Exhibit 10.1

Execution Version

This Amendment No. 6 to Credit Agreement (this “ Amendment ”) is entered into as of October 23, 2018 by and among Welbilt, Inc., a Delaware corporation (formerly known as Manitowoc Foodservice, Inc.) (the “ Borrower ”), the Subsidiary Borrowers (as defined in the Credit Agreement (as defined below)) signatory hereto, JPMorgan Chase Bank, N.A., individually (“ JPMorgan ”) and as administrative agent (the “ Administrative Agent ”), and the other financial institutions signatory hereto.

 

RECITALS

 

WHEREAS , the Borrower, the Subsidiary Borrowers, the Administrative Agent and the Lenders (as defined in the Credit Agreement) are party to that certain Credit Agreement dated as of March 3, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date, the “ Credit Agreement ”);

 

WHEREAS, the Borrower has requested (i) to borrow additional term loans such that, giving effect thereto, the aggregate amount of Term B Loans as of the Closing Date (as defined below) shall be $900,000,000, (ii) to obtain additional revolving commitments such that, giving effect thereto, the aggregate amount of Revolving Commitments as of the Closing Date shall be $400,000,000, (iii) to extend the maturity of the facilities outstanding under the Credit Agreement, (iv) to make certain other changes to the Credit Agreement and (v) in connection with the foregoing, that the Credit Agreement be amended in the form attached hereto as Exhibit A (the “ Amended Credit Agreement ”);

 

WHEREAS, upon the occurrence of the Closing Date, the term B loans outstanding under the Credit Agreement (the “ Existing Term Loans ”, and the Lenders of such Existing Term Loans, collectively, the “ Existing Term Lenders ”) will be replaced and refinanced on the Closing Date by the term B loans under the Amended Credit Agreement (the “ New Term Loans ”);

 

WHEREAS, upon the occurrence of the Closing Date, the revolving commitments outstanding under the Credit Agreement (the “ Existing Revolving Commitments”) and the revolving loans outstanding under the Credit Agreement (the “ Existing Revolving Loans ”) will be replaced and refinanced on the Closing Date by the revolving commitments and the revolving loans under the Amended Credit Agreement (the “ New Revolving Commitments ” and the “ New Revolving Loans ”, respectively);

 

WHEREAS, upon the occurrence of the Closing Date, the Credit Agreement will be deemed amended in the form of the Amended Credit Agreement, including to permit the amount of New Term Loans thereunder on the Closing Date to be $900,000,000 and the amount of the New Revolving Commitments thereunder on the Closing Date to be $400,000,000,

 

WHEREAS, each Existing Term Lender that executes and delivers a signature page to this Amendment substantially in the form of Exhibit B-1 (a “ Continuing Term Lender Addendum ”; and such Existing Term Lenders, collectively, the “ Continuing Term Lenders ”) will thereby (i) agree to the terms of this Amendment and the Amended Credit Agreement and (ii) agree to continue all of its Existing Term Loans Closing Date as New Term Loans (such continued term loans, the “ Continued Term Loans ”) in a principal amount equal to the aggregate principal amount of such Existing Term Loans (or such lesser amount as notified to such Lender by JPMorgan Chase Bank, N.A. (the “ Lead Arranger ”) prior to the Closing Date);

 

WHEREAS, each Person that executes and delivers a signature page to this Amendment substantially in the form of Exhibit B-2 (an “ Additional Term Lender Addendum ”; and such Persons, collectively, the “ Additional Term Lenders ”) will thereby (i) agree to the terms of this Amendment and the

Amended Credit Agreement and (ii) commit to fund New Term Loans (such New Term Loans, the “ Additional Term Loans ”) to the Borrower on the Closing Date in a principal amount (not in excess of any such commitment) as is determined by the Lead Arranger in consultation with the Borrower and notified to such Additional Term Lender prior to the Closing Date;

WHEREAS, each Existing Revolving Lender that executes and delivers a signature page to this Amendment substantially in the form of Exhibit B-3 (a “ Continuing Revolving Lender Addendum ”; and such Existing Revolving Lenders, collectively, the “ Continuing Revolving Lenders ” and together with the Continuing Term Lenders, the “ Continuing Lenders ”) will thereby (i) agree to the terms of this Amendment and the Amended Credit Agreement and (ii) agree to continue all of its Existing Revolving Commitments as New Revolving Commitments (such commitments, the “ Continued Revolving Commitments ”; and the loans thereunder, the “ Continued Revolving Loans ”) in an amount equal to the aggregate amount of such Existing Revolving Commitments (or such lesser amount as notified to such Lender by the Lead Arranger prior to the Closing Date) and (iii) to make New Revolving Loans from time to time pursuant to the terms of the Amended Credit Agreement;

WHEREAS, each Person that executes and delivers a signature page to this Amendment substantially in the form of Exhibit B-4 (an “ Additional Revolving Lender Addendum ”; and together with the Continuing Term Lender Addendum, Additional Term Lender Addendum, and Continuing Revolving Lender Addendum, the “ Lender Addenda ”, and each a “ Lender Addendum ”; and such Persons, collectively, the “ Additional Revolving Lenders ” and together with the Additional Term Lenders, the “ Additional Lenders ”; and the Additional Lenders together with the Continuing Lenders, the “ New Lenders ”) will thereby (i) agree to the terms of this Amendment and the Amended Credit Agreement, (ii) commit to provide New Revolving Commitments (such commitments, the “ Additional Revolving Commitments ”; and the loans thereunder, the “ Additional Revolving Loans ”) to the Borrowers on the Closing Date in an amount as is determined by the Lead Arranger in consultation with the Borrower and notified to such Additional Revolving Lender prior to the Closing Date and (iii) agree to make Additional Revolving Loans from time to time pursuant to the terms of the Amended Credit Agreement;

WHEREAS, upon the occurrence of the Closing Date, the proceeds of the Additional Term Loans will be used by the Borrower to repay in full the outstanding principal amount of the Existing Term Loans that are not continued as Continued Term Loans;

WHEREAS, upon the occurrence of the Closing Date, the proceeds of the Additional Revolving Loans will be used by the Borrowers to repay in full the outstanding principal amount of the Existing Revolving Loans that are not continued as Continued Revolving Loans;

WHEREAS, the Borrowers, the Administrative Agent and the Lenders party hereto are willing to agree to this Amendment and the Amended Credit Agreement on the terms set forth herein; and

WHEREAS, the other parties party hereto are willing to agree to the Amended Credit Agreement on the terms set forth herein.

NOW, THEREFORE , in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto agree as follows:

 

SECTION 1.            Definitions .  Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

SECTION 2.            New Term Loans and New Revolving Commitments .

 

2.1.            (i) Each Continuing Term Lender agrees to continue all (or such lesser amount as is notified to such Lender by the Lead Arranger prior to the Closing Date) of its Existing Term Loans as a New Term Loan on the Closing Date in a principal amount equal to such Continuing Term Lender’s New Term Loan Commitment (as defined below), (ii) each Additional Term Lender agrees to make a New Term Loan on the Closing Date to the Borrower in a principal amount equal to such Additional Term Lender’s New Term Loan Commitment and (iii) each Continuing Term Lender and Additional Term Lender agrees to this Amendment and the terms of the Amended Credit Agreement.

 

2.2.            (i) Each Continuing Revolving Lender agrees to continue all (or such lesser amount as is notified to such Lender by the Lead Arranger prior to the Closing Date) of its Existing Revolving Commitments as New Revolving Commitments on the Closing Date in a principal amount equal to such Continuing Revolving Lender’s New Revolving Loan Commitment (as defined below), (ii) each Additional Revolving Lender agrees to provide New Revolving Commitments on and after such date to the Borrowers in a principal amount equal to such Additional Revolving Lender’s New Revolving Loan Commitment and (ii) each Continuing Revolving Lender and Additional Revolving Lender agrees to this Amendment and the terms of the Amended Credit Agreement (including that on and after the Closing Date it will make available Revolving Loans to the Borrowers and participate in Letters of Credit and Swingline Loans from time to time in an aggregate principal amount at any time outstanding not to exceed its Revolving Commitment under the Amended Credit Agreement; with each capitalized term in this parenthetical that is not otherwise defined in this Amendment used as defined in the Amended Credit Agreement).

 

2.3.            For purposes hereof, a Person shall become a party to the Amended Credit Agreement and an Additional Term Lender and/or an Additional Revolving Lender, as the case may be, as of the Closing Date by executing and delivering to the Administrative Agent, on or prior to the Closing Date, an Additional Term Lender Addendum and/or an Additional Revolving Lender Addendum, as the case may be.  The Borrower shall give notice to the Administrative Agent of the proposed Closing Date not later than one Business Day prior thereto, and the Administrative Agent shall notify each New Lender thereof.  For the avoidance of doubt (x) the Existing Term Loans of a Continuing Term Lender must be continued in whole and may not be continued in part unless approved by the Lead Arranger and (y) the Existing Revolving Commitments of a Continuing Revolving Lender must be continued in whole and may not be continued in part unless approved by the Lead Arranger.

 

2.4.            On the Closing Date, each Additional Term Lender will make its New Term Loan by making available to the Administrative Agent, in the manner contemplated by Section 2.06 of the Amended Credit Agreement, an amount equal to its New Term Loan Commitment.  The “ New Term Loan Commitment ” of (i) any Continuing Term Lender will be the amount of its Existing Term Loans as set forth in the Register as of the Closing Date (or such lesser amount as notified to such Lender by the Lead Arranger prior to the Closing Date), which shall be continued as an equal principal amount of New Term Loans, and (ii) any Additional Term Lender will be such amount (not exceeding any commitment offered by such Additional Term Lender) allocated to it by the Lead Arranger and notified to it on or prior to the Closing Date.  The commitments of the Additional Term Lenders and the continuation undertakings of the Continuing Term Lenders are several, and no such Lender will be responsible for any other such Lender’s failure to make or acquire by continuation its New Term Loan.

 

2.5.            The New Revolving Commitments of each Continuing Revolving Lender and each Additional Revolving Lender will be available to the Borrowers on the Closing Date in an amount equal to its New Revolving Loan Commitment. The “ New Revolving Loan Commitment ” of (i) any Continuing Revolving Lender will be the amount of its Existing Revolving Commitment as set forth in the Register as of the Closing Date (or such lesser amount as notified to such Lender by the Lead Arranger prior to the Closing Date), which shall be continued as an equal amount of New Revolving Commitments and (ii) any

 

Additional Revolving Lender will be such amount (not exceeding any commitment offered by such Additional Revolving Lender) allocated to it by the Lead Arranger and notified to it on or prior to the Closing Date.  The Commitments of the Continuing Revolving Lenders and Additional Revolving Lenders are several, and (subject to Section 2.21 of the Amended Credit Agreement) no such Lender will be responsible for any other such Lender’s failure to make or acquire its New Revolving Loans.

 

2.6.            The obligation of each New Lender to make, provide or acquire by continuation New Term Loans or New Revolving Commitments, as the case may be, on the Closing Date is subject only to the satisfaction of the conditions set forth in Section 3 of this Amendment.

 

2.7.            On and after the Closing Date, each reference in the Amended Credit Agreement to (i) “Term B Loans” shall be deemed a reference to the New Term Loans contemplated hereby, (ii) “Revolving Commitments” shall be deemed a reference to the New Revolving Commitments contemplated hereby and (iii) “Revolving Loans” shall be deemed a reference to the New Revolving Loans contemplated hereby, except in each case as the context may otherwise require.  Notwithstanding the foregoing, the provisions of the Credit Agreement with respect to indemnification, reimbursement of costs and expenses and increased costs shall continue in full force and effect with respect to, and for the benefit of, each Existing Term Lender in respect of such Lender’s Existing Term Loans and each Existing Revolving Lender in respect of such Lender’s Existing Revolving Commitments and Existing Revolving Loans.

 

2.8.            On the Closing Date, all Existing Revolving Loans shall be deemed repaid and reborrowed as New Revolving Loans in accordance with Section 2.06(c) of the Amended Credit Agreement.

 

2.9.            The continuation of Continued Term Loans may be implemented pursuant to other procedures specified by the Lead Arranger and reasonably acceptable to the Borrower, including by repayment of Continued Term Loans of a Continuing Term Lender followed by a subsequent assignment to it of New Term Loans in the same amount.

 

2.10.            For the avoidance of doubt, the Lenders hereby acknowledge and agree that, at the sole option of the Lead Arranger, any Lender with Existing Term Loans that are not continued as Continued Term Loans as contemplated hereby (“ Non-Continued Term Loans ”) shall, automatically upon receipt of the amount necessary to purchase such Lender’s Non-Continued Term Loans, at par, and with all accrued interest thereon, be deemed to have assigned such Non-Continued Term Loans pursuant to a form of Assignment and Assumption and, accordingly, no other action by the Lenders, the Administrative Agent or the Loan Parties shall be required in connection therewith.

 

SECTION 3.            Effectiveness .  This Amendment, and the obligation of each Additional Term Lender to make or acquire by continuation New Term Loans, and the obligation of each Additional Revolving Lender to provide Additional Revolving Commitments and make Revolving Loans, shall become effective as of the first date (the “ Closing Date ”) on which the conditions set forth in Section 4.01 of the Amended Credit Agreement have been satisfied or waived (in accordance with Section 9.02 of the Credit Agreement).

 

SECTION 4.            Amendments and Releases .

 

4.1.            Effective as of the Closing Date, (a) the Credit Agreement is hereby amended in the form of the Amended Credit Agreement set forth as Exhibit A hereto, (b) the Schedules and the Exhibits to the Credit Agreement are amended and restated in their entirety in the forms appended to the Amended Credit Agreement, (c) each of the Parent Guaranty, Subsidiary Guaranty, US Pledge Agreement and US

 

Security (the foregoing, collectively, the “ Ancillary Documents ”) are amended and restated in their entirety in the applicable form appended to the Amended Credit Agreement and (d) the Schedules and Exhibits to each Ancillary Document are amended and restated in their entirety in the form appended to the applicable Ancillary Document.

 

 

4.2.            Effective as of the Closing Date, the respective Persons party to the Ancillary Documents as amended and restated pursuant to Section 4.1 shall be the only Guarantors (as defined in the Subsidiary Guaranty), Assignors (as defined in the US Security Agreement) and Pledgors (as defined in the US Pledge Agreement) under the applicable Ancillary Document as of the Closing Date. Manitowoc Foodservice Holding, Inc., Manitowoc FP, Inc., Manitowoc FSG International Holdings, Inc. and MTW County (Domestication) LLC (collectively, the “ Released Subsidiary Guarantors ”) shall be automatically released from the Liens securing the Obligations and their guarantees thereof, respectively, upon the occurrence of the Closing Date, and upon effectiveness of this Amendment, the Released Subsidiary Guarantors are released from the Subsidiary Guaranty, the US Security Agreement and the US Pledge Agreement and their obligations thereunder. The parties hereto acknowledge and agree that the Released Subsidiary Guarantors shall not be required to execute any amendment and restatement of an Ancillary Document or Schedules and Exhibits thereto as contemplated in Section 4.1 for such amendment and restatement to become effective.

 

SECTION 5.            Reference to and Effect Upon the Credit Agreement; Other .

 

5.1.            Except as specifically amended above, the Credit Agreement and the other Credit Documents shall remain in full force and effect and are hereby ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Credit Documents, nor constitute a waiver of any provision of the Credit Documents or in any way limit, impair or otherwise affect the rights and remedies of the Administrative Agent or the Lenders under the Credit Documents, except as expressly provided herein. Nothing herein shall be deemed, in similar or different circumstances, to entitle the Borrower or any other Credit Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Credit Document.

 

5.2.            Upon the Closing Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of similar import, and each reference in the Credit Documents to “Credit Agreement”, “thereunder”, “thereof”, “therein” or words of similar import, shall mean and be a reference to the Amended Credit Agreement. Upon the Closing Date, each reference in any Ancillary Document to “this Agreement”, “hereunder”, “hereof”, “herein” or words of similar import, and each reference in the Credit Documents to any Ancillary Document shall mean and be a reference to the Ancillary Documents as amended or supplemented as contemplated hereby.

 

5.3.            This Amendment shall not extinguish the obligations for the payment of money outstanding under the Credit Agreement or discharge or release the Lien or priority of any Credit Document or any other security therefor or any guarantee thereof (it being understood that, including after giving effect to the amendment and restatement of the Subsidiary Guaranty on the Closing Date, no Foreign Subsidiary shall guarantee obligations of the Borrower or any Domestic Subsidiary). Nothing herein contained shall be construed as a substitution or novation of the Obligations outstanding under the Credit Agreement or any other Credit Document, all of which shall remain in full force and effect, except as modified hereby or repaid pursuant hereto. Nothing expressed or implied in this Amendment or any other document contemplated hereby shall be construed as a release or other discharge by any Credit Party under any Credit Document from any of its obligations and liabilities thereunder; provided that,

 

including after giving effect to the amendment and restatement of the Subsidiary Guaranty on the Closing Date, no Foreign Subsidiary shall guarantee obligations of the Borrower or any Domestic Subsidiary.

 

5.4.            This Amendment shall constitute a Credit Document.

 

5.5.            Except as expressly provided herein or in the Amended Credit Agreement, the New Term Loans, the New Revolving Commitments and the New Revolving Loans shall be subject to the terms and provisions of the Amended Credit Agreement and the other Credit Documents.

 

SECTION 6.            General.

 

6.1.            Costs and Expenses . The Borrower hereby affirms its obligation under Section 9.03 of the Credit Agreement to reimburse the Administrative Agent for all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment and any other documents prepared in connection herewith, including but not limited to the reasonable and documented fees, charges and disbursements of attorneys for the Administrative Agent with respect thereto.

 

6.2.            Governing Law . This Amendment shall be construed in accordance with and governed by the law of the State of New York.

 

6.3.            Headings . Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purposes.

 

6.4.            Counterparts . This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed an original but all such counterparts shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by telecopy, emailed pdf, or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

6.5.            Amendments .  This Amendment may be amended, modified or supplemented only by a writing signed by the Required Lenders (as defined in the Amended Credit Agreement), the Administrative Agent and the Borrower; provided that any amendment or modification that would require the consent of all Lenders or all affected Lenders if made under the Amended Credit Agreement shall require the consent of all Lenders (as defined in the Amended Credit Agreement) or all such affected Lenders (as defined in the Amended Credit Agreement), as applicable.

 

 

[signature pages follow]

 

IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above written.

 

 

[Signature Page to Amendment to Credit Agreement]

[Signature Page to Amendment to Credit Agreement]

 

Lenders’ Signature Pages on File With Administrative Agent

 

[Signature Page to Amendment to Credit Agreement]

EXHIBIT A

AMENDED CREDIT AGREEMENT

		Page
ARTICLE I DEFINITIONS		1
SECTION 1.01.	Defined Terms	1
SECTION 1.02.	Classification of Loans and Borrowings	38
SECTION 1.03.	Terms Generally	38
SECTION 1.04.	Accounting Terms; GAAP	39
SECTION 1.05.	Foreign Currency Calculations	39
SECTION 1.06.	Limited Condition Transactions	39
SECTION 1.07.	Redenomination of Certain Foreign Currencies	40
SECTION 1.08.	Cashless Rollovers	40
SECTION 1.09.	Divisions of Limited Liability Companies	41
SECTION 1.10.	Interest Rates	41
ARTICLE II THE CREDITS		41
SECTION 2.01.	Commitments	41
SECTION 2.02.	Loans and Borrowings	41
SECTION 2.03.	Requests for Borrowings	42
SECTION 2.04.	Swingline Loans	43
SECTION 2.05.	Letters of Credit	44
SECTION 2.06.	Funding of Borrowings	48
SECTION 2.07.	Interest Elections	49
SECTION 2.08.	Termination and Reduction of Commitments; Increase of Commitments	50
SECTION 2.09.	Repayment of Loans; Evidence of Debt	52
SECTION 2.10.	Amortization of Term B Loans	53
SECTION 2.11.	Prepayment of Loans	54
SECTION 2.12.	Fees	56
SECTION 2.13.	Interest	57
SECTION 2.14.	Alternate Rate of Interest	58
SECTION 2.15.	Increased Costs	59
SECTION 2.16.	Break Funding Payments	60
SECTION 2.17.	Taxes	60
SECTION 2.18.	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	69
SECTION 2.19.	Mitigation Obligations; Replacement of Lenders	70
SECTION 2.20.	Subsidiary Borrowers	71
SECTION 2.21.	Defaulting Lenders	72
SECTION 2.22.	Prepayments Below Par	74
ARTICLE III REPRESENTATIONS AND WARRANTIES		76
SECTION 3.01.	Organization; Powers	76
SECTION 3.02.	Authorization; Enforceability	76
SECTION 3.03.	Governmental Approvals; No Conflicts	76
SECTION 3.04.	Financial Condition; No Material Adverse Change	76
SECTION 3.05.	Properties	77

SECTION 3.06.	Litigation and Environmental Matters	77
SECTION 3.07.	Compliance with Laws and Agreements; No Default	77
SECTION 3.08.	Investment Company Status	78
SECTION 3.09.	Taxes	78
SECTION 3.10.	ERISA; Foreign Pension Plans	78
SECTION 3.11.	Disclosure	78
SECTION 3.12.	The Security Documents	79
SECTION 3.13.	Subsidiaries	80
SECTION 3.14.	[Intentionally omitted]	80
SECTION 3.15.	Insurance	80
SECTION 3.16.	Federal Reserve Regulations	80
SECTION 3.17.	Solvency	80
SECTION 3.18.	Anti-Corruption Laws and Sanctions	80
SECTION 3.19.	Centre of Main Interest	81
SECTION 3.20.	Registration	81
SECTION 3.21.	Preferred Creditors	81
SECTION 3.22.	EEA Financial Institutions	81
SECTION 3.23.	Plan Assets; Prohibited Transactions	81
ARTICLE IV CONDITIONS		81
SECTION 4.01.	Closing Date	81
SECTION 4.02.	Each Credit Event	83
ARTICLE V AFFIRMATIVE COVENANTS		83
SECTION 5.01.	Financial Statements and Other Information	84
SECTION 5.02.	Notices of Material Events	86
SECTION 5.03.	Existence; Conduct of Business	86
SECTION 5.04.	Payment of Obligations	86
SECTION 5.05.	Maintenance of Properties; Insurance	86
SECTION 5.06.	Books and Records; Inspection Rights	87
SECTION 5.07.	Compliance with Laws and Material Contractual Obligations	87
SECTION 5.08.	Use of Proceeds and Letters of Credit	87
SECTION 5.09.	Compliance with Environmental Laws	88
SECTION 5.10.	Further Assurances; etc	88
SECTION 5.11.	[Intentionally Omitted]	88
SECTION 5.12.	Margin Regulations	89
SECTION 5.13.	Additional Guarantors and Collateral	89
SECTION 5.14.	Maintenance of Ratings	91
SECTION 5.15.	Pensions	91
SECTION 5.16.	Centre of Main Interests	91
SECTION 5.17.	Designation of Subsidiaries	91
SECTION 5.18.	Post-Closing Obligations	92
ARTICLE VI NEGATIVE COVENANTS		93
SECTION 6.01.	Indebtedness	93
SECTION 6.02.	Liens	97
SECTION 6.03.	Merger, Sale of Assets, Change in Business	100
SECTION 6.04.	Restricted Payments	102

SECTION 6.05.	Advances, Investments and Loans	104
SECTION 6.06.	Transactions with Affiliates	107
SECTION 6.07.	Use of Proceeds	108
SECTION 6.08.	Limitations on Payments and Prepayments of Certain Indebtedness; Modifications of Certain Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements, etc	108
SECTION 6.09.	Restrictive Agreements	109
SECTION 6.10.	End of Fiscal Years; Fiscal Quarters	110
SECTION 6.11.	Limitation on Issuance of Equity Interests	110
SECTION 6.12.	[Intentionally Omitted]	110
SECTION 6.13.	[Intentionally Omitted]	110
SECTION 6.14.	Swap Agreements	110
SECTION 6.15.	[Intentionally omitted]	111
SECTION 6.16.	Financial Covenants	111
ARTICLE VII EVENTS OF DEFAULT		112
ARTICLE VIII THE ADMINISTRATIVE AGENT		115
SECTION 8.01.	The Administrative Agent	115
SECTION 8.02.	Administrative Agent as UK Security Trustee	118
SECTION 8.03.	Credit Bidding	119
SECTION 8.04.	Certain ERISA Matters	120
ARTICLE IX MISCELLANEOUS		121
SECTION 9.01.	Notices	121
SECTION 9.02.	Waivers; Amendments	123
SECTION 9.03.	Expenses; Indemnity; Damage Waiver	126
SECTION 9.04.	Successors and Assigns	127
SECTION 9.05.	Survival	131
SECTION 9.06.	Counterparts; Integration; Effectiveness	131
SECTION 9.07.	Severability	132
SECTION 9.08.	Right of Set-off	132
SECTION 9.09.	Governing Law; Jurisdiction; Consent to Service of Process	132
SECTION 9.10.	WAIVER OF JURY TRIAL	133
SECTION 9.11.	Headings	133
SECTION 9.12.	Confidentiality	133
SECTION 9.13.	Interest Rate Limitation	135
SECTION 9.14.	USA PATRIOT Act; KYC	135
SECTION 9.15.	Conversion of Currencies	136
SECTION 9.16.	Administrative Agent, Syndication Agents, Documentation Agents and Arrangers	136
SECTION 9.17.	Release of Liens and Guarantees	136
SECTION 9.18.	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	137
SECTION 9.19.	Section 2.16 Waiver	137
SECTION 9.20.	No Novation	137
SECTION 9.21.	Bifurcation	138
ARTICLE X COLLECTION ACTION MECHANISM		138

SECTION 10.01.

Implementation of CAM

138

“ Borrower ” means Welbilt, Inc., a Delaware corporation.

 

“ Borrowers ” means the Borrower and each Subsidiary Borrower.

SECTION 6.15.            [Intentionally omitted].

 

SECTION 6.16.            Financial Covenants .  Without the written consent of the Required Revolving Lenders:

 

(a)            Maximum Consolidated Total Leverage Ratio .  The Borrower will not permit the Consolidated Total Leverage Ratio for any fiscal quarter of the Borrower set forth below to be greater than or equal to the ratio set forth opposite such fiscal quarter below (such ratio, the “ Applicable Ratio ”):

 

Fiscal Quarter Ending	Ratio
December 31, 2018	5.75:1.00
March 31, 2019	5.75:1.00
June 30, 2019	5.75:1.00
September 30, 2019	5.75:1.00
December 31, 2019	5.50:1.00
March 31, 2020	5.50:1.00
June 30, 2020	5.50:1.00
September 30, 2020	5.50:1.00
December 31, 2020	5.25:1.00
March 31, 2021	5.25:1.00
June 30, 2021	5.25:1.00
September 30, 2021	5.25:1.00
December 31, 2021	4.75:1.00
March 31, 2022	4.75:1.00
June 30, 2022	4.75:1.00
September 30, 2022	4.75:1.00
December 31, 2022 and each fiscal quarter thereafter	4.25:1.00

Notwithstanding the foregoing, during a Transition Period in respect of any Covenant Holiday Acquisition, the Consolidated Total Leverage Ratio may exceed the Applicable Ratio by up to (and including) 0.50:1.00; provided , however , that no event shall the Consolidated Total Leverage Ratio exceed 5.50:1.00 as a result of a Covenant Holiday Acquisition; provided   further that (i) no more than two Covenant Holiday Acquisitions may be designated over the life of this Agreement and (ii) there shall be at least two full consecutive fiscal quarters ended after the Transition Period in respect of a Covenant Holiday Acquisition prior to the Borrower being able to designate a second Covenant Holiday Acquisition.

 

111

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(b)            Minimum Consolidated Interest Coverage Ratio .  The Borrower will not permit the Consolidated Interest Coverage Ratio for any fiscal quarter of the Borrower set forth below to be less than the ratio set forth opposite such fiscal quarter below:

 

Fiscal Quarter Ending	Ratio
December 31, 2018	2.50:1.00
March 31, 2019 June 30, 2019 September 30, 2019 December 31, 2019	2.50:1.00 2.50:1.00 2.50:1.00 2.75:1.00
March 31, 2020 June 30, 2020 September 30, 2020 December 31, 2020 and each fiscal quarter thereafter	2.75:1.00 2.75:1.00 2.75:1.00 3.00:1.00

ARTICLE VII

EVENTS OF DEFAULT

 

If any of the following events (“ Events of Default ”) occurs after the Closing Date:

 

(a)            any of the Borrowers shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;

 

(b)            any of the Borrowers shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other Credit Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three Business Days;

 

(c)            any representation or warranty made or deemed made by or on behalf of any Credit Party in or in connection with any Credit Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Credit Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made;

 

(d)            the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02 , 5.03 (with respect to the Borrower’s existence) or 5.08 , or in Article VI ; provided that a Default or an Event of Default that results from a failure of the Borrower to comply with Section 6.16 shall not constitute a Default or Event of Default for purposes of or with respect to the Term B Facility unless and until the date upon which the Required Revolving Lenders have actually terminated all Revolving Commitments and declared any Revolving Loans to be immediately due and payable in accordance with this Agreement;

 

(e)            the Borrower or any other Credit Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a) , (b) or (d) of this Article), or any other Credit Document, and such failure shall continue unremedied for a period of 30 days after written notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);

 

(f)            the Borrower or any Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the

 

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same shall become due and payable beyond the period of grace, if any, provided in the instrument or agreement under which such Material Indebtedness was created;

 

(g)            any event or condition (other than (1) any required prepayment of Indebtedness secured by a Permitted Lien that becomes due as the result of the disposition of the assets subject to such Lien so long as such disposition is permitted by this Agreement or (2) any required repurchase, repayment or redemption of (or offer to repurchase, repay or redeem) any Indebtedness that was incurred for the specified purpose of financing all or a portion of the consideration for a merger or acquisition provided that (x) such repurchase, repayment or redemption (or offer to repurchase, repay or redeem) results solely from the failure of such merger or acquisition to be consummated, (y) such Indebtedness is repurchased, repaid or redeemed in accordance with its terms and (z) no proceeds of any Borrowing are used to make such repayment, repurchase or redemption) occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;

 

(h)            an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any of the Borrowers or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any of the Borrowers or any Material Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 consecutive days or an order or decree approving or ordering any of the foregoing shall be entered;

 

(i)            any of the Borrowers or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any of the Borrowers or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;

 

(j)            any of the Borrowers or any Material Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;

 

(k)            one or more judgments for the payment of money in an aggregate amount in excess of $35,000,000 (other than any such judgment (x) covered by insurance (other than under a self-insurance program) to the extent a claim therefor has been made in writing and liability therefor has not been denied by the insurer or (y) for which the Borrower or the applicable Restricted Subsidiary has a creditworthy (as reasonably determined by the Administrative Agent) indemnitor that has been notified thereof and has acknowledged its indemnity obligations with respect thereto) shall be rendered against any of the Borrowers, any Material Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any of the Borrowers or any Material Subsidiary to enforce any such judgment;

 

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(l)            an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;

 

(m)            a Change in Control shall occur;

 

(n)            any Security Document (other than in accordance with the terms hereof or thereof) shall cease to be in full force and effect, or shall cease to give the Collateral Agent for the benefit of the Secured Creditors, the Liens, rights, powers and privileges purported to be created thereby in respect of material Collateral, or any Credit Party shall deny or disaffirm such Credit Party’s obligations under any Security Document or the Liens granted thereunder;

 

(o)            except as otherwise provided for in Section 6.03(a)(x) or (xi) or Section 9.17 , the Subsidiary Guaranty or any provision thereof shall cease to be in full force or effect as to any Subsidiary Guarantor, or any Subsidiary Guarantor or any Person acting for or on behalf of such Subsidiary Guarantor shall deny or disaffirm such Subsidiary Guarantor’s obligations under the Subsidiary Guaranty; or

 

(p)            the Parent Guaranty or any provision thereof shall cease to be in full force or effect or the Borrower or any Person acting for or on behalf of the Borrower shall deny or disaffirm the Borrower’s obligations under the Parent Guaranty;

 

then, and in every such event (other than an event with respect to any of the Borrowers described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times:  (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers, and (iii) require cash collateral for the LC Exposure in accordance with Section 2.05(j) ; and in case of any event with respect to any of the Borrowers described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers.

 

Notwithstanding anything to the contrary, if the only Events of Default then having occurred and continuing are pursuant to or result directly from noncompliance with Section 6.16 (which has not become an Event of Default with respect to the Term B Loans pursuant to clause (d) above), such Events of Default shall not constitute an Event of Default for purposes of any Term B Loan (or any other facility hereunder other than the Revolving Commitment) and the Lenders and the Administrative Agent shall only take the actions set forth in this Article VII at the request of the Required Revolving Lenders (as opposed to Required Lenders) and only with respect to the Revolving Commitments and the extensions of credit thereunder.

 

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ARTICLE VIII

THE ADMINISTRATIVE AGENT

 

SECTION 8.01.            The Administrative Agent .  (a)Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the entity named as Administrative Agent in the heading of this Agreement and its successors and permitted assigns to serve as the administrative agent and the collateral agent under the Credit Documents and each of the Lenders and the Issuing Bank authorize the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and under the other Credit Documents as are delegated to the Administrative Agent under such agreements and to exercise such  powers as are reasonably incidental thereto.  In addition, to the extent required under the laws of any jurisdiction other than within the United States, each Lender and the Issuing Bank hereby grants to the Administrative Agent any required powers of attorney to execute and enforce any Security Document governed by the laws of such jurisdiction on such Lender’s or Issuing Bank’s behalf.  Without limiting the foregoing, each Lender and the Issuing Bank hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Credit Documents to which the Administrative Agent is party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Credit Documents.

 

(b)            The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.

 

(c)            The Administrative Agent shall not have any duties or obligations except those expressly set forth herein.  Without limiting the generality of the foregoing, (i) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (ii) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, but shall be required to act or to refrain from acting (and shall be fully protected from the Lenders and the Issuing Banks in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary pursuant to the terms in the Credit Documents) and, unless and until revoked in writing, such instructions shall be binding upon each Lender and Issuing Bank, and (iii) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity.  The Administrative Agent shall not be liable to any Lender or Issuing Bank for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02 ) or in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment).  The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Credit Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

 

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(d)            The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon.  The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

 

(e)            The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties.  The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.

 

(f)            Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph (f) , the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.  Upon any such resignation, the Required Lenders shall have the right, subject to the consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned and shall not be required upon the occurrence and continuance of an Event of Default), to appoint a successor.  If no successor shall have been so appointed by the Required Lenders with, absent the occurrence and continuance of an Event of Default, the consent of the Borrower, and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank capable of performing the duties of the Administrative Agent.  If no successor Administrative Agent has been appointed pursuant to the immediately preceding sentence by the 30th day after the date such notice of resignation was given by the Administrative Agent, the Administrative Agent’s resignation shall become effective and the Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder and/or under any other Credit Document until such time, if any, as the Required Lenders (subject to the prior written approval of the Borrower to the extent such approval would have been required under the second sentence of this paragraph (f) ) appoint a successor Administrative Agent.  Any such resignation by the Administrative Agent hereunder shall also constitute, to the extent applicable, its resignation as an Issuing Bank, in which case the resigning Administrative Agent (x) shall not be required to issue any further Letters of Credit and (y) shall maintain all of its rights as Issuing Bank with respect to any Letters of Credit issued by it prior to the date of such resignation.  Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder.  The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.

 

(g)            Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities.  Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the

 

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Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder.  Each Lender shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and obligations hereunder.  Each Lender, by delivering its signature page to this Agreement on the Closing Date, or delivering its signature page to an Assignment and Assumption or any other Credit Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Closing Date.

 

(h)            The Administrative Agent shall be permitted from time to time to designate one of its Affiliates to perform the duties to be performed by the Administrative Agent hereunder with respect to Loans and Borrowings denominated in Foreign Currencies.  The provisions of this Article VIII shall apply to any such Affiliate mutatis   mutandis .  All provisions of this Article VIII relating to the Administrative Agent shall be equally applicable to the Collateral Agent mutatis mutandis .

 

Without limiting the foregoing, if any Collateral or any Subsidiary is sold in a transaction permitted hereunder (excluding sales to the Borrower or a Subsidiary thereof other than sales comprising part of a Permitted Securitization made to a Subsidiary which is an SPC), (a) such Collateral and the assets of such Subsidiary shall be sold free and clear of the Liens created by the Security Documents and (b) in the case of such a sale of a Subsidiary Guarantor, such Subsidiary Guarantor and its subsidiaries shall be at such time deemed released from the Subsidiary Guaranty and, in each case, the Administrative Agent, the Collateral Agent and the UK Security Trustee shall be authorized to take any actions they deem appropriate to effect the foregoing.  Each of the Administrative Agent, the Collateral Agent and the UK Security Trustee shall also be authorized, on behalf of the Lenders, to (i)   enter into such amendments of the Security Documents and to enter into such agreements (including intercreditor agreements but excluding any releases of Collateral not otherwise authorized hereby) as, in either case, it deems necessary or appropriate in connection with a Permitted Securitization and (ii) execute releases of Collateral being transferred from the Borrower or a Subsidiary to the Borrower or a Subsidiary in a transaction permitted hereby and in connection with which such Collateral is substantially contemporaneously repledged (with the same priority as the released pledge or security interest) to the Administrative Agent, the Collateral Agent or the UK Security Trustee, as applicable, for the benefit of the Secured Creditors.  Additionally, in connection with the granting of Liens of the type described in clauses (k) , (l) , (o) or (u) of Section 6.02 by the Borrower or any of its Subsidiaries, each of the Administrative Agent, the Collateral Agent and the UK Security Trustee is authorized to take any actions deemed appropriate by it in connection therewith (including, without limitation, the execution of appropriate lien releases or lien subordination agreements in favor of the holder or holders of such Liens, in either case solely with respect to the item or items of equipment or other assets subject to such Liens). Additionally, the Secured Creditors irrevocably authorize the Administrative Agent, the Collateral Agent or the UK Security Trustee, at its option and in its discretion, to subordinate any Lien on any property granted to or held by the Administrative Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.02 .

 

Except with respect to the exercise of setoff rights in accordance with Section 9.08 or with respect to a Secured Creditor’s right to file a proof of claim in an insolvency proceeding, no Secured Creditor shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Credit

 

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Documents may be exercised solely by the Administrative Agent on behalf of the Secured Creditors in accordance with the terms hereof.

 

In furtherance of the foregoing and not in limitation thereof, no Swap Agreement, Bank Product Agreement or Designated Foreign Facility Agreement the obligations under which constitute Obligations will create (or be deemed to create) in favor of any Secured Creditor that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Credit Party under this Agreement or any other Credit Document.  By accepting the benefits of any Collateral, each Secured Creditor that is a party to any such Swap Agreement, Bank Product Agreement or Designated Foreign Facility Agreement shall be deemed to have appointed the Administrative Agent to serve as Administrative Agent, Collateral Agent and UK Security Trustee under the Credit Documents and agreed to be bound by the Credit Documents as a Secured Creditor thereunder, subject to the limitations set forth in this paragraph (h) .

 

None of the Administrative Agent, the Collateral Agent or the UK Security Trustee shall be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Lien of the Administrative Agent, the Collateral Agent or the UK Security Trustee, as applicable, thereon or any certificate prepared by any Credit Party in connection therewith, nor shall the Administrative Agent, the Collateral Agent or the UK Security Trustee be responsible or liable to the Lenders or any other Secured Creditor for any failure to monitor or maintain any portion of the Collateral.

 

SECTION 8.02.            Administrative Agent as UK Security Trustee .  (a)  In this Agreement, any rights and remedies exercisable by, any documents to be delivered to, or any other indemnities or obligations in favor of the Administrative Agent shall be, as the case may be, exercisable by, delivered to, or be indemnities or other obligations in favor of, the Administrative Agent (or any other Person acting in such capacity) in its capacity as the UK Security Trustee to the extent that the rights, deliveries, indemnities or other obligations relate to the UK Security Agreements or the security thereby created.  Any obligations of the Administrative Agent (or any other Person acting in such capacity) in this Agreement shall be obligations of the Administrative Agent in its capacity as UK Security Trustee to the extent that the obligations relate to the UK Security Agreement or the security thereby created.  Additionally, in its capacity as UK Security Trustee, the Administrative Agent (or any Person acting in such capacity) shall have all the rights, remedies, and benefits in favor of the Administrative Agent contained in the provisions of the whole of this Article VIII and, subject always to the provisions of the UK Security Agreement, (i) all the powers of an absolute owner of the security constituted by the US Pledge Agreement governed by English law and (ii) all the rights, remedies and powers granted to it and be subject to all the obligations and duties owed by it under the UK Security Agreements and/or any of the Credit Documents.

 

(b)            Each Lender and the Administrative Agent hereby appoint the UK Security Trustee to act as its trustee under and in relation to the UK Security Agreement and to hold the assets subject to the security thereby created as trustee for the Administrative Agent and Lenders on the trusts and other terms contained in the UK Security Agreement and the Administrative Agent and each Lender hereby irrevocably authorize the UK Security Trustee to exercise such rights, remedies, powers and discretions as are specifically delegated to the UK Security Trustee by the terms of the UK Security Agreement together with all such rights, remedies, powers and discretions as are reasonably incidental thereto.

 

(c)            Any reference in this Agreement to Liens stated to be in favor of the Administrative Agent shall be construed so as to include a reference to Liens granted in favor of the UK Security Trustee.

 

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(d)            The Lenders agree that at any time that the UK Security Trustee shall be a Person other than the Administrative Agent, such other Person shall have the rights, remedies, benefits and powers granted to the Administrative Agent in its capacity as the UK Security Trustee in this Agreement.

 

(e)            Nothing in this Section 8.02 shall require the UK Security Trustee to act as a trustee at common law or to be holding any property on trust, in any jurisdiction outside the United States or England & Wales, Scotland and Northern Ireland which may not operate under principles of trust or where such trust would not be recognized or its effects would not be enforceable.

 

SECTION 8.03.            Credit Bidding .  The Secured Creditors hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law.  In connection with any such credit bid and purchase, the Obligations owed to the Secured Creditors shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase).  In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Creditors’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 9.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Creditors, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Creditor or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Secured Creditors pro rata and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Secured Creditor or any acquisition vehicle to take any further action.  Notwithstanding that the ratable portion of the Obligations of each Secured Creditor are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Creditor shall execute such documents and provide such information regarding the Secured Creditor (and/or any designee of the Secured Creditor which will receive interests in or debt instruments issued by such

 

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acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.

 

SECTION 8.04.            Certain ERISA Matters .  (a)   Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least one of the following is and will be true:

 

(i) such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,

(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84‑14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95‑60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90‑1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91‑38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96‑23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, and the conditions for exemptive relief thereunder are and will continue to be satisfied in connection therewith,

(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84‑14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84‑14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84‑14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or

(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

(b)            In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a) , such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that:

 

(i) none of the Administrative Agent, or any Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection

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with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Credit Document or any documents related to hereto or thereto),

(ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21, as amended from time to time) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),

(iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the obligations),

(iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and

(v) no fee or other compensation is being paid directly to the Administrative Agent, or any Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement.

(c)            The Administrative Agent, and each Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Credit Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

 

ARTICLE IX

MISCELLANEOUS

 

SECTION 9.01.            Notices .  (a)  Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy or electronic mail (“email”), as follows:

 

(i) if to the Borrower or any Subsidiary Borrower, to it at Welbilt, Inc., 2227 Welbilt Boulevard, New Port Richey, Florida 34655, Attention of Richard Sheffer, Vice President

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of Investor Relations, Risk Management and Treasurer (Email: richard.sheffer@welbilt.com) and Joel Horn, General Counsel (Email: Joel.Horn@welbilt.com), with a copy to Jones Day, 250 Vesey Street, New York, New York 10281-1047, Attn: Charles N. Bensinger III (Telecopy No. 212-755-7306);

(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan Operations, 10 S Dearborn, Chicago, Illinois 60603, Attention of Leonida Mischke (Telecopy No. 844-490-5663; email: jpm.agency.servicing.1@jpmorgan.com), and, in the case of any Loan denominated in a Foreign Currency, to the J.P. Morgan Europe Limited, 25 Bank Street, Canary Wharf, E14 5JP, Attn: Loans Agency (Email: loan_and_agency_london@jpmorgan.com, Telecopy No. 44 207 777 2360);

(iii) if to the Issuing Bank, to it at JPMorgan Chase Bank, N.A., Letter of Credit Group, 10 S Dearborn, Chicago, IL 60603 (Telecopy No. 214-307-6874; Telephone No. 855-609-0059; Email: Chicago.lc.agency.activity.team@jpmchase.com);

(iv) if to the Swingline Lender, c/o the Administrative Agent at the address set forth in clause (ii) above; and

(v) if to any other Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient).  Notices delivered through Electronic Systems, to the extent provided in clause (b) below, shall be effective as provided in said clause (b) .

 

(b)            Notices and other communications to the Lenders and the Issuing Bank hereunder may be delivered or furnished by using Electronic Systems pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender.  Each of the Administrative Agent and the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications; provided that such agreement may be limited to particular notices or communications.

 

Unless the Administrative Agent or the Borrower, as applicable, otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i) , of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

 

(c)            Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.

 

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(d)            Electronic Systems.

 

(i) The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make Communications (as defined below) available to the Issuing Banks and the other Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak, ClearPar or a substantially similar Electronic System.

(ii) Any Electronic System used by the Administrative Agent is provided “as is” and “as available.”  The Agent Parties (as defined below) do not warrant the adequacy of such Electronic Systems and expressly disclaim liability for errors or omissions in the Communications.  No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or any Electronic System.  In no event shall the Administrative Agent or any of its Related Parties (collectively, the “ Agent Parties ”) have any liability to the Borrower or the other Credit Parties, any Lender, the Issuing Bank or any other Person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s, any Credit Party’s or the Administrative Agent’s transmission of communications through an Electronic System, other than to the extent such damages, losses or expenses arise out of the Administrative Agent’s transmission of communications through an Electronic System and are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of an Agent Party (it being understood that in no event shall any Agent Party have any liability in respect of indirect, special, incidental or consequential damages, losses or expenses).  “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Borrower or any other Credit Party pursuant to any Credit Document or the transactions contemplated therein which is distributed by the Administrative Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to this Section 9.01 , including through an Electronic System.

SECTION 9.02.            Waivers; Amendments .  (a)  No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of this Agreement or consent to any departure by the Borrowers therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02 , and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.

 

(b)            Subject to Section 2.14(b) and Section 9.02(c) below and the last paragraph of Section 4.01 , neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall:

 

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(i) increase the Commitment of any Lender without the written consent of such Lender (it being understood and agreed that a waiver of any condition precedent set forth in Section 4.02 or of any Default, mandatory prepayment or a mandatory reduction in Commitments is not considered an extension or increase in Commitments of any Lender),

(ii) reduce or forgive the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender adversely affected thereby; provided , however , that only the consent of (A) the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or fees regarding Letters of Credit at a default rate or (B) the Required Revolving Lenders to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or LC Disbursement or to reduce any fee payable hereunder,

(iii) postpone the scheduled date of payment of the principal amount of any Loan (other than mandatory prepayments) or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, postpone the scheduled date of expiration of any Commitment or extend the stated expiration date of any Letter of Credit beyond the Revolving Maturity Date (except as expressly permitted by Section 2.05(c) ), without the written consent of each Lender entitled to receive such payment or whose Commitments are to be reduced,

(iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender or change Section 2.08(c) in a manner that would alter the pro-rata sharing of Commitment reductions without the written consent of each Lender adversely affected thereby,

(v) change any of the provisions of this Section 9.02 or the definition of “Required Lenders”, “Required Revolving Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of, with respect to the definition of “Required Revolving Lenders,” each Lender having Revolving Credit Exposure or unused Revolving Commitments, and in any other such case, each Lender,

(vi) (A) release all or substantially all of the Collateral, release the Borrower from the Parent Guaranty or release all or substantially all of the Subsidiary Guarantors that are Domestic Credit Parties from their obligations under the Subsidiary Guaranty, in each case without the written consent of each Lender or (B) release all or substantially all of the Subsidiary Guarantors that are Foreign Credit Parties from their obligations under the Subsidiary Guaranty without the written consent of each Revolving Lender,

(vii) except as permitted by the terms hereof on the date hereof, change the currency of any Loan or the currency in which any Commitment is required to be funded without the written consent of each Lender of such Loan or providing such Commitment affected thereby,

(viii) alter the amount or the required application of any prepayment required by Section 2.11 without the consent of Lenders holding at least 50.1% of the Term B Loans and/or Term B Commitments, as applicable, adversely affected thereby, or

(ix) expressly change or waive any condition precedent in Section 4.02 to any Revolving Borrowing, including, without limitation, the related defined terms therein to the extent

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applicable to such section, without the written consent of the Required Revolving Lenders; provided, that, the amendments, waivers or modifications described in this clause (ix) shall not require the consent of any Lenders other than the Required Revolving Lenders;

provided   further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be.  Notwithstanding the foregoing (but subject to the foregoing proviso), (x) no consent with respect to any amendment, waiver or other modification of this Agreement or any other Credit Document shall be required of, in the case of any amendment, waiver or other modification referred to above in this Section 9.02(b) , any Lender that receives payment in full of the principal of and interest accrued on each Loan made by, and all other amounts then owing to, such Lender or accrued for the account of such Lender under this Agreement and the other Credit Documents at the time such amendment, waiver or other modification becomes effective and whose Commitments terminate by the terms and upon the effectiveness of such amendment, waiver or other modification and (y) no amendment, waiver or consent shall be made to modify Section 6.16 or any definition related thereto (as any such definition is used for purposes of Section 6.16 ), accelerate the Revolving Facility upon a breach of Section 6.16 or waive any Default or Event of Default resulting from a failure to perform or observe the requirements of Section 6.16 (including any related Default or Event of Default under Section 5.01 ) without the written consent of the Required Revolving Lenders; provided , however , that the amendments, waivers and consents described in this clause (y) shall not require the consent of any Lenders other than the Required Revolving Lenders.

 

(c)            If the Administrative Agent and the Borrower acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or any other Credit Document, then the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Lenders shall have received, at least five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, modification or supplement.

 

(d)            In addition, notwithstanding the foregoing, this Agreement may be amended with (x) the written consent of the Administrative Agent, the Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing, replacement or modification of all outstanding Term B Loans (“ Replaced Term Loans ”) with a replacement term loan tranche hereunder (“ Replacement Term Loans ”), provided that (i) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Replaced Term Loans, (ii) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Replaced Term Loans, (iii) the stated maturity date of such Replacement Term Loans shall be no earlier than the stated maturity date of the Replaced Term Loans and (iv) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the then Weighted Average Life to Maturity of such Replaced Term Loans at the time of such refinancing and (y) the written consent of the Administrative Agent, the Borrowers and the Lenders providing the relevant Replacement Revolving Commitments (as defined below) to permit the refinancing, replacement or modification of all outstanding Revolving Commitments (“ Replaced Revolving Commitments ”) with a replacement revolving facility hereunder (“Replacement Revolving Commitments”), provided that (i) the aggregate amount of such Replacement Revolving Commitments shall not exceed the aggregate principal amount of the Replaced Revolving Commitments, (ii) the Applicable Rate for the loans with respect to such Replacement Revolving Commitments shall not be higher than the Applicable Rate for the loans with respect to such Replaced

 

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Revolving Commitments and (iii) the termination date of such Replacement Revolving Commitments shall be no earlier than the termination date of the Replaced Revolving Commitments.

 

SECTION 9.03.            Expenses; Indemnity; Damage Waiver .  (a)  The Borrower shall pay (i) all reasonable out of pocket expenses incurred by the Administrative Agent, the Syndication Agents, the Documentation Agents, the Arrangers and their respective Affiliates, including the reasonable and documented fees, charges and disbursements of one counsel for the Administrative Agent and the Arrangers in connection with the syndication of the credit facilities provided for herein, the preparation, administration, execution and delivery of this Agreement, the other Credit Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender, including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent, the Issuing Bank and the Lenders (limited to one firm of counsel and a single firm of local counsel in each relevant jurisdiction, in each case acting for the foregoing collectively, plus in the case of an actual or perceived conflict of interest where the person affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected person and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for such affected person)) , in connection with the enforcement or protection of its rights in connection with this Agreement and the other Credit Documents, including its rights under this Section 9.03 , or in connection with the Loans made or Letters of Credit issued hereunder, including all such out‑of‑pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.

 

(b)            Subject to Section 9.21 , the Borrower shall indemnify the Administrative Agent, each Arranger, the Collateral Agent, the Issuing Bank, the Syndication Agents, each Documentation Agent, each Arranger and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable and documented fees, charges and disbursements of counsel for the Indemnitees (limited to one firm of counsel and a single firm of local counsel in each relevant jurisdiction, in each case acting for the foregoing collectively, plus in the case of an actual or perceived conflict of interest where the person affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected person and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for such affected person)) , incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Credit Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation, arbitration or proceeding relating to any of the foregoing, whether or not such claim, litigation, investigation, arbitration or proceeding is brought by the Borrower or any of its Subsidiaries or their respective equityholders, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to

 

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the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of, or material breach of this Agreement by, such Indemnitee or any of its Related Parties; provided   further that such indemnity shall not apply to any dispute solely among Indemnitees or their respective Related Parties other   than claims against any agent or arranger in its capacity or in fulfilling its role as agent or arranger or any similar role in respect of the credit facilities provided hereunder and other than claims to the extent arising   out of any act or omission on the part of the Borrower or its Related Parties.  This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim.

 

(c)            To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section 9.03 (and without limiting its obligation to do so), each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be, such Lender’s ratable share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought by reference to the aggregate outstanding Term B Loans and unused Term B Commitments (or, if such Term B Commitments have terminated, aggregate outstanding Term B Loans) and Revolving Commitments (or, if such Revolving Commitments have terminated, aggregate Revolving Credit Exposure)) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank or the Swingline Lender in its capacity as such.

 

(d)            To the extent permitted by applicable law, (i) the Borrowers shall not assert, and hereby waive, any claim against any Indemnitee, for any damages arising from the use by the others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet) (other than to the extent resulting from the gross negligence or willful misconduct of, or material breach of any Credit Document by, such Indemnitee or any Related Party thereof) and (ii) no party shall assert, and each such party hereby waives, any claim against any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof; provided that, nothing in this clause (d)(ii) shall relieve the Borrowers of any obligations they may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party.

 

(e)            All amounts due under this Section 9.03 shall be payable not later than ten Business Days after written demand therefor.

 

SECTION 9.04.            Successors and Assigns .  (a)  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including J. P. Morgan Europe Limited and any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) the Borrowers may not assign or otherwise transfer any of their respective rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrowers without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 9.04 .  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including J. P. Morgan Europe Limited and any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section 9.04 ) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

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(b)            (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:

 

(A) the Borrower, provided that no consent of the Borrower shall be required for an assignment (x) to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default under Article VII   clause (a) , (b) , (g) or (h) or, solely in respect of an assignment of Revolving Loans and/or Revolving Commitments, clause (d) in respect of a breach of Section 6.16 , has occurred and is continuing, any other assignee or (y) of all or any portion of the Term B Loan provided on the Closing Date in connection with the primary syndication thereof, provided   further that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received written notice thereof;

(B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of (x) any Revolving Commitment to an assignee that is a Lender with a Revolving Commitment immediately prior to giving effect to such assignment and (y) all or any portion of a Term B Loan to a Lender, an Affiliate of a Lender or an Approved Fund;

(C) each Issuing Bank; provided that no consent of any Issuing Bank shall be required for an assignment of all or any portion of a Term B Loan; and

(D) each Swingline Lender; provided that no consent of any Swingline Lender shall be required for an assignment of all or any portion of a Term B Loan.

(ii) Assignments shall be subject to the following additional conditions:

(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 (or, in the case of a Term B Loan, $500,000) unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;

(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, provided that this clause (B) shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;

(C) the parties to each assignment shall execute and deliver to the Administrative Agent (x) an Assignment and Assumption or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and he parties to the Assignment and Assumption are participants, together with a processing and recordation fee of $3,500,

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except that no fee shall be required in the event of an assignment by a Lender to an Affiliate of such Lender; and

(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its affiliates, the Credit Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws.

For the purposes of this Section 9.04(b) , the term “ Approved Fund ” and “Ineligible Institution” have the following meanings:

 

“ Approved Fund ” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

“ Ineligible Institution ” means (a) a natural person, (b) a Defaulting Lender, (c) a company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof or (d) the Borrower, any of its Subsidiaries or any of its Affiliates; provided that, such company, investment vehicle or trust shall not constitute an Ineligible Institution if it (x) has not been established for the primary purpose of acquiring any Loans or Commitments, (y) is managed by a professional advisor, who is not such natural person or a relative thereof, having significant experience in the business of making or purchasing commercial loans, and (z) has assets greater than $25,000,000 and a significant part of its activities consist of making or purchasing commercial loans and similar extensions of credit in the ordinary course of its business.

 

(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section 9.04 , from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15 , 2.16 , 2.17 (subject to the requirements and limitations therein, including the requirements under Section 2.17(f) and 9.03 ).  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section 9.04 .

(iv) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of (and stated interest on) the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”).  The entries in the Register shall be conclusive absent manifest error, and the Borrowers, the Administrative Agent, the Issuing Bank and the Lenders shall treat each Person

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whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by the Borrower, the Issuing Bank and any Lender (but with respect to any Lender solely in respect of its own Loans and Commitments), at any reasonable time and from time to time upon reasonable prior notice.

(v) Upon its receipt of (x) a duly completed Assignment and Assumption executed by an assigning Lender and an assignee or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section 9.04 and any written consent to such assignment required by paragraph (b) of this Section 9.04 , the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.04(c) , 2.05(d) or (e) , 2.06(b) , 2.18(d) or 9.03(c) , the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon.  No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph (v) .

(c)            (i) Any Lender may, without notice to or the consent of the Borrowers, the Administrative Agent, the Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a “ Participant ”), other than an Ineligible Institution, in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrowers, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant.  The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15 , 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements under Section 2.17(f) (it being understood that the documentation required under Section 2.17(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section 9.04 ; provided that such Participant (i) agrees to be subject to the provisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of this Section 9.04 ; and (ii) shall not be entitled to receive any greater payment under Sections 2.15 or 2.17 , with respect to any participation, than its participating Lender would have been entitled to receive; provided , however , that such participation shall be entitled to receive a greater payment than its participating Lender would have been entitled to receive to the extent such entitlement to receive such greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation and the Borrower was provided with notice of the participation and consented thereto, such consent not to be unreasonably withheld.  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.18(c) as though it were a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each

 

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Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Credit Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103‑1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

 

(d)            Any Lender may, without the consent of the Borrower or the Administrative Agent, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central banking authority, and this Section 9.04 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

SECTION 9.05.            Survival .  All covenants, agreements, representations and warranties made by the Borrowers herein and in the other Credit Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Credit Documents shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any non-contingent other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding, cash collateralized or supported by a back-to-back letter of credit reasonably acceptable to the applicable Issuing Bank and so long as the Commitments have not expired or terminated.  The provisions of Sections 2.15 , 2.16 , 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.

 

SECTION 9.06.            Counterparts; Integration; Effectiveness .  (a)  This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement, the other Credit Documents and any separate letter agreements with respect to (i) fees payable to the Administrative Agent or any Arranger and (ii) the reductions of the Letter of Credit Fronting Sublimit of the applicable Issuing Bank constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  The Borrower agrees to comply with its obligations under such letter agreements.  Except as provided in Section 4.01 , this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

 

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(b)            Delivery of an executed counterpart of a signature page of this Agreement by telecopy, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement.  The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any  document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

SECTION 9.07.            Severability .  Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

 

SECTION 9.08.            Right of Set-off .  Subject to Section 9.21, if an Event of Default shall have occurred and be continuing, each Lender, each Issuing Bank and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender, such Issuing Bank or any such Affiliate to or for the credit or the account of any of the Borrowers against any of and all the obligations of such Person now or hereafter existing under this Agreement held by such Lender, such Issuing Bank or any such Affiliate, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be contingent or unmatured or are owed to a branch office or Affiliate of such Lender or such Issuing Bank different from the branch office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.21 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Banks and the Lenders and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.  The rights of each Lender, each Issuing Bank and each of their respective Affiliates under this Section 9.08 are in addition to other rights and remedies (including other rights of set-off) which such Lender, such Issuing Bank or any such Affiliate may have.  Each Lender and Issuing Bank agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.

 

SECTION 9.09.            Governing Law; Jurisdiction; Consent to Service of Process .  (a)  This Agreement shall be construed in accordance with and governed by the law of the State of New York.

 

(b)            Each of the Lenders and the Administrative Agent hereby irrevocably and unconditionally agrees that, notwithstanding the governing law provisions of any applicable Credit Document, any claims brought against the Administrative Agent by any Lender relating to this Agreement, any other Credit Document, the Collateral or the consummation or administration of the transactions contemplated hereby or thereby shall be construed in accordance with and governed by the law of the State of New York.

 

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(c)            Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the Borough of Manhattan), and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Credit Document or the transactions relating hereto or thereto, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may (and any such claims, cross-claims or third party claims brought against the Administrative Agent or any of its Related Parties may only) be heard and determined in such Federal (to the extent permitted by law) or New York State court.  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement or any other Credit Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement against the Borrowers or their respective properties in the courts of any jurisdiction.

 

(d)            Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Credit Document in any court referred to in paragraph (c) of this Section 9.09 .  Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

(e)            Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01 .  Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

 

(f)            Each Subsidiary Borrower hereby irrevocably and unconditionally designates and appoints the Borrower, as its authorized agent, to accept and acknowledge on its behalf, service of any and all process which may be served in any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section 9.09 .  The Borrower hereby irrevocably and unconditionally accepts such appointment.

 

SECTION 9.10.            WAIVER OF JURY TRIAL .  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10 .

 

SECTION 9.11.            Headings .  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

 

SECTION 9.12.            Confidentiality .  Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that

 

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Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any Governmental Authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or under any other Credit Document or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder or under any other Credit Document, (f) subject to an agreement containing provisions substantially the same as those of this Section 9.12 , to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (ii) any pledgee referred to in Section 9.04(d) or (iii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to any of the Borrowers and its obligations, (g) on a confidential basis to (1) any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided for herein or (2) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of identification numbers with respect to the credit facilities provided for herein, (h) with the consent of the Borrower, (i) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section 9.12 or (ii) becomes available to the Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis from a source other than the Borrower or (j) to any credit insurance provider relating to the Borrower and its obligations.  For the purposes of this Section 9.12 , “Information” means all information received from the Borrower or any of its representatives relating to the Borrower, any of its Subsidiaries, or their business, other than any such information that is available to the Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis prior to disclosure by the Borrower and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry.  Any Person required to maintain the confidentiality of Information as provided in this Section 9.12 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

 

THE BORROWER AGREES TO IDENTIFY IN WRITING WHETHER ANY DOCUMENT OR INFORMATION DELIVERED OR MADE AVAILABLE TO THE ADMINISTRATIVE AGENT, THE ISSUING BANK, ANY SYNDICATION AGENT, ANY DOCUMENTATION AGENT, ANY ARRANGER OR ANY LENDER CONTAINS NON-PUBLIC INFORMATION.

 

EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.

 

ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER AND ITS AFFILIATES, THE PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES AND ITS SECURITIES.

 

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ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.

 

SECTION 9.13.            Interest Rate Limitation .  Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section 9.13 shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the FRBNY Rate to the date of repayment, shall have been received by such Lender.

 

SECTION 9.14.            USA PATRIOT Act; KYC .  (a)  Each Lender that is subject to the requirements of the USA PATRIOT Act of 2001 (the “Patriot Act ”) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of the Borrowers and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrowers in accordance with the Patriot Act. Each Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Money Laundering Regulations 2007, Proceeds of Crime Act 2002 and Terrorism Act 2000.

 

(b)            If (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement; (ii) any change in the status of a UK Borrower after the date of this Agreement; or (iii) a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer, obliges the Administrative Agent or any Lender (or, in the case of clause (iii) above, any prospective new Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, each UK Borrower shall promptly upon the request of the Administrative Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Administrative Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in clause (iii) above, on behalf of any prospective new Lender) in order for the Administrative Agent, such Lender or, in the case of the event described in clause (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Credit Documents.

 

(c)            Each Lender shall promptly upon the request of the supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Administrative Agent (for itself) in order for the Administrative Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Credit Documents.

 

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SECTION 9.15.            Conversion of Currencies .  (a)  If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one currency into another currency, each party hereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures in the relevant jurisdiction the first currency could be purchased with such other currency on the Business Day immediately preceding the day on which final judgment is given.

 

(b)            The obligations of each Borrower in respect of any sum due to any party hereto or any holder of the obligations owing hereunder (the “ Applicable Creditor ”) shall, notwithstanding any judgment in a currency (the “ Judgment Currency ”) other than the currency in which such sum is stated to be due hereunder (the “ Agreement Currency ”), be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less than the sum originally due to the Applicable Creditor in the Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor against such loss.  The obligations of the Borrower contained in this Section 9.15 shall survive the termination of this Agreement and the payment of all other amounts owing hereunder.

 

SECTION 9.16.            Administrative Agent, Syndication Agents, Documentation Agents and Arrangers .  In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Credit Document), each of the Borrowers acknowledges and agrees that (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Documentation Agents, the Syndication Agents, the Lenders and the Arrangers are arm’s-length commercial transactions between the Borrowers and their respective Affiliates, on the one hand, and the Administrative Agent, the Documentation Agents, the Syndication Agents, the Lenders and the Arrangers, on the other hand, (B) each of the Borrowers has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each of the Borrowers is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Credit Documents; (ii) (A) each Syndication Agent, Documentation Agent and Arranger appointed with respect to this Agreement shall, in their capacities as such, have no duties or responsibilities under this Agreement or any other Credit Document, (B) each of the Administrative Agent, the Documentation Agents, the Syndication Agents, the Lenders and the Arrangers is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not and will not be acting as an advisor, agent or fiduciary for the Borrowers or any of their respective Affiliates or any other Person and (C) none of the Administrative Agent, the Documentation Agents, the Syndication Agents, the Lenders and the Arrangers has any obligation to the Borrowers or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Credit Documents; and (iii) the Administrative Agent, the Documentation Agents, the Lenders and the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers and their respective Affiliates, and none of the Administrative Agent, the Documentation Agents, the Syndication Agents, the Lenders and the Arrangers has any obligation to disclose any of such interests to the Borrowers or any of their respective Affiliates.  To the fullest extent permitted by law, each of the Borrowers hereby waives and releases any claims that it may have against the Administrative Agent, the Documentation Agents, the Syndication Agents, the Lenders and the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

 

SECTION 9.17.            Release of Liens and Guarantees .  A Subsidiary Guarantor shall automatically be released from its obligations under the Credit Documents, and all security interests created

 

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by the Security Documents in Collateral owned by such Subsidiary Guarantor shall be automatically released, upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary Guarantor ceases to be a Restricted Subsidiary; provided that, if so required by this Agreement, the Required Lenders shall have consented to such transaction and the terms of such consent shall not have provided otherwise.  Upon any sale or other transfer by any Credit Party (other than to the Borrower or any other Credit Party) of any Collateral in a transaction permitted under this Agreement, or upon the effectiveness of any written consent to the release of the security interest created under any Security Document in any Collateral pursuant to Section 9.02 , the security interests in such Collateral created by the Collateral Documents shall be automatically released.  In connection with any termination or release pursuant to this Section 9.17 , the Administrative Agent shall execute and deliver to any Credit Party, at such Credit Party’s expense, all documents that such Credit Party shall reasonably request to evidence such termination or release.  Any execution and delivery of documents pursuant to this Section 9.17 shall be without recourse to or warranty by the Administrative Agent.

 

SECTION 9.18.            Acknowledgement and Consent to Bail-In of EEA Financial Institutions .  Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Credit Document may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

(a)            the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

 

(b)            the effects of any Bail-In Action on any such liability, including, if applicable:

 

(i) a reduction in full or in part or cancellation of any such liability;

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Credit Document; or

(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.

SECTION 9.19.            Section 2.16 Waiver .  Each Lender and the Borrowers agree that (a) any amounts payable to any Continuing Term Lender (as defined in the Closing Date Amendment) pursuant to Section 2.16 of the Existing Credit Agreement are hereby waived and (b) with respect to any payment or deemed payment of Existing Revolving Loans on the Closing Date any amounts payable pursuant to Section 2.16 as a result of such payment or deemed payment are hereby waived by any Continuing Revolving Lender (as defined in the Closing Date Amendment) after giving effect to the Closing Date.

 

SECTION 9.20.            No Novation .  This Agreement shall not extinguish the obligations outstanding under the Parent Guaranty, the Subsidiary Guaranty, the Security Documents or discharge or release the lien or priority of the Security Documents. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Parent Guaranty, the Subsidiary Guaranty or the Security Documents, which shall remain in full force and effect, except to any extent modified hereby or by instruments executed concurrently herewith. Nothing implied in this Agreement or in any other

 

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document contemplated hereby shall be construed as a release or other discharge of any Credit Party as a “Borrower,” “Subsidiary Borrower”, “Guarantor,” “Subsidiary Guarantor,” “Credit Party,” or “Grantor” (or any like term) under any Security Document.

 

SECTION 9.21.            Bifurcation .  For the avoidance of doubt, the parties hereto acknowledge and agree that, notwithstanding anything to the contrary in this Agreement or any of the other Credit Documents, the obligations of any Foreign Credit Party shall be separate and distinct from the obligations of any Domestic Credit Party, and shall be expressly limited thereto. In furtherance of the foregoing, each of the parties hereto acknowledges and agrees that (a) the liability of any Foreign Credit Party for the payment and performance of its covenants, representations and warranties set forth in this Agreement and the other Credit Documents shall be several from but not joint with the obligations of any Domestic Credit Party, (b) no Foreign Credit Party (or any CFC, CFC Holdco or Domestic Subsidiary of a CFC) shall guarantee the obligations of any Domestic Credit Party, and (c) no Collateral, if any, or other assets of any Foreign Credit Party (or of any CFC, CFC Holdco or Domestic Subsidiary of a CFC) shall secure or be applied in satisfaction, by way of payment, prepayment, or otherwise, of all or any portion of the obligations of any Domestic Credit Party.

 

ARTICLE X

COLLECTION ACTION MECHANISM

 

SECTION 10.01.            Implementation of CAM .  (a)  On the CAM Exchange Date, (i) the Commitments shall automatically and without further act be terminated in accordance with Article VII, (ii) the Lenders shall automatically and without further act be deemed to have exchanged interests in the Designated Obligations such that, in lieu of the interests of each Lender in the Designated Obligations under each Tranche (as defined below) in which it shall participate as of such date, such Lender shall own an interest equal to such Lender’s CAM Percentage in the Designated Obligations under each of the Tranches and (iii) simultaneously with the deemed exchange of interests pursuant to clause (ii) above, the interests in the Designated Obligations to be received in such deemed exchange shall, automatically and with no further action required, be converted into the Dollar Equivalent, determined using the Exchange Rate calculated as of such date, of such amount and on and after such date all amounts accruing and owed to the Lenders in respect of such Designated Obligations shall accrue and be payable in Dollars at the rate otherwise applicable hereunder.  Each Lender, each person acquiring a participation from any Lender as contemplated by Section 9.04 and each of the Borrowers hereby consents and agrees to the CAM Exchange.  Each of the Borrowers and the Lenders agrees from time to time to execute and deliver to the Administrative Agent all such promissory notes and other instruments and documents as the Administrative Agent shall reasonably request to evidence and confirm the respective interests and obligations of the Lenders after giving effect to the CAM Exchange, and each Lender agrees to surrender any promissory notes originally received by it in connection with its Loans hereunder to the Administrative Agent against delivery of any promissory notes so executed and delivered; provided that the failure of any of the Borrowers to execute or deliver or of any Lender to accept any such promissory note, instrument or document shall not affect the validity or effectiveness of the CAM Exchange.  For purposes hereof, “Tranche” means a category of Commitments and extensions of credits thereunder.  For purposes of such definition, each of the following comprises a separate Tranche:  (i) the Letters of Credit issued for the account of, and the Swingline Loans and Revolving Loans made to, the Borrower, (ii) the Letters of Credit issued for the account of, and the Revolving Loans made to, each Subsidiary Borrower and (iii) the Term B Loan.

 

(b)            As a result of the CAM Exchange, on and after the CAM Exchange Date, each payment received by the Administrative Agent pursuant to any Credit Document in respect of the Designated Obligations shall (notwithstanding any provision therein to the contrary) be distributed to the

 

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Lenders pro rata in accordance with their respective CAM Percentages (to be redetermined as of each such date of payment or distribution to the extent required by Section 10.01(c) ).

 

(c)            If, on or after the CAM Exchange Date, the aggregate amount of the Designated Obligations shall change as a result of the making of a disbursement under a Letter of Credit by an Issuing Bank that is not reimbursed by the Applicable Borrower, then (i) each Lender that, immediately prior to the CAM Exchange Date, had a Revolving Commitment or Revolving Credit Exposure (a “ CAM Revolving Lender ”) shall, in accordance with Section 2.05(d) , promptly purchase from the applicable Issuing Bank a participation in such L/C Disbursement in the amount of such CAM Revolving Lender’s Applicable Revolver Percentage (determined without giving effect to the CAM Exchange) of such L/C Disbursement, (ii) the Administrative Agent shall redetermine the CAM Percentages after giving effect to such disbursement and the making of such L/C Disbursement and the purchase of participations therein by the applicable CAM Revolving Lenders and the Lenders shall automatically and without further act be deemed to have exchanged interests in the Designated Obligations such that each Lender shall own an interest equal to such Lender’s CAM Percentage in the Designated Obligations under each of the Tranches (and the interests in the Designated Obligations to be received in such deemed exchange shall, automatically and with no further action required, be converted into the Dollar Equivalent of such amount in accordance with the first sentence of Section 10.01(a) ), and (iii) if distributions shall have been made in accordance with Section 10.01(b) , the Lenders shall make such payments to one another as shall be necessary in order that the amounts received by them shall be equal to the amounts they would have received had each such disbursement and L/C Disbursement been outstanding on the CAM Exchange Date.  Each such redetermination shall be binding on each of the Lenders and their successors and assigns and shall be conclusive, absent manifest error.

 

[signature pages follow]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

 

	WELBILT, INC.
	By
	Name:
	Title:

[Signature Page to Credit Agreement]

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	ENODIS HOLDINGS LIMITED
	By
	Name:
	Title:

[Signature Page to Credit Agreement]

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	JPMORGAN CHASE BANK, N.A., as a Lender, Issuing Bank and Administrative Agent
	By
	Name:
	Title:

[Signature Page to Credit Agreement]

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	HSBC BANK USA, N.A., as a Lender and an Issuing Bank
	By
	Name:
	Title:

[Signature Page to Credit Agreement]

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	CAPITAL ONE, N.A., as a Lender and an Issuing Bank
	By
	Name:
	Title:

[Signature Page to Credit Agreement]

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	COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as a Lender and an Issuing Bank
	By
	Name:
	Title:

[Signature Page to Credit Agreement]

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	BMO HARRIS BANK N.A., as a Lender
	By
	Name:
	Title:

[Signature Page to Credit Agreement]