies	66
ARTICLE II
The Credits
Section 2.01	Commitments	67
Section 2.02	Loans and Borrowings	68
Section 2.03	Requests for Borrowings	69
Section 2.04	[Reserved]	69
Section 2.05	Letters of Credit	70
Section 2.06	Funding of Borrowings	74
Section 2.07	Interest Elections	74
Section 2.08	Termination and Reduction of Commitments	76
Section 2.09	Repayment of Loans; Evidence of Debt	76
Section 2.10	Repayment of Term Loans and Revolving Facility Loans	77
Section 2.11	Prepayment of Loans	78
Section 2.12	Fees	79
Section 2.13	Interest	80
Section 2.14	Alternate Rate of Interest	81
Section 2.15	Increased Costs	81
Section 2.16	Break Funding Payments	82
Section 2.17	Taxes	83
Section 2.18	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	88
Section 2.19	Mitigation Obligations; Replacement of Lenders	90
Section 2.20	Illegality	91
Section 2.21	Incremental Commitments	91
Section 2.22	Extensions of Loans and Commitments	93
Section 2.23	Refinancing Amendments	95
Section 2.24	Defaulting Lender	98
Section 2.25	Assumption	99
ARTICLE III
Representations and Warranties
Section 3.01	Organization; Powers	100
Section 3.02	Authorization	100
Section 3.03	Enforceability	101

 

i

 

		Page
Section 3.04	Governmental Approvals	101
Section 3.05	Financial Statements	101
Section 3.06	No Material Adverse Effect	101
Section 3.07	Title to Properties; Possession Under Leases; Flood Documentation	101
Section 3.08	Subsidiaries	102
Section 3.09	Litigation; Compliance with Law	102
Section 3.10	Federal Reserve Regulations	102
Section 3.11	Investment Company Act	102
Section 3.12	Use of Proceeds	103
Section 3.13	Tax	103
Section 3.14	No Material Misstatements	104
Section 3.15	Employee Benefit Plans	104
Section 3.16	Environmental Matters	104
Section 3.17	Security Documents	105
Section 3.18	Solvency	106
Section 3.19	Labor Matters	106
Section 3.20	Insurance	106
Section 3.21	Intellectual Property; Licenses, Etc.	106
Section 3.22	USA PATRIOT Act	107
Section 3.23	Anti-Corruption Laws and Sanctions	107
ARTICLE IV
Conditions of Lending
Section 4.01	Signing Date	108
Section 4.02	Closing Date	108
Section 4.03	Subsequent Credit Events	110
Section 4.04	Determinations Under Section 4.02	110
ARTICLE V
Affirmative Covenants
Section 5.01	Existence; Business and Properties	111
Section 5.02	Insurance	111
Section 5.03	Taxes	112
Section 5.04	Financial Statements, Reports, Etc.	113
Section 5.05	Litigation and Other Notices	114
Section 5.06	Compliance with Laws	114
Section 5.07	Maintaining Records; Access to Properties and Inspections	115
Section 5.08	Use of Proceeds	115
Section 5.09	Compliance with Environmental Laws	115
Section 5.10	Further Assurances; Additional Guarantors; Additional Security	115
Section 5.11	Restricted and Unrestricted Subsidiaries	118
Section 5.12	Post-Closing	118
ARTICLE VI
Negative Covenants
Section 6.01	Indebtedness	118
Section 6.02	Liens	122
Section 6.03	[Reserved]	126
Section 6.04	Investments, Loans and Advances	126

 

ii

 

		Page
Section 6.05	Mergers, Consolidations, Sales of Assets and Acquisitions	129
Section 6.06	Restricted Payments	132
Section 6.07	Transactions with Affiliates	133
Section 6.08	Business of Parent and the Subsidiaries; Etc.	135
Section 6.09	Restrictions on Subsidiary Distributions and Negative Pledge Clauses	135
Section 6.10	[Reserved]	136
Section 6.11	Fiscal Quarter and/or Fiscal Year	136
Section 6.12	Financial Covenant	137
ARTICLE VII
Events of Default
Section 7.01	Events of Default	137
ARTICLE VIII
The Agents
Section 8.01	Appointment	140
Section 8.02	Delegation of Duties	140
Section 8.03	Exculpatory Provisions	141
Section 8.04	Reliance by Agents	141
Section 8.05	Notice of Default	142
Section 8.06	Non-Reliance on Agents and Other Lenders	142
Section 8.07	Indemnification	142
Section 8.08	Agent in Its Individual Capacity	143
Section 8.09	Successor Administrative Agent	143
Section 8.10	Arrangers, Etc.	143
Section 8.11	Security Documents and Collateral Agent	144
Section 8.12	Right to Realize on Collateral and Enforce Guarantees	144
Section 8.13	Withholding Tax	145
Section 8.14	Credit Bidding	145
ARTICLE IX
Miscellaneous
Section 9.01	Notices; Communications	146
Section 9.02	Survival of Agreement	147
Section 9.03	Binding Effect	147
Section 9.04	Successors and Assigns	147
Section 9.05	Expenses; Indemnity	151
Section 9.06	Right of Set-off	152
Section 9.07	Applicable Law	153
Section 9.08	Waivers; Amendment	153
Section 9.09	Interest Rate Limitation	156
Section 9.10	Entire Agreement	156
Section 9.11	WAIVER OF JURY TRIAL	156
Section 9.12	Severability	156
Section 9.13	Counterparts	156
Section 9.14	Headings	157
Section 9.15	Jurisdiction; Consent to Service of Process	157
Section 9.16	Confidentiality	158
Section 9.17	Platform; Borrower Materials	158

 

iii

 

		Page
Section 9.18	Release of Liens and Guarantees	159
Section 9.19	USA PATRIOT Act Notice	161
Section 9.20	Agency of Parent for the Loan Parties	161
Section 9.21	No Liability of the Issuing Banks	161
Section 9.22	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	161
Section 9.23	Judgment Currency	162
Section 9.24	Distributable Reserves	162
Section 9.25	Restricted Lenders	162
Section 9.26	No Advisory or Fiduciary Responsibility	163

 

Exhibits and Schedules

 

Exhibit A		Form of Assignment and Acceptance
Exhibit B		[Reserved]
Exhibit C		Form of Solvency Certificate
Exhibit D-1		Form of Borrowing Request
Exhibit D-2		[Reserved]
Exhibit D-3		Form of Letter of Credit Request
Exhibit E		Form of Interest Election Request
Exhibit F		[Reserved]
Exhibit G		[Reserved]
Exhibit H		Form of Promissory Note
Exhibit I		Form of Perfection Certificate
Exhibit J-1		U.S. Tax Certificate (For Non-U.S. Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit J-2		U.S. Tax Certificate (For Non-U.S. Lenders that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit J-3		U.S. Tax Certificate (For Non-U.S. Participants that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit J-4		U.S. Tax Certificate (For Non-U.S. Participants that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit K		[Reserved]
Exhibit L		Form of U.S. Collateral Agreement
Exhibit M		Form of Guarantee Agreement
Exhibit N		Form of Joinder Agreement
Exhibit O		Form of Borrower Assumption Agreement
Exhibit P		Form of QPP Certificate

 

Pricing Schedule
Predecessor JCI Pricing Schedule
Successor JCI Pricing Schedule

 

Schedule 1.01(B)		Mortgaged Property
Schedule 2.01		Commitments
Schedule 2.05(a)		Existing Letters of Credit
Schedule 3.04		Governmental Approvals
Schedule 3.05		Financial Statements
Schedule 3.08(a)		Subsidiaries
Schedule 3.08(b)		Subscriptions
Schedule 3.16		Environmental Matters
Schedule 3.20		Insurance
Schedule 3.21		Intellectual Property
Schedule 5.12		Post-Closing Items
Schedule 6.01		Indebtedness

 

iv

 

				Page
Schedule 6.02(a)			Liens
Schedule 6.04			Investments
Schedule 6.07			Transactions with Affiliates
Schedule 9.01			Notice Information

 

v

 

CREDIT AGREEMENT dated as of July 27, 2016 (this “ Agreement ”), among Adient Global Holdings Ltd (as defined below), JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the “ Administrative Agent ”) and Collateral Agent, and each Issuing Bank and Lender (each as defined below) party hereto from time to time.

 

WHEREAS, the Borrowers (as defined below) have requested that the Lenders and the Issuing Banks extend credit as set forth herein;

 

NOW, THEREFORE, the Lenders and the Issuing Banks are willing to extend such credit to the Borrowers on the terms and subject to the conditions set forth herein.

 

Accordingly, the parties hereto agree as follows:

 

ARTICLE I

 

Definitions

 

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

 

“ ABR ” shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that for the purpose of this definition, the Adjusted LIBO Rate for any day shall be determined as if the relevant ABR Borrowing were a Eurocurrency Borrowing based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day.  Any change in the ABR due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively. Notwithstanding the foregoing, in no event shall ABR be less than 1.00% per annum.

 

“ ABR Borrowing ” shall mean a Borrowing comprised of ABR Loans.

 

“ ABR Loan ” shall mean any ABR Term Loan or ABR Revolving Loan.

 

“ ABR Revolving Facility Borrowing ” shall mean a Borrowing comprised of ABR Revolving Loans.

 

“ ABR Revolving Loan ” shall mean any Revolving Facility Loan bearing interest at a rate determined by reference to the ABR in accordance with the provisions of Article II.

 

“ ABR Term Loan ” shall mean any Term Loan bearing interest at a rate determined by reference to the ABR in accordance with the provisions of Article II.

 

“ Accepting Term Lender ” shall have the meaning assigned that term in Section 2.10(d).

 

“ Adient Global Holdings Ltd ” shall mean Adient Global Holdings Ltd, a public company organized under the Companies (Jersey) Law 1991 with registered number 121385 (together with its permitted successors), which, prior to the Borrower Transfer Date, is the “Initial Borrower” under this Agreement.

 

“ Additional Borrower ” shall mean a company which becomes a Borrower hereunder pursuant to Section 2.25, Section 6.05 or Section 9.04, and, from and after the Spinoff Date, the Subsidiary Borrower.

 

“ Additional Mortgage ” shall have the meaning assigned that term in Section 5.10(c).

 

 

“ Adjusted Consolidated EBITDA ” shall mean, with respect to Parent and the Subsidiaries on a consolidated basis for any period, the Consolidated Net Income of Parent and the Subsidiaries for such period plus

 

(a)                                  the sum of, without duplication, in each case, to the extent deducted in or otherwise reducing Consolidated Net Income for such period:

 

(i)                                      provision for Taxes based on income, profits or capital of Parent and the Subsidiaries for such period, without duplication, including, without limitation, state franchise and similar Taxes, and foreign withholding Taxes (including penalties and interest related to Taxes or arising from tax examinations); plus

 

(ii)                                   (x) Interest Expense of Parent and the Subsidiaries for such period and (y) all cash dividend payments (excluding items eliminated in consolidation) on any series of preferred stock of any Subsidiary of Parent or any Disqualified Stock of Parent and the Subsidiaries; plus

 

(iii)                                depreciation, amortization (including amortization of intangibles, deferred financing fees and actuarial gains and losses related to pensions and other post-employment benefits, but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash charges or expenses to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of Parent and the Subsidiaries for such period; plus

 

(iv)                               any costs or expenses incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of Parent or net cash proceeds of an issuance of Equity Interests of Parent (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation of the Available Amount; plus

 

(v)                                  any non-cash losses related to non-operational hedging, including, without limitation, resulting from hedging transactions for interest rate or currency exchange risks associated with this Agreement; minus

 

(b)                                  the sum of, without duplication, in each case, to the extent added back in or otherwise increasing Consolidated Net Income for such period:

 

(i)                                      non-cash items increasing such Consolidated Net Income for such period (excluding the recognition of deferred revenue or any non-cash items which represent the reversal of any accrual of, or reserve for, anticipated cash charges in any prior period that reduced Adjusted Consolidated EBITDA in an earlier period and any items for which cash was received in any prior period); plus

 

(ii)                                   any non-cash gains related to non-operational hedging, including, without limitation, resulting from hedging transactions for interest rate or currency exchange risks associated with this Agreement;

 

in each case, on a consolidated basis and determined in accordance with GAAP.

 

Notwithstanding the preceding, the provision for Taxes based on the income or profits of, the Interest Expense of, the depreciation and amortization and other non-cash expenses or non-cash items of and the restructuring charges or expenses of, a Subsidiary (other than any Wholly Owned Subsidiary) of Parent will be added to (or subtracted from, in the case of non-cash items described in clause (b) above) Consolidated Net Income to compute Adjusted Consolidated EBITDA, (A) in the same proportion that the Net Income of such Subsidiary was added to compute such Consolidated Net Income of Parent, and (B) only to the extent that a corresponding amount

 

2

 

of the Net Income of such Subsidiary would be permitted at the date of determination to be dividended or distributed to Parent by such Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Subsidiary or its stockholders or shareholders.

 

“ Adjusted LIBO Rate ” shall mean, with respect to any Eurocurrency Borrowing in any currency for any Interest Period, an interest rate per annum (rounded, if necessary, to the nearest 1/16 of 1%) equal to the LIBO Rate for such currency in effect for such Interest Period.

 

“ Administrative Agent ” shall have the meaning assigned to such term in the introductory paragraph of this Agreement, together with its successors and assigns.

 

“ Administrative Agent Fee Letter ” shall mean that certain Administrative Agent Fee Letter, dated as of June 28, 2016 by and among JCI and the Administrative Agent.

 

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

 

“ Administrative Questionnaire ” shall mean an Administrative Questionnaire substantially in the form supplied by the Administrative Agent.

 

“ Affiliate ” shall mean, 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.

 

“ Agents ” shall mean the Administrative Agent and the Collateral Agent.

 

“ Agreement ” shall have the meaning assigned to such term in the introductory paragraph of this Agreement, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

“ Agreement Currency ” shall have the meaning assigned to such term in Section 9.23.

 

“ Alternative Currency ” shall mean each of the following currencies:  Euro and Sterling, together with each other currency (other than Dollars) that is approved in accordance with Section 1.10.

 

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

 

“ Anti-Corruption Laws ” shall mean all laws, rules, and regulations of any jurisdiction applicable to Parent or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.

 

“ Applicable Commitment Fee ” shall mean for any day (i) prior to the Spinoff Date, with respect to (a) any Initial Term A Loan Commitments and (b) any Revolving Facility Commitments relating to Initial Revolving Loans, 0.25% per annum; (ii) from and after the Spinoff Date, with respect to any Revolving Facility Commitments relating to Initial Revolving Loans, the Applicable Commitment Fee determined in accordance with the Pricing Schedule; and (iii) with respect to any Other Revolving Facility Commitments, the “Applicable Commitment Fee” set forth in the applicable Extension Amendment or Refinancing Amendment (as applicable).

 

“ Applicable Date ” shall have the meaning assigned to such term in Section 9.08(f).

 

“ Applicable Margin ” shall mean for any day (i) prior to the earlier of the Spinoff Date and the Successor JCI Credit Agreement Effectiveness Date, the Applicable Margin determined in accordance with the Predecessor JCI Pricing Schedule, (ii) from and after the Successor JCI Credit Agreement Effectiveness Date but prior to the

 

3

 

Spinoff Date, the Applicable Margin determined in accordance with the Successor JCI Pricing Schedule, (iii) from and after the Spinoff Date, the Applicable Margin determined in accordance with the Pricing Schedule and (iv) with respect to any Other Term Loan or Other Revolving Loan, the “Applicable Margin” set forth in the Incremental Assumption Agreement, Extension Amendment or Refinancing Amendment (as applicable) relating thereto.

 

“ Applicable Time ” shall mean, with respect to any Borrowings and payments (i) in Euro or Sterling, 2 p.m. London time and (ii) in any other Alternative Currency, the local time in the place of settlement for such Alternative Currency as shall be reasonably determined by the Administrative Agent or the applicable Issuing Bank, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.  In advance of the initial borrowing of a Revolving Facility Loan or issuance of a Letter of Credit, in each case, in any Alternative Currency, the Administrative Agent or the applicable Issuing Bank, as applicable, shall provide the Borrowers and Lenders with written notice of the Applicable Time for any borrowings and payments in such Alternative Currency.  In the event no such notice is delivered by the Administrative Agent, the applicable Borrower and any Lender shall be required to make any borrowings and payments in accordance with the times specified herein for borrowings and payments in Dollars.

 

“ Approved Fund ” shall have the meaning assigned to such term in Section 9.04(b)(ii).

 

“ Arrangers ” shall mean the Joint Lead Arrangers.

 

“ Asset Sale ” shall mean (x) any Disposition (including any sale and lease-back of assets and any mortgage or lease of Real Property) to any person of, any asset or assets of Parent or any Subsidiary and (y) any sale of any Equity Interests by any Subsidiary to a person other than Parent or a Subsidiary.

 

“ Assignee ” shall have the meaning assigned to such term in Section 9.04(b)(i).

 

“ Assignment and Acceptance ” shall mean an assignment and acceptance entered into by a Lender and an Assignee, and accepted by the Administrative Agent and the Borrower Representative (if required by Section 9.04), substantially in the form of Exhibit A or such other form as shall be approved by the Administrative Agent and reasonably satisfactory to the Borrower Representative.

 

“ Attributable Receivables Indebtedness ” shall mean the principal amount of Indebtedness (other than any Indebtedness subordinated in right of payment owing by a Receivables Entity to a Receivables Seller or a Receivables Seller to another Receivables Seller in connection with the transfer, sale and/or pledge of Permitted Receivables Facility Assets) which (i) if a Qualified Receivables Facility is structured as a secured lending agreement or other similar agreement, constitutes the principal amount of such Indebtedness or (ii) if a Qualified Receivables Facility is structured as a purchase agreement or other similar agreement, would be outstanding at such time under such Qualified Receivables Facility if the same were structured as a secured lending agreement rather than a purchase agreement or such other similar agreement.

 

“ Auto Renewal Letter of Credit ” shall have the meaning assigned that term in Section 2.05(c).

 

“ Availability Period ” shall mean, (i) with respect to any Class of Revolving Facility Commitments, the period from and including the Closing Date (or, if later, the effective date for such Class of Revolving Facility Commitments) to but excluding the earlier of the Revolving Facility Maturity Date for such Class and, in the case of each of the Revolving Facility Loans, Revolving Facility Borrowings and Letters of Credit, the date of termination of the Revolving Facility Commitments of such Class and (ii) with respect to the Initial Term A Loan Commitments, the period from and including the Closing Date to and including the earlier of the Initial Term A Facility Outside Date and the Spinoff Date.

 

“ Available Amount ” shall mean, as at any time of determination, an amount, not less than zero in the aggregate, determined on a cumulative basis, equal to, without duplication:

 

(a)                                  $150,000,000, plus

 

4

 

(b)                                  50% of cumulative Consolidated Net Income of Parent since the Spinoff Date, plus

 

(c)                                   the cumulative amounts of all mandatory prepayments declined by Term Lenders, plus

 

(d)                                  the Cumulative Qualified Equity Proceeds Amount on such date of determination, minus

 

(e)                                   the cumulative amount of Investments made with the Available Amount from and after the Spinoff Date and on or prior to such time (net of any return on such Investments not otherwise included in the Cumulative Qualified Equity Proceeds Amount), minus

 

(f)                                    the cumulative amount of Restricted Payments made with the Available Amount from and after the Spinoff Date and on or prior to such time.

 

“ Available Unused Commitment ” shall mean, with respect to (i) a Term Lender holding Initial Term A Loan Commitments at any time, an amount equal to the undrawn portion of the Initial Term A Loan Commitment of such Term Lender at such time and (ii) a Revolving Facility Lender under any Class of Revolving Facility Commitments at any time, an amount equal to the amount by which (a) the applicable Revolving Facility Commitment of such Revolving Facility Lender at such time exceeds (b) the applicable Revolving Facility Credit Exposure of such Revolving Facility Lender at such time.

 

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

 

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

 

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

 

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

 

“ Board of Directors ” shall mean, as to any person, the board of directors, the board of managers, the sole manager or other governing body of such person.

 

“ Borrower Assumption Agreement ” shall mean the Borrower Assumption Agreement substantially in the form of Exhibit O, dated as of the Borrower Transfer Date.

 

“ Borrower DTTP Filing ” shall mean an HM Revenue & Customs’ Form DTTP2 duly completed and filed with HM Revenue & Customs by the relevant Borrower, which:

 

(a)                                  where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Schedule 2.01,and

 

(i)                                      where the Borrower is the Initial Borrower, is filed with HM Revenue & Customs within thirty (30) days of the date of this Agreement; or

 

(ii)                                   where the Borrower is an Additional Borrower, is filed with HM Revenue & Customs within thirty (30) days of the date on which that Borrower becomes an Additional Borrower; or

 

(b)                                  where it relates to a Treaty Lender that is a New Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the relevant Incremental Assumption Agreement or Assignment and Acceptance, and

 

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(i)                                      where the Borrower is a Borrower at the effective date of the relevant Incremental Assumption Agreement or Assignment and Acceptance (as applicable), is filed with HM Revenue & Customs within thirty (30) days of that effective date; or

 

(ii)                                   where the Borrower is not a Borrower at the effective date of the relevant Incremental Assumption Agreement or Assignment and Acceptance (as applicable), is filed with HM Revenue & Customs within thirty (30) days of the date on which that Borrower becomes an Additional Borrower.

 

“ Borrower Materials ” shall have the meaning assigned to such term in Section 9.17.

 

“ Borrower Representative ” shall mean (i) prior to the Borrower Transfer Date, the Initial Borrower and (ii) from and after the Borrower Transfer Date (if any), the person who becomes the Initial Borrower in accordance with Section 2.25.

 

“ Borrowers ” shall mean (i) prior to the Spinoff Date, the Initial Borrower, (ii) from and after the Spinoff Date and prior to the Borrower Transfer Date, Initial Borrower and the Subsidiary Borrower and (iii) from and after the Borrower Transfer Date (if any), the person who becomes the Initial Borrower in accordance with Section 2.25 and the Subsidiary Borrower.

 

“ Borrowing ” shall mean a group of Loans of a single Type and currency under a single Facility, and made on a single date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect.

 

“ Borrowing Minimum ” shall mean (a) in the case of Eurocurrency Loans, $1,000,000 (or the Alternative Currency Equivalent thereof in the applicable Alternative Currency) and (b) in the case of ABR Loans, $1,000,000.

 

“ Borrowing Multiple ” shall mean (a) in the case of Eurocurrency Loans, $500,000 (or the Alternative Currency Equivalent thereof in the applicable Alternative Currency) and (b) in the case of ABR Loans, $250,000.

 

“ Borrowing Request ” shall mean a request by the Borrower Representative in accordance with the terms of Section 2.03 and substantially in the form of Exhibit D-1 or another form approved by the Administrative Agent.

 

“ Borrower Transfer Date ” shall have the meaning assigned to such term in Section 2.25.

 

“ Budget ” shall have the meaning assigned to such term in Section 5.04(e).

 

“ Business Day ” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurocurrency Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in deposits in Dollars or the applicable Alternative Currency in the London interbank market.

 

“ Cancelled Certificate ” means any QPP Certificate in respect of which HM Revenue & Customs has given a notification under regulation 7(5) of the QPP Regulations so that such QPP Certificate is a cancelled certificate for the purposes of the QPP Regulations.

 

“ Capitalized Lease Obligations ” shall mean, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on the balance sheet (excluding the footnotes thereto) in accordance with GAAP; provided , that all obligations of any person that are or would be characterized as operating lease obligations in accordance with GAAP on August 6, 2013 (whether or not such operating lease obligations were in effect on such date) shall continue to be accounted for as operating lease obligations (and not as Capitalized Lease Obligations) for purposes of this Agreement regardless of any change in GAAP following such date that would otherwise require such obligations to be recharacterized (on a prospective or retroactive basis or otherwise) as Capitalized Lease Obligations.

 

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

 

“ Cash Management Agreement ” shall mean (i) any agreement to provide to Parent or any Subsidiary cash management services for collections, treasury management services (including controlled disbursement, overdraft, automated clearing house fund transfer services, return items and interstate depository network services), any demand deposit, payroll, trust or operating account relationships, commercial credit cards, merchant card, purchase or debit cards, non-card e-payables services, and other cash management services, including electronic funds transfer services, lockbox services, stop payment services and wire transfer services and (ii) any arrangements relating to bilateral letters of credit (including standby and documentary letters of credit) and bank guarantees.

 

“ Cash Management Bank ” shall mean any person that is an Agent, an Arranger, a Lender or an Affiliate of any such person(a) at the time that it enters into a Cash Management Agreement, or (b)  with respect to Cash Management Agreements existing on the Spinoff Date, on the Spinoff Date.

 

“ CFC ” shall mean a “controlled foreign corporation” within the meaning of section 957(a) of the Code (or any successor provision thereto).

 

“ Change in Law ” shall mean (a) the adoption of any law, rule or regulation after the Signing Date, (b) any change in law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Signing Date or (c) compliance by any Lender (or, for purposes of Section 2.15(b), by any Lending Office of such Lender or by such Lender’s holding company, if any) with any written request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Signing Date; provided , however , that notwithstanding anything herein to the contrary, (x) all requests, rules, guidelines or directives under or issued in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act, all interpretations and applications thereof and any compliance by a Lender with any request or directive relating thereto and (y) all requests, rules, guidelines or directives promulgated under or in connection with, all interpretations and applications of, and any compliance by a Lender with any request or directive relating to International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case under clauses (x) and (y) be deemed to be a “Change in Law” regardless of when adopted, enacted or issued but, for purposes of Section 2.15, only to the extent it is the general policy of a Lender to impose applicable increased costs or costs in connection with capital adequacy requirements similar to those described in clauses (a) and (b) of Section 2.15 generally on other similarly situated borrowers under similar circumstances under agreements permitting such impositions.

 

“ Change of Control ” shall mean (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the Signing Date) of Equity Interests representing more than 40% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Parent; (b) the occupation of a majority of the seats (other than vacant seats) on the Board of Directors of Parent by persons who (i) were not members of the Board of Directors of Parent on the Spinoff Date and (ii) whose election to the Board of Directors of Parent or whose nomination for election by the stockholders or shareholders of Parent was not approved by a majority of the members of the Board of Directors of Parent then still in office who were either members of the Board of Directors on the Spinoff Date or whose election or nomination for election was previously so approved; (c) Parent shall cease, directly or indirectly, to own and control legally and beneficially all of the Equity Interests in the Initial Borrower; or (d) Parent shall cease, directly or indirectly, to own and control legally and beneficially all of the Equity Interests in the Subsidiary Borrower.

 

“ Charges ” shall have the meaning assigned to such term in Section 9.09.

 

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“ Class ” shall mean, (a) when used in respect of any Loan or Borrowing, whether such Loan or the Loans comprising such Borrowing are Initial Term A Loans, Other Term Loans, Initial Revolving Loans or Other Revolving Loans; and (b) when used in respect of any Commitment, whether such Commitment is in respect of a commitment to make Initial Term A Loans, Other Term Loans, Initial Revolving Loans or Other Revolving Loans.  Other Term Loans or Other Revolving Loans that have different terms and conditions (together with the Commitments in respect thereof) from the Initial Term A Loans or the Initial Revolving Loans, respectively, or from other Other Term Loans or other Other Revolving Loans, as applicable, shall be construed to be in separate and distinct Classes.

 

“ Class Loans ” shall have the meaning assigned to such term in Section 9.08(f).

 

“ Closing Date ” shall mean the first date on which the conditions set forth in Section 4.02 are satisfied (or waived in accordance with Section 9.08).

 

“ Code ” shall mean the U.S. Internal Revenue Code of 1986, as amended.

 

“ Collateral ” shall mean 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 Administrative Agent, the Collateral Agent or any Subagent for the benefit of the Secured Parties pursuant to any Security Document; provided , that notwithstanding anything to the contrary herein or in any Security Document or other Loan Document, in no case shall the Collateral include any Excluded Property.

 

“ Collateral Agent ” shall mean the Administrative Agent acting as collateral agent for the Secured Parties, together with its successors and permitted assigns in such capacity.

 

“ Collateral and Guarantee Requirement ” shall mean the requirement that (in each case, subject to the last three paragraphs of Section 5.10, and subject to Schedule 5.12 (as may be updated pursuant to Section 9.08(b) of this Agreement) (which, for the avoidance of doubt, shall override the applicable clauses of this definition of “Collateral and Guarantee Requirement”)):

 

(a)                                  on the Spinoff Date, the Collateral Agent shall have received:

 

(i)                                      from (A) each U.S. Loan Party and (B) each other Loan Party that owns Equity Interests of a person incorporated or organized under the law of the United States, any state thereof, or the District of Columbia (other than Excluded Securities) ( provided that the grant by any such other Loan Party under the U.S. Collateral Agreement shall be solely with respect to such Equity Interests and related rights and assets as expressly set forth in the U.S. Collateral Agreement), a counterpart of the U.S. Collateral Agreement,

 

(ii)                                   from (A) each English Loan Party and (B) each other Loan Party that owns Equity Interests of a person incorporated or organized under the laws of England and Wales (other than Excluded Securities) ( provided that the grant by any such other Loan Party under the English Law Debenture shall be solely with respect to such Equity Interests and related rights and assets as expressly set forth in the English Law Debenture), a counterpart of the English Law Debenture,

 

(iii)                                from Parent, a counterpart of the Irish Law Debenture duly executed as a deed by it,

 

(iv)                               assuming the Borrower Transfer has not occurred on or prior to such date, from each of Parent and the Initial Borrower, a counterpart of the Jersey Law All Assets Pledge Agreement,

 

(v)                                  SIR Checklists signed by Parent and Initial Borrower with respect to the Collateral pledged pursuant to the Jersey Law All Assets Pledge Agreement ( provided that the grant by Parent under the Jersey Law All Assets Pledge Agreement shall be solely with respect to

 

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the Equity Interests held by Parent in Adient Global Holdings Ltd and related rights and assets as expressly set forth in the Jersey Law All Assets Pledge Agreement), and

 

(vi)                               from Parent, the Subsidiary Borrower, the Initial Borrower (and assuming the Borrower Transfer Date has occurred prior to such date, Adient Global Holdings Ltd to the extent Adient Global Holdings Ltd has not liquidated, dissolved or transferred all its assets to Loan Parties or otherwise wound up in a transaction otherwise permitted by this Agreement on or prior to such date) and the other Guarantors, a supplement in substantially the form of Exhibit A to the Guarantee Agreement, in each case duly executed and delivered on behalf of such person,

 

(b)                                  on the Spinoff Date, (i)(x) all outstanding Equity Interests directly owned by the Loan Parties, other than Excluded Securities, and (y) all Indebtedness owing to any Loan Party, other than Excluded Securities, shall have been pledged or assigned for security purposes pursuant to the Security Documents, (ii) the Collateral Agent shall have received certificates, updated share registers (where necessary under the laws of any applicable jurisdiction in order to create a perfected security interest in such Equity Interests, including the PSC Register) or other instruments (if any) representing such Equity Interests and any notes or other instruments required to be delivered pursuant to the applicable Security Documents, together with stock powers, note powers or other instruments of transfer with respect thereto (as applicable) endorsed in blank and (iii) the Collateral Agent shall have received with respect to each Mortgaged Property located in the United States of America or any State thereof as of the Spinoff Date, the Flood Documentation; provided that to the extent any such Flood Documentation cannot be delivered on or prior to the Spinoff Date after the Borrowers’ use of commercially reasonable efforts to do so and without undue burden and expense, then the provision of such Flood Documentation may be delivered within 90 days after the Spinoff Date (or such longer period as agreed to by the Administrative Agent in its sole discretion) but in any event, prior to the delivery of the related Mortgage for such Real Property;

 

(c)                                   in the case of any person that becomes a Borrower or a Guarantor after the Spinoff Date, the Collateral Agent shall have received (i) a supplement to the Guarantee Agreement, (ii) a supplement to the applicable Security Document referred to in clause (a) above and any other Security Documents, if applicable, in the form specified therefor or otherwise reasonably acceptable to the Administrative Agent, in each case, duly executed and delivered on behalf of such Borrower or Guarantor and (iii) if requested by the Collateral Agent, such documents, certificates and opinions of the type described in clauses (d), (e) and (n) of the definition of “Spinoff Date”;

 

(d)                                  after the Spinoff Date (x) all outstanding Equity Interests of any person that becomes a Borrower or Guarantor after the Spinoff Date and that are held by a Loan Party and (y) all Equity Interests directly acquired by a Loan Party, and Indebtedness owing to a Loan Party after the Spinoff Date, in each case other than Excluded Securities, shall have been pledged pursuant to the Security Documents, together with stock powers or other instruments of transfer with respect thereto (as applicable) endorsed in blank;

 

(e)                                   as of the Spinoff Date, except as otherwise contemplated by this Agreement or any Security Document, all documents and instruments, including Uniform Commercial Code financing statements, and filings with the United States Copyright Office, the United States Patent and Trademark Office, registration of financing statement on the SIR in respect of the Jersey Law All Assets Pledge Agreement, and all other actions reasonably requested by the Collateral Agent (including those required by applicable Requirements of Law) to be delivered, 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 the Security Documents, shall have been delivered, filed, registered or recorded or delivered to the Collateral Agent for filing, registration or the recording substantially concurrently with, or promptly following, the execution and delivery of each such Security Document;

 

(f)                                    as of the Spinoff Date, evidence of the insurance (if any) required by the terms of Section 5.02 hereof shall have been received by the Collateral Agent;

 

(g)                                   after the Spinoff Date, the Collateral Agent shall have received, (i) such other Security Documents as may be required to be delivered pursuant to Section 5.10 or the Security Documents, and (ii)

 

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upon reasonable request by the Collateral Agent, evidence of compliance with any other requirements of Section 5.10;

 

(h)                                  (x) (i) within 90 days after the Spinoff Date with respect to each Spinoff Date Mortgaged Property set forth on Schedule 1.01(B)  (as may be updated pursuant to Section 9.08(b) of this Agreement) located in the United States and (ii) within 20 Business Days after the Spinoff Date with respect to each Spinoff Date Mortgaged Property set forth on Schedule 1.01(B)  located in England and Wales (in each case, or on such later date as the Administrative Agent may agree in its reasonable discretion) and (y) the time periods set forth in Section 5.10 with respect to Mortgaged Properties encumbered pursuant to such Section 5.10, the Collateral Agent shall have received:

 

(A) with respect to all such Mortgaged Properties in England and Wales:

 

(I) all title documents relating to the relevant owner’s interests in each Mortgaged Property or a solicitor’s undertaking from a firm of solicitors regulated by the Law Society of England and Wales and approved for this purpose by the Collateral Agent in a form and substance reasonably satisfactory to the Collateral Agent to hold the same to the order of the Collateral Agent (an “ Acceptable Undertaking ”),

 

(II) in respect of unregistered land, a clear Land Charges Registry search against the relevant owner or, in the case of registered land, a clear Land Registry official priority search in favor of the Collateral Agent, against all of the land or registered titles (as appropriate) comprising the relevant owner’s interests in each Mortgaged Property and giving not less than 20 Business Days’ priority (in the case of registered land) and 10 days’ priority (in the case of unregistered land) beyond the Spinoff Date or the date of the acquisition of the Mortgaged Property (as applicable), and

 

(III) an Acceptable Undertaking from the relevant owner’s solicitors to submit to the Land Registry all necessary Land Registry application forms in relation to the transfer of each Mortgaged Property to the relevant Borrower (if any) and the charging of each Mortgaged Property in favor of the Collateral Agent (including a form to note the obligation to make further advances and a form to register the restriction contained in the Mortgage) within the applicable priority period, duly completed and accompanied by payment of the applicable Land Registry fees,

 

(B) counterparts of each Mortgage to be entered into with respect to each such Mortgaged Property duly executed and delivered by the record owner (with respect to Mortgaged Properties located in the United States) or owner (with respect to Mortgaged Properties located in England and Wales), as applicable, of such Mortgaged Property and suitable for recording, registering or filing (together with, with respect to Mortgaged Properties located in the United States, any other forms or undertakings that are required or customary to effect such recording, registration or filing) in all filing, registration or recording offices that the Collateral Agent may reasonably deem necessary or desirable (and as provided for in the Acceptable Undertaking with respect to Mortgaged Properties located in England and Wales) in order to create a valid and enforceable Lien subject to no other Liens except Permitted Liens, at the time of filing, registration or recordation thereof,

 

(C) with respect to the Mortgage encumbering each such Mortgaged Property, opinions of local counsel regarding the due authorization, execution and delivery, the enforceability, and perfection of the Mortgages and such other matters customarily covered in real estate mortgage counsel opinions as the Collateral Agent may reasonably

 

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request, if and to the extent, and in such form, as local counsel customarily provides such opinions as to such other matters, and

 

(D) such other documents as the Collateral Agent may reasonably request that are available to the Borrowers without material expense with respect to any such Mortgage or Mortgaged Property; and

 

(i)                                      within (x) 90 days after the Spinoff Date with respect to each Spinoff Date Mortgaged Property set forth on Schedule 1.01(B)  (as may be updated pursuant to Section 9.08(b) of this Agreement) located in the United States (in each case, or on such later date as the Collateral Agent may agree in its reasonable discretion) and (y) the time periods set forth in Section 5.10 with respect to Mortgaged Properties located in the United States and encumbered pursuant to said Section 5.10, the Collateral Agent shall have received:

 

(i) a policy or policies or marked up unconditional binder of title insurance with respect to properties located in the United States, or a date-down and modification endorsement, if available, paid for by the Borrowers, in the amount of the Fair Market Value of the respective Mortgaged Property, issued by a nationally recognized title insurance company (“ Title Insurer ”) insuring the Lien of each Mortgage as a valid Lien on the Mortgaged Property described therein, free of any other Liens except Permitted Liens, together with such customary endorsements, coinsurance and reinsurance as the Collateral Agent may reasonably request and which are available at commercially reasonable rates in the jurisdiction where the applicable Mortgaged Property is located ( provided , however , that in lieu of a zoning endorsement, Collateral Agent shall accept a zoning report from a nationally recognized zoning report provider), and

 

(ii) a survey of each Mortgaged Property (including all improvements, easements and other customary matters thereon reasonably required by the Collateral Agent), as applicable, for which all necessary fees (where applicable) have been paid with respect to properties located in the United States, which (A) complies in all material respects with the minimum detail requirements of the American Land Title Association and American Congress of Surveying and Mapping as such requirements are in effect on the date of preparation of such survey and (B) is sufficient for such Title Insurer to remove all standard survey exceptions from the title insurance policy relating to such Mortgaged Property or otherwise reasonably acceptable to the Collateral Agent; provided , however , that so long as the Title Insurer shall accept the same to eliminate the standard survey exceptions from such policy or policies, in lieu of a new or revised survey Borrowers may provide a “no material change” affidavit with respect to any prior survey for the respective Mortgaged Property (which prior survey otherwise substantially complies with the foregoing survey requirements).

 

Notwithstanding anything to the contrary in this Agreement or in the other Loan Documents, it is understood that to the extent any Collateral (other than Collateral with respect to which a lien may be perfected by (A) the filing of a Uniform Commercial Code financing statement or the registration of a financing statement on the SIR, (B) delivery and taking possession of stock or share certificates of the Subsidiaries of Parent or, (C) the filing of a short form security agreement with the United States Patent and Trademark Office or the United States Copyright Office) is not or cannot be provided or the security interest of the Collateral Agent therein is not or cannot be perfected on the Spinoff Date after the use of commercially reasonable efforts by the Borrowers to do so and without undue burden and expense, then the provision and/or perfection of the security interest in such Collateral shall not constitute a condition precedent to the Spinoff Date or any Credit Event on or within the time periods specified in clauses (U)-(Z) below, and shall instead be required to be delivered and perfected within the time periods specified in clauses (U)-(Z) below (in each case, subject to extension by the Administrative Agent in its sole discretion):

 

(U) registration at UK Companies House under Section 859A of the UK Companies Act 2006, on or prior to the date which is 21 days after the date of creation of the applicable security interest,

 

(V) registration at the Companies Registration Office of Ireland pursuant to Part 7 of the Companies Act 2014 of Ireland and/or the Revenue Commissioners of Ireland pursuant to Section 1001 of the Taxes

 

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Consolidation Act, 1997 (as amended) of Ireland ( provided that Parent has received an Irish tax registration number as of such time) on or prior to the date which is 21 days after the date of the applicable charge’s creation,

 

(W) filings with the United Kingdom Intellectual Property Office, the European Patent Office and/or the European Union Intellectual Property Office on or prior to the date which is 90 days after the date of creation of the applicable security interest,

 

(X) registration at the England and Wales Land Registry by (I) in the case of registered land, the third from last day of the priority search (such search to be made in favor of the Collateral Agent on the appropriate forms against all of the registered titles comprising the relevant owner’s interests in each Mortgaged Property and giving not less than 20 Business Days’ priority) and (II) in the case of unregistered land, within two months’ of the Spinoff Date or the date of the Additional Mortgage (as applicable) (following the completion of a Land Charges Registry search, giving not less than 10 days’ priority),

 

(Y)  filing of a copy of all Intellectual Property registrations relating to Parent (if any) with the Patent Office of Ireland on or prior to the date which is 21 days after execution of the relevant security document , or

 

(Z) with respect to actions not specified in clauses (U) through (Y) above, on or prior to the date which is 90 days after the Spinoff Date.

 

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

 

“ Commitments ” shall mean with respect to any Lender, such Lender’s Revolving Facility Commitment and Term Facility Commitment.

 

“ Commodity Exchange Act ” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

“ Conduit Lender ” shall mean any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument; provided , that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender; provided , further , that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Sections 2.15, 2.16, 2.17 or 9.05 than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender unless the designation of such Conduit Lender is made with the prior written consent of Parent (not to be unreasonably withheld or delayed), which consent shall specify that it is being made pursuant to the proviso in the definition of Conduit Lender and provided that the designating Lender provides such information as Parent reasonably requests in order for Parent to determine whether to provide its consent or (b) be deemed to have any Commitment.

 

“ Consolidated Debt ” shall mean, as of any date of determination, the sum of (without duplication) the principal amount of all Indebtedness of the type set forth in clauses (a), (b), (e) (to the extent related to any Indebtedness that would otherwise constitute Consolidated Debt), (f), (h) (other than letters of credit, to the extent undrawn), (i), (j), (k) (to the extent related to any Indebtedness that would otherwise constitute Consolidated Debt) and (l) of the definition of “Indebtedness” of Parent and the Subsidiaries determined on a consolidated basis on such date; provided , that the amount of any Indebtedness with respect to which the applicable obligors have entered into currency hedging arrangements shall be calculated giving effect to such currency hedging arrangements.

 

“ Consolidated Net Income ” shall mean, with respect to any person for any period, the aggregate Net Income of such person and its Subsidiaries for such period, on a consolidated basis, in accordance with GAAP; provided , however , that, without duplication:

 

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(a)                                  any net after-Tax extraordinary, restructuring, nonrecurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses or charges, shall be excluded; provided that the aggregate cash amount added back in determining Consolidated Net Income pursuant to this clause (a) which relate to restructuring expenses or charges shall not, when aggregated with the Non-S-X Adjustment Amount, exceed 20% of Adjusted Consolidated EBITDA for such period prior to giving effect to such cash amounts included in Consolidated Net Income and the Non-S-X Adjustment Amount for such period;

 

(b)                                  effects of purchase accounting adjustments (including the effects of such adjustments pushed down to such person and such Subsidiaries) in amounts required or permitted by GAAP, resulting from the application of purchase accounting in relation to any consummated acquisition or the amortization or write-off of any amounts thereof, net of Taxes, shall be excluded;

 

(c)                                   the cumulative effect of a change in accounting principles (which shall in no case include any change in the comprehensive basis of accounting) during such period shall be excluded;

 

(d)                                  (i) any net after-Tax income or loss from disposed, abandoned, transferred, closed or discontinued operations, (ii) any net after-Tax gain or loss on disposal of disposed, abandoned, transferred, closed or discontinued operations and (iii) 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 Borrower Representative) shall be excluded;

 

(e)                                   any net after-Tax gains or losses, or any subsequent charges or expenses (less all fees and expenses or charges relating thereto), attributable to the early extinguishment of Indebtedness, hedging obligations or other derivative instruments shall be excluded;

 

(f)                                    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 (other than a Guarantor), shall be included only to the extent of the amount of dividends or distributions or other payments actually paid in cash or cash equivalents (or to the extent converted into cash or cash equivalents) to the referent person or a Subsidiary thereof in respect of such period;

 

(g)                                   solely for purposes of calculating the Available Amount, the Net Income for such period of any Subsidiary of such person shall be excluded to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Subsidiary or its equityholders, unless such restrictions with respect to the payment of dividends or similar distributions have been legally waived; provided that the Consolidated Net Income of such person shall be increased by the amount of dividends or other distributions or other payments actually paid in cash (or converted into cash) by any such Subsidiary to such person or a Subsidiary of such person (subject to the provisions of this clause (g)), to the extent not already included therein;

 

(h)                                  any impairment charge or asset write-off with respect to long-term assets and amortization of intangibles, in each case pursuant to GAAP, shall be excluded;

 

(i)                                      (i) any non-cash expense realized or resulting from stock option plans, employee benefit plans or post-employment benefit plans, or grants or sales to employees, officers or directors of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other rights shall be excluded, and (ii) the effects of any mark-to-market adjustments of liabilities in respect of pension plans will be excluded;

 

(j)                                     any (i) non-cash compensation charges or (ii) non-cash costs or expenses realized in connection with or resulting from stock appreciation or similar rights, stock options or other rights existing

 

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on the Spinoff Date of officers, directors and employees, in each case of such person or any of its Subsidiaries, shall be excluded;

 

(k)                                  accruals and reserves that are established or adjusted within 12 months after the Spinoff Date (excluding any such accruals or reserves to the extent that they represent an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) and that are so required to be established or adjusted in accordance with GAAP or as a result of adoption or modification of accounting policies shall be excluded;

 

(l)                                      the Net Income of any person and its Subsidiaries shall be calculated by deducting the income attributable to, or adding the losses attributable to, the minority Equity Interests of third parties in any non-Wholly Owned Subsidiary;

 

(m)                              [reserved];

 

(n)                                  to the extent covered by insurance and actually reimbursed, or, so long as such person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (i) not denied by the applicable carrier in writing within 180 days and (ii) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interruption shall be excluded; and

 

(o)                                  non-cash charges for deferred Tax asset valuation allowances shall be excluded (except to the extent reversing a previously recognized increase to Consolidated Net Income).

 

Consolidated Net Income presented in a currency other than Dollars will be converted to Dollars based on the average exchange rate for such currency during, and applied to, each fiscal quarter in the period for which Consolidated Net Income is being calculated.

 

“ Consolidated Secured Net Debt ” shall mean, as of any date of determination, (i) Consolidated Debt to the extent secured by Liens on all or any portion of the assets of Parent or any of its Subsidiaries on such date (including, for the avoidance of doubt, all Attributable Receivables Indebtedness with respect to Qualified Receivables Facilities and Capitalized Lease Obligations) less (ii) the Unrestricted Cash Amount on such date.  Notwithstanding anything to the contrary contained above, all Indebtedness incurred pursuant to this Agreement (including any such Indebtedness incurred pursuant to any Incremental Loan) pursuant or Sections 6.01(b) and (v), and any Permitted Refinancing Indebtedness or Refinancing Notes (or successive Permitted Refinancing Indebtedness or Refinancing Notes) incurred under Section 6.01(b) or (v) (whether or not secured) shall be included as if secured by Liens as a component of Consolidated Debt pursuant to clause (i) of the immediately preceding sentence; provided that any such Permitted Refinancing Indebtedness (x) if unsecured, shall not constitute a component of Consolidated Secured Net Debt if, when incurred, such Indebtedness is independently permitted to be incurred under Section 6.01(p) and (y) if secured by the Collateral by a Junior Lien, shall cease to constitute a component of Consolidated Secured Net Debt for purposes of the First Lien Secured Net Leverage Ratio only, if, when incurred, such Indebtedness is independently permitted to be incurred under Section 6.01(p), and permitted to be secured under Section 6.02(gg) (or is subsequently permitted to be outstanding and secured under said Sections).

 

“ Consolidated Total Assets ” shall mean, as of any date of determination, the total assets of Parent and the Subsidiaries, determined on a consolidated basis in accordance with GAAP but excluding amounts attributable to Investments in Unrestricted Subsidiaries, as set forth on the consolidated balance sheet of Parent as of the last day of the Test Period ending immediately prior to such date for which financial statements of Parent have been delivered (or were required to be delivered) pursuant to Section 5.04(a) or 5.04(b), as applicable.  Consolidated Total Assets shall be determined on a Pro Forma Basis.

 

“ Consolidated Total Net Debt ” shall mean, as of any date of determination, (i) Consolidated Debt on such date less (ii) the Unrestricted Cash Amount on such date.

 

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“ Continuing Letter of Credit ” shall have the meaning assigned to such term in Section 2.05(k).

 

“ Control ” shall mean 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 “ Controls ,” “ Controlled ” and “ Controlling ” shall have meanings correlative thereto.

 

“ Credit Event ” shall mean (i) any Borrowing of Loans or (ii) any issuance, amendment, extension or renewal of a Letter of Credit.

 

“ CTA ” shall mean the UK Corporation Tax Act 2009.

 

“ Cumulative Qualified Equity Proceeds Amount ” shall mean at any date of determination, an amount equal to, without duplication:

 

(a)                                  100% of the aggregate net proceeds (which shall be calculated net of all fees (including investment banking fees), commissions, costs and other expenses, in each case incurred in connection with the applicable issuance or sale), including cash and the Fair Market Value of assets other than cash, received by Parent after the Spinoff Date from the issue or sale of its Qualified Equity Interests, including Qualified Equity Interests of Parent issued upon conversion of Indebtedness or Disqualified Stock to the extent Parent or its Wholly Owned Subsidiaries had received the Net Proceeds of such Indebtedness or Disqualified Stock; plus

 

(b)                                  100% of the aggregate amount received by Parent or its Wholly Owned Subsidiaries in cash and the Fair Market Value of assets other than cash received by Parent or its Wholly Owned Subsidiaries after the Spinoff Date from (without duplication):

 

(i)                                      the sale or other disposition (other than to Parent or any Subsidiary) of any Investment made by Parent and its Subsidiaries and repurchases and redemptions of such Investment from Parent and its Subsidiaries by any person (other than Parent and its Subsidiaries) to the extent that (x) such Investment was justified as using a portion of the Available Amount pursuant to clause (Y) of Section 6.04(j) and (y) the Net Proceeds thereof are not required to be applied pursuant to Section 2.11(b);

 

(ii)                                   the sale (other than to Parent or a Subsidiary) of the Equity Interests of an Unrestricted Subsidiary to the extent that (x) the designation of such Unrestricted Subsidiary was justified as using a portion of the Available Amount pursuant to clause (Y) of Section 6.04(j) and (y) the Net Proceeds thereof are not required to be applied pursuant to Section 2.11(b); or

 

(iii)                                to the extent not included in the calculation of Consolidated Net Income for the relevant period, a distribution, dividend or other payment from an Unrestricted Subsidiary to the extent relating to any portion of the Investment therein made pursuant to clause (Y) of Section 6.04(j).

 

“ Debtor Relief Laws ” shall mean the 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 of America or other applicable jurisdictions (including also, in the case of Ireland, examinership laws) from time to time in effect.

 

“ Declined Prepayment Amount ” shall have the meaning assigned to such term in Section 2.10(d).

 

“ Declining Term Lender ” shall have the meaning assigned to such term in Section 2.10(d).

 

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

 

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“ Defaulting Lender ” shall mean, subject to Section 2.24, any Revolving Facility Lender that (a) has failed to (i) fund all or any portion of its Revolving Facility Loans within two (2) Business Days of the date such Loans were required to be funded hereunder or (ii) pay to the Administrative Agent, any Issuing Bank or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two (2) Business Days of the date when due, (b) has notified a Borrower, Administrative Agent or any Issuing Bank in writing that it does not intend or expect to comply with its funding obligations hereunder or generally under other agreements in which it commits to extend credit, or has made a public statement to that effect, (c) has failed, within three (3) Business Days after written request by the Administrative Agent or Parent, to confirm in writing to the Administrative Agent and Parent that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and Parent) or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided , that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity 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 of America or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.24) upon delivery of written notice of such determination to the Borrower Representative, each Issuing Bank and each Lender.

 

“ Designated Jurisdiction ” shall mean any country, region or territory to the extent that such country or territory itself is the subject of any Sanctions (on the date of this Agreement, the Crimea region of the Ukraine, Cuba, Iran, North Korea, Sudan and Syria).

 

“ Designated Non-Cash Consideration ” shall mean the Fair Market Value of non-cash consideration received by Parent 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 of Parent, setting forth such valuation, less the amount of cash or cash equivalents received in connection with a subsequent disposition of such Designated Non-Cash Consideration.

 

“ Disinterested Director ” shall mean, with respect to any person and transaction, a member of the Board of Directors of such person who does not have any material direct or indirect financial interest in or with respect to such transaction.

 

“ Dispose ” or “ Disposed of ” shall mean to convey, sell, lease, sell and lease-back, assign, farm-out, transfer or otherwise dispose of any property, business or asset.  The term “ Disposition ” shall have a correlative meaning to the foregoing.

 

“ Disqualified Institutions ” means, collectively, (a) those entities identified by the Borrower Representative in an e-mail sent to JPMDQ_Contact@jpmorgan.com, from time to time on 3 Business Days’ prior notice, as competitors of Parent and its Subsidiaries, (b) those banks, financial institutions and other institutional lenders separately identified in writing by the Borrower Representative to the Lenders and the Administrative Agent prior to the Signing Date, and (c) any Affiliates clearly identifiable solely by similarity of name to the entities described in the preceding clauses (a) and (b) other than bona fide debt funds; provided that in no event shall any update to the list of Disqualified Institutions apply retroactively to disqualify any persons that have previously acquired an assignment or participation interest under this Agreement.

 

“ Disqualified Stock ” shall mean, with respect to any person, any Equity Interests of such person that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests of Parent), pursuant to a sinking fund obligation or otherwise, (b) is

 

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redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests of Parent), in whole or in part, (c) provides for the scheduled, mandatory payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Stock, in the case of each of the foregoing clauses (a), (b), (c) and (d), prior to the date that is ninety-one (91) days after the Latest Maturity Date in effect at the time of issuance thereof and 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 Loan Obligations that are accrued and payable and the termination of the Commitments ( provided , 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).  Notwithstanding the foregoing:  (i) any Equity Interests issued to any employee or to any plan for the benefit of employees of Parent or the Subsidiaries or by any such plan to such employees shall not constitute Disqualified Stock solely because they may be required to be repurchased by Parent in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability and (ii) any class of Equity Interests of such person that by its terms authorizes such person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock.

 

“ Dollars ” or “ $ ” shall mean lawful money of the United States of America.

 

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

 

“ DQ List ” shall have the meaning assigned to such term in Section 9.04(i).

 

“ 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.

 

“ English Law Debenture ” shall mean an English law debenture based on the U.S. Collateral Agreement (including as to the granting clause, excluded assets, definitions, representations and warranties and covenants) with customary modifications based on English law and as otherwise agreed by the Administrative Agent and Borrower Representative, and otherwise in form and substance reasonably acceptable to the Administrative Agent and the Borrower Representative, dated as of the Spinoff Date, among the English Loan Parties, each Loan Party that owns Equity Interests of a person incorporated or organized under the laws of England and Wales (other than Excluded Securities) or Material Real Property located in England and Wales ( provided that the grant by any such other Loan Party shall be solely with respect to such Equity Interests or Material Real Property and related rights and assets as expressly set forth in the English Law Debenture) and the Collateral Agent, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

“ English Loan Parties ” shall mean, collectively, each Loan Party that is incorporated under the laws of England and Wales.

 

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“ English Subsidiary ” shall mean any Foreign Subsidiary that is incorporated under the laws of England and Wales.

 

“ Environment ” shall mean 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 ” shall mean all applicable laws (including common law), rules, regulations, codes, ordinances, orders, binding agreements, decrees or judgments, promulgated or entered into by or with any Governmental Authority, relating in any way to the Environment, preservation or reclamation of natural resources, any Hazardous Materials or to public or employee health and safety matters (to the extent relating to the Environment or Hazardous Materials).

 

“ Environmental Permits ” shall have the meaning assigned to such term in Section 3.16.

 

“ Equity Interests ” of any person shall mean 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 (including any preferred equity certificates (and any other similar instruments)), 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 ” shall mean 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 ” shall mean any trade or business (whether or not incorporated) that, together with Parent, any Borrower or any 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 ” shall mean (a) any Reportable Event or the requirements of Section 4043(b) of ERISA apply with respect to a Plan; (b) with respect to any Plan, the failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA, whether or not waived; (c) a determination that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (d) 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 by its due date any required contribution to a Multiemployer Plan; (e) the incurrence by Parent, a Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan or Multiemployer Plan; (f) the receipt by Parent, 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; (g) the incurrence by Parent, 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; (h) the receipt by Parent, a Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from Parent, any Borrower, any Subsidiary or any ERISA Affiliate of any notice, concerning the impending imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, or in “endangered” or “critical” status, within the meaning of Section 432 of the Code or Section 305 of ERISA; (i) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan; or (j) the withdrawal of any of Parent, a Borrower, a Subsidiary or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA.

 

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

 

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“ Euro ” and “ € ” shall mean the single currency of the European Union as constituted by the Treaty of Rome which established the European Community, as such treaty may be amended from time to time and as referred to in the European Monetary Union legislation.

 

“ Eurocurrency ” shall mean, when used in reference to any Loan or Borrowing, that such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.

 

“ Eurocurrency Borrowing ” shall mean a Borrowing comprised of Eurocurrency Loans.

 

“ Eurocurrency Loan ” shall mean any Eurocurrency Term Loan or Eurocurrency Revolving Loan.  All Loans denominated in an Alternative Currency must be Eurocurrency Loans.

 

“ Eurocurrency Revolving Facility Borrowing ” shall mean a Borrowing comprised of Eurocurrency Revolving Loans.

 

“ Eurocurrency Revolving Loan ” shall mean any Revolving Facility Loan bearing interest at a rate determined by reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.  Eurocurrency Revolving Loans may be denominated in Dollars or in an Alternative Currency.

 

“ Eurocurrency Term Loan ” shall mean any Term Loan bearing interest at a rate determined by reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.

 

“ Event of Default ” shall have the meaning assigned to such term in Section 7.01.

 

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

 

“ Excluded Indebtedness ” shall mean all Indebtedness not incurred in violation of Section 6.01.

 

“ Excluded Property ” shall have the meaning assigned to such term in Section 5.10.

 

“ Excluded Securities ” shall mean any of the following:

 

(a)                                  any Equity Interests or Indebtedness with respect to which the Collateral Agent and Parent reasonably agree that the cost or other consequences of pledging such Equity Interests or Indebtedness in favor of the Secured Parties under the Security Documents (including Tax consequences) are likely to be excessive in relation to the value to be afforded thereby;

 

(b)                                  any Equity Interests or Indebtedness to the extent, and for so long as, the pledge thereof is prohibited by any Requirement of Law(in each case, except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code, the Specified Foreign Laws and other applicable law);

 

(c)                                   any Equity Interests of any person that is not a Wholly Owned Subsidiary to the extent (A) that a pledge thereof to secure the Obligations is prohibited by (i) any applicable organizational documents, constitutional documents, joint venture agreement, shareholder agreement, or similar agreement or (ii) any other contractual obligation (not created in contemplation of the consummation of the Transactions) with an unaffiliated third party not in violation of Section 6.09 that was existing on the Spinoff Date or at the time of the acquisition of such subsidiary and was not created in contemplation of such acquisition, (B) any organizational documents, constitutional documents, joint venture agreement, shareholder agreement, or similar agreement (or other contractual obligation referred to in subclause (A)(ii) above) prohibits such a pledge without the consent of any other party; provided, that this clause (B) shall not apply if (1) such other party is a Loan Party or a Wholly Owned Subsidiary or (2) consent has been obtained to consummate such pledge (it being understood that the foregoing shall not be deemed to obligate Parent or any Subsidiary to obtain any such consent) and for so long as such organizational documents, constitutional documents, joint venture agreement, shareholder agreement or similar agreement (or other

 

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contractual obligation referred to in subclause (A)(ii) above) or replacement or renewal thereof is in effect, or (C) a pledge thereof to secure the Obligations would give any other party (other than a Loan Party or a Wholly Owned Subsidiary) to any organizational documents, constitutional documents, joint venture agreement, shareholder agreement or similar agreement governing such Equity Interests the right to terminate its obligations thereunder;

 

(d)                                  any Equity Interests of any (A) Unrestricted Subsidiary or (B) any Receivables Entity (to the extent they are restricted from being pledged by the applicable Qualified Receivables Facility);

 

(e)                                   [reserved];

 

(f)                                    any Margin Stock; and

 

(g)                                   voting Equity Interests (and any other interests constituting “stock entitled to vote” within the meaning of U.S. Treasury Regulation Section 1.956-2(c)(2)) in excess of 65% of all such voting Equity Interests in (A) any Foreign Subsidiary that is a CFC, (B) any FSHCO or (C) any Subsidiary that is disregarded for U.S. federal income tax purposes and owns Equity Interests in a CFC or FSHCO.

 

“ Excluded Subsidiary ” shall mean any of the following:

 

(a)                                  each Immaterial Subsidiary,

 

(b)                                  each U.S. Subsidiary and English Subsidiary that is not a Wholly Owned Subsidiary (for so long as such Subsidiary remains a non-Wholly Owned Subsidiary),

 

(c)                                   each U.S. Subsidiary and English Subsidiary that is prohibited from Guaranteeing or granting Liens to secure the Obligations by any Requirement of Law or that would require consent, approval, license or authorization of a Governmental Authority to Guarantee or grant Liens to secure the Obligations (unless such consent, approval, license or authorization has been received),

 

(d)                                  each U.S. Subsidiary and English Subsidiary that is prohibited by any applicable contractual requirement (not created in contemplation of the consummation of the Transactions) from Guaranteeing or granting Liens to secure the Obligations on the Spinoff Date or at the time such Subsidiary becomes a Subsidiary not in violation of Section 6.09 (and for so long as such restriction or any replacement or renewal thereof is in effect),

 

(e)                                   any Receivables Entity,

 

(f)                                    any Foreign Subsidiary (other than any English Subsidiary that is not a CFC or a FSHCO),

 

(g)                                   any U.S. Subsidiary (i) that is a FSHCO or (ii) that is a Subsidiary of a Foreign Subsidiary that is a CFC,

 

(h)                                  any other U.S. Subsidiary or English Subsidiary with respect to which the Administrative Agent and Parent reasonably agree that the cost or other consequences (including, without limitation, Tax consequences) of providing a Guarantee of or granting Liens to secure the Obligations are likely to be excessive in relation to the value to be afforded thereby,

 

(i)                                      any other Subsidiary if in the reasonable good faith determination of Parent in consultation with the Administrative Agent, a guarantee by such Subsidiary would result in materially adverse tax consequences to Parent or any of its Subsidiaries,

 

(j)                                     each Unrestricted Subsidiary, and

 

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(k)                                  each Insurance Subsidiary.

 

“ Excluded Swap Obligation ” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of (a) such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder or (b) in the case of a Swap Obligation subject to a clearing requirement pursuant to Section 2(h) of the Commodity Exchange Act (or any successor provision thereto), because such Guarantor is a “financial entity,” as defined in Section 2(h)(7)(C)(i) of the Commodity Exchange Act (or any successor provision thereto), in each case at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation, unless otherwise agreed between the Administrative Agent and Parent.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

 

“ Excluded Taxes ” shall mean, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document (a “ Recipient ”), (i) Taxes imposed on or measured by its overall net income (however denominated, and including, for the avoidance of doubt, franchise and similar Taxes imposed on it in lieu of net income Taxes) and branch profits Taxes, in each case, imposed by a jurisdiction (including any political subdivision thereof) as a result of such recipient being organized in, having its principal office in, being engaged in a trade or business in, or in the case of any Lender, having its applicable lending office in, such jurisdiction, or as a result of any other present or former connection with such jurisdiction (other than any such connection arising solely from any Loan Document or any transactions pursuant to any Loan Document), (ii) U.S. federal withholding Tax imposed on any payment by or on account of any obligation of any Loan Party hereunder or under any other Loan Document to a Lender (other than to the extent such Lender is an assignee pursuant to a request by a Borrower under Section 2.19(b) or 2.19(c)) pursuant to laws in force at the time such Lender becomes a party hereto (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive additional amounts or indemnification payments from any Loan Party with respect to such withholding Tax pursuant to Section 2.17, (iii) any withholding Tax imposed on any payment by or on account of any obligation of any Loan Party hereunder that is attributable to the Administrative Agent’s, any Lender’s or any other recipient’s failure to comply with Section 2.17(f) or Section 2.17(i), (iv) any Tax imposed under FATCA, or (v) any amounts determined by a Finance Party (acting reasonably) to represent any recoverable input Tax.

 

“ Existing Class Loans ” shall have the meaning assigned to such term in Section 9.08(f).

 

“ Existing Letter of Credit ” shall have the meaning assigned to such term in Section 2.05(a).

 

“ Extended Revolving Facility Commitment ” shall have the meaning assigned to such term in Section 2.22(a).

 

“ Extended Revolving Loan ” shall have the meaning assigned to such term in Section 2.22(a).

 

“ Extended Term Loan ” shall have the meaning assigned to such term in Section 2.22(a).

 

“ Extending Lender ” shall have the meaning assigned to such term in Section 2.22(a).

 

“ Extension ” shall have the meaning assigned to such term in Section 2.22(a).

 

“ Extension Amendment ” shall have the meaning assigned to that term in Section 2.22(b).

 

“ Facility ” shall mean the respective facility and commitments utilized in making Loans and credit extensions hereunder, it being understood that, as of the Signing Date there are two Facilities ( i.e. , the Initial Term A

 

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Facility and the Revolving Facility) and thereafter, the term “Facility” may include any other Class of Commitments and the extensions of credit thereunder.

 

“ Fair Market Value ” shall mean, with respect to any asset or property, the price that could be negotiated in an arms’-length transaction between a willing seller and a willing buyer, neither of whom is under undue pressure or compulsion to complete the transaction (as determined in good faith by the management of Borrower Representative), including reliance on the most recent real property tax bill or assessment in the case of Real Property.

 

“ FATCA ” shall mean 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), or any current or future United States Treasury Regulations promulgated thereunder or official administrative interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, such Code section as of the date of this Agreement (or any amended or successor version described above) or any legislation, rules or official practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.

 

“ FATCA Deduction ” shall mean a deduction or withholding from a payment under a Loan Document required by FATCA.

 

“ FATCA Exempt Party ” shall mean a Recipient that is entitled to receive payments free from any FATCA Deduction.

 

“ Federal Funds Effective Rate ” shall mean, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate.

 

“ Fee Letter ” shall mean that certain Fee Letter, dated as of June 28, 2016 by and among JCI and the Arrangers.

 

“ Fees ” shall mean the Commitment Fees, the L/C Participation Fees, the Issuing Bank Fees and the Administrative Agent Fees.

 

“ Finance Party ” shall mean the Administrative Agent, a Lender or any other Recipient.

 

“ Financial Covenant ” shall mean the covenant set forth in Section 6.12.

 

“ Financial Officer ” of any person shall mean the Chief Financial Officer, principal accounting officer, Treasurer, Assistant Treasurer, Controller or other executive responsible for the financial affairs of such person.

 

“ First Lien Secured Net Leverage Ratio ” shall mean, as of any date of determination, the ratio of (a) the remainder of (x) Consolidated Secured Net Debt as of such date minus (y) amounts included in clause (i) of the definition of Consolidated Secured Net Debt (and not described in the last sentence of the definition of Consolidated Secured Net Debt, unless excluded by the proviso thereto) which are secured only by Liens on the Collateral securing the Obligations on a junior and subordinated (as to Liens and related rights and remedies only) basis and which are subject to an intercreditor agreement entered into with the Administrative Agent for the benefit of the holders of the Obligations which is in form and substance reasonably satisfactory to the Administrative Agent, to (b) Adjusted Consolidated EBITDA for the most recently ended Test Period for which financial statements of Parent have been delivered as required by this Agreement, all determined on a consolidated basis in accordance with GAAP; provided that Adjusted Consolidated EBITDA shall be determined for the relevant Test Period on a Pro Forma Basis. All Indebtedness described in the last sentence of the definition of Consolidated Secured Net Debt (and not excluded by the proviso thereto) shall also be deemed to constitute Indebtedness included pursuant to preceding clause (a)(x) and which is not deducted pursuant to preceding clause (a)(y).

 

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“ Flood Documentation ” shall mean with respect to each Mortgaged Property located in the United States of America or any territory thereof, (i) a completed “life-of-loan” Federal Emergency Management Agency standard flood hazard determination (to the extent a Mortgaged Property is located in a Special Flood Hazard Area, together with a notice about Special Flood Hazard Area status and flood disaster assistance duly executed by the applicable Loan Party relating thereto) and (ii) a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies, along with a copy of the underlying policies (if requested by the Administrative Agent) required by Section 5.02(c) hereof and the applicable provisions of the Security Documents, each of which shall (A) be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable), (B) name the Collateral Agent, on behalf of the Secured Parties, as additional insured and loss payee/mortgagee, (C) identify the address of each property located in a Special Flood Hazard Area, the applicable flood zone designation and the flood insurance coverage and deductible relating thereto and (D) be otherwise in form and substance reasonably satisfactory to the Collateral Agent and each of the Lenders, subject to the provisions of Sections 5.02(a), 5.02(b) and 5.02(c).

 

“ Flood Insurance Laws ” shall mean, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

 

“ Foreign Lender ” shall mean a Lender that is not a U.S. Person.

 

“ Foreign Subsidiary ” shall mean 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.

 

“ Form 10 ” shall have the meaning assigned to such term in the definition of “Transactions.”

 

“ Fronting Exposure ” shall mean, at any time there is a Defaulting Lender, with respect to any Issuing Bank, such Defaulting Lender’s Revolving Facility Percentage of Revolving L/C Exposure with respect to Letters of Credit issued by such Issuing Bank other than such Revolving L/C Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

 

“ FSHCO ” shall mean any U.S. Subsidiary that owns no material assets (directly or through subsidiaries) other than the Equity Interests of one or more Foreign Subsidiaries that are CFCs.

 

“ GAAP ” shall mean generally accepted accounting principles in effect from time to time in the United States of America, applied on a consistent basis, subject to the provisions of Section 1.02.

 

“ Governmental Authority ” shall mean any federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory or legislative body (including any applicable supranational bodies, such as the European Union or the European Central Bank).

 

“ Guarantee ” of or by any person (the “ guarantor ”) shall mean (a) any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (iv) 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 (b) any Lien on any assets of the guarantor securing any Indebtedness or other obligation (or any existing right, contingent or

 

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otherwise, of the holder of Indebtedness or other obligation to be secured by such a Lien) of any other person, whether or not such Indebtedness or other obligation is assumed by the guarantor (other than Liens on Equity Interests of Unrestricted Subsidiaries securing Indebtedness of such Unrestricted Subsidiaries); provided , however , that 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 Signing 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 or other obligation in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such person in good faith. The amount of the Indebtedness or other obligation subject to any Guarantee provided by any person for purposes of clause (b) above shall (unless the applicable Indebtedness has been assumed by such person or is otherwise recourse to such person) be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness or other obligation and (B) the Fair Market Value of the property encumbered thereby.

 

“ Guarantee Agreement ” shall mean the Guarantee Agreement substantially in the form of Exhibit M dated as of the Signing Date as may be amended, restated, supplemented or otherwise modified from time to time, between each applicable Guarantor and the Collateral Agent.

 

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

 

“ Guarantors ” shall mean each of:

 

(i) each Subsidiary of Parent (other than the Borrowers) that is or becomes a Loan Party on the Spinoff Date or pursuant to Section 5.10(d), whether existing on the Spinoff Date or established, created or acquired after the Spinoff Date, unless and until such time as such Subsidiary is released from its obligations under the Guarantee Agreement in accordance with the terms and provisions hereof or thereof,

 

(ii) from and after the Spinoff Date, Parent with respect to the Obligations (other than Obligations of Parent),

 

(iii) from and after the Spinoff Date, Initial Borrower with respect to the Obligations (other than Obligations of the Initial Borrower),

 

(iv) from and after the Spinoff Date, Subsidiary Borrower with respect to the Obligations (other than Obligations of the Subsidiary Borrower), and

 

(v) prior to the Spinoff Date, (a) JCI and (b) upon the Successor JCI Credit Agreement Effectiveness Date, New JCI.

 

“ Hazardous Materials ” shall mean all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including, without limitation, explosive or radioactive substances or petroleum by products or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas or pesticides, fungicides, fertilizers or other agricultural chemicals, of any nature subject to regulation or which can give rise to liability under any Environmental Law.

 

“ Hedge Bank ” shall mean any person that is an Agent, an Arranger, a Lender or an Affiliate of any such person (a) at the time that it enters into a Hedging Agreement, or (b) with respect to Hedging Agreements existing on the Spinoff Date, on the Spinoff Date, in each case, in its capacity as a party to such Hedging Agreement.

 

“ Hedging Agreement ” shall mean any agreement with respect to any swap, forward, future or derivative transaction, or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value, or credit spread transaction, repurchase transaction, reserve repurchase transaction, securities lending transaction, weather index transaction, spot contracts, fixed price physical delivery contracts, or any similar transaction or any combination of these transactions, in each case of the foregoing, whether

 

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or not exchange traded; provided , that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of Parent or any of the Subsidiaries shall be a Hedging Agreement.

 

“ Immaterial Subsidiary ” shall mean any Subsidiary that (a) did not, as of the last day of the fiscal quarter of Parent most recently ended for which financial statements have been (or were required to be) delivered pursuant to Section 5.04(a) or 5.04(b), 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 Parent and the Subsidiaries on a consolidated basis as of such date, and (b) taken together with all such Subsidiaries as of such date, did not have assets with a value in excess of 5.0% of Consolidated Total Assets or revenues representing in excess of 5.0% of total revenues of Parent and the Subsidiaries on a consolidated basis as of such date.

 

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

 

“ Increased Amount ” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness or in the form of common stock of Parent, the accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies.

 

“ Incremental Amount ” shall mean, at any time, the greater of:

 

(a)                                  the excess (if any) of (i) $750,000,000 over (ii) the sum of (x) the aggregate amount of all Incremental Term Loan Commitments and Incremental Revolving Facility Commitments, in each case, established after the Spinoff Date and prior to such time and outstanding pursuant to Section 2.21 and (y) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.01(v) at such time; and

 

(b)                                  any amounts so long as immediately after giving effect to the establishment of the commitments in respect thereof (and assuming any such Incremental Revolving Facility Commitments are fully drawn) and the use of proceeds of the loans thereunder, the First Lien Secured Net Leverage Ratio is not greater than 0.75 to 1.00 tested on a Pro Forma Basis (which, for the avoidance of doubt, will give effect to any Permitted Acquisition consummated concurrently therewith) only on the date of the initial incurrence of the applicable Incremental Facility (except as set forth in clause (C) of the third paragraph under Section 6.01); provided that, in calculating the First Lien Secured Net Leverage Ratio for purposes of this clause (b), the net cash proceeds of any Indebtedness incurred in reliance on this clause (b) at such time shall not be considered Unrestricted Cash,

 

in each case, plus the aggregate amount of Revolving Facility Commitments of any Revolving Facility Lender that is a Defaulting Lender that have been terminated.

 

“ Incremental Assumption Agreement ” shall mean an Incremental Assumption Agreement in form and substance reasonably satisfactory to the Administrative Agent, among the Borrowers, the Administrative Agent and, if applicable, one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders.

 

“ Incremental Commitment ” shall mean an Incremental Term Loan Commitment or an Incremental Revolving Facility Commitment.

 

“ Incremental Facility ” shall mean the Incremental Commitments and the Incremental Loans made thereunder.

 

“ Incremental Loan ” shall mean an Incremental Term Loan or an Incremental Revolving Loan.

 

“ Incremental Revolving Facility Commitment ” shall mean the commitment of any Lender, established pursuant to Section 2.21, to make Incremental Revolving Loans to the Borrowers.

 

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“ Incremental Revolving Facility Lender ” shall mean a Lender with an Incremental Revolving Facility Commitment or an outstanding Incremental Revolving Loan.

 

“ Incremental Revolving Loan ” shall mean Revolving Facility Loans made by one or more Revolving Facility Lenders to the Borrowers pursuant to an Incremental Revolving Facility Commitment to make additional Initial Revolving Loans.

 

“ Incremental Term Lender ” shall mean a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.

 

“ Incremental Term Loan Commitment ” shall mean the commitment of any Lender, established pursuant to Section 2.21, to make Incremental Term Loans to the applicable Borrower.

 

“ Incremental Term Loans ” shall mean (i) Term Loans made by one or more Lenders to the applicable Borrower pursuant to Section 2.01(c) consisting of additional Initial Term A Loans and (ii) to the extent permitted by Section 2.21 and provided for in the relevant Incremental Assumption Agreement, Other Incremental Term Loans.

 

“ Indebtedness ” of any person shall mean, without duplication,

 

(a)                                  all obligations of such person for borrowed money,

 

(b)                                  all obligations of such person evidenced by bonds, debentures, notes or similar instruments (except any such obligation issued in the ordinary course of business with a maturity date of no more than six months in a transaction intended to extend payment terms of trade payables or similar obligations to trade creditors incurred in the ordinary course of business),

 

(c)                                   all obligations of such person under conditional sale or other title retention agreements relating to property or assets purchased by such person (except any such obligation that constitutes a trade payable or similar obligation to a trade creditor incurred in the ordinary course of business),

 

(d)                                  all obligations of such person issued or assumed as the deferred purchase price of property or services (except any such balance that (i) constitutes a trade payable or similar obligation to a trade creditor incurred in the ordinary course of business, (ii) any earn-out obligations until such obligation becomes a liability on the balance sheet of such person in accordance with GAAP and (iii) liabilities accrued in the ordinary course of business; it being understood that, for the avoidance of doubt, obligations owed to banks and other financial institutions in connection with any Supply Chain Financing or similar arrangement whereby a bank or other institution purchases payables described in clause (i) above owed by Parent or its Subsidiaries shall not constitute Indebtedness) which purchase price is due more than six months after the date of placing the property in service or taking delivery and title thereto,

 

(e)                                   all Guarantees by such person of Indebtedness of others,

 

(f)                                    all Capitalized Lease Obligations of such person,

 

(g)                                   obligations under any Hedging Agreements, to the extent the foregoing would appear on a balance sheet of such person as a liability,

 

(h)                                  the principal component of all obligations, contingent or otherwise, of such person as an account party in respect of letters of credit,

 

(i)                                      the principal component of all obligations of such person in respect of bankers’ acceptances,

 

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(j)                                     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),

 

(k)                                  all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such person (other than Liens on Equity Interests of Unrestricted Subsidiaries securing Indebtedness of such Unrestricted Subsidiaries), whether or not the Indebtedness secured thereby has been assumed and

 

(l)                                      all Attributable Receivables Indebtedness with respect to Qualified Receivables Facilities.

 

The amount of Indebtedness of any person for purposes of clause (k) above shall (unless such Indebtedness has been assumed by such person) be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the Fair Market Value of the property encumbered thereby.  Notwithstanding anything in this Agreement to the contrary, Indebtedness shall not include, and shall be calculated without giving effect to, the effects of Financial Accounting Standards Board Accounting Standards Codification 825 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any embedded derivatives created by the terms of such Indebtedness and any such amounts that would have constituted Indebtedness under this Agreement but for the application of this sentence shall not be deemed an incurrence of Indebtedness under this Agreement.

 

“ Indemnified Taxes ” shall mean all Taxes imposed on or with respect to any payment by or on account of any obligation of any Loan Party hereunder or under any other Loan Document other than (a) Excluded Taxes and (b) Other Taxes.

 

“ Indemnified Persons ” shall have the meaning assigned to such term in Section 9.05(b).

 

“ Information ” shall have the meaning assigned to such term in Section 3.14(a).

 

“ Information Memorandum ” shall mean the Confidential Information Memorandum dated June 29, 2016, as modified or supplemented prior to the Signing Date.

 

“ Initial Borrower ” shall mean (a) initially, Adient Global Holdings Ltd and (b) from and after the Borrower Transfer Date (if any), the person who becomes the Initial Borrower in accordance with Section 2.25 (together, in each case, with its permitted successors).

 

“ Initial Revolving Loan ” shall mean a Revolving Facility Loan made (i) pursuant to the Revolving Facility Commitments or (ii) pursuant to any Incremental Revolving Facility Commitment made on the same terms as (and forming a single Class with) the Revolving Facility Commitments referred to in clause (i) of this definition.

 

“ Initial Term A Borrowing ” shall mean any Borrowing comprised of Initial Term A Loans.

 

“ Initial Term A Facility ” shall mean the Initial Term A Loan Commitments and the Initial Term A Loans made hereunder.

 

“ Initial Term A Facility Maturity Date ” shall mean the fifth anniversary of the Closing Date.

 

“ Initial Term A Facility Outside Date ” shall mean January 31, 2017.

 

“ Initial Term A Loan Commitment ” shall mean, with respect to each Term Lender, the commitment of such Term Lender to make Initial Term A Loans hereunder.  The amount of each Term Lender’s Initial Term A Loan Commitment as of the Signing Date is set forth on Schedule 2.01 .  The aggregate amount of the Initial Term A Loan Commitments as of the Signing Date is $1,500,000,000.

 

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“ Initial Term A Loan Installment Date ” shall have the meaning assigned to such term in Section 2.10(a)(i).

 

“ Initial Term A Loans ” shall mean (a) the term loans made by the Term Lenders to the Initial Borrower pursuant to Section 2.01(a) and (b) any Incremental Term Loans in the form of additional Initial Term A Loans made by the Incremental Term Lenders to the Borrower Representative pursuant to Section 2.01(c).

 

“ Insurance Subsidiary ” shall have the meaning assigned to such term in Section 6.04(y).

 

“ Intellectual Property ” shall mean the following intellectual property rights, both statutory and common law rights, if applicable:  (a) copyrights, registrations and applications for registration thereof, (b) trademarks, service marks, trade names, slogans, domain names, logos, trade dress, get-up in England and Wales and Ireland, and registrations and applications of registrations thereof, (c) patents, together with any registered or unregistered rights in designs in the United Kingdom, as well as any reissued and reexamined patents and extensions corresponding to the patents and any patent applications, as well as any related continuation, continuation in part and divisional applications and patents issuing therefrom and (d) trade secrets and confidential information, including ideas, designs, concepts, compilations of information, methods, techniques, procedures, processes and other know-how, whether or not patentable.

 

“ Intercreditor Agreement ” shall have the meaning assigned to such term in Section 8.11.

 

“ Interest Election Request ” shall mean a request by a Borrower to convert or continue a Borrowing in accordance with Section 2.07 and substantially in the form of Exhibit E or another form approved by the Administrative Agent.

 

“ Interest Expense ” shall mean, with respect to any person for any period, the sum of, without duplication,

 

(a)                                  net interest expense of such person for such period on a consolidated basis, including

 

(i)                                      the amortization of debt discounts,

 

(ii)                                   the amortization of all fees (including fees with respect to Hedging Agreements) payable in connection with the incurrence of Indebtedness to the extent included in interest expense,

 

(iii)                                the portion of any payments or accruals with respect to Capitalized Lease Obligations allocable to interest expense and

 

(iv)                               net payments and receipts (if any) pursuant to interest rate hedging obligations, and excluding unrealized mark-to-market gains and losses attributable to such hedging obligations, amortization of deferred financing fees and expensing of any bridge or other financing fees,

 

(b)                                  capitalized interest of such person, whether paid or accrued, and

 

(c)                                   commissions, discounts, yield and other fees and charges incurred for such period, including any losses on sales of receivables and related assets, in connection with any receivables financing of such person or any of its Subsidiaries that are payable to persons other than Parent and the Subsidiaries.

 

“ Interest Payment Date ” shall mean, (a) with respect to any Eurocurrency Loan, (i) the last day of the Interest Period applicable to the Borrowing of which such Loan is a part, (ii) in the case of a Eurocurrency 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 (iii) in addition, the date of any refinancing or conversion of such Borrowing with or to a Borrowing of a different Type and (b) with respect to any ABR Loan, the last Business Day of each calendar quarter.

 

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“ Interest Period ” shall mean, as to any Eurocurrency 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, to the extent agreed to by all Lenders with commitments or Loans under the applicable Facility, 12 months or periods shorter than 1 month as are satisfactory to the Administrative Agent), as the Borrower Representative may elect; 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.

 

“ Interpolated Rate ” shall mean, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between:  (a) the LIBO Screen Rate for the longest period for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period (for which that LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time.

 

“ Investment ” shall have the meaning assigned to such term in Section 6.04.

 

“ Irish Law Debenture ” shall mean an Irish law debenture based on the U.S. Collateral Agreement (including as to the charging clause, excluded assets, definitions, representations and warranties and covenants) with customary modifications based on Irish law and as otherwise agreed by the Administrative Agent and the Borrower Representative, and otherwise in form and substance reasonably acceptable to the Administrative Agent and the Borrower Representative, dated as of the Spinoff Date, between Parent and the Collateral Agent, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

“ IRS ” means the U.S. Internal Revenue Service.

 

“ Issuing Bank ” shall mean (i) JPMorgan Chase Bank, N.A., Bank of America, N.A., Barclays Bank PLC, Credit Agricole Corporate and Investment Bank and Citibank, N.A., (ii) solely with respect to any Existing Letter of Credit, to the extent such person is not already an Issuing Bank, the Lender or Affiliate of a Lender that issued such Existing Letter of Credit and (iii) each other Issuing Bank designated pursuant to Section 2.05(l), in each case in its capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity.  An Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

 

“ Issuing Bank Fees ” shall have the meaning assigned to such term in Section 2.12(b).

 

“ ITA ” shall mean the UK Income Tax Act 2007.

 

“ JCI ” shall mean Johnson Controls, Inc., a Wisconsin corporation (together with its successors).

 

“ Jersey Law All Assets Pledge Agreement ” shall mean a Jersey law governed security interest agreement based on the U.S. Collateral Agreement (including as to the granting clause, excluded assets, definitions, representations and warranties and covenants) with customary modifications based on Jersey law and as otherwise agreed by the Administrative Agent and the Borrower Representative, and otherwise in form and substance reasonably acceptable to the Administrative Agent and the Borrower Representative, dated as of the Spinoff Date, among Parent, Adient Global Holdings Ltd and the Collateral Agent (provided that the grant by Parent under the Jersey Law All Assets Pledge Agreement shall be solely with respect to the Equity Interests held by Parent in Adient Global Holdings Ltd and related rights and assets as expressly set forth in the Jersey Law All Assets Pledge Agreement), as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

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“ Joinder Agreement ” shall have the meaning assigned to such term in the definition of “Spinoff Date.”

 

“ Joint Bookrunners ” shall mean, collectively, JPMorgan Chase Bank, N.A. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Bank PLC, Citigroup Global Markets Inc. and Credit Agricole Corporate and Investment Bank.

 

“ Joint Lead Arrangers ” shall mean JPMorgan Chase Bank, N.A. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Bank PLC, Citigroup Global Markets Inc. and Credit Agricole Corporate and Investment Bank.

 

“ Judgment Currency ” shall have the meaning assigned to such term in Section 9.23.

 

“ Junior Debt Restricted Payment ” shall mean, any payment or other distribution (whether in cash, securities or other property), directly or indirectly made by Parent or any if its Subsidiaries, of or in respect of principal of or interest on any Senior Notes (or any Indebtedness incurred as Permitted Refinancing Indebtedness in respect thereof) or Indebtedness that is by its terms subordinated in right or payment to the Loan Obligations and is incurred pursuant to Section 6.01(k) or Section 6.01(p) (each of the foregoing, a “ Junior Financing ”); provided , that the following shall not constitute a Junior Debt Restricted Payment:

 

(a)                                  Refinancings with any Permitted Refinancing Indebtedness permitted to be incurred under Section 6.01;

 

(b)                                  payments of regularly-scheduled interest and fees due thereunder, other non-principal payments thereunder, any mandatory prepayments of principal, interest and fees thereunder, scheduled payments thereon necessary to avoid the Junior Financing from constituting “applicable high yield discount obligations” within the meaning of Section 163(i)(l) of the Code, and, to the extent this Agreement is then in effect, principal on the scheduled maturity date of any Junior Financing;

 

(c)                                   payments or distributions in respect of all or any portion of the Junior Financing with the proceeds from the issuance, sale or exchange by Parent of Qualified Equity Interests within eighteen months prior thereto; provided , that such proceeds are not included in any determination of the Available Amount; or

 

(d)                                  the conversion of any Junior Financing to Qualified Equity Interests of Parent.

 

“ Junior Financing ” shall have the meaning assigned to such term in the definition of the term “Junior Debt Restricted Payment.”

 

“ Junior Liens ” shall mean Liens on the Collateral that are junior to the Liens thereon securing the Loan Obligations pursuant to a Permitted Junior Intercreditor Agreement (it being understood that Junior Liens are not required to rank equally and ratably with other Junior Liens, and that Indebtedness secured by Junior Liens may be secured by Liens that are senior in priority to, or rank equally and ratably with, or junior in priority to, other Liens constituting Junior Liens), which Permitted Junior Intercreditor Agreement (together with such amendments to the Security Documents and any other Intercreditor Agreements, if any, as are reasonably necessary or advisable (and reasonably acceptable to the Collateral Agent) to give effect to such Liens) shall be entered into in connection with a permitted incurrence of any such Liens (unless a Permitted Junior Intercreditor Agreement and/or Security Documents (as applicable) covering such Liens are already in effect).

 

“ Latest Maturity Date ” shall mean, at any date of determination, the latest of the latest Revolving Facility Maturity Date and the latest Term Facility Maturity Date, in each case then in effect on such date of determination.

 

“ L/C Disbursement ” shall mean a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.

 

“ L/C Participation Fee ” shall have the meaning assigned to such term in Section 2.12(b).

 

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“ Lender ” shall mean each financial institution listed on Schedule 2.01 (other than any such person that has ceased to be a party hereto pursuant to an Assignment and Acceptance in accordance with Section 9.04), as well as any person that becomes a “Lender” hereunder pursuant to Section 9.04, Section 2.21, Section 2.22 or Section 2.23.

 

“ Lending Office ” shall mean, as to any Lender, the applicable branch, office or Affiliate of such Lender designated by such Lender to make Loans.

 

“ Letter of Credit ” shall have the meaning assigned to such term in Section 2.05(a).

 

“ Letter of Credit Commitment ” shall mean, as to any Issuing Bank, on and after the Spinoff Date, (a) the amount set forth opposite such Issuing Bank’s name on Schedule 2.01 under the caption “Letter of Credit Commitment” or (b) if such Issuing Bank has entered into one or more Assignment and Acceptances, the amount set forth for such Issuing Bank in the Register as such Issuing Bank’s “Letter of Credit Commitment,” as such amount may be reduced at or prior to such time pursuant to Section 2.08.

 

“ Letter of Credit Sublimit ” shall mean an amount equal to the lesser of (a) $200,000,000 and (b) the aggregate amount of the Issuing Banks’ Letter of Credit Commitments at such time, as such amount may be reduced pursuant to Section 2.08.  The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Facility.

 

“ LIBO Rate ” with respect to any Eurocurrency Borrowing for any applicable currency and for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “ Impacted Interest Period ”) with respect to the applicable currency then the LIBO Rate shall be the Interpolated Rate; provided that if the LIBO Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

 

“ LIBO Screen Rate ” shall mean, for any day and time, with respect to any Eurocurrency Borrowing for any applicable currency and for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other person that takes over the administration of such rate for the relevant currency for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion)).

 

“ Lien ” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, hypothecation, pledge, charge, security interest or similar monetary encumbrance in or on such asset and (b) 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.

 

“ Limited Condition Acquisition ” shall mean any acquisition, including by means of a merger, amalgamation or consolidation, by Parent or one or more of its subsidiaries, the consummation of which is not conditioned upon the availability of, or on obtaining, third party financing or in connection with which any fee or expense would be payable by Parent or its subsidiaries to the seller or target in the event financing to consummate the acquisition is not obtained as contemplated by the definitive acquisition agreement.

 

“ Loan Documents ” shall mean (i) this Agreement, (ii) the Guarantee Agreement, (iii) the Security Documents, (iv) each Incremental Assumption Agreement, (v) each Extension Amendment, (vi) each Refinancing Amendment, (vii) any Intercreditor Agreement, (viii) any Note issued under Section 2.09(e), (ix) the Letters of Credit and (x) the Specified Foreign Loan Documents.

 

“ Loan Obligations ” shall mean (a) the due and punctual payment by the Borrowers of (i) the unpaid principal of and interest, fees and expenses (including interest, fees and expenses accruing during the pendency of any bankruptcy, insolvency, receivership, Irish examinership or other similar proceeding, regardless of whether

 

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allowed or allowable in such proceeding) on the Loans made to the Borrowers under this Agreement, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrowers under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest, fees and expenses thereon (including interest, fees and expenses accruing during the pendency of any bankruptcy, insolvency, receivership, Irish examinership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) and obligations to provide Cash Collateral and (iii) all other monetary obligations of the Borrowers owed under or pursuant to this Agreement and each other Loan Document, including obligations to pay fees, expense reimbursement obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership, Irish examinership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), and (b) the due and punctual payment of all obligations of each other Loan Party under or pursuant to each of the Loan Documents (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership, Irish examinership or other similar proceeding, regardless of whether allowed or allowable in such proceeding).

 

“ Loan Parties ” shall mean the Borrowers and the Guarantors.

 

“ Loans ” shall mean the Term Loans and the Revolving Facility Loans.

 

“ Local Time ” shall mean (a) local time in London, England, with respect to the time for the receipt and sending of notices by and to the Administrative Agent or any Lender with respect to Loans denominated in Euro or Sterling; (b) local time in London, England, with respect to the disbursement by or payment to the Administrative Agent or any Lender with respect to Loans denominated in Euro; and (c) in all other circumstances, New York City time (daylight or standard, as applicable).

 

“ Majority Lenders ” of any Facility shall mean, at any time, Lenders under such Facility having Loans and unused Commitments representing more than 50% of the sum of all Loans outstanding under such Facility and unused Commitments under such Facility at such time (subject to the last paragraph of Section 9.08(b)).

 

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

 

“ Material Adverse Effect ” shall mean a material adverse effect on the business, property, operations or financial condition of Parent and its Subsidiaries, taken as a whole, the validity or enforceability of any of the Loan Documents or the rights and remedies of the Administrative Agent and the Lenders thereunder.

 

“ Material Indebtedness ” shall mean Indebtedness (other than Loans and Letters of Credit) of any one or more of Parent or any Subsidiary in an aggregate principal amount exceeding $75,000,000; provided that in no event shall any Qualified Receivables Facility be considered Material Indebtedness.

 

“ Material Real Property ” shall mean any parcel of Real Property located in the United States, or England and Wales and having a Fair Market Value (on a per-property basis) greater than or equal to $10,000,000 (or the Alternative Currency Equivalent thereof) as of (x) the Spinoff Date, for Real Property then owned or (y) the date of acquisition, for Real Property acquired after the Spinoff Date, in each case as determined by Parent in good faith; provided , that “Material Real Property” shall exclude all leasehold interests in Real Property).

 

“ Material Subsidiary ” shall mean any Subsidiary, other than an Immaterial Subsidiary.

 

“ Maximum Rate ” shall have the meaning assigned to such term in Section 9.09.

 

“ Merger Sub ” shall have the meaning assigned to such term in the definition of “Successor JCI Credit Agreement Effectiveness Date.”

 

“ Minimum L/C Collateral Amount ” shall mean, at any time, in connection with any Letter of Credit, (i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 102% of the

 

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Revolving L/C Exposure with respect to such Letter of Credit at such time and (ii) otherwise, an amount sufficient to provide credit support with respect to such Revolving L/C Exposure as determined by the Administrative Agent and the Issuing Banks in their sole discretion.

 

“ Moody’s ” shall mean Moody’s Investors Service, Inc.

 

“ Mortgaged Properties ” shall mean the Material Real Properties that are identified as such on Schedule 1.01(B)  (as may be updated pursuant to Section 9.08(b) of this Agreement) (the “ Spinoff Date Mortgaged Properties ”) and each additional Material Real Property encumbered by a Mortgage pursuant to Section 5.10.

 

“ Mortgages ” shall mean, collectively, the mortgages, trust deeds, deeds of trust, deeds to secure debt, assignments of leases and rents, debentures, and other security documents (including amendments to any of the foregoing) executed and delivered with respect to Mortgaged Properties (either as stand-alone documents or forming part of other Security Documents), each in form and substance reasonably satisfactory to the Collateral Agent and the Borrower Representative, in each case, as amended, supplemented or otherwise modified from time to time.

 

“ Multiemployer Plan ” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which Parent or any Subsidiary or any ERISA Affiliate (other than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414) 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.

 

“ Net Income ” shall mean, with respect to any person, the net income (loss) of such person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends.

 

“ Net Proceeds ” shall mean:

 

(a)                                  100% of the cash proceeds actually received by Parent or any Subsidiary (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, but only as and when received) from any Asset Sale under Section 6.05(g), net of:

 

(i) 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, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith,

 

(ii) required payments of Indebtedness (other than Indebtedness incurred under the Loan Documents or Other First Lien Debt) and required payments of other obligations relating to the applicable asset to the extent such Indebtedness or other obligations are secured by a Lien permitted hereunder (other than pursuant to the Loan Documents, Other First Lien Debt and other than obligations secured by a Junior Lien),

 

(iii) repayments of Other First Lien Debt (limited to its proportionate share of such prepayment, based on the amount of such then outstanding debt as a percentage of all then outstanding Indebtedness incurred under the Loan Documents (other than Other Incremental Term Loans and Refinancing Term Loans that rank junior in right of security with the Initial Term A Loans) and Other First Lien Debt),

 

(iv) Taxes paid or payable (in the good faith determination of Parent) as a result thereof, and

 

(v) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any Taxes deducted pursuant to clause (i) or (iv) above) (x) related to any of the applicable assets and (y) retained by Parent or any of the Subsidiaries including, without limitation, pension and other post-employment benefit

 

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liabilities and liabilities related to environmental matters or against any indemnification obligations ( provided that (1) the amount of any reduction of such reserve (other than in connection with a payment in respect of any such liability), prior to the date occurring 18 months after the date of the respective Asset Sale, shall be deemed to be cash proceeds of such Asset Sale occurring on the date of such reduction and (2) the amount of any such reserve that is maintained as of the date occurring 18 months after the date of the applicable Asset Sale shall be deemed to be Net Proceeds from such Asset Sale as of such date);

 

provided , that, if Parent shall deliver a certificate of a Responsible Officer of Parent to the Administrative Agent promptly following receipt of any such proceeds setting forth any Loan Party’s intention to use any portion of such proceeds, within 12 months of such receipt, to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of Parent and the Subsidiaries or to make Permitted Acquisitions and other Investments permitted hereunder (excluding Permitted Investments or intercompany Investments in Subsidiaries) or to reimburse the cost of any of the foregoing incurred on or after the date on which the Asset Sale giving rise to such proceeds was contractually committed (other than inventory), such portion of such proceeds shall not constitute Net Proceeds except to the extent not, within 365 days 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 365 day period but within such 365 day period are contractually committed to be used, then such remaining portion if not so used within 180 days following the end of such 365 day period shall constitute Net Proceeds as of such date without giving effect to this proviso); provided , further , that no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions shall constitute Net Proceeds unless such net cash proceeds shall exceed (i) $50,000,000 individually and (ii) $75,000,000 in the aggregate in any fiscal year (and thereafter only net cash proceeds in excess of such amount shall constitute Net Proceeds);

 

(b)                                  100% of the cash proceeds actually received by Parent or any Subsidiary (including casualty insurance settlements and condemnation awards, but only as and when received) from any Recovery Event, net of:

 

(i) attorneys’ fees, accountants’ fees, transfer Taxes, deed or mortgage recording Taxes on such asset, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith,

 

(ii) required payments of Indebtedness (other than Indebtedness incurred under the Loan Documents or Other First Lien Debt) and required payments of other obligations relating to the applicable asset to the extent such Indebtedness or other obligations are secured by a Lien permitted hereunder (other than pursuant to the Loan Documents, and Other First Lien Debt and other than obligations secured by a Junior Lien),

 

(iii) repayments of Other First Lien Debt (limited to its proportionate share of such prepayment, based on the amount of such then outstanding debt as a percentage of all then outstanding Indebtedness incurred under the Loan Documents (other than Other Incremental Term Loans and Refinancing Term Loans that rank junior in right of security with the Initial Term A Loans)) and Other First Lien Debt,

 

(iv) Taxes paid or payable (in the good faith determination of Parent) as a result thereof,

 

(v) the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any Taxes deducted pursuant to clause (i) or (iv) above) (x) related to any of the applicable assets and (y) retained by Parent or any of the Subsidiaries including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters ( provided that (1) the amount of any reduction of such reserve (other than in connection with a payment in respect of any such liability), prior to the date occurring 18 months after the date of the respective Recovery Event, shall be deemed to be cash proceeds of such Recovery Event occurring on the date of such reduction and (2) the amount of any such

 

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reserve that is maintained as of the date occurring 18 months after the date of the applicable Recovery Event shall be deemed to be Net Proceeds from such Recovery Event as of such date;

 

provided , that, if Parent shall deliver a certificate of a Responsible Officer of Parent to the Administrative Agent promptly following receipt of any such proceeds setting forth any Loan Party’s intention to use any portion of such proceeds, within 365 days of such receipt, to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of Parent and the Subsidiaries or to make Permitted Acquisitions and other Investments permitted hereunder (excluding Permitted Investments or intercompany Investments in Subsidiaries) or to reimburse the cost of any of the foregoing incurred on or after the date on which the Recovery Event giving rise to such proceeds was contractually committed (other than inventory, except to the extent the proceeds of such Recovery Event are received in respect of inventory), such portion of such proceeds shall not constitute Net Proceeds except to the extent not, within 365 days 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 365 day period but within such 365 day period are contractually committed to be used, then such remaining portion if not so used within 180 days following the end of such 365 day period shall constitute Net Proceeds as of such date without giving effect to this proviso); provided , further , that no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions shall constitute Net Proceeds unless such net cash proceeds shall exceed (i) $50,000,000 individually and (ii) $75,000,000 in the aggregate in any fiscal year (and thereafter only net cash proceeds in excess of such amount shall constitute Net Proceeds); and

 

(c)                                   100% of the cash proceeds from the incurrence, issuance or sale by Parent or any Subsidiary of any Indebtedness (other than Excluded Indebtedness, except for Refinancing Notes and Refinancing Term Loans), net of all fees (including investment banking fees), commissions, costs, Taxes and other expenses, in each case incurred in connection with such issuance or sale.

 

“ New Class Loans ” shall have the meaning assigned to such term in Section 9.08(f).

 

“ New JCI ” shall mean Tyco International plc, with company number 543654, a public limited company incorporated under the laws of Ireland (which entity intends to change its name to Johnson Controls International plc upon or shortly after the Successor JCI Credit Agreement Effectiveness Date), and its successors.

 

“ New Lender ” shall mean any person that becomes a Lender hereunder pursuant to Section 9.04, Section 2.19, Section 2.21, Section 2.22, Section 2.23 or any other provision of this Agreement.

 

“ Non-Consenting Lender ” shall have the meaning assigned to such term in Section 2.19(c).

 

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

 

“ Non-S-X Adjustment Amount ” shall have the meaning assigned to such term in the definition of “Pro Forma Basis.”

 

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

 

“ NYFRB ” shall mean the Federal Reserve Bank of New York.

 

“ NYFRB Rate ” shall mean, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. New York City time on such day received to the Administrative Agent from a federal funds broker of recognized standing selected by it; provided , further , that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

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“ Obligations ” shall mean, collectively, (a) the Loan Obligations, (b) obligations of Parent and its Subsidiaries including non-Wholly Owned Subsidiaries, if applicable, in respect of any Secured Cash Management Agreement, (c) obligations of Parent and its Subsidiaries including non-Wholly Owned Subsidiaries, if applicable, in respect of any Secured Supply Chain Financing, and (d) obligations of Parent and its Subsidiaries including non-Wholly Owned Subsidiaries, if applicable in respect of any Secured Hedge Agreement (including, in each case, monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership, Irish examinership or other similar proceeding, regardless of whether allowed or allowable in such proceeding).

 

“ Original Lender ” shall mean each financial institution listed on Schedule 2.01.

 

“ Other First Lien Debt ” shall mean obligations secured by Other First Liens.

 

“ Other First Liens ” shall mean Liens on the Collateral that are equal and ratable with the Liens thereon securing the Loan Obligations pursuant to a Permitted First Lien Intercreditor Agreement, which Permitted First Lien Intercreditor Agreement (together with such amendments to the Security Documents and any other Intercreditor Agreements, if any, as are reasonably necessary or advisable (and reasonably acceptable to the Collateral Agent) to give effect to such Liens) shall be entered into in connection with a permitted incurrence of any such Liens (unless a Permitted First Lien Intercreditor Agreement and/or Security Documents (as applicable) covering such Liens are already in effect).

 

“ Other Incremental Term Loans ” shall have the meaning assigned to such term in Section 2.21(a).

 

“ Other Revolving Facility Commitments ” shall mean, collectively, (a) Extended Revolving Facility Commitments to make Extended Revolving Loans and (b) Replacement Revolving Facility Commitments.

 

“ Other Revolving Loans ” shall mean, collectively (a) Extended Revolving Loans and (b) Replacement Revolving Loans.

 

“ Other Taxes ” shall mean any and all present or future stamp or documentary Taxes or any other excise, transfer, sales, property, intangible, mortgage recording or similar Taxes arising from any payment made hereunder or under any other Loan Document or from the execution, registration, delivery or enforcement of, consummation or administration of, from the receipt or perfection of security interest under, or otherwise with respect to, the Loan Documents, except any such Taxes that are imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19) as a result of any present or former connection between the Recipient and the jurisdiction imposing such Tax (other than any such connection arising solely from any Loan Document or any transactions pursuant to any Loan Document).

 

“ Other Term Facilities ” shall mean the Other Term Loan Commitments and the Other Term Loans made thereunder.

 

“ Other Term Loan Commitments ” shall mean, collectively, (a) Incremental Term Loan Commitments and (b) commitments to make Refinancing Term Loans.

 

“ Other Term Loan Installment Date ” shall have, with respect to any Class of Other Term Loans established pursuant to an Incremental Assumption Agreement, an Extension Amendment or a Refinancing Amendment, the meaning assigned to such term in Section 2.10(a)(ii).

 

“ Other Term Loans ” shall mean, collectively, (a) Other Incremental Term Loans, (b) Extended Term Loans and (c) Refinancing Term Loans.

 

“ Overnight Bank Funding Rate ” shall mean, for any day, with respect to any amount denominated in Dollars, the rate comprised of both overnight federal funds and overnight eurocurrency borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as

 

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an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).

 

“ Parent ” shall mean, Adient plc, a public limited company incorporated under the laws of Ireland and any permitted successor thereof.

 

“ Participant ” shall have the meaning assigned to such term in Section 9.04(c)(i).

 

“ Participant Register ” shall have the meaning assigned to such term in Section 9.04(c)(ii).

 

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

 

“ Perfection Certificate ” shall mean the Perfection Certificate with respect to the Borrowers and the other Loan Parties substantially in the form attached hereto as Exhibit I , or such other form as is reasonably satisfactory to the Administrative Agent, as the same may be supplemented from time to time to the extent required by Section 5.04(f).

 

“ Permitted Acquisition ” shall mean any acquisition by Parent or a Subsidiary of all or substantially all the assets or business of, or all or substantially all the Equity Interests (other than directors’ qualifying shares) not previously held by Parent and its Subsidiaries in, or merger, consolidation or amalgamation with, a person or business unit or division or line of business of a person (or any subsequent investment made in a person or business unit or division or line of business previously acquired in a Permitted Acquisition), if:

 

i.                   no Event of Default shall have occurred and be continuing immediately after giving effect thereto or would result therefrom, provided , however , that with respect to a proposed Limited Condition Acquisition pursuant to an executed acquisition agreement, at the option of Parent, the determination of whether such an Event of Default shall exist shall be made solely at the time of the execution of the acquisition agreement related to such Permitted Acquisition;

 

ii.                [reserved];

 

iii.             Parent shall be in Pro Forma Compliance with the Financial Covenant immediately after giving effect to such acquisition or investment and any related transactions;

 

iv.            any acquired or newly formed Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by Section 6.01;

 

v.               to the extent required by Section 5.10, any person acquired in such acquisition shall be merged into a Loan Party or become upon consummation of such acquisition a Guarantor; and

 

vi.            the aggregate cash consideration in respect of all such acquisitions and investments in assets that are not owned by the Loan Parties or in Equity Interests in persons that are not Guarantors or do not become Guarantors, in each case upon consummation of such acquisition, shall not exceed the sum of (X) the greater of $500,000,000 and 5.0% of Consolidated Total Assets when made, plus (Y) (A) an amount equal to any returns (in the form of dividends or other distributions or net sale proceeds) received by any Loan Party in respect of any assets not owned directly by Loan Parties or Equity Interests in persons that are not Guarantors or do not become Guarantors that were acquired in such Permitted Acquisitions in reliance on the basket in clause (X) above (excluding any such returns in excess of the amount originally invested) and (B) any amounts in excess thereof that can be, and are, permitted as Investments (and treated as Investments) made under a clause of Section 6.04 (other than clause (k) thereof).

 

“ Permitted Debt ” shall mean Indebtedness for borrowed money incurred by any Loan Party, provided that (i) any such Permitted Debt, if guaranteed, shall not be guaranteed by any Subsidiary other than a Guarantor and, if secured (as permitted by Sections 6.01 and 6.02), shall be secured solely by all or some portion of the Collateral

 

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pursuant to security documents no more favorable to the secured party or party, taken as a whole (as determined by Parent in good faith), than the Security Documents, (ii) any such Permitted Debt, if secured, shall be subject to an Intercreditor Agreement reasonably satisfactory to the Administrative Agent and (iii) such Permitted Debt shall not mature prior to the date that is the latest final maturity date of the Loans and Revolving Facility Commitments existing at the time of such incurrence (or in the case of Junior Financing, until the date that is 91 days thereafter), and the Weighted Average Life to Maturity of any such Permitted Debt shall be no shorter than the remaining Weighted Average Life to Maturity of the Loans with the latest final maturity at the time of such incurrence.

 

“ Permitted First Lien Intercreditor Agreement ” shall mean, with respect to any Liens on Collateral that are intended to be equal and ratable with the Liens securing the Loan Obligations, one or more customary intercreditor agreements, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent.

 

“ Permitted Investments ” shall mean:

 

(a)                                  direct obligations of the United States of America, Switzerland, the United Kingdom (and any nation thereof) or any member of the European Union or any agency thereof or obligations guaranteed by the United States of America, Switzerland, the United Kingdom (and any nation thereof) or any member of the European Union or any agency thereof, in each case with maturities not exceeding two years from the date of acquisition thereof;

 

(b)                                  time deposit accounts, certificates of deposit, money market deposits, banker’s acceptances and other bank deposits maturing within 180 days of the date of acquisition thereof issued by a bank or trust company 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 at least A by S&P or A2 by Moody’s (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)                                   repurchase obligations with a term of not more than 180 days for underlying securities of the types described in clause (a) above entered into with a bank meeting the qualifications described in clause (b) above;

 

(d)                                  commercial paper, maturing not more than one year after the date of acquisition, issued by a corporation (other than an Affiliate of Parent) 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 (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));

 

(e)                                   securities with maturities of two years or less from the date of acquisition, issued or fully guaranteed by any State 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 (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));

 

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

 

(g)                                   money market funds that (i) comply with the criteria set forth in Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P or Aaa by Moody’s and (iii) have portfolio assets of at least $1,000,000,000;

 

(h)                                  time deposit accounts, certificates of deposit, money market deposits, banker’s acceptances and other bank deposits in an aggregate face amount not in excess of 0.5% of the total assets of Parent and the Subsidiaries, on a consolidated basis, as of the end of Parent’s most recently completed fiscal year; and

 

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(i)                                      instruments equivalent to those referred to in clauses (a) through (h) 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 of America to the extent reasonably required in connection with any business conducted by Parent or any Subsidiary organized/incorporated in such jurisdiction.

 

“ Permitted Junior Intercreditor Agreement ” shall mean, with respect to any Liens on Collateral that are intended to be junior to any Liens securing the Loan Obligations, one or more customary intercreditor agreements, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent.

 

“ Permitted Liens ” shall have the meaning assigned to such term in Section 6.02.

 

“ Permitted Receivables Facility Assets ” shall mean (i) Receivables Assets (whether now existing or arising in the future) of Parent and any Subsidiary which are transferred, sold and/or pledged to a Receivables Entity or a bank, other financial institution or a commercial paper conduit or other conduit facility established and maintained by a bank or other financial institution, pursuant to a Qualified Receivables Facility and any related Permitted Receivables Related Assets which are also so transferred, sold and/or pledged to such Receivables Entity, bank, other financial institution or commercial paper conduit or other conduit facility, and all proceeds thereof and (ii) loans to Parent or any of its Subsidiaries secured by Receivables Assets (whether now existing or arising in the future) and any Permitted Receivables Related Assets of Parent and any Subsidiary which are made pursuant to a Qualified Receivables Facility.

 

“ Permitted Receivables Facility Documents ” shall mean each of the documents and agreements entered into in connection with any Qualified Receivables Facility, including all documents and agreements relating to the issuance, funding and/or purchase of certificates and purchased interests or the incurrence of loans, as applicable, in each case as such documents and agreements may be amended, modified, supplemented, refinanced or replaced from time to time so long as the relevant Qualified Receivables Facility would still meet the requirements of the definition thereof after giving effect to such amendment, modification, supplement, refinancing or replacement.

 

“ Permitted Receivables Related Assets ” shall mean any other assets that are customarily transferred, sold and/or pledged or in respect of which security interests are customarily granted in connection with asset securitization transactions involving receivables similar to Receivables Assets and any collections or proceeds of any of the foregoing (including, without limitation, lock-boxes, deposit accounts, records in respect of Receivables Assets and collections in respect of Receivables Assets).

 

“ Permitted Refinancing Indebtedness ” shall mean 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:

 

(a) 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),

 

(b) except with respect to Section 6.01(i), (i) the final maturity date of such Permitted Refinancing Indebtedness is on or after the earlier of (x) the final maturity date of the Indebtedness being Refinanced and (y) the 91st day following the Latest Maturity Date in effect at the time of incurrence thereof and (ii) the Weighted Average Life to Maturity of such Permitted Refinancing Indebtedness is greater than or equal to the lesser of (x) the Weighted Average Life to Maturity of the Indebtedness being Refinanced and (y) 91 days after the Weighted Average Life to Maturity of the Class of Term Loans then outstanding with the greatest remaining Weighted Average Life to Maturity,

 

(c) if the Indebtedness being Refinanced is by its terms subordinated in right of payment to any Loan Obligations, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to

 

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such Loan Obligations on terms in the aggregate not materially less favorable to the Lenders than those contained in the documentation governing the Indebtedness being Refinanced (as determined by Parent in good faith),

 

(d) no Permitted Refinancing Indebtedness shall have obligors that are not (or would not have been required to become) obligors with respect to the Indebtedness being so Refinanced (except that (i) one or more Loan Parties may be added as additional guarantors and (ii) to the extent the Indebtedness being so Refinanced was Indebtedness of a Subsidiary which was not a Borrower or a Guarantor, Refinancing Indebtedness incurred in respect thereof may be incurred or guaranteed by any Subsidiary which is not a Borrower or a Guarantor),

 

(e) if the Indebtedness being Refinanced is Indebtedness of a Loan Party and is secured (and permitted to be secured), such Permitted Refinancing Indebtedness may be secured by Liens on the same (or any subset of the) assets as secured (or would have been required to secure) the Indebtedness being Refinanced, on terms in the aggregate that are no less favorable to the Secured Parties than, the Indebtedness being refinanced or on terms otherwise permitted by Section 6.02 (as determined by Parent in good faith), and

 

(f) if the Indebtedness being Refinanced was subject to a Permitted First Lien Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, and if the respective Permitted Refinancing Indebtedness is to be secured by the Collateral, the Permitted Refinancing Indebtedness shall likewise be subject to a Permitted First Lien Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, as applicable.

 

“ person ” shall 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 (other than a Multiemployer Plan) that is (i) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, (ii) sponsored or maintained (at the time of determination or at any time within the five years prior thereto) by Parent, any Borrower, any Subsidiary or any ERISA Affiliate, and (iii) in respect of which Parent, 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 ” shall have the meaning assigned to such term in Section 9.17.

 

“ Pledged Collateral ” shall have the meaning assigned to such term in the U.S. Collateral Agreement.

 

“ Predecessor JCI Credit Agreement ” shall mean that certain Credit Agreement, dated as of August 6, 2013, among JCI, as borrower and JPMorgan Chase Bank, N.A., as administrative agent and the other parties thereto.

 

“ Predecessor JCI Credit Agreement Affirmative Covenants ” shall mean the covenants set forth in Sections 5.01, 5.02, 5.03, 5.04, 5.05 and 5.06 and the second sentence of Section 5.10 of the Predecessor JCI Credit Agreement as in effect on the Signing Date and without giving effect to any amendment or waiver thereof thereafter that has not been consented to by the Required Lenders under this Agreement, assuming for such purposes that:

 

a.               each reference to “Agreement,” “Default,” “Loans” or “Loan Documents” therein (including any such reference contained in a defined term used in any such section)  was a reference to this Agreement or any Default, Loans or Loan Documents under this Agreement, respectively;

 

b.               each reference to “Administrative Agent” or a “Lender” therein was a reference to the Administrative Agent or a Lender under this Agreement, respectively;

 

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c.                the reference to “Section 5.07” contained in Section 5.01(c) thereof referred to Section 5.07 of such Agreement as in effect on the Signing Date and without giving effect to any amendment or waiver thereunder thereafter that has not been consented to by the Required Lenders under this Agreement;

 

d.               the second sentence of Section 5.10 of the Predecessor JCI Credit Agreement applied to the proceeds of the Loans under this Agreement by the Borrowers rather than the use of proceeds of “Loans” under the Predecessor JCI Credit Agreement by the “Borrowers” thereunder; and

 

e.                the references to “Material Adverse Effect” contained therein were modified by deleting clauses (b) and (c) of such definition and replacing them with the following clause (b): “(b) the ability of JCI or the Initial Borrower to perform any of its material obligations under the Loan Documents or the rights and remedies of the Administrative Agent and the Lenders thereunder”, with each capitalized term being used as defined in this Agreement.

 

“ Predecessor JCI Credit Agreement Events of Default ” shall mean the occurrence of any event set forth in clauses (a) through (l) of Section 6.01 of the Predecessor JCI Credit Agreement as in effect on the Signing Date and without giving effect to any amendment or waiver thereof thereafter that has not been consented to by the Required Lenders under this Agreement, assuming for this purpose that:

 

(i) the reference to “any Loan or any Reimbursement Obligation” in Section 6.01(a) of the Predecessor JCI Credit Agreement was a reference to “any Loan or LC Disbursement” under this Agreement,

 

(ii) Section 6.01(b) of the Predecessor JCI Credit Agreement referred to the Predecessor JCI Credit Agreement Negative Covenants instead of “Section 5.07 to 5.10, inclusive”

 

(iii) Section 6.01(c) of the Predecessor JCI Credit Agreement referred to any Loan Document instead of “this Agreement”

 

(iv) Section 6.01(d) of the Predecessor JCI Credit Agreement referred to the Guarantee provided by JCI under the Guarantee Agreement instead of “the guaranty provided by the Company under Section 10.01 of this Agreement”

 

(v) Section 6.01(e) of the Predecessor JCI Credit Agreement referred to any representation, warranty, certification or statement made by any Loan Party in any Loan Document or in any certificate, financial statement or other document delivered pursuant to this Agreement rather than “any representation, warranty, certification or statement made by any Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant to this Agreement”

 

(vi) each reference to the term “Material Debt” as used therein applies to the loans under the Predecessor JCI Credit Agreement in an aggregate principal amount exceeding $200,000,000, but excludes Indebtedness under this Agreement

 

(vii) each reference to clauses (h) and (i) of Section 6.01 also applied to any such event occurring with respect to the Initial Borrower in addition to “the Company or any Significant Subsidiary”,

 

(viii) the reference to “Material Adverse Effect” contained in clause (j) of Section 6.01 was modified by replacing clauses (b) and (c) of such definition with the following clause (b): “(b) the ability of JCI or the Initial Borrower to perform any of its material obligations under the Loan Documents or the rights and remedies of the Administrative Agent and the Lenders thereunder”, with each capitalized term being used as defined in this Agreement,

 

(ix) the reference to “hereunder” contained in clause (a) meant under this Agreement,

 

(x) the references to “Administrative Agent” and “Lender” contained in clause (c) referred to the Administrative Agent and any Lender, respectively, under this Agreement, and

 

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(xi) clause (l) thereof contained an additional Event of Default in the event that JCI ceased to directly or indirectly own 100% of the Equity Interests of the Initial Borrower prior to the Spinoff Date.

 

“ Predecessor JCI Credit Agreement Negative Covenants ” shall mean the covenants set forth in Sections 5.07, 5.08 and 5.09 of the Predecessor JCI Credit Agreement as in effect on the Signing Date and without giving effect to any amendment or waiver thereof thereafter that has not been consented to by the Required Lenders under this Agreement, assuming for such purposes that:

 

(i) each reference to a “Administrative Agent”  in such Section 5.09 was a reference to the Administrative Agent under this Agreement, and

 

(ii) such Section 5.09 (x) required, that as a condition to any merger of JCI in which JCI was not the surviving corporation, that the surviving corporation assume all of JCI’s obligations under the Guarantee Agreement pursuant to a supplement thereto reasonably satisfactory to the Administrative Agent and (y) prohibited any merger or consolidation of the Initial Borrower prior to the Spinoff Date.

 

“ Predecessor JCI Credit Agreement Reps and Warranties ” shall mean the representations and warranties made pursuant to Article 4 of the Predecessor JCI Credit Agreement as in effect on the Signing Date and without giving effect to any amendment or waiver thereof thereafter that has not been consented to by the Required Lenders, assuming for such purposes that:

 

a)              each reference to “Agreement,” “Notes,” “Loans” or a “Loan Document” therein (including in the defined terms used in such section) was a reference to this Agreement or the Notes, Loans or a Loan Document under this Agreement, respectively,

 

b)              each reference to “Administrative Agent”, “Arranger”, “Agent” or a “Lender” therein was a reference to the Administrative Agent, an Arranger, an Agent or a Lender under this Agreement, respectively,

 

c)               each reference in Section 4.02 to “the Company” was a reference to “each of JCI and the Initial Borrower” (as defined under this Agreement), and the reference to “Agreement” was a reference to “this Agreement and the Guarantee Agreement” (as defined under this Agreement),

 

d)              Section 4.03 was restated to read “Each of this Agreement and the Guarantee Agreement constitute a valid and binding agreement of each of JCI and the Initial Borrower, and the Notes, if and when executed and deliver in accordance with this Agreement, will constitute a valid and binding obligation of the Initial Borrower”, with each term as defined in this Agreement, in each case subject to applicable bankruptcy, insolvency, moratorium, reorganization and other similar laws of general application affecting creditors’ rights and general principles of equity, regardless of whether considered in a proceeding in equity or at law,

 

e)               the references in Section 4.04(a) of the Predecessor JCI Credit Agreement to the financial statements for the fiscal year ended September 30, 2012 and the 2012 form 10-K were references to the financial statements for the fiscal year ended September 30, 2015 and JCI’s 2015 form 10-K, respectively,

 

f)                the references in Section 4.04(b) of the Predecessor JCI Credit Agreement to the financial statements for the fiscal quarter ended March 31, 2013 and the form 10-Q for such quarter were references to the financial statements for the fiscal quarter ended March 31, 2016 (and the corresponding interim period) and JCI’s form 10-Q for such fiscal quarter, respectively,

 

g)               the reference in Section 4.04(c) of the Predecessor JCI Credit Agreement to “September 30, 2012” was to September 30, 2015,

 

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h)              each reference to delivery of a copy of a Form 10-K, 8-K or 10-Q to the Lenders in Section 4.04 was deleted, and the reference to delivery of such filings in Section 4.05 was deleted,

 

i)                  each reference to the “Effective Date” therein was a reference to the Closing Date under this Agreement, and

 

j)                 the representation and warranty contained in Section 4.08 thereof was also made with respect to the Initial Borrower.

 

“ Predecessor JCI Pricing Schedule ” shall mean the schedule attached hereto identified as such.

 

“ Pricing Schedule ” shall mean the schedule attached hereto identified as such.

 

“ primary obligor ” shall have the meaning assigned to such term in the definition of the term “Guarantee.”

 

“ Prime Rate ” shall mean the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its office located at 270 Park Avenue, New York, New York; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

 

“ Pro Forma Basis ” shall mean, as to any person, for any events as described below that occur subsequent to the commencement of a period for which the financial effect of such events is being calculated, and giving effect to the events for which such calculation is being made, such calculation as will give pro forma effect to such events as if such events occurred on the first day of the most recent Test Period ended on or before the occurrence of such event (the “ Reference Period ”):

 

(i)                                      the Transactions, any Asset Sale, any asset acquisition or Investment (or series of related Investments), in each case, in excess of $25,000,000, merger, amalgamation, consolidation (or any similar transaction or transactions), any dividend, distribution or other similar payment,

 

(ii)                                   any operational changes or restructurings of the business of Parent or any of its Subsidiaries that Parent or any of its Subsidiaries has determined to make and/or made during or subsequent to the Reference Period (including in connection with an Asset Sale or asset acquisition described in clause (i)) and which are expected to have a continuing impact and are factually supportable, which would include cost savings resulting from head count reduction, closure of facilities and other operational changes and other cost savings in connection therewith,

 

(iii)                                the designation of any Subsidiary as an Unrestricted Subsidiary or of any Unrestricted Subsidiary as a Subsidiary, and

 

(iv)                               any incurrence, repayment, repurchase or redemption of Indebtedness (or any issuance, repurchase or redemption of Disqualified Stock or preferred stock), other than fluctuations in revolving borrowings in the ordinary course of business (and not resulting from a transaction as described in clause (i) above).

 

Pro forma calculations made pursuant to this definition shall be determined in good faith by a Responsible Officer of the Borrower Representative.  Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of Parent and set forth in a certificate of a Responsible Officer, to reflect operating expense reductions, other operating improvements, synergies or such operational changes or restructurings described in clause (ii) of the immediately preceding paragraph reasonably expected to result from the applicable pro forma event in the twelve (12) month period following the consummation of such pro forma event; provided that the aggregate amount of adjustments in respect of pro forma operating improvements or synergies that do not comply with Article 11 of Regulation S-X for any four quarter period (the “ Non-S-X Adjustment Amount ”) shall not, when aggregated with the amount of any increase to Consolidated Net Income pursuant to the addback of cash costs and expenses related to restructurings pursuant to clause (a) thereof for such period, exceed 20% of Adjusted

 

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Consolidated EBITDA for such period prior to giving effect to such increase to Consolidated Net Income and the Non-S-X Adjustment Amount for such period.  Parent shall deliver to the Administrative Agent a certificate of a Responsible Officer of Parent setting forth such demonstrable or additional operating expense reductions and other operating improvements or synergies and information and calculations supporting them in reasonable detail.

 

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 date on which the relevant calculation is being made had been the applicable rate for the entire period (taking into account any hedging obligations applicable to such Indebtedness if such hedging obligation has a remaining term in excess of 12 months). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a Financial Officer of Parent to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. 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, except to the extent the outstandings thereunder are reasonably expected to increase as a result of any transactions described in clause (i) of the first paragraph of this definition of “Pro Forma Basis” which occurred during the respective period or thereafter and on or prior to the date of determination. 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 applicable optional rate as Parent may designate.

 

In the event that any financial ratio is being calculated for purposes of determining whether Indebtedness or any lien relating thereto may be incurred, Parent may elect, pursuant to a certificate of a Responsible Officer delivered to the Administrative Agent, to treat all or any portion of the commitment relating thereto as being incurred at the time of such commitment (consistently applied for all purposes under this Agreement), in which case Indebtedness in an amount equal to such commitment shall be deemed to be outstanding for all financial calculations until such commitment is terminated, but any subsequent incurrence of Indebtedness under such commitment shall not be deemed, for purposes of this calculation, to be an incurrence at such subsequent time.

 

“ Pro Forma Compliance ” shall mean, at any date of determination, that Parent and the Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect on a Pro Forma Basis to the relevant transactions (including the assumption, the issuance, incurrence and permanent repayment of Indebtedness), with the Financial Covenant recomputed as at the last day of the most recently ended fiscal quarter of Parent for which the financial statements and certificates required pursuant to Section 5.04 have been delivered.

 

“ Pro Rata Extension Offers ” shall have the meaning assigned to such term in Section 2.22(a).

 

“ Pro Rata Share ” shall have the meaning assigned to such term in Section 9.08(f).

 

“ Proceeding ” shall have the meaning assigned to such term in Section 9.05(b).

 

“ Process Agent ” shall have the meaning assigned to such term in Section 9.15(d).

 

“ Projections ” shall mean the projections of Parent and the Subsidiaries included in the Information Memorandum and any other projections and any forward-looking statements (including statements with respect to booked business) of such entities furnished to the Lenders or the Administrative Agent by or on behalf of Parent or any of the Subsidiaries prior to the Signing Date.

 

“ PSC Register ” shall mean the “PSC register” within the meaning of section 790C(1) of the UK Companies Act 2006.

 

“ Public Lender ” shall have the meaning assigned to such term in Section 9.17.

 

“ QPP Certificate ” shall mean a creditor certificate for the purposes of the QPP Regulations, given in the form set out in Exhibit P which, in the case of a New Lender, shall be delivered together with the relevant Incremental Assumption Agreement or Assignment and Acceptance.

 

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“ QPP Lender ” shall mean a Lender which has delivered a QPP Certificate to the Borrower, provided that such QPP Certificate is not a Withdrawn Certificate or Cancelled Certificate.

 

“ QPP Regulations ” shall mean the Qualifying Private Placements Regulations 2015 (2015 No. 2002).

 

“ Qualified Equity Interests ” shall mean any Equity Interest other than Disqualified Stock.

 

“ Qualified Receivables Facility ” shall mean a receivables or factoring facility or facilities created under the Permitted Receivables Facility Documents and which is designated as a “Qualified Receivables Facility” (as provided below), providing for the transfer, sale and/or pledge Parent, any Subsidiary and/or one or more other Receivables Sellers of Permitted Receivables Facility Assets (thereby providing financing to Parent, such Subsidiary and/or the Receivables Sellers) to (i) a Receivables Entity (either directly or through another Receivables Seller), which in turn shall transfer, sell and/or pledge interests in the respective Permitted Receivables Facility Assets to third-party lenders or investors pursuant to the Permitted Receivables Facility Documents in return for the cash used by such Receivables Entity to acquire the Permitted Receivables Facility Assets from Parent, such Subsidiary and/or the respective Receivables Sellers or (ii) a bank or other financial institution, which in turn shall finance the acquisition of the Permitted Receivables Facility Assets through a commercial paper conduit or other conduit facility, or directly to a commercial paper conduit or other conduit facility established and maintained by a bank or other financial institution that will finance the acquisition of the Permitted Receivables Facility Assets through the commercial paper conduit or other conduit facility, in each case, either directly or through another Receivables Seller, so long as, in the case of each of clause (i) and clause (ii), no portion of the Indebtedness or any other obligations (contingent or otherwise) under such receivables facility or facilities (x) is guaranteed by Parent or any Subsidiary (excluding guarantees of obligations pursuant to Standard Securitization Undertakings), (y) is recourse to or obligates Parent or any Subsidiary in any way (other than pursuant to Standard Securitization Undertakings) or (z) subjects any property or asset (other than Permitted Receivables Facility Assets, Permitted Receivables Related Assets or the Equity Interests of any Receivables Entity) of Parent or any Subsidiary (other than a Receivables Entity), directly or indirectly, contingently or otherwise, to the satisfaction thereof (other than pursuant to Standard Securitization Undertakings).  Any such designation shall be evidenced to the Administrative Agent by filing with the Administrative Agent a certificate signed by a Financial Officer of Parent certifying that, to the best of such officer’s knowledge and belief after consultation with counsel, such designation complied with the foregoing conditions.

 

“ Qualifying Lender ” shall mean:

 

(a)                                  a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is:

 

(i)                                      a Lender;

 

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

 

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

 

(ii)                                   a Lender which is:

 

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

 

(2)                                  a partnership each member of which is:

 

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(A)                                a company so resident in the United Kingdom; or

 

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

 

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

 

(iii)                                a Treaty Lender;

 

(iv)                               a QPP Lender; or

 

(b)                                  a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Loan Document.

 

“ Rate ” shall have the meaning assigned to such term in the definition of the term “Type.”

 

“ Real Property ” shall mean, 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 simple or leased by any Loan Party, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, incidental to the ownership, lease or operation thereof.

 

“ Receivables Assets ” shall mean any right to payment created by or arising from sales of goods, lease of goods or the rendition of services rendered no matter how evidenced whether or not earned by performance (whether constituting accounts, general intangibles, chattel paper or otherwise).

 

“ Receivables Entity ” shall mean any direct or indirect wholly owned Subsidiary of Parent which engages in no activities other than in connection with the financing of accounts receivable of the Receivables Sellers and which is designated (as provided below) as a “Receivables Entity” (a) with which neither Parent nor any of its Subsidiaries has any contract, agreement, arrangement or understanding (other than pursuant to the Permitted Receivables Facility Documents (including with respect to fees payable in the ordinary course of business in connection with the servicing of accounts receivable and related assets)) on terms less favorable to Parent or such Subsidiary than those that might be obtained at the time from persons that are not Affiliates of Parent (as determined by Parent in good faith) and (b) to which neither Parent nor any Subsidiary has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results (other than pursuant to Standard Securitization Undertakings).  Any such designation shall be evidenced to the Administrative Agent by filing with the Administrative Agent an officer’s certificate of Parent certifying that, to the best of such officer’s knowledge and belief after consultation with counsel, such designation complied with the foregoing conditions.

 

“ Receivables Seller ” shall mean any Loan Party or any Subsidiary of Parent that is a party to the Permitted Receivables Facility Documents (other than any Receivables Entity).

 

“ Recovery Event ” shall mean any event that gives rise to the receipt by Parent or any of its Subsidiaries of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or Real Property (including any improvements thereon).

 

“ Reference Period ” shall have the meaning assigned to such term in the definition of the term “Pro Forma Basis.”

 

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

 

“ Refinancing Amendment ” shall have the meaning assigned to such term in Section 2.23(e).

 

“ Refinancing Effective Date ” shall have the meaning assigned to such term in Section 2.23(a).

 

“ Refinancing Notes ” shall mean any secured or unsecured notes or loans issued by any Loan Party (whether under an indenture, a credit agreement or otherwise) and the Indebtedness represented thereby; provided , that

 

a.               100% of the Net Proceeds of such Refinancing Notes are used to permanently reduce Loans and/or replace Commitments substantially simultaneously with the issuance thereof;

 

b.               the principal amount (or accreted value, if applicable) of such Refinancing Notes does not exceed the principal amount (or accreted value, if applicable) of the aggregate portion of the Loans so reduced and/or Commitments so replaced (plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses);

 

c.                the final maturity date of such Refinancing Notes is on or after the Term Facility Maturity Date or the Revolving Facility Maturity Date, as applicable, of the Term Loans so reduced or the Revolving Facility Commitments so replaced;

 

d.               the Weighted Average Life to Maturity of such Refinancing Notes is greater than or equal to the Weighted Average Life to Maturity of the Term Loans so repaid;

 

e.                the terms of such Refinancing Notes do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the Term Facility Maturity Date of the Term Loans so reduced or the Revolving Facility Maturity Date of the Revolving Facility Commitments so replaced, as applicable (other than (x) in the case of notes, customary offers to repurchase or mandatory prepayment provisions upon a change of control, asset sale, event of loss or change in applicable Tax law and customary acceleration rights after an event of default and (y) in the case of loans, customary amortization and mandatory and voluntary prepayment provisions which are, when taken as a whole, consistent in all material respects with, or not materially less favorable to Parent and the Subsidiaries than, those applicable to the Initial Term A Loans and/or Revolving Facility Commitments, as the case may be, with such Indebtedness to provide that any such mandatory prepayments as a result of asset sales or events of loss, shall be allocated on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) with the Initial Term A Loans);

 

f.                 there shall be no obligor with respect thereto that is not a Loan Party;

 

g.                if such Refinancing Notes are secured by an asset of any Subsidiary, any Unrestricted Subsidiary or any Affiliate of the foregoing, the security agreements relating to such assets shall not extend to any assets not constituting Collateral and shall be no more favorable to the secured party or parties, taken as a whole (determined by Parent in good faith) than the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent);

 

h.               if such Refinancing Notes are secured, such Refinancing Notes shall be secured by all or a portion of the Collateral, but shall not be secured by any assets of Parent or its subsidiaries other than the Collateral;

 

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i.                   Refinancing Notes that are secured by Collateral shall be subject to the provisions of a Permitted First Lien Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, as applicable (and in any event shall be subject to a Permitted Junior Intercreditor Agreement if the Indebtedness being Refinanced is secured on a junior lien basis to any of the Obligations) and

 

j.                  all other terms applicable to such Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the provisions set forth in this clause (j))) taken as a whole shall (as determined by Parent in good faith) be substantially similar to, or not materially less favorable to Parent and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans so reduced or the Revolving Facility Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent).

 

“ Refinancing Term Loans ” shall have the meaning assigned to such term in Section 2.23(a).

 

“ Register ” shall have the meaning assigned to such term in Section 9.04(b)(iv).

 

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

 

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

 

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

 

“ Related Fund ” shall mean, with respect to any Lender that is a fund that invests in bank or commercial loans and similar extensions of credit, any other fund that invests in bank or commercial loans and similar extensions of credit and is advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity (or an Affiliate of such entity) that administers, advises or manages such Lender.

 

“ Related Parties ” shall mean, with respect to any specified person, such person’s controlled and controlling Affiliates and the respective directors, trustees, officers, employees, agents, advisors and members of such person and such person’s controlled and controlling Affiliates.

 

“ Related Persons ” shall have the meaning assigned to such term in Section 9.05(b).

 

“ Release ” shall mean 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.

 

“ Replacement Revolving Facility ” shall have the meaning assigned to such term in Section 2.23(c).

 

“ Replacement Revolving Facility Commitments ” shall have the meaning assigned to such term in Section 2.23(c).

 

“ Replacement Revolving Facility Effective Date ” shall have the meaning assigned to such term in Section 2.23(c).

 

“ Replacement Revolving Loans ” shall have the meaning assigned to such term in Section 2.23(c).

 

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