CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of May 7, 2007, is among ALLIED MOTION TECHNOLOGIES INC., a Colorado corporation, and PRECISION MOTOR TECHNOLOGY B.V., a Dutch Closed Company with Limited Liability, as Borrowers, JPMORGAN CHASE BANK, N.A., as Administrative Agent, J.P. MORGAN EUROPE LIMITED, as EUR Agent, and the Lenders from time to time party hereto.
RECITALS
A. The Borrowers have requested that the Lenders provide a revolving credit facility in United States dollars, a term loan facility in United States dollars and a revolving credit facility in euros.
B. The Lenders are willing to do so on the terms and conditions set forth herein.
AGREEMENT
In consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto covenant and 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, are bearing interest at a rate determined by reference to the Alternate Base Rate.
“Acquisition” means, as to any Person, (a) the acquisition of all of the Equity Interests of another Person, (b) the acquisition of all or substantially all of the assets of any other Person or (c) the acquisition of all or substantially all of the assets constituting a business line or division of any other Person.
“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the Lenders hereunder and any successor Administrative Agent appointed pursuant to ARTICLE VIII.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent to each Lender.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agents” means the Administrative Agent and the EUR Agent.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
“Applicable Percentage” means, with respect to any Lender, the percentage of the Total Commitments represented by such Lender’s Revolving Loan Commitment and Term Loan Commitment. If either the US Revolving Loan Commitments, the EUR Revolving Loan Commitments or the Term Loan Commitments have terminated or expired, the Applicable Percentage means, with respect to any Lender, the ratio of (i) the aggregate amount of all outstanding Loans of such Lender plus the LC Exposure of such Lender to (ii) the aggregate amount of all outstanding Loans plus the LC Exposure.
“Applicable Margin” means, for any day, with respect to any ABR Loan, Eurodollar Loan, or EUR Revolving Loan or with respect to the unused commitment fee or fees for Letters of Credit payable hereunder, as the case may be, the applicable margin per annum set forth below under the caption “ABR Spread”, “Eurodollar Spread”, “EUR Revolving Loan Spread”, “Unused Commitment Fee Rate” or “LC Fee”, as the case may be, based upon the Consolidated Leverage Ratio applicable for such day:
Tier | | Consolidated
Leverage
Ratio | | ABR
Spread | | Eurodollar
Spread | | EUR
Revolving
Loan Spread | | Unused
Commitment
Fee Rate | | LC Fee | |
1 | | < 3.0x | | 0.50% | | 1.75% | | 1.75% | | 0.375% | | 1.75% | |
2 | | < 2.5x | | 0.25% | | 1.50% | | 1.50% | | 0.30% | | 1.50% | |
3 | | < 2.0x | | 0.00% | | 1.25% | | 1.25% | | 0.25% | | 1.25% | |
4 | | < 1.5x | | - 0.25% | | 1.00% | | 1.00% | | 0.20% | | 1.00% | |
5 | | < 1.0x | | - 0.50% | | 0.75% | | 0.75% | | 0.20% | | 0.75% | |
Any increase or decrease in the Applicable Margin resulting from a change, if any, in the Consolidated Leverage Ratio shall become effective as of the third day after the date a Compliance Certificate is delivered pursuant to Section 5.01(c); provided, however, that if no Compliance Certificate is delivered during a fiscal quarter when due in accordance with such Section, then Tier 1 shall apply from the date such Compliance Certificate was required to be delivered until the third day after the date such Compliance Certificate is delivered. Notwithstanding the foregoing, the Applicable Margin in effect from the Effective Date through the third day after such Compliance Certificate is delivered for the fiscal period ending June 30, 2007, shall be determined based upon Tier 4.
“Approved Fund” has the meaning assigned to such term in Section 9.04.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04, and accepted by the Administrative Agent, in the form of Exhibit C or any other form approved by the Administrative Agent.
5
“Authorized Representative” means with respect to any Loan Party, the chief executive officer, president, any vice president, secretary, assistant secretary or any Financial Officer of such Loan Party in each case, whose name appears on a certificate of incumbency of such Person delivered to the Administrative Agent concurrently with the execution of this Agreement, and as such certificate of incumbency may be amended or supplemented from time to time. Any document delivered hereunder that is signed by an Authorized Representative of a Loan Party shall be conclusively presumed to have been, and shall constitute a representation and warranty by such Loan Party hereunder that such document has been, authorized by all necessary corporate and/or other action on the part of such Loan Party and such Authorized Representative shall be conclusively presumed to have acted on behalf of such Loan Party.
“Availability Period” means the period from, and including, the Effective Date to, but excluding, the Revolving Loan Maturity Date.
“Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“Borrower” refers to each of US Borrower and EUR Borrower individually.
“Borrowers” means US Borrower and EUR Borrower.
“Borrowing” means (a) US Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect, (b) EUR Revolving Loans as to which a single Term is in effect or (c) Term Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
“Borrowing Request” means a Revolving Loan Borrowing Request or the Term Loan Borrowing Request, as the context may require.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in Denver, Colorado or New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.
“Capital Expenditures” means, without duplication, any expenditures for any purchase or other acquisition of any asset that would be classified as a fixed or capital asset on a balance sheet prepared in accordance with GAAP.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Change in Control” means (a) the acquisition of ownership of Equity Interests, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof) that represent more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the US Borrower on a fully diluted basis; (b) occupation of
6
a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed by directors so nominated; or (c) US Borrower ceasing to own 100% of, and to Control, each of its Subsidiaries including without limitation the EUR Borrower (other than any Inactive Subsidiary). For purposes of this definition, the term “beneficial owner” has the meaning attributed to such term in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended (as in effect on the Effective Date), whether or not applicable, except that a Person shall be deemed to have “beneficial ownership” of all shares that any such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time.
“Change in Law” means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.
“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Term Loans.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means all of the real and personal property (both tangible and intangible) of the Borrowers, the Guarantors or of any other Person at any time now or hereafter subject to a Lien in favor of the Administrative Agent for the ratable benefit of the Secured Parties under any of the Collateral Documents.
“Collateral Documents” means, collectively, the Guaranty Agreements, the US Security Agreement, the EUR Pledge Agreement, and all other agreements, guaranties, instruments or documents now or hereafter delivered by the Borrowers, any Guarantor, or any other Person to the Administrative Agent or any Lender in connection with this Agreement, the Loan Documents or the Transactions to secure or guarantee the payment of any part of the Obligations or the performance of the other duties and obligations of the Loan Parties under the Loan Documents, as such agreements, guaranties, instruments or documents have been or are hereafter amended, supplemented or replaced from time to time.
“Commitment” means, as of any date, with respect to each Lender, the sum of such Lender’s (a) Revolving Loan Commitment on such date and (b) Term Loan Commitment on such date.
“Consolidated EBITDA” means, with reference to any period, Consolidated Net Income for such period plus, without duplication, to the extent deducted from revenues in determining Consolidated Net Income for such period, (a) Consolidated Interest Expense, (b) income tax expense, (c) depreciation, (d) amortization and (e) any non-cash expense attributable to the expensing of share based payment awards (including without limitation awards related to stock option programs and phantom stock programs) pursuant to the implementation of or compliance with the Financial Accounting Standards Board Statement 123R (excluding any such expense that constitutes an accrual of or a reserve for cash charges for any future period), minus, without duplication, to the extent included in revenues in determining Consolidated Net Income for such period, any non-cash gains attributable to the expensing of share based payment awards (including, without limitation, awards related to stock option programs and phantom stock programs) pursuant to the implementation of or compliance with the Financial Accounting Standards Board Statement 123R (excluding any such gain that represents the reversal of any accrual of
7
or reserve for anticipated cash charges in any prior period that are described in the parenthetical to clause (e) above), in each case calculated for the US Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP for such period. For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a “Reference Period”) pursuant to any determination of the Consolidated Leverage Ratio, (i) if at any time during such Reference Period any Borrower or any Subsidiary shall have made any Disposition, the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Disposition for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (ii) if during such Reference Period any Borrower or any Subsidiary shall have made an Acquisition, Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto as if such Acquisition occurred on the first day of such Reference Period.
“Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, for or during the four fiscal quarter period ending on or immediately prior to such date, the ratio of (a) Consolidated EBITDA minus all Non-Financed Capital Expenditures, to (b) the sum of (i) Scheduled Net Principal Payments, (ii) the cash portion of all income tax expense paid, and (iii) Consolidated Interest Expense, in each case calculated for the US Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” means, with reference to any period, the interest expense (including the interest component of Capital Lease Obligations) of the US Borrower and its Subsidiaries, calculated on a consolidated basis in accordance with GAAP for such period.
“Consolidated Leverage Ratio” means, as of any date of determination, for the four fiscal quarter period ending on or immediately prior to such date, the ratio of (a) Consolidated Total Indebtedness as of that date, to (b) Consolidated EBITDA.
“Consolidated Net Income” means, with reference to any period, the net income (or loss) of the US Borrower and its Subsidiaries calculated on a consolidated basis in accordance with GAAP for such period.
“Consolidated Tangible Net Worth” means at any time the Tangible Net Worth of the Borrower and its Subsidiaries calculated on a consolidated basis as of such time.
“Consolidated Total Indebtedness” means, as of any date of determination, the sum of all outstanding Indebtedness of the US Borrower and its Subsidiaries, calculated on a consolidated basis in accordance with GAAP.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Disclosed Matters” means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06.
“Disposition” means, as to any Person, (a) the disposition of all of the Equity Interests of another Person owned by such Person, (b) the disposition of all or substantially all of the assets of any
8
other Person owned by such Person or (c) the disposition of all or substantially all of the assets constituting a business line or division of any other Person owned by such Person.
��dollars” or “$” refers to lawful money of the United States of America.
“Domestic Subsidiary” shall mean each direct or indirect Subsidiary that is organized under the laws of the United States of America or any state or territory thereof.
“Effective Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
“EMU Legislation” means legislative measures of the European Union for the introduction of, changeover to or operation of the euro in one or more member states.
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means (i) in the case of a corporation, shares (common, preferred or otherwise) of capital stock, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (iii) in the case of a partnership, partnership interests (whether general or limited), (iv) in the case of a limited liability company, membership interests, (v) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets upon liquidation of, the issuing Person and (vi) any warrants, options or other rights entitling the holder thereof to purchase or acquire any equity interest described in the foregoing clauses (i) through (v).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing, pursuant to Section 412(d) of the Code or Section 303(d) of ERISA, of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or
9
any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by any Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (g) the receipt by any Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, or (h) any comparable or similar event under Dutch law.
“EUR Agent” means J.P. Morgan Europe Limited, in its capacity as European administrative agent for the Lenders hereunder and any successor EUR Agent appointed pursuant to ARTICLE VIII.
“EUR Borrower” means Precision Motor Technology B.V., a Dutch Closed Company with Limited Liability.
“EUR Facility Guarantors” means the US Borrower and each EUR Obligor (other than the EUR Borrower).
“EUR Guaranty Agreement” means that certain Guaranty Agreement (Dutch), dated as of the date hereof, executed by the US Borrower and Allied Motion Technologies B.V., a Dutch Closed Company with Limited Liability, in favor of the Administrative Agent, as such agreement has been or is hereafter amended, supplemented or replaced from time to time.
“EUR Obligors” means each of Allied Motion Technologies B.V., a Dutch Closed Company with Limited Liability, the EUR Borrower, and each Person that enters into a Guaranty Agreement pursuant to Section 5.09(b).
“EUR Pledge Agreement” means that certain Pledge Agreement, dated as of the date hereof, among the US Borrower, Allied Motion Technologies B.V., a Dutch Closed Company with Limited Liability, and the Administrative Agent, as such agreement has been or is hereafter amended, supplemented or replaced from time to time.
“EUR Revolving Loan Borrowing” means a Borrowing of EUR Revolving Loans.
“EUR Revolving Loan Commitment” means, with respect to each Lender, the commitment of such Lender to make EUR Revolving Loans, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure relating to EUR Revolving Loans hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08, (b) increased from time to time pursuant to Section 2.19(b) and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s EUR Revolving Loan Commitment is set forth under the caption “EUR Revolving Loan Commitment” on Schedule I, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its EUR Revolving Loan Commitment, as applicable. The aggregate amount of all EUR Revolving Loan Commitments on the date hereof is €3,000,000.00.
“EUR Revolving Loans” means the Loans made pursuant to Section 2.01(a).
“EURIBOR” means, in relation to any amount to be advanced to, or owing by, the EUR Borrower hereunder in euro on which interest for a given period is to accrue, the percentage rate per
10
annum equal to the offering quotation which appears on the page of the Telerate Screen which displays an average rate of the Banking Federation of the European Union for the euro (being currently page 248) for such period at or about 11.00 am (Brussels time) on the Quotation Date for such period or, if such page or such service shall cease to be available, such other page or such other service for the purpose of displaying an average rate of the Banking Federation of the European Union as the EUR Agent shall select.
“euro” or “€” means the single currency of the European Union as constituted by the Treaty on European Union and as referred to in EMU Legislation.
“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
“Event of Default” has the meaning assigned to such term in ARTICLE VII.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of the Borrowers hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrowers are located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrowers under Section 2.18(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure to comply with Section 2.16(d), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrowers with respect to such withholding tax pursuant to Section 2.16(a).
“Exempt Foreign Subsidiary” means each Foreign Subsidiary that (a) is treated as a partnership under the Internal Revenue Code or (b) is not treated as an entity that is separate from (A) the US Borrower or any Domestic Subsidiary; (B) any Person that is treated as a partnership under the Internal Revenue Code; or (C) any “United States person” (as defined in Section 7701(a)(30) of the Internal Revenue Code).
“FSA” means the Financial Supervision Act (de Wet op het financieel toezicht) as has come into force on January 1, 2007 and as may be amended or replaced, superseding (among others) the Dutch Act on the Supervision of Credit Institutions 1992, (including the acquisition of, adherence to and applicability of, any consents, licenses and exemptions).
“Existing Credit Facilities” means (i) that certain Revolving Credit and Security Agreement, dated May 7, 2004, between Allied Motion Technologies Inc., Motor Products Corporation, Allied Motion Control Corporation, Emoteq Corporation, Computer Optical Products, Inc., AMOT I, Inc., AMOT II, Inc., AMOT III, Inc., Stature Electric, Inc., Ahab Investment Company; PNC Bank (National Association) and Silicon Valley Bank, (ii) that certain Term Loan and Security Agreement, dated May 7, 2004, between Allied Motion Technologies Inc., Motor Products Corporation, Allied Motion Control Corporation, Emoteq Corporation, Computer Optical Products, Inc., AMOT I, Inc., AMOT II, Inc., AMOT III, Inc., Stature Electric, Inc., Ahab Investment Company and PNC, (iii) that certain Term Loan and Security Agreement, dated May 7, 2004, between Allied Motion Technologies Inc., Motor Products Corporation, Allied Motion Control Corporation, Emoteq Corporation, Computer
11
Optical Products, Inc., AMOT I, Inc., AMOT II, Inc., AMOT III, Inc., Stature Electric, Inc., Ahab Investment Company and SVB, (iv) that certain Fortis Term Loan, dated August 11, 2004, between Allied Motion Technologies B.V. and Fortis Bank (Nederland) N.V. and (v) that certain Overdraft Facility between Precision Motor Technology B.V. and Fortis Bank (Nederland) N.V.
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“Financial Officer” means the chief financial officer, principal accounting officer, treasurer or controller of a Loan Party (and as regards the Dutch entities, the director assigned with the responsibility for the financial affairs of the company).
“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other than that in which the US Borrower is located. For purposes of this definition, the United States of America and each state or territory thereof shall be deemed to constitute a single jurisdiction.
“Foreign Subsidiary” shall mean each direct or indirect Subsidiary which is organized in a jurisdiction other than the United States of America or any state or territory thereof, and shall include without limitation the EUR Obligors.
“GAAP” means generally accepted accounting principles in the United States of America.
“Governmental Authority” means the government of the United States of America, The Kingdom of the Netherlands, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantee” of or by any Person means any obligation, contingent or otherwise, of the guarantor guaranteeing or indemnifying or having the economic effect of guaranteeing or indemnifying any Indebtedness, liability or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
“Guarantors” means each US Facility Guarantor and each EUR Facility Guarantor.
12
“Guaranty Agreements” means the US Guaranty Agreement, the EUR Guaranty Agreement, and any guaranty entered into pursuant to Section 5.09.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Inactive Subsidiary” means any Subsidiary that (i) neither owns nor holds any assets (other than de minimis assets), (ii) has no material value nor any material liabilities and (iii) does not engage in any active business.
“Indebtedness” of any Person means, without duplication, any and all of the following: (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business on terms customary in the trade), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed or is limited in recourse, provided that in the case of limited recourse obligations, such Indebtedness shall not exceed the limit of such recourse, (f) all Capital Lease Obligations of such Person, (g) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit, letters of guaranty and similar instruments, (h) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (i) the aggregate Net Mark-to-Market Exposure of such Person, (j) the liquidation value of all redeemable preferred Equity Interest of such Person that would be classified as a balance sheet liability in accordance with GAAP, and (k) all Guarantees by such Person in respect of any Indebtedness of any other Person. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
“Indemnified Taxes” means Taxes other than Excluded Taxes.
“Intangible Assets” of any Person as of any date means the aggregate amount of all assets of such Person classified as intangible assets under GAAP, including, without limitation, goodwill, trademarks, patents, copyrights, organization expenses, franchises, licenses, trade names, brand names, mailing lists, catalogs, excess of cost over book value of assets acquired, and bond discount and underwriting expenses.
“Interest Election Request” means a request by the Borrower to convert or continue a US Revolving Loan Borrowing or a Term Loan Borrowing in accordance with Section 2.07.
“Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each March, June, September and December, (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, and (c) with respect to any EUR Revolving Loan, the last day of the Term thereof.
13
“Interest Period” means for any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter, as the Borrower may elect; provided, that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a US Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Issuing Bank” means JPMorgan Chase Bank, N.A., in its capacity as the issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.05(k). The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the US Borrower at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.
“Lenders” means the Persons listed on Schedule I and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“Letter of Credit” means any letter of credit issued pursuant to this Agreement.
“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service (or on any successor or substitute page of such Service, or any successor to or substitute for such Service, providing rate quotations comparable to those currently provided on such page of such Service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period. In the event that such rate is not available at such time for any reason, then the “LIBO Rate” with respect to such Eurodollar Borrowing for such Interest Period shall be the rate rounded upwards, if necessary, to the next 1/16 of 1% at which dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such
14
asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“Loan Documents” means this Agreement, any promissory notes executed and delivered in connection with this Agreement, the Collateral Documents, any Swap Agreement between any Loan Party and any Lender (or any Affiliate of any Lender) and any and all other instruments, agreements and documents executed and delivered in connection with any of the foregoing, as such instruments, agreements and documents have been or are hereafter amended, supplemented or replaced from time to time.
“Loan Parties” means, collectively, the Borrowers, the Guarantors and any other Person party to any Loan Document except the Secured Parties.
“Loans” means the Revolving Loans and Term Loans made by the Lenders to the Borrowers pursuant to this Agreement.
“Mandatory Costs” means the percentage rate per annum calculated by the Administrative Agent in accordance with Schedule II.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, property, operations, prospects or condition, financial or otherwise, of the US Borrower and its Subsidiaries taken as a whole, (b) the ability of any Loan Party to perform any of its obligations under any of the Loan Documents to which such Loan Party is a party, (c) the validity or enforceability of any of the Loan Documents or (d) the rights of or benefits available to the Administrative Agent and the Lenders under this Agreement or any other Loan Document.
“Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of the Borrowers and their Subsidiaries in an aggregate principal amount exceeding $1,000,000.00. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrowers or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrowers or Subsidiary would be required to pay if such Swap Agreement were terminated at such time.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the excess (if any) of all unrealized losses over all unrealized profits of such Person arising from Swap Agreements. “Unrealized losses” means the fair market value of the cost to such Person of replacing the transaction under any Swap Agreement as of the date of determination (assuming such transaction were to be terminated as of that date), and “unrealized profits” means the fair market value of the gain to such Person of replacing such transaction as of the date of determination (assuming such transaction were to be terminated as of that date).
“Net Worth” of any Person as of any date means (i) the total assets of such Person that would be shown as assets on a balance sheet of such Person at such date prepared in accordance with GAAP minus (ii) the total liabilities of such Person that would be shown as liabilities on a balance sheet of such Person at such date prepared in accordance with GAAP.
15
“Non-Financed Capital Expenditures” means, for any period, the remainder of (i) Capital Expenditures, minus (ii) the proceeds of Indebtedness that is by a Lien as permitted under Section 6.02(c) hereof and as reported in the consolidated statement of cash flows delivered pursuant to Sections 3.04(a), 5.01(a) or 5.01(b), as applicable, in each case calculated for the Borrowers and their Subsidiaries for such period in accordance with GAAP.
“Notice of EUR Revolving Loan Drawdown” means a notice substantially in the form of Exhibit D.
“Obligations” means all Loans, advances, debts, liabilities, obligations, covenants and duties owing by any Loan Party to any of the Secured Parties of any kind or nature arising under this Agreement, any Collateral Document, any Swap Agreement (to the extent such Swap Agreement is with a Lender or any Affiliate of any Lender and is permitted under Section 6.05), any cash management agreement between any Loan Party and any Lender (or an Affiliate of a Lender) or any other Loan Document, whether or not evidenced by any note, guaranty or other instrument, whether or not for the payment of money, whether arising by reason of an extension of credit, loan, guaranty, indemnification, or in any other manner, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising (including interest, fees and other monetary obligations that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any bankruptcy, insolvency, receivership or similar law now or hereafter in effect naming such Person as the debtor in such proceeding, regardless of whether such interest, fees or other monetary obligations are allowed claims in such proceeding, and payments for early termination of Swap Agreements (to the extent such Swap Agreements are with a Lender or Affiliate of any Lender and are permitted under Section 6.05), fees, expenses, indemnification or otherwise) and however acquired. The term includes, without limitation, all interest, charges, expenses, fees, and reasonable attorneys’ fees and disbursements, and any other sum chargeable to any Loan Party under this Agreement or any other Loan Document.
“Other Taxes” means any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.
“Participant” has the meaning set forth in Section 9.04.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Permitted Encumbrances” means:
(a) Liens imposed by law for taxes that are not yet due or are being contested in compliance with Section 5.04;
(b) Carriers, warehousemen, mechanics, materialmen and repairmen and other like Liens imposed by law, in each case arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.04;
(c) Liens, pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations (exclusive of obligations for the payment of borrowed money) so long as no foreclosure, sale or similar proceedings have been commenced with respect to any portion of the Collateral on account thereof;
16
(d) Liens and deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature (exclusive of obligations for the payment of borrowed money), in each case in the ordinary course of business so long as no foreclosure, sale or similar proceedings have been commenced with respect to any portion of the Collateral on account thereof;
(e) judgment liens in respect of judgments that do not constitute an Event of Default under clause (j) of ARTICLE VII;
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrowers or any Subsidiary; and
(g) Liens solely on any cash earnest money deposits made by the Borrowers or any of their Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder.
“Permitted Investments” means:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;
(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any state or territory thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; and
(e) money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P or Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000; and
(f) any mutual fund or similar investment made under a deferred compensation plan of the US Borrower or its Subsidiaries.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and
17
in respect of which the US Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“PMP” means a “professional market party” within the meaning of the FSA.
“Prime Rate” means the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective. THE PRIME RATE IS A REFERENCE RATE AND MAY NOT BE JPMORGAN CHASE BANK, N.A.’S LOWEST RATE.
“Quotation Date” means, in relation to any period for which an interest rate is to be determined hereunder in the case of euros, two TARGET Days before the first day of that period, provided that, if, for any such period, quotations would ordinarily be given on more than one date, the Quotation Date for that period shall be the last of those dates.
“Register” has the meaning set forth in Section 9.04.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
“Required Lenders” means, at any time, 100% of the Lenders; provided that if at any time there are 3 or more Lenders, then the Required Lenders shall mean Lenders having Revolving Credit Exposures, outstanding Term Loans and unused Commitments representing at least 66 2/3% of the sum of (i) the aggregate unpaid principal amount of the Term Loans then outstanding, (ii) the total Revolving Credit Exposures at such time and (iii) unused Commitments at such time.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrowers or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Borrowers or such Subsidiary or any option, warrant or other right to acquire any such Equity Interests in the Borrowers or such Subsidiary.
“Revolving Credit Exposure” means, with respect to any Lender at any time, (a) with respect to the US Revolving Loans, the sum of the outstanding principal amount of such Lender’s US Revolving Loans and its LC Exposure at such time, and (b) with respect to the EUR Revolving Loans, the outstanding principal amount of such Lender’s EUR Revolving Loans at such time.
“Revolving Loans” means the US Revolving Loans and the EUR Revolving Loans.
“Revolving Loan Borrowing” means a EUR Revolving Loan Borrowing or a US Revolving Loan Borrowing, as the case may be.
“Revolving Loan Borrowing Request” means a request by the Borrower for a US Revolving Loan Borrowing in accordance with Section 2.03(a) or a EUR Revolving Loan Borrowing Request in accordance with Section 2.03(b).
“Revolving Loan Commitment” means, with respect to any Lender, the sum of such Lender’s US Revolving Loan Commitment and EUR Revolving Loan Commitment.
18
“Revolving Loan Maturity Date” means the earliest of (a) May 7, 2012 and (b) any date on which the Total Revolving Loan Commitment is reduced to zero or otherwise terminated pursuant to the terms hereof or the Revolving Loans shall have become due and payable in accordance with the terms hereof.
“Sale and Leaseback Transaction” means any sale or other transfer of assets or property by any Person with the intent to lease any such asset or property as lessee.
“Scheduled Net Principal Payments” means, for any period, the sum of (i) the principal amount paid on Indebtedness constituting term debt (including the Term Loans) and Capitalized Lease Obligations, in each case calculated for the Borrowers and their Subsidiaries for such period in accordance with GAAP; provided that for each of the four fiscal quarters ending on or immediately prior to the Effective Date (x) principal amounts paid on the Existing Credit Facilities shall not constitute Scheduled Net Principal Payments, and (y) Scheduled Net Principal Payments for such fiscal quarter shall be increased by $200,000.00.
“Secured Parties” means the holders of the Obligations from time to time and shall include without limitation (i) each Lender in respect of its Loans, (ii) the Administrative Agent, the Issuing Bank and the Lenders in respect of all other present and future obligations and liabilities of the Loan Parties of every type and description arising under or in connection with this Agreement or any other Loan Document, (iii) each Lender and any Affiliate of any Lender in respect of Swap Agreements permitted under Section 6.05 entered into with such Person by any Borrower or any Subsidiary, (iv) each Lender and any Affiliate of any Lender in respect of cash management agreements entered into with such Person by any Borrower or any Subsidiary, (v) each indemnified party under Section 9.03 in respect of the obligations and liabilities of any Loan Party to such Person hereunder and under the other Loan Documents, and (vi) their respective successors and (in the case of a Lender) transferees and assigns.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject, with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
“Subsidiary” means any subsidiary of the US Borrower.
19
“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or any Subsidiary shall be a Swap Agreement.
“Tangible Net Worth” of any Person as of any date means the Net Worth of such Person, less all Intangible Assets of such Person, in each case as of such date.
“TARGET” means Trans-European Automated Real-time Gross Settlement Express Transfer payment system.
“TARGET Day” means any day on which TARGET is open for the settlement of payments in euro.
“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.
“Term” means, save as otherwise provided herein, in relation to any EUR Revolving Loan, the period for which such EUR Revolving Loan is borrowed as specified in the Revolving Loan Borrowing Request relating thereto.
“Term Loans” means a Loan made pursuant to Section 2.01(c).
“Term Loan Borrowing” means a Borrowing of Term Loans.
“Term Loan Borrowing Request” means a request by the US Borrower for a Term Loan Borrowing in accordance with Section 2.04.
“Term Loan Commitment” means, with respect to each Lender, the Dollar amount set forth under the caption “Term Loan Commitment” opposite such Lender’s name on Schedule I. The aggregate amount of all Term Loan Commitments on the date hereof is $4,000,000.00.
“Term Loan Maturity Date” means the earliest of (a) May 7, 2012 and (b) any date on which the Total Term Loan Commitment is terminated pursuant to the terms hereof or the Term Loans shall have become due and payable in accordance with the terms hereof.
“Total Commitment” means the sum of the Total Revolving Loan Commitment and the Total Term Loan Commitment. The initial Total Commitment is the sum of $15,000,000.00 plus €3,000,000.00.
“Total Revolving Loan Commitment” means, at any time, the sum of $11,000,000.00 plus €3,000,000.00 or, if such amount is reduced pursuant to Section 2.08 or Article VII, or increased pursuant to Section 2.19, the amount to which so reduced or increased and in effect at such time.
“Total Term Loan Commitment” means, as of the Effective Date, $4,000,000.00, and as of any date thereafter, zero.
20
“Transactions” means the execution, delivery and performance by the Borrowers of this Agreement, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
“Type”, when used in reference to any US Revolving Loan, Term Loan, US Revolving Loan Borrowing or Term Loan Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
“UCC” means the Uniform Commercial Code as in effect in the State of Colorado from time to time.
“USA Patriot Act” means the USA Patriot Act of 2001, 31 U.S.C. Section 5318.
“US Borrower” means Allied Motion Technologies Inc., a Colorado corporation.
“US Facility Guarantors” means each US Obligor (other than the US Borrower).
“US Guaranty Agreement” means that certain Guaranty Agreement (US), dated as of the date hereof, executed by the US Obligors (other than US Borrower) in favor of the Administrative Agent, as such agreement has been or is hereafter amended, supplemented or replaced from time to time.
“US Loan” means any US Revolving Loan and any Term Loan.
“US Obligors” means each of the US Borrower; Allied Motion Control Corporation, a Colorado corporation; Computer Optical Products, Inc., a Colorado corporation; Emoteq Corporation, a Colorado corporation; Motor Products Corporation, a Delaware corporation; AMOT I, Inc., a Delaware Corporation; AMOT II, Inc, a Delaware corporation; AMOT III, Inc., a Delaware corporation; and Stature Electric, Inc., a Pennsylvania corporation; and each Person that enters into a Guaranty Agreement pursuant to Section 5.09(a).
“US Revolving Loan Borrowing” means a Borrowing of US Revolving Loans.
“US Revolving Loan Commitment” means, with respect to each Lender, the commitment of such Lender to make US Revolving Loans and to acquire participations in Letters of Credit hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure relating to US Revolving Loans hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08, (b) increased from time to time pursuant to Section 2.19(a) and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s US Revolving Loan Commitment is set forth under the caption “US Revolving Loan Commitment” on Schedule I, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its US Revolving Loan Commitment, as applicable. The aggregate amount of all US Revolving Loan Commitments on the date hereof is $11,000,000.00.
“US Revolving Loans” means the Loans made pursuant to Section 2.01(a).
“US Security Agreement” means that certain Pledge and Security Agreement, dated as of the date hereof, among US Obligors and the Administrative Agent, for the ratable benefit of the Secured Parties, as such agreement has been or is hereafter amended, supplemented or replaced from time to time.
21
