FIRST LIEN CREDIT AGREEMENT dated as of August 13, 2015 and2015, as amended by Incremental Amendment No. 1 on April 29, 2016 and as further amended by Amendment No. 2 on April 29, 2016 (this “Agreement”), among KC SUB, INC., a Delaware corporation (“Holdco”), as Holdco Guarantor, immediately following the Closing Date Acquisition (as defined below), KC MERGERSUB, INC., a Delaware corporation (the “Merger Sub”), as the Borrower hereunder, who will be merged with and into KUEHG CORP., a Delaware limited liability company (the “Company”), the LENDERS party hereto and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent and Collateral Agent.
WHEREAS, capitalized terms used in these recitals shall have the respective meanings set forth for such terms in Article I;
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of July 8, 2015 (together with all exhibits, annexes and schedules thereto, as amended, restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”), by and among, KUE U.S. LLC, KC Parent, LLC and Merger Sub, Merger Sub intends to acquire (the “Closing Date Acquisition”) 100% of the outstanding Equity Interests of the Company;
WHEREAS, to effect the Closing Date Acquisition, (i) certain investment funds affiliated with the Sponsor (as defined herein), certain current equity owners and other investors (including members of management of the Company), will make the Equity Contribution, (ii) Merger Sub will consummate the transactions contemplated by the Purchase Agreement and (iii) following the consummation of the Closing Date Acquisition, Merger Sub will merge with and into the Company (the “Merger”), with the Merger Sub as the surviving entity;
WHEREAS, immediately prior to the consummation of the Closing Date Acquisition and Merger, the Borrower has requested from the Lenders and the Issuing Banks a credit extension in the form of (a) Term Loans denominated in Dollars in an aggregate principal amount up to $645,000,000, (b) U.S. Revolving Commitments and U.S. Letters of Credit, in an aggregate principal amount not in excess of $70,000,000 and (c) Multicurrency Revolving Commitments and Multicurrency Letters of Credit, in an aggregate principal amount not in excess of $10,000,000, in each case the proceeds of which shall be utilized as set forth in Section 5.10;
WHEREAS, immediately following the initial funding of the Term Loans, a portion of the proceeds of the Term Loans, together with the proceeds of (i) the Initial Revolving Borrowing, (ii) the Second Lien Term Loans, and (iii) the Equity Contribution will be used to finance the Closing Date Acquisition and the Transaction Costs, to consummate the Refinancing and for working capital and general corporate purposes; and
NOW THEREFORE, in consideration of the premises, provisions, covenants and mutual agreements contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Lenders and Issuing Banks are willing to extend such credit to the Borrower on the terms and express conditions set forth herein, and accordingly the parties hereto agree as follows.
ARTICLE I
Definitions
Section 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, is bearing interest at a rate determined by reference to the Alternate Base Rate.
“Accounting Change” has the meaning assigned to such term in Section 1.04.
“Acquisition” means any acquisition by the Borrower or any Restricted Subsidiary, whether by purchase, merger, consolidation, contribution or otherwise, of (x) at least a majority of the assets or property and/or liabilities (or any other substantial part for which financial statements or other financial information is available), or a business line, product line, unit or division of, any other Person, (y) Equity Interests of any other Person such that such other Person becomes a Restricted Subsidiary and (z) additional Equity Interests of any Restricted Subsidiary not then held by the Borrower or any Restricted Subsidiary.
