Exhibit 10.1
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this “Amendment”) is made as of May 19, 2022 by and among THE MANITOWOC COMPANY, INC., a Wisconsin corporation (“Manitowoc”), GROVE U.S. L.L.C., a Delaware limited liability company (“Grove”), MANITOWOC CRANE GROUP GERMANY GMBH, a German limited liability company (Gesellschaft mit beschränkter Haftung) (“Manitowoc Germany” and collectively with Manitowoc and Grove, the “Borrowers”, and each, a “Borrower”), the other Loan Parties party hereto, the Lenders party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
WHEREAS, the Borrowers are party to that certain Credit Agreement dated as of March 25, 2019 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”, and as amended by this Amendment, the “Credit Agreement”), by and among the Borrowers, the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto and the Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given to them in the Credit Agreement.
WHEREAS, the Borrower Representative has requested that the Lenders and the Administrative Agent agree to make certain amendments to the Existing Credit Agreement; and
WHEREAS, the Lenders party hereto and the Administrative Agent have agreed to amend the Existing Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrowers, the Lenders party hereto and the Administrative Agent hereby agree to enter into this Amendment.
In each of Exhibit A and Exhibit B hereto, deletions of text are indicated by struck-through text (indicated in the same manner as the following example: stricken text) and insertions of text are indicated by bold, double-underlined text (indicated in the same manner as the following example: double-underlined text) as set forth on such Exhibit.
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[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above written.
THE MANITOWOC COMPANY, INC.
By: /s/ Brian P. Regan
Name: Brian P. Regan
Title: Executive Vice President and Chief Financial Officer
GROVE U.S. L.L.C.
By: /s/ Brian P. Regan
Name: Brian P. Regan
Title: Vice President and Treasurer
MANITOWOC CRANE GROUP GERMANY GMBH
By: /s/ Corinne Pouyet
Name: Corinne Pouyet
Title: Managing Director
MANITOWOC CRANE GROUP U.S. HOLDING, LLC
By: /s/ Brian P. Regan
Name: Brian P. Regan
Title: Vice President and Treasurer
Signature Page to Amendment No. 2 to Credit Agreement
The Manitowoc Company, Inc.
MANITOWOC CRANE COMPANIES, LLC
By: /s/ Brian P. Regan
Name: Brian P. Regan
Title: Vice President and Treasurer
MANITOWOC CP, INC.
By: /s/ Brian P. Regan
Name: Brian P. Regan
Title: Vice President and Treasurer
MGX EQUIPMENT SERVICES, LLC
By: /s/ Brian P. Regan
Name: Brian P. Regan
Title: Vice President and Treasurer
ASPEN EQUIPMENT, LLC
By: /s/ Brian P. Regan
Name: Brian P. Regan
Title: Vice President and Treasurer
MANITOWOC CRANE GROUP HOLDING GERMANY GMBH
By: /s/ Corinne Pouyet
Name: Corinne Pouyet
Title: Managing Director
Signature Page to Amendment No. 2 to Credit Agreement
The Manitowoc Company, Inc.
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, Issuing Bank, Swingline Lender and a Lender
By: /s/ Kevin Podwika
Name: Kevin Podwika
Title: Authorized Officer
Signature Page to Amendment No. 2 to Credit Agreement
The Manitowoc Company, Inc.
BANK OF MONTREAL, as a Lender
By: /s/ Clayton Foster
Name: Clayton Foster
Title: Vice President
Signature Page to Amendment No. 2 to Credit Agreement
The Manitowoc Company, Inc.
BANK OF AMERICA, N.A., as a Lender
By: /s/ Bradley E. Handrich
Name: Bradley E. Handrich
Title: Vice President
Signature Page to Amendment No. 2 to Credit Agreement
The Manitowoc Company, Inc.
EXHIBIT A
Modified Credit Agreement
[Attached]
Conformed Copy Incorporating
Amendment No. 1, dated June 17, 2021
Amendment No. 2, dated May 19, 2022
ACTIVE 266156116v278128968v.1012
CREDIT AGREEMENT
dated as of
March 25, 2019
,
as amended by Amendment No. 1 dated as of June 17, 2021 and by Amendment No. 2 dated as of May 19, 2022
among
THE MANITOWOC COMPANY, INC.
The Other Borrowers and Loan Parties Party Hereto
The Lenders Party Hereto
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Syndication Agent
and
BANK OF AMERICA, N.A. and BANK OF MONTREAL,
as Co-Documentation Agents
JPMORGAN CHASE BANK, N.A.,
as Sole Lead Arranger
and
JPMORGAN CHASE BANK, N.A., BANK OF AMERICA, N.A. and BANK OF MONTREAL,
as Joint Bookrunners
ASSET BASED LENDING
TABLE OF CONTENTS
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Article I Definitions 1
SECTION 1.01. Defined Terms 1
SECTION 1.02. Classification of Loans and Borrowings 6463
SECTION 1.03. Terms Generally 6463
SECTION 1.04. Accounting Terms; GAAP 6563
SECTION 1.05. Status of Obligations 6564
SECTION 1.06. Determination of U.S. Dollar Amounts 6664
SECTION 1.07. Interest Rates; LIBORBenchmark Notification 6665
SECTION 1.08. Limited Conditionality 6765
SECTION 1.09. Additional Borrowers 6866
Article II The Credits 6967
SECTION 2.01. Commitments 6967
SECTION 2.02. Loans and Borrowings 6968
SECTION 2.03. Requests for Revolving Borrowings 7068
SECTION 2.04. Protective Advances 7169
SECTION 2.05. Swingline Loans 7270
SECTION 2.06. Letters of Credit 7372
SECTION 2.07. Funding of Borrowings 8078
SECTION 2.08. Interest Elections 8079
SECTION 2.09. Termination and Reduction of Commitments; Increase in Commitments 8280
SECTION 2.10. Repayment and Amortization of Loans; Evidence of Debt 8483
SECTION 2.11. Prepayment of Loans 8684
SECTION 2.12. Fees 8785
SECTION 2.13. Interest 8886
SECTION 2.14. Alternate Rate of Interest 8987
SECTION 2.15. Increased Costs 9290
SECTION 2.16. Break Funding Payments 9492
SECTION 2.17. Withholding of Taxes; Gross-Up 9592
SECTION 2.18. Payments Generally; Allocation of Proceeds; Sharing of Setoffs 9997
SECTION 2.19. Mitigation Obligations; Replacement of Lenders 10299
SECTION 2.20. Defaulting Lenders 103100
SECTION 2.21. Returned Payments 105102
SECTION 2.22. Banking Services, Designated Secured Foreign Products and Swap Agreements 105103
SECTION 2.23. Judgment Currency 106103
SECTION 2.24. MIRE Events 106103
SECTION 2.25. Encumbrance of Specified Wisconsin Real Property 106
Article III Representations and Warranties 107104
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SECTION 3.01. Organization; Powers 107104
SECTION 3.02. Authorization; Enforceability 107104
SECTION 3.03. Governmental Approvals; No Conflicts 107104
SECTION 3.04. Financial Condition; No Material Adverse Change 107105
SECTION 3.05. Properties 108105
SECTION 3.06. Litigation and Environmental Matters 108105
SECTION 3.07. Compliance with Laws; No Default 109106
SECTION 3.08. Investment Company Status 109106
SECTION 3.09. Taxes 109106
SECTION 3.10. ERISA; Pension Plans 109106
SECTION 3.11. Disclosure 109106
SECTION 3.12. Solvency 110107
SECTION 3.13. Insurance 110107
SECTION 3.14. Capitalization and Subsidiaries 110107
SECTION 3.15. Security Interest in Collateral 110107
SECTION 3.16. Employment Matters 110108
SECTION 3.17. Margin Regulations 111108
SECTION 3.18. Use of Proceeds 111108
SECTION 3.19. Common Enterprise 111108
SECTION 3.20. Anti-Corruption Laws and Sanctions 111108
SECTION 3.21. Centre of Main Interest 111108
SECTION 3.22. Affected Financial Institution 111109
SECTION 3.23. Plan Assets; Prohibited Transactions 112109
Article IV Conditions 112109
SECTION 4.01. Effective Date 112109
SECTION 4.02. Each Credit Event 116113
Article V Affirmative Covenants 116113
SECTION 5.01. Financial Statements; Borrowing Base and Other Information 117114
SECTION 5.02. Notices of Material Events 120117
SECTION 5.03. Existence; Conduct of Business 121118
SECTION 5.04. Payment of Taxes 121118
SECTION 5.05. Maintenance of Properties 121119
SECTION 5.06. Books and Records; Inspection Rights 122119
SECTION 5.07. Compliance with Laws and Material Contractual Obligations 122119
SECTION 5.08. Use of Proceeds 122120
SECTION 5.09. Insurance 123120
SECTION 5.10. Casualty and Condemnation 123120
SECTION 5.11. Appraisals 123120
SECTION 5.12. Field Examinations 124121
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SECTION 5.13. Financial Assistance 124121
SECTION 5.14. Additional Collateral; Further Assurances 124121
SECTION 5.15. Banking Services; European Cash Management 127123
SECTION 5.16. Transfer of Accounts of German Loan Parties 128124
SECTION 5.17. Post-Closing Matters 128124
SECTION 5.18. Centre of Main Interests and Establishments 128124
Article VI Negative Covenants 128125
SECTION 6.01. Indebtedness 129125
SECTION 6.02. Liens 133130
SECTION 6.03. Fundamental Changes 136132
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions 137133
SECTION 6.05. Asset Sales 140136
SECTION 6.06. Sale and Leaseback Transactions 142138
SECTION 6.07. Swap Agreements 142138
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness. 142139
SECTION 6.09. Transactions with Affiliates 145141
SECTION 6.10. Restrictive Agreements 145141
SECTION 6.11. Amendment of Material Documents 146142
SECTION 6.12. Fixed Charge Coverage Ratio 146143
SECTION 6.13. Rental Inventory 146143
SECTION 6.14. Buy-Back Limitations 146143
Article VII Events of Default 147143
Article VIII The Administrative Agent 150146
SECTION 8.01. Authorization and Action 150146
SECTION 8.02. Administrative Agent’s Reliance, Indemnification, Etc. 152149
SECTION 8.03. Posting of Communications 153150
SECTION 8.04. Reliance 155151
SECTION 8.05. Successor Administrative Agent 155151
SECTION 8.06. Acknowledgements of Lenders and Issuing Bank 156152
SECTION 8.07. Collateral Matters. 158154
SECTION 8.08. Credit Bidding 161157
SECTION 8.09. Certain ERISA Matters 162158
SECTION 8.10. Flood Laws 163159
Article IX Miscellaneous 163159
SECTION 9.01. Notices 163160
SECTION 9.02. Waivers; Amendments 165161
SECTION 9.03. Expenses; Indemnity; Damage Waiver 168164
SECTION 9.04. Successors and Assigns 171167
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SECTION 9.05. Survival 174170
SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution 174170
SECTION 9.07. Severability 176172
SECTION 9.08. Right of Setoff 176172
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process 177173
SECTION 9.10. WAIVER OF JURY TRIAL 178174
SECTION 9.11. Headings 178174
SECTION 9.12. Confidentiality 178174
SECTION 9.13. Several Obligations; Nonreliance; Violation of Law 179175
SECTION 9.14. USA PATRIOT Act 179175
SECTION 9.15. Disclosure 180175
SECTION 9.16. Appointment for Perfection 180175
SECTION 9.17. Interest Rate Limitation 180176
SECTION 9.18. No Fiduciary Duty, etc 180176
SECTION 9.19. Intercreditor Agreements 181176
SECTION 9.20. Limitation on Subsidiaries 181177
SECTION 9.21. Acknowledgment and Consent to Bail-In of Affected Financial Institutions 181177
SECTION 9.22. Acknowledgment Regarding Any Supported QFCs 182177
Article X Loan Guaranty of Domestic Loan Parties 182178
SECTION 10.01. Guaranty 182178
SECTION 10.02. Guaranty of Payment 183178
SECTION 10.03. No Discharge or Diminishment of Loan Guaranty 183178
SECTION 10.04. Defenses Waived 183179
SECTION 10.05. Rights of Subrogation 184180
SECTION 10.06. Reinstatement; Stay of Acceleration 184180
SECTION 10.07. Information 184180
SECTION 10.08. Termination 184180
SECTION 10.09. Taxes 184180
SECTION 10.10. Maximum Liability 185180
SECTION 10.11. Contribution. 185181
SECTION 10.12. Liability Cumulative 186182
SECTION 10.13. Keepwell 186182
Article XI Loan Guaranty of German Loan Parties 186182
SECTION 11.01. Guaranty 186182
SECTION 11.02. Guaranty of Payment 187182
SECTION 11.03. No Discharge or Diminishment of Loan Guaranty 187183
SECTION 11.04. Defenses Waived 187183
SECTION 11.05. Rights of Subrogation 188184
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SECTION 11.06. Reinstatement; Stay of Acceleration 188184
SECTION 11.07. Information 188184
SECTION 11.08. Termination 188184
SECTION 11.09. Taxes 189184
SECTION 11.10. Maximum Liability 189185
SECTION 11.11. Contribution. 189185
SECTION 11.12. Liability Cumulative 190186
SECTION 11.13. Keepwell 190186
SECTION 11.14. German Guaranty Limitations 190186
Article XII The Borrower Representative. 193188
SECTION 12.01. Appointment; Nature of Relationship 193188
SECTION 12.02. Powers 193189
SECTION 12.03. Employment of Agents 193189
SECTION 12.04. Successor Borrower Representative 193189
SECTION 12.05. Execution of Loan Documents; Borrowing Base Certificate 193189
Article XIII Subordination of Intercompany Indebtedness. 193189
SECTION 13.01. Subordination of Intercompany Indebtedness 193189
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SCHEDULES:
Commitment Schedule
Schedule 1.01(b) – Specified Cranes
Schedule 1.01(c) – Existing Letters of Credit
Schedule 2.06(n) – Foreign Line LCs
Schedule 3.05(a) – Mortgaged Real Property
Schedule 3.05(b) – Leased Properties
Schedule 3.05(c) – Non-Mortgaged Real Property
Schedule 3.06 – Disclosed Matters
Schedule 3.13 – Insurance
Schedule 3.14 – Capitalization and Subsidiaries
Schedule 5.17 – Post-Closing Matters
Schedule 6.01 – Existing Indebtedness
Schedule 6.02 – Existing Liens
Schedule 6.04 – Existing Investments
Schedule 6.09 – Transactions with Affiliates
Schedule 6.10 – Existing Restrictions
EXHIBITS:
Exhibit A – Form of Assignment and Assumption
Exhibit B – Form of Borrowing Base Certificate
Exhibit C – Form of Compliance Certificate
Exhibit D – Joinder Agreement
Exhibit E-1 – U.S. Tax Certificate (For Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit E-2 – U.S. Tax Certificate (For Foreign Participants that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit E-3 – U.S. Tax Certificate (For Foreign Participants that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit E-4 – U.S. Tax Certificate (For Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit F – List of Closing Documents
Exhibit G – Form of Notice of Designated Secured Foreign Products
Exhibit H – Form of Borrowing Request
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CREDIT AGREEMENT dated as of March 25, 2019 (as it may be amended or modified from time to time, this “Agreement”) among THE MANITOWOC COMPANY, INC., a Wisconsin corporation, GROVE U.S. L.L.C., a Delaware limited liability company, MANITOWOC CRANE GROUP GERMANY GMBH, a German limited liability company (Gesellschaft mit beschränkter Haftung), the other Loan Parties party hereto, the Lenders party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Syndication Agent, and BANK OF AMERICA, N.A. and BANK OF MONTREAL, as Co-Documentation Agents.
The parties hereto agree as follows:
Definitions
“ABR”, when used in reference to (a) a rate of interest, refers to the Alternate Base Rate, and (b) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base Rate.
“Account” has the meaning assigned to the term (a) “Accounts” in the Domestic Security Agreement and (b) “Trade Receivables” in the German Security Agreement.
“Account Debtor” means any Person obligated on an Account.
“Acquisition” means any transaction, or any series of related transactions, by which any Loan Party or any Restricted Subsidiary (a) acquires any going business or all or substantially all of the assets of any Person (or business line or division thereof), whether through purchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the Equity Interests of a Person which has ordinary voting power for the election of directors or other similar management personnel of a Person (other than Equity Interests having such power only by reason of the happening of a contingency) or a majority of the outstanding Equity Interests of a Person.
“Acquisition-Related Incremental Commitments” has the meaning set forth in Section 2.09(f).
“Additional Junior Indebtedness” means Indebtedness for borrowed money of any Loan Party (and the Guarantees thereof by any Loan Party); provided that (a) such Indebtedness shall be secured on a second-priority (or other junior priority) basis by the assets of any Loan Party and (b) such Indebtedness shall be subject to a Junior Intercreditor Agreement.
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“Adjusted Daily Simple SOFR” means an interest rate per annum equal to (a) the Daily Simple SOFR, plus (b) 0.10%; provided that if the Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted EURIBOR Rate” means, with respect to any EurodollarTerm Benchmark Borrowing denominated in Euros for any Interest Period, an interest rate per annum equal to (a) the EURIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that if the Adjusted EURIBOR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted LIBOTerm SOFR Rate” means, with respect to any EurodollarTerm Benchmark Borrowing denominated in U.S. Dollars for any Interest Period or for any ABR Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBOTerm SOFR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate, plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative and collateral agent for the Secured Parties hereunder or, as applicable, such branches or affiliates of JPMorgan Chase Bank, N.A. as it shall from time to time designate for the purpose of performing its obligations hereunder in such capacity. References to the “Administrative Agent” shall include any other branch or affiliate of JPMorgan Chase Bank, N.A. designated by JPMorgan Chase Bank, N.A. for the purpose of performing such obligations in such capacity.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“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. With respect to any Person organized under the laws of Germany an “Affiliate” shall in any event include the direct or indirect shareholder(s) of a Person or any entity affiliated to such shareholder (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz).
“Agent Indemnitee” has the meaning assigned to it in Section 9.03(c).
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“Aggregate Availability” means, at any time, an amount equal to (a) the lesser of (i) the Aggregate Commitment and (ii) the Aggregate Borrowing Base minus (b) the Aggregate Revolving Exposure.
“Aggregate Borrowing Base” means, at any time, the sum of the Domestic Borrowing Base at such time plus the German Borrowing Base at such time.
“Aggregate Commitment” means, at any time, the aggregate of the Commitments of all of the Lenders, as increased and/or reduced from time to time pursuant to the terms and conditions hereof. As of the Effective Date, the Aggregate Commitment equals $275,000,000.
“Aggregate Revolving Exposure” means, at any time, the aggregate Revolving Exposure of all the Lenders.
“Agreed Currencies” means U.S. Dollars and each Alternative Currency.
“Allocable Amount” has the meaning assigned to such term in Section 10.11(b).
“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, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted LIBOTerm SOFR Rate for a one month Interest Period onas published two U.S. Government Securities Business Days prior to such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 11.00%; provided that for the purpose of this definition, the Adjusted LIBOTerm SOFR Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the LIBO Interpolated Rate)Term SOFR Reference Rate at approximately 11:00 a.m. London5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBOTerm SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBOTerm SOFR Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.14 (for the avoidance of doubt, only until the Benchmark Replacement has been determined in accordance withpursuant to Section 2.14(b)), then the Alternate Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement.
“Alternate Rate” means the sum of (a) a rate per annum selected by the Administrative Agent, in its reasonable discretion based on market conditions, reflecting the cost to the Lenders of obtaining funds, plus (b) the Applicable Rate for Term Benchmark Loans denominated in Dollars. When used in reference to any Loan or Borrowing, “Alternate Rate” refers to whether
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such Loan, or the Loans comprising such Borrowing are bearing interest at a rate determined by reference to the Alternate Rate.
“Alternative Currency” means Sterling and Euros.
“Amendment No. 1” means that certain Amendment No. 1 to Credit Agreement dated as of the Amendment No. 1 Effective Date, by and among the Company, the other Borrowers party thereto, the Lenders party thereto and the Administrative Agent.
“Amendment No. 1 Effective Date” means June 17, 2021.
“Amendment No. 2” means that certain Amendment No. 2 to Credit Agreement dated as of the Amendment No. 2 Effective Date, by and among the Company, the other Borrowers party thereto, the Lenders party thereto and the Administrative Agent.
“Amendment No. 2 Effective Date” means May 19, 2022.
“Ancillary Document” has the meaning assigned to it in Section 9.06(b).
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Company and its Affiliates from time to time concerning or relating to money-laundering, bribery or corruption, including the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“Applicable Parties” has the meaning assigned to it in Section 8.03(c).
“Applicable Overnight Rate” means, with respect to any Swingline Loan, LC Disbursement, Protective Advance or other applicable obligation bearing interest at the Applicable Overnight Rate, (a) if made to the German Borrower and denominated in U.S. Dollars, the Overnight Rate, (b) if denominated in Sterling, the applicable Daily Simple RFR for Sterling, and (c) if denominated in Euro, the applicable Daily Simple RFR for Euro.
“Applicable Percentage” means, with respect to any Lender, (a) with respect to Revolving Loans, LC Exposure or Swingline Loans, a percentage equal to a fraction the numerator of which is such Lender’s Commitment and the denominator of which is the Aggregate Commitment (provided that, if the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon such Lender’s share of the Aggregate Revolving Exposure at that time) and (b) with respect to Protective Advances, a percentage based upon such Lender’s share of the Aggregate Revolving Exposure (with the Swingline Exposure of each Lender calculated assuming that all of the Lenders have funded their participations in all Swingline Loans outstanding at such time) and the Unused Commitments; provided that, in accordance with Section 2.20, so long as any Lender shall be a Defaulting Lender, such Lender’s Commitment shall be disregarded in the foregoing calculation.
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“Applicable Rate” means, for any day, with respect to any Loan, the applicable rate per annum set forth below under the caption “ABR Spread” or “EurodollarTerm Benchmark, Applicable Overnight Rate, CBR and RFR Spread”, as the case may be, based upon the Average Quarterly Availability as of the most recent determination date:
| Average Quarterly Availability | ABR Spread | EurodollarTerm Benchmark, Applicable Overnight Rate, CBR and RFR Spread |
Category 1 | ≥ 50% of Aggregate Commitment | 0.25% | 1.25% |
Category 2 | < 50% of Aggregate Commitment | 0.50% | 1.50% |
For purposes of the foregoing, the Applicable Rate shall be determined as of the beginning of each fiscal quarter of the Company and shall be effective during the period commencing on and including the first day of each fiscal quarter of the Company and ending on the last day of such fiscal quarter, it being understood and agreed that, for purposes of determining the Applicable Rate on the first day of any fiscal quarter of the Company, the Average Quarterly Availability during the most recently ended fiscal quarter of the Company shall be used; provided that (i) the Average Quarterly Availability shall be deemed to be in Category 2 at the option of the Administrative Agent or at the request of the Required Lenders if the Borrowers fail to deliver any Borrowing Base Certificate or related information required to be delivered hereunder, during the period from the expiration of the time for delivery thereof until each such Borrowing Base Certificate and related information is so delivered and (ii) the Average Quarterly Availability shall be deemed to be in Category 1 during the period from the Effective Date to, and including, the last day of the first full fiscal quarter of the Company ending after the Effective Date.
“Approved Electronic Platform” has the meaning assigned to it in Section 8.03(a).
“Approved Fund” has the meaning assigned to such term in Section 9.04.
“Assignment and Assumption” means an assignment and assumption agreement 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, substantially in the form of Exhibit A or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative Agent and, if the Borrower Representative’s consent is required for the related assignment, the Borrower Representative (such approval not to be unreasonably withheld or delayed).
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“Auditor’s Determination” has the meaning assigned to such term in Section 11.14(c).
“Availability Period” means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark for any Agreed Currency, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (fe) of Section 2.14.
“Average Quarterly Availability” means, for any fiscal quarter of the Company, an amount equal to the average daily Aggregate Availability during such fiscal quarter.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Banking Services” means each and any of the following bank services provided to any Loan Party (or any Subsidiaries of the Loan Parties if the Borrower Representative has provided written notice to the Administrative Agent of the services in favor of such Subsidiaries to be secured) by any Lender or any of its Affiliates: (a) credit cards for commercial customers (including “commercial credit cards” and purchasing cards), (b) stored value cards, (c) merchant processing services and (d) treasury management services (including controlled disbursement, automated clearinghouse transactions, return items, any direct debit scheme or arrangement, overdrafts and interstate depository network services).
“Banking Services Obligations” means any and all obligations of the Loan Parties and their Subsidiaries, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Banking Services.
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“Banking Services Reserves” means all Reserves which the Administrative Agent from time to time establishes in its Permitted Discretion for Banking Services then provided or outstanding.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.
“Bankruptcy Event” means, with respect to any Person, when such Person becomes the subject of a voluntary or involuntary bankruptcy or insolvency proceeding or proposal, or has had a receiver, interim receiver, receiver and manager, sequestrator, monitor, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business, appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment or has had any order for relief in such proceeding entered in respect thereof, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such Person with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs of attachment on its assets or permits such Person (or such Governmental Authority or instrumentality), to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Benchmark” means, initially, with respect to any (i) RFR Loan in any Agreed Currency, the applicable Relevant Rate for such Agreed Currency or (ii) EurodollarTerm Benchmark Loan, the Relevant Rate for suchthe applicable Agreed Currency; provided that if a Benchmark Transition Event, a Term SOFR Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its and the related Benchmark Replacement Date have occurred with respect to the applicable Relevant Rate or the then-current Benchmark for such Agreed Currency, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) or clause (c) of Section 2.14.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided that, (i) in the case of any Loan denominated in an Alternative Currency and (ii) in the case of an Other Benchmark Rate Election, “Benchmark Replacement” shall mean the alternative set forth in (32) below:
(1) in the case of any Loan denominated in U.S. Dollars, the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;
(21) in the case of any Loan denominated in U.S. Dollars, the sum of: (a)Adjusted Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;
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(32) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower Representative as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in the applicable Agreed Currency at such time in the United States and (b) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service commonly used in the banking industry for such purpose that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion and consistent with such selection generally under other substantially similar credit facilities for which it acts as the administrative agent; provided further that, notwithstanding anything to the contrary in this Agreement or in any other Loan Document, upon the occurrence of a Term SOFR Transition Event, and the delivery of a Term SOFR Notice, on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).
If the Benchmark Replacement as determined pursuant to clause (1), or (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by (1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined reasonably and in good faith by the Administrative Agent:
(a) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;
(b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
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(2) for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by thethe Administrative Agent and the Borrower Representative for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Agreed Currency at such time;.
provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service commonly used in the banking industry for such purpose that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion and consistent with such selection generally under other substantially similar credit facilities for which it acts as the administrative agent.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement and/or any Term Benchmark Loan denominated in U.S. Dollars, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,”, the definition of “U.S. Government Securities Business Day”, the definition of “RFR Business Day”, the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent reasonably and in good faith decides, in consultation with the Borrower Representative, may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides in good faith that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines in good faith, in consultation with the Borrower Representative, that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
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(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date of the publicon which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication of information referenced therein;in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
(3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Lenders and the Borrower Representative pursuant to Section 2.14(c); or
(4) in the case of an Early Opt-in Election or an Other Benchmark Rate Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election or Other Benchmark Rate Election, as applicable, is provided to the Lenders so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election or Other Benchmark Rate Election, as applicable, is provided to the Lenders, written notice of objection to such Early Opt-in Election or Other Benchmark Rate Election, as applicable, from Lenders comprising the Required Lenders.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely as of a specific date, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR
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Administrator, the central bank for the Agreed Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), in each case, a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely as of a specific date; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14.
“Beneficial Owner” means, with respect to any U.S. Federal withholding Tax, the beneficial owner, for U.S. Federal income Tax purposes, to whom such Tax relates.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
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“BHC Act Affiliate” of a party means an “affiliate’ (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Borrower” or “Borrowers” means, individually or collectively, the Domestic Borrowers and the German Borrower.
“Borrower Joinder Effective Date” has the meaning set forth in Section 1.09.
“Borrower Representative” has the meaning assigned to such term in Section 11.01.
“Borrowing” means (a) Revolving Loans of the same Type and Agreed Currency made, converted or continued on the same date and, in the case of EurodollarTerm Benchmark Loans as to which a single Interest Period is in effect, (b) a Swingline Loan and (c) a Protective Advance.
“Borrowing Base Certificate” means a certificate, setting forth the calculation of each Borrowing Base, signed and certified as accurate and complete by a Financial Officer of the Borrower Representative, in substantially the form of Exhibit B or another form which is acceptable to the Administrative Agent in its Permitted Discretion.
“Borrowing Base Collateral” means all Collateral consisting of the Accounts, Collection Accounts, Inventory, Equipment and/or Mortgaged Real Property, respectively, of the applicable Loan Parties.
“Borrowing Bases” means, collectively, the Domestic Borrowing Base and the German Borrowing Base.
“Borrowing Request” means a request by the Borrower Representative for a Revolving Borrowing in accordance with Section 2.03.
“Business Day” means, as applicable, (A) any day (other than a Saturday or a Sunday) on which banks are open for business in New York City or Chicago, (B) in relation to Loans denominated in Sterling and in relation to the calculation or computation of LIBOR, any day (other than a Saturday or a Sunday) on which banks are open for business in London, (C) in relation to Loans denominated in Euros and in relation to the calculation or computation of EURIBOR, any day which is a TARGET Day and (D) in relation to RFR Loans and any interest rate settings, fundings, disbursements, settlements or payments of any such RFR Loan, or any other dealings in the applicable Agreed Currency of such RFR Loan, any such day that is only an RFR Business Day.
“Buy-Back Arrangements” means arrangements whereby the Company or a Restricted Subsidiary of the Company in the ordinary course of business enters into an agreement with a customer or third party financing company (a) to guarantee to repurchase crane products at a later date at an agreed upon price or (b) to guarantee a minimum crane product residual value at the end
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of an underlying finance term for such crane products, including guarantees of minimum crane product residual value in connection with Sale and Leaseback Transactions.
“Buy-Back Obligations” means repurchase or guarantee obligations of the Company or its Restricted Subsidiaries arising out of Buy-Back Arrangements. For the avoidance of doubt, guarantees by the Company or any of its Restricted Subsidiaries of customer payment obligations shall not constitute Buy-Back Obligations.
“Canada” means, collectively, Canada and each province and territory thereof.
“Canadian Dollars” and “Cdn.$” means dollars in the lawful currency of Canada.
“Capital Expenditures” means, without duplication, any expenditure or commitment to expend money for any purchase or other acquisition of any asset which would be classified as a fixed or capital asset on a consolidated balance sheet of the Company and its Restricted Subsidiaries prepared in accordance with GAAP, but excluding, without duplication, (a) with respect to the purchase price of assets that are purchased substantially contemporaneously with the trade-in of existing assets during any period, the excess of the gross amount of such purchase price over the credit granted by the seller of such assets for the assets being traded in at such time, (b) expenditures made during any period to consummate one or more Permitted Acquisitions and (c) expenditures during such period that, pursuant to a written agreement, are reimbursed in cash by a third Person (excluding the Company or any of its Affiliates) during such period.
“Capital Impairment” has the meaning assigned to such term in Section 11.14(a).
“Cash Dominion Period” means any period of time, at the election of the Administrative Agent or at the direction of the Required Lenders, (i) when a Specified Event of Default has occurred and is continuing, or (ii) commencing with the date on which Aggregate Availability is less than the greater of (x) 10% of the Line Cap and (y) $20,000,000, and continuing until such subsequent date as when the Aggregate Availability has exceeded the greater of (x) 10% of the Line Cap and (y) $20,000,000 for sixty (60) consecutive days; provided that such period shall be in effect immediately (without any action by the Administrative Agent or Required Lender) commencing with the date on which Aggregate Availability is less than 7.5% of the Line Cap and continuing until such subsequent date as either (A) the Aggregate Availability has exceeded the greater of (x) 10% of the Line Cap and (y) $20,000,000 for sixty (60) consecutive days or (B) (x) the Aggregate Availability has exceeded 7.5% of the Line Cap for sixty (60) consecutive days and (y) the Administrative Agent or the Required Lenders have elected to terminate such Cash Dominion Period.
“CBR Loan” means a Loan that bears interest at a rate determined by reference to the Central Bank Rate.
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“CBR Spread” means the Applicable Rate, applicable to such Loan that is replaced by a CBR Loan.
“Central Bank Rate” means, (A) the greater of (i) for any Loan denominated in (a) Sterling, the Bank of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England (or any successor thereto) from time to time, or (b) Euro, one of the following three rates as may be selected by the Administrative Agent in its reasonable discretion: (1) the fixed rate for the main refinancing operations of the European Central Bank (or any successor thereto), or, if that rate is not published, the minimum bid rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as published by the European Central Bank (or any successor thereto) from time to time, (2) the rate for the marginal lending facility of the European Central Bank (or any successor thereto), as published by the European Central Bank (or any successor thereto) from time to time or (3) the rate for the deposit facility of the central banking system of the Participating Member States, as published by the European Central Bank (or any successor thereto) from time to time, or (c) any other Foreign Currency determined after the Amendment No. 2 Effective Date, a central bank rate as determined by the Administrative Agent in its reasonable discretion and (ii) zero; plus (B) the applicable Central Bank Rate Adjustment.
“Central Bank Rate Adjustment” means for any day, for any Loan denominated in (a) Euro, a rate equal to the positive difference (which may be a positive or negative value or zero) of (i) the average of the Adjusted EURIBOR Rate for the last five (5)most recent Business Days preceding such day for which the EURIBOR Screen Rate was available (excluding, from such averaging, the highest level from such series of days and the lowest level from such series of daysAdjusted EURIBOR Rate applicable during such period of five Business Days) minus (ii) the Central Bank Rate in respect of Euro in effect on the last Business Day in such period, (b) Sterling, a rate equal to the positive difference (which may be a positive or negative value or zero) of (i) the average of SONIA for the lastDaily Simple RFR for Sterling Borrowings for the five (5)most recent RFR Business Days preceding such day for which SONIA was available (excluding, from such averaging, the highest level from such series of days and the lowest level from such series of dayssuch Daily Simple RFR applicable during such period of five RFR Business Days) minus (ii) the Central Bank Rate in respect of Sterling in effect on the last RFR Business Day in such period, and (c) any other Foreign Currency determined after the Amendment No. 12 Effective Date, an adjustmenta Central Bank Rate Adjustment as determined by the Administrative Agent in its reasonable discretion. For purposes of this definition, (x) the term Central Bank Rate shall be determined disregarding clause (B) of the definition of such term and (y) the EURIBOR Rate on any day shall be based on the EURIBOR Screen Rate on such day at approximately the time referred to in the definition of such term for deposits in the applicable Agreed Currency for a maturity of one month.
“CFC” means a “controlled foreign corporation” under Section 957 of the Code.
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“CFC Holding Company” means (a) a Domestic Restricted Subsidiary with no material assets or business activities other than the ownership or management of Equity Interests in, or Indebtedness of, one or more CFCs or (b) a pass-through entity (including a partnership or disregarded entity for U.S. federal income Tax purposes) that owns directly or indirectly Equity Interests in, or Indebtedness of, one or more CFCs.
“Change in Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests representing more than 30% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Company, (b) the occurrence of a change in control, or other similar provision, as defined in (i) the Junior Notes Indenture or (ii) any Permitted Term Loan Agreement or any agreement or instrument evidencing any other Junior Indebtedness, Permitted Long-Term Indebtedness or Subordinated Indebtedness with a principal amount exceeding $20,000,000 (triggering a default or mandatory prepayment, which default or mandatory prepayment has not been waived in writing), or (c) the Company ceases to own, directly or indirectly, and Control 100% (other than directors’ or managers’ qualifying shares) of the ordinary voting and economic power of the German Borrower so long as assets of the German Borrower are included in the Borrowing Base.
“Change in Law” means the occurrence after the Amendment No. 12 Effective Date (or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement) of any of the following: (a) the adoption of or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(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, requirement or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Amendment No. 12 Effective Date (or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement); provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith or in the implementation thereof, or any European equivalent regulation (such as the European Market and Infrastructure Regulation) and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
“Charges” has the meaning assigned to such term in Section 9.17.
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“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Domestic Revolving Loans, German Revolving Loans, Swingline Loans or Protective Advances.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means any and all property of a Loan Party subject to a Lien created by the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that is at any time subject to a Lien in favor of the Administrative Agent, on behalf of itself and the Lenders and other Secured Parties, to secure the Secured Obligations; provided that, “Collateral” shall not include any Excluded Assets.
“Collateral Access Agreement” has the meaning assigned to such term in the applicable Security Agreement.
“Collateral Documents” means, collectively, the Domestic Collateral Documents, the German Collateral Documents, and any other Loan Documents that create, perfect or evidence Liens to secure the Secured Obligations.
“Collection Account” has the meaning assigned to such term in the applicable Security Agreement.
“Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit, Protective Advances and Swingline Loans hereunder, as such commitment may be reduced or increased from time to time pursuant to (a) Section 2.09 and (b) assignments by or to such Lender pursuant to Section 9.04. The initial U.S. Dollar Amount of each Lender’s Commitment is set forth on the Commitment Schedule, or in the Assignment and Assumption or other documentation or record (as such term is defined in Section 9-102(a)(70) of the UCC) as provided in Section 9.04(b)(ii)(C), pursuant to which such Lender shall have assumed its Commitment, as applicable.
“Commitment Schedule” means the Schedule attached hereto identified as such.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications” has the meaning assigned to such term in Section 8.03(c).
“Company” means The Manitowoc Company, Inc., a Wisconsin corporation.
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“Compliance Certificate” means a certificate, signed and certified as accurate and complete by a Financial Officer of the Borrower Representative, in substantially the form of Exhibit C or another form which is reasonably acceptable to the Administrative Agent.
“Computation Date” is defined in Section 1.06.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“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.
“Controlled Disbursement Account” means, collectively, accounts of the Loan Parties maintained with the Administrative Agent from time to time as zero balance, cash management accounts pursuant to and under any agreement between the Loan Parties and the Administrative Agent, as modified and amended from time to time, and through which disbursements of the Borrowers, any other Loan Party and any designated Subsidiary of the Borrowers are made and settled on a daily basis with no uninvested balance remaining overnight.
“Corresponding Debt” has the meaning assigned to such term in Section 8.07(e).
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning assigned to it in Section 9.22.
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“Co-Documentation Agent” means each of Bank of America, N.A. and Bank of Montreal, each in its capacity as a co-documentation agent for the credit facility evidenced by this Agreement.
“Credit Event” means a Borrowing, the issuance, amendment, renewal or extension of a Letter of Credit, an LC Disbursement or any of the foregoing.
“Credit Party” means the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender.
“Customary Mandatory Prepayment Terms” means, in respect of any Indebtedness, terms requiring any obligor in respect of such Indebtedness to pay (or offer to pay) such Indebtedness (a) in the event of a “change in control” (or similar event), (b) in the event of an “asset sale” (or similar event, including condemnation or casualty), provided that such mandatory payment (or offer to pay) can be avoided pursuant to customary reinvestment rights (it being understood that the terms of such Indebtedness may include additional customary means of avoiding the applicable payment (or offer to pay)) and (c) in the case of any Indebtedness that constitutes a term loan, on account of annual “excess cash flow” on terms approved by the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed); provided that, unless otherwise agreed to by the Administrative Agent pursuant to an intercreditor agreement in form and substance reasonably acceptable to it, with respect to the foregoing clause (b), if any Secured Obligations are required to be prepaid as a result of an event described therein, then, to the extent the Net Proceeds of such event are proceeds of Collateral, such Net Proceeds shall repay such Secured Obligations prior to the repayment of such other Indebtedness. The Company may provide a certificate of a Financial Officer to the effect that the terms of any reinvestment rights or other means of avoiding the applicable payment (or offer to pay) referred to in clause (b) above are customary, and such determination shall be conclusive unless the Administrative Agent shall have objected to such determination within ten (10) Business Days following its written confirmation to the Borrower Representative of the Administrative Agent’s receipt of such certificate and the draft documentation governing such Indebtedness.
“Customer” has the meaning assigned to such term in Section 2.17(h).
“Daily Simple ESTR” means, for any Business Day, an interest rate per annum equal to ESTR based on the published rate of ESTR as of the Business Day of such request; provided that if the Daily Simple ESTR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement. Any change in Daily Simple ESTR due to a change in the applicable ESTR shall be effective from and including the effective date of such change in the ESTR without notice to the Borrowers.
“Daily Simple RFR” means, for any day (an “RFR Interest Day”), an interest rate per annum equal to the greater of (a), (i) for any RFR Loan denominated in Sterling, SONIA plus (w) in the case of Loans with an Interest Period of one month, 0.0326%, (x) in the case of Loans with an Interest Period of three months, 0.1193%, (y) in the case of Loans with an Interest Period of six months, 0.2766%, and (z) in the case of Loans with an Interest Period of twelve months, 0.4644%, in each case, for the day that is 5 RFR Business Days prior to (A) if such RFR Interest Day is aan
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RFR Business Day, such RFR Interest Day or (B) if such RFR Interest Day is not aan RFR Business Day, the RFR Business Day immediately preceding such RFR Interest Day and ((provided, that for any request for a Swingline Loan denominated in Sterling, SONIA shall be based on the published rate for SONIA as of the Business Day of such request), (ii) for any Swingline Loan denominated in Euros, ESTR plus (w) in the case of Loans with an Interest Period of one month, 0.0456%, (x) in the case of Loans with an Interest Period of three months, 0.0753%, (y) in the case of Loans with an Interest Period of six months, 0.1537%, and (z) in the case of Loans with an Interest Period of twelve monthsDaily Simple ESTR, and (iii) for any RFR Loan denominated in U.S. Dollars, Adjusted Daily Simple SOFR; provided that if the Daily Simple RFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for purposes of this Agreement.
, 0.2993%, in each case, for the day “Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day “SOFR Determination Date”) that is five (5) RFR Business Days prior to (Ai) if such RFR InterestSOFR Rate Day is aan RFR Business Day, such RFR InterestSOFR Rate Day or (Bii) if such RFR InterestSOFR Rate Day is not aan RFR Business Day, the RFR Business Day immediately preceding such RFR Interest Day and (b) zeroSOFR Rate Day (provided, that for any request for a Swingline Loan, SOFR shall be based on the published rate for SOFR as of the Business Day of such request), in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple RFRSOFR due to a change in the applicable RFRSOFR shall be effective from and including the effective date of such change in the RFRSOFR without notice to the Borrower Representative. Notwithstanding the foregoing, solely for purposes of determining the Applicable Overnight Rate based on Daily Simple RFR, any such determination of SONIA or ESTR shall be made as of the applicable RFR Interest Day (or if not a Business Day, the Business Day immediately preceding such RFR Interest Day) rather than the day 5 Business Days prior to such RFR Interest Day or the Business Day immediately preceding such RFR Interest Day. any Borrower.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which may include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides in good faith that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another comparable convention in its reasonable good faith discretion.
“Daily Simple SOFR Borrowing” means, as to any Borrowing, the Daily Simple SOFR Loans comprising such Borrowing.
“Daily Simple SOFR Loan” means a Loan that bears interest at a rate based on Daily Simple SOFR.
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“Default” means any event or condition described in Article VII 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.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular Default, if any) has not been satisfied, (b) has notified the Company or any Credit Party in writing, or has made a public statement, to the effect that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular Default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three (3) Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has become the subject of (i) a Bankruptcy Event or (ii) a Bail-In Action.
“Deposit Account” has the meaning assigned to such term in the applicable Security Agreement.
“Deposit Account Control Agreement” has the meaning assigned to such term in the applicable Security Agreement.
“Designated Secured Foreign Products” means agreements between, on the one hand, any Lender and/or Affiliate of a Lender, on the other hand, any Loan Party or any Foreign Subsidiary of any Loan Party; provided that (a) the applicable Loan Party has provided the Administrative Agent written notice of such Loan Party’s designation of any such line of credit or debt obligation as a “Designated Secured Foreign Product” pursuant to the form attached hereto as Exhibit G, and (b) such Indebtedness shall be permitted by Section 6.01(m).
“Designated Secured Foreign Products Obligations” means any and all obligations of any Foreign Subsidiaries of the Loan Parties, whether absolute or contingent and howsoever and
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whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Designated Secured Foreign Products.
“Disclosed Matters” means the actions, suits, proceedings and environmental matters disclosed in Schedule 3.06.
“Disqualified Capital Stock” means that portion of any Equity Interests which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change in Control), matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change in Control) on or prior to the final maturity date of the Loans.
“Dividing Person” has the meaning assigned to it in the definition of “Division”.
“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“DLL Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the date hereof, between the Administrative Agent and De Lage Landen Financial Services Inc., as may be amended, supplemented, replaced or otherwise modified from time to time in accordance with the terms thereof.
“Document” has the meaning assigned to such term in the applicable Security Agreement.
“Domestic Borrowers” means, individually or collectively, the Company and Grove U.S. L.L.C., a Delaware limited liability company, and any other Person who becomes a Domestic Borrower under this Agreement pursuant to Section 1.09 upon the execution and delivery of a Joinder Agreement.
“Domestic Borrowing” means a Borrowing comprised of Domestic Revolving Loans.
“Domestic Borrowing Base” means, at any time, the sum of (a) 85% of the Eligible Accounts (excluding any Eligible Credit Insured Accounts) of the Domestic Loan Parties at such time, plus (b) without duplication of other Eligible Accounts, 90% of the Eligible Credit Insured Accounts of the Domestic Loan Parties at such time, plus (c) the lesser of (i) 75% of the Eligible Inventory of the Domestic Loan Parties at such time and (ii) the product of 85% of the Net Orderly
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Liquidation Value multiplied by the Eligible Inventory of the Domestic Loan Parties at such time, valued at the lower of cost or market value, determined on a first-in-first-out basis, plus (d) the Domestic PP&E Component at such time in an aggregate amount for the foregoing clause (d), together with clause (d) of the definition of “German Borrowing Base”, not to exceed 25% of the aggregate Domestic Borrowing Base at such time minus (e) Aggregate Commitment at such time, plus (e) the lesser of (i) 95% of the Eligible Rental Fleet Cranes of the Domestic Loan Parties at such time and (ii) the product of 85% of the Net Orderly Liquidation Value multiplied by the Eligible Rental Fleet Cranes of the Domestic Loan Parties at such time, valued at the lower of cost or market value in an aggregate amount for the foregoing clause (e), together with clause (e) of the definition of “German Borrowing Base”, not to exceed 20% of the Line Cap at such time, minus (f) Reserves pertaining to the Domestic Loan Parties (without duplication of any Reserves accounted for in the Domestic PP&E Component), such Eligible Accounts, such Eligible Credit Insured Accounts or such Eligible Inventory. The Domestic Borrowing Base at any time shall be determined by reference to the most recent applicable Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 4.01(j) or 5.01(f), subject to adjustments for changes to, or implementation of, Reserves established by the Administrative Agent in its Permitted Discretion as provided herein.
“Domestic Collateral Documents” means the Domestic Security Agreement, the Mortgages and each other pledge agreement, security agreement, or other collateral agreement that is entered into by any Domestic Loan Party in favor of the Administrative Agent, securing the Secured Obligations, in each case, entered into pursuant to the terms of this Agreement or any other Loan Document (including Section 5.14).
“Domestic LC Exposure” means, at any time, the sum of (a) the aggregate undrawn U.S. Dollar Amount of all outstanding Domestic Letters of Credit at such time plus (b) the aggregate U.S. Dollar Amount of all LC Disbursements in respect of Domestic Letters of Credit that have not yet been reimbursed by or on behalf of the Company at such time. The Domestic LC Exposure of any Lender at any time shall be its Percentage of the total Domestic LC Exposure at such time.
“Domestic Letter of Credit” means any Letter of Credit issued for the account of a Domestic Borrower under the Commitments pursuant to this Agreement.
“Domestic Loan Parties” means, collectively, the Company and each direct and indirect wholly-owned Material Domestic Restricted Subsidiary or other Person organized under the laws of the U.S. that is or becomes a party hereto and to the Domestic Security Agreement on the Effective Date or pursuant to Section 5.14.
“Domestic PP&E Component” means, at the time of any determination, an amount equal to (a) the sum of (i) the sum of the following amounts calculated for each item of Eligible Equipment of the Domestic Loan Parties: the applicable Equipment Amortization Factor for such Eligible Equipment multiplied by 85% of the Net Orderly Liquidation Value of such Eligible
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Equipment plus (ii) the sum of the following amounts calculated for each parcel of Eligible Real Property of the Domestic Loan Parties: the applicable Real Property Amortization Factor for such Eligible Real Property multiplied by 75% of the fair market value of such Eligible Real Property less (b) Reserves applicable to the Domestic PP&E Component and, without duplication of Reserves set forth in clause (ef) of the definition of “Domestic Borrowing Base,” the Domestic Loan Parties and established by the Administrative Agent in its Permitted Discretion.
“Domestic Restricted Subsidiary” means any Restricted Subsidiary organized under the laws of a jurisdiction located in the U.S.
“Domestic Revolving Exposure” means, with respect to any Lender at any time, and without duplication, the sum of (a) the U.S. Dollar Amount of the outstanding principal amount of such Lender’s Domestic Revolving Loans plus (b) the U.S. Dollar Amount of such Lender’s Domestic LC Exposure plus (c) the U.S. Dollar Amount of such Lender’s Domestic Swingline Exposure plus (d) the U.S. Dollar Amount of such Lender’s Applicable Percentage of the aggregate principal amount of Protective Advances to any Domestic Borrower outstanding at such time.
“Domestic Revolving Loan” means a Loan made by a Lender to a Domestic Borrower pursuant to Section 2.01.
“Domestic Security Agreement” means that certain ABL Pledge and Security Agreement (including any and all supplements thereto), dated as of the Effective Date, between the Domestic Loan Parties and the Administrative Agent, for the benefit of the Secured Parties.
“Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction located in the U.S.
“Domestic Swingline Exposure” means, at any time, the U.S. Dollar Amount of the aggregate principal amount of all outstanding Domestic Swingline Loans that the Lenders have purchased participations in pursuant to the terms hereof. The Domestic Swingline Exposure of any Lender at any time shall be its Percentage of the total Domestic Swingline Exposure at such time.
“Early Opt-in Election” means, if the then current Benchmark with respect to U.S. Dollars is LIBO Rate, the occurrence of:
(1) a notification by the Administrative Agent to (or the request by the Borrower Representative to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding U.S. Dollar denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
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(2) the joint election by the Administrative Agent and the Borrower Representative to trigger a fallback from LIBO Rate and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower Representative and the Lenders.
“EBITDA” means, for any period, the sum (without duplication) of Net Income for such period
plus, to the extent Net Income has been reduced thereby:
(a) all income taxes paid or accrued for such period (other than income taxes attributable to unusual or nonrecurring gains or losses or taxes attributable to sales or dispositions outside the ordinary course of business);
(b) total interest expense determined in accordance with GAAP;
(c) Non-Cash Charges less any non-cash items increasing Net Income for such period;
(d) restructuring charges; provided, that the aggregate amount of add-backs pursuant to this clause (d) does not exceed (x) $25,000,000 for such period, and (y) $75,000,000 forafter the Amendment No. 2 Effective Date and during the term of this Agreement;
(e) pro forma “run rate” cost savings, operating expense reductions and other synergies (in each case, net of amounts actually realized) related to acquisitions, divestitures, dispositions, mergers, Divisions, amalgamations, consolidations or other investments or related to restructurings, operational changes, strategic initiatives, cost savings initiatives, operational improvements, entry into new markets, reductions in force or other similar initiatives and actions that are reasonably identifiable and projected by the Company in good faith to result from actions that have either been taken, with respect to which substantial steps have been taken or that are expected to be taken within twelve (12) months of the date of consummation of such acquisition, divestiture, disposition, merger, Division, amalgamation, consolidation or other investment or the initiation of such restructuring, operational change, strategic initiative, cost savings initiative, operational improvement, entry into new market, reduction in force and other similar initiative or action, in each case so long they are reasonably identifiable and quantifiable and factually supportable; provided that, in each case, such adjustments are set forth in a Certificate of a Financial Officer which states the amount of such adjustment or adjustments and that such adjustment or adjustments are based on the reasonable good faith beliefs of the applicable Financial Officer executing such certificate at the time of such execution; provided, further, that the aggregate amount of add-backs pursuant to this clause (e) (not counting for purposes of applying this limitation, amounts pursuant to this clause (e) that are permitted to be made in accordance with Article 11 of Regulation S X) does not exceed 15.0% of Consolidated EBITDA for such period (calculated prior to giving effect to any such addback pursuant to this clause (e)); and
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(f) any expenses, fees, costs or charges (including all transaction, restructuring and transition costs, fees and expenses (including diligence costs, cash severance costs, retention payments to employees, lease termination costs and reserves)) or any amortization thereof related to any Equity Offering, Investment permitted under Section 6.04, sale of assets, acquisition, disposition, discontinued operations, recapitalization or the incurrence or issuance of Indebtedness permitted to be incurred by this Agreement (including a refinancing thereof and including fees, expenses or charges relating to Amendment No. 1 or any joinders to this Agreement ) (whether or not successful) or extinguishment or redemption of Indebtedness (and termination of any Swap Obligations or other derivative instruments) including (i) such fees, expenses or charges related to the offering of the Junior Notes and this Agreement entered into on the Effective Date, including all amendments hereto and (ii) any amendment or other modification of the Junior Notes, this Agreement or any other Indebtedness permitted to be incurred by this Agreement (including a refinancing thereof);
all calculated for the Company and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP (to the extent applicable).
“ECP” means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity Exchange Act or any regulations promulgated thereunder and the applicable rules issued by the Commodity Futures Trading Commission and/or the SEC.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
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“Electronic System” means any electronic system, including e-mail, e-fax, web portal access for the Borrowers and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent or any Issuing Bank and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other security system.
“Eligible Accounts” means, at any time, the Accounts of any Loan Party which are not excluded as ineligible by virtue of one or more of the criteria set forth below. Eligible Accounts shall not include any Account of a Loan Party:
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In the event that an Account of a Loan Party in excess of $2,500,000 which was previously an Eligible Account ceases to be an Eligible Account hereunder (other than due to payment) and any Loan Party or the Borrower Representative has knowledge of the same, such Loan Party or the Borrower Representative shall notify the Administrative Agent thereof on and at the time of submission to the Administrative Agent of the next Borrowing Base Certificate. In determining the amount of an Eligible Account of a Loan Party, the face amount of an Account may, in the Administrative Agent’s Permitted Discretion, be reduced by, without duplication hereunder or under the foregoing eligibility criteria and to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that such Loan Party may be obligated to rebate to an Account Debtor pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by such Loan Party to reduce the amount of such Account.
“Eligible Credit Insured Accounts” means, at any time, Accounts that would otherwise constitute Eligible Accounts and are fully backed by credit insurance reasonably acceptable to the Administrative Agent, naming the Administrative Agent as an additional insured and loss payee (calculated net of the amount of any premiums, deductibles, co-insurance, fees or similar costs of and amounts relating to such credit insurance payable by any Loan Party).
“Eligible Equipment” means, at any time, the Equipment of any Loan Party which are not excluded as ineligible by virtue of one or more of the criteria set forth below. Eligible Equipment shall not include any Equipment that does not meet each of the following requirements:
(a) such Loan Party has good title to such Equipment;
(b) other than to the extent the Administrative Agent shall have established a Reserve in its Permitted Discretion for liabilities that secure any other Liens, such Equipment is subject to a first priority perfected Lien in favor of the Administrative Agent governed by the laws of the jurisdiction in which the Equipment in question is located and is free and clear of all other Liens of any nature whatsoever (except for Liens isas permitted under Section 6.02(b), or Permitted Encumbrances, in each case, which do not have priority over the Lien in favor of the
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Administrative Agent); provided, however, that Equipment subject to a certificate of title (such as, but not limited to, vehicles) shall constitute Eligible Equipment regardless of whether the Administrative Agent’s Lien has been noted on such certificate (except as set forth in Section 5.14);
(c) the full purchase price for such Equipment has been paid by such Loan Party;
(d) such Equipment (except for Specified Cranes that are leased to a customer of a Loan Party) is located on premises (i) owned by such Loan Party, which premises are subject to a first priority perfected Lien (subject to Permitted Encumbrances) in favor of the Administrative Agent, unless (x) such Loan Party shall have delivered to the Administrative Agent a Collateral Access Agreement or (y) such premises are owned by such Loan Party in fee title free and clear of any Liens (other than Permitted Encumbrances), or (ii) leased by such Loan Party where (x) the lessor has delivered to the Administrative Agent a Collateral Access Agreement or (y) a Reserve for rent, charges, and other amounts due or to become due with respect to such facility has been established by the Administrative Agent in its Permitted Discretion (provided, however, that no such Reserve pursuant to this clause (y) shall be established against such Equipment prior to the ninetieth (90th) day after the Effective Date (or such later date as the Administrative Agent may agree in its sole discretion));
(e) such Equipment is in good working order and condition (ordinary wear and tear excepted) and is used or held for use by such Loan Party in the ordinary course of business of such Loan Party;
(f) such Equipment (i) is not subject to any agreement which restricts the ability of such Loan Party to use, sell, transport or dispose of such Equipment or which restricts the Administrative Agent’s ability to take possession of, sell or otherwise dispose of such Equipment and (ii) has not been purchased from a Sanctioned Person;
(g) such Equipment does not constitute “Fixtures” under the applicable laws of the jurisdiction in which such Equipment is located; or
(h) such Equipment is not a Specified Crane leased to a customer unless such Specified Crane is (x) in the case of Specified Cranes owned by Domestic Loan Parties, located in the U.S., and (y) in the case of Specified Cranes owned by German Loan Parties, located in Germany; or
(ih) such Equipment as to which the Administrative Agent has determined in its Permitted Discretion is not marketable for sale or lease.
Notwithstanding the foregoing, the Specified Cranes shall constitute Eligible Equipment so long as the Specified Cranes satisfy all of the criteria for Eligible Equipment set forth above, other than the Specified Cranes that may be Inventory and not Equipment. In the event that Equipment of any Loan Party which was previously Eligible Equipment with an aggregate value
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in excess of $5,000,000 ceases to be Eligible Equipment hereunder (other than as a result of a sale or disposition) and any Loan Party or the Borrower Representative shall have knowledge of the same, such Loan Party or the Borrower Representative shall notify the Administrative Agent thereof on and at the time of submission to the Administrative Agent of the next Borrowing Base Certificate.
“Eligible European Jurisdiction” means each of Austria, Belgium, Denmark, Finland, France, Germany, Italy, Ireland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and the United Kingdom, provided that the Administrative Agent may, in its Permitted Discretion, remove one or more of the countries comprising the Eligible European Jurisdictions and subsequently reinstate one or more removed countries back as Eligible European Jurisdictions.
“Eligible Inventory” means, at any time, the Inventory (including raw materials and work-in-process) of any Loan Party which are not excluded as ineligible by virtue of one or more of the criteria set forth below (unless the inclusion of such Inventory is permitted in the Permitted Discretion of the Administrative Agent). Eligible Inventory of a Loan Party shall not include any Inventory:
(a) which is not subject to a first priority perfected security interest in favor of the Administrative Agent, governed by the laws of the jurisdiction in which the Inventory in question is located;
(b) which is subject to any Lien, unless such Lien constitutes (x) a Lien in favor of the Administrative Agent, (y) a Permitted Encumbrance which does not have priority over the Lien in favor of the Administrative Agent or (z) a Lien that is permitted under Section 6.02(b);
(c) unless accounted for in the most recent Inventory appraisal when determining the Net Orderly Liquidation Value percentage, which is, in the Administrative Agent’s Permitted Discretion, obsolete, unmerchantable, defective, used, unfit for sale, not salable at prices approximating at least the cost of such Inventory in the ordinary course of business or unacceptable due to age, type, category and/or quantity;
(d) with respect to which any covenant, representation or warranty contained in any Loan Document has been breached or is not true in any material respect (or, with respect to any covenant, representation or warranty which is subject to any materiality qualifier, has been breached or is not true in any respect) and which does not conform to all applicable standards imposed by any Governmental Authority;
(e) in which any Person other than such Loan Party shall (i) have any direct or indirect ownership, interest or title or (ii) be indicated on any purchase order or invoice with respect to such Inventory as having or purporting to have an interest therein;
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(f) which is not finished goods or which constitutes spare or replacement parts, subassemblies, packaging and shipping material, manufacturing supplies, samples, prototypes, displays or display items, bill-and-hold or ship-in-place goods, goods that are returned or marked for return (unless undamaged and able to be resold in the ordinary course of business in an aggregate amount not to exceed $50,000,000), repossessed goods, defective or damaged goods, goods held by such Loan Party on consignment, or goods which are not of a type held for sale in the ordinary course of business;
(g) which (i) if such Loan Party is a Domestic Loan Party, is not located in the U.S. or is in transit with a common carrier from vendors and suppliers or (ii) if such Loan Party is a German Loan Party, is not located in Germany or is in transit with a common carrier from vendors and suppliers; provided that, (x) the foregoing criteria shall not exclude Inventory in transit among Loan Parties located in the same country from being eligible and (y) notwithstanding the foregoing provisions of this clause (g), up to $5,000,000 of Inventory in transit from vendors and suppliers or among Loan Parties not located in the same country may be included as Eligible Inventory despite the foregoing provision of this clause (g) so long as:
(A) the Administrative Agent shall have received (1) a true and correct copy of the bill of lading and other shipping documents for such Inventory and (2) evidence of satisfactory casualty insurance naming the Administrative Agent as lender loss payee and otherwise covering such risks as the Administrative Agent may reasonably request;
(B) if the bill of lading is non-negotiable, the inventory must be in transit within the U.S. or Germany, and the Administrative Agent shall have received, if requested, a duly executed Collateral Access Agreement, in form and substance satisfactory to the Administrative Agent, from the applicable customs broker, freight forwarder or carrier for such Inventory;
(C) if the bill of lading is negotiable, the inventory must be in transit from outside the U.S. or Germany, and the Administrative Agent shall have received (1) confirmation that the bill is issued in the name of such Loan Party and consigned to the order of the Administrative Agent, and an acceptable agreement has been executed with such Loan Party’s customs broker, in which the customs broker agrees that it holds the negotiable bill as agent for the Administrative Agent and has granted the Administrative Agent access to the Inventory, (2) confirmation that such Loan Party has paid for the goods, and (3) an estimate from such Loan Party of the customs duties and customs fees associated with the Inventory in order to establish an appropriate Reserve;
(D) the common carrier is not an Affiliate of the applicable vendor or supplier; and
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(E) the customs broker is not an Affiliate of any Loan Party;
(h) which is located in any location leased by such Loan Party unless (A) (i) the lessor has delivered to the Administrative Agent a Collateral Access Agreement or (ii) a Reserve for rent, charges and other amounts due or to become due with respect to such facility has been established by the Administrative Agent in its Permitted Discretion (provided, however, that no such Reserve pursuant to this clause (ii) shall be established against any such Inventory prior to the ninetieth (90th) day after the Effective Date (or such later date as the Administrative Agent may agree in its sole discretion)) and (B) at least $250,000 of Inventory of the Loan Parties is located at such location;
(i) which is located in any third party warehouse or is in the possession of a bailee (other than a third party processor), unless (i) such warehouseman or bailee has delivered to the Administrative Agent a Collateral Access Agreement and such other documentation as the Administrative Agent may require or (ii) an appropriate Reserve has been established by the Administrative Agent in its Permitted Discretion (provided, however, that no such Reserve pursuant to this clause (ii) shall be established against any such Inventory prior to the ninetieth (90th) day after the Effective Date (or such later date as the Administrative Agent may agree in its sole discretion));
(j) which is being processed offsite at a third party location or outside processor, or is in-transit to or from such third party location or outside processor, unless (i) such processor has delivered to the Administrative Agent a Collateral Access Agreement and such other documentation as the Administrative Agent may require or (ii) an appropriate Reserve has been established by the Administrative Agent in its Permitted Discretion (provided, however, that no such Reserve pursuant to this clause (ii) shall be established against any such Inventory prior to the ninetieth (90th) day after the Effective Date (or such later date as the Administrative Agent may agree in its sole discretion));
(k) which is a discontinued product or component thereof (unless such discontinuance does not adversely impact the salability of the remaining Inventory);
(l) which is the subject of a consignment by such Loan Party as consignor; provided that consigned Inventory may be eligible if the applicable consignee has delivered to the Administrative Agent a Collateral Access Agreement and such other documentation as the Administrative Agent may reasonably require;
(m) which contains or bears any intellectual property rights licensed to such Loan Party by a third party, unless the Administrative Agent is satisfied in its Permitted Discretion that it may sell or otherwise dispose of such Inventory after the occurrence and during the continuance of an Event of Default in accordance with the terms of the Loan Documents, and, so long as the terms of the contract(s) pursuant to which such license is granted are binding on the applicable Loan
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Party, without, in any material respect, (i) infringing the rights of such licensor, or (ii) violating such contract with such licensor;
(n) which is not reflected in a current perpetual inventory report of such Loan Party (unless such Inventory is reflected in a report to the Administrative Agent as “in transit” Inventory);
(o) for which reclamation rights have been asserted by the seller;
(p) which has been acquired from a Sanctioned Person;
(q) for which (i) any contract or related documentation (such as invoices or purchase orders) relating to such Inventory includes retention of title rights in favor of the vendor or supplier thereof, (ii) under applicable governing laws, retention of title may be imposed unilaterally by the vendor or supplier thereof, provided that Inventory of a Loan Party which may be subject to any rights of retention of title shall not be excluded from Eligible Inventory solely pursuant to this clause (q) in the event that (A) the Administrative Agent shall have received evidence reasonably satisfactory to it that the full purchase price of such Inventory has or will have been paid or (B) a Letter of Credit has been issued under and in accordance with the terms of this Agreement for the purchase of such Inventory and (iii) the completion of, manufacture, sale or other disposition thereof by the Administrative Agent following an Event of Default requires the consent of any Person that has not been obtained and constitutes a breach or default under any contract or agreement to which the applicable Loan Party is a party or to which such Inventory is subject;
(r) that is a Specifiedconstitutes a Rental Fleet Crane;
(s) which was not produced, in all material respects, in accordance with the Federal Fair Labor Standards Act of 1938, as amended, and all rules, regulations and orders thereunder; or
(t) as to which the Administrative Agent has determined, in its Permitted Discretion, is ineligible, based on such credit and collateral determinations as the Administrative Agent may deem appropriate with respect to evaluating whether advancing against such asset is reasonably likely to result in a loss with respect to such advance; provided that, in making such determination, the Administrative Agent shall take into account the blended advance rates determined in the most appraisal; provided further that the Administrative Agent has delivered to the Borrower Representative notice and detail of such determination.
In the event that Inventory of any Loan Party in excess of $2,500,000 which was previously Eligible Inventory ceases to be Eligible Inventory hereunder (other than as a result of a sale or disposition), and any Loan Party or the Borrower Representative has knowledge of the same, such Loan Party or the Borrower Representative shall notify the Administrative Agent thereof on and at the time of submission to the Administrative Agent of the next Borrowing Base Certificate.
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“Eligible Real Property” means the Mortgaged Real Property owned by a Domestic Loan Party (i) that is acceptable in the sole discretion of the Administrative Agent for inclusion in the Domestic Borrowing Base, and (ii) in respect of which the deliveries required under Section 4.01(n) have been delivered to the Administrative Agent.
“Eligible Rental Fleet Cranes” means, at any time, the Rental Fleet Cranes of any Loan Party which are not excluded as ineligible by virtue of one or more of the criteria set forth below. Eligible Rental Fleet Cranes shall not include any Rental Fleet Crane that does not meet each of the following requirements:
(a) such Loan Party has good title to such Rental Fleet Crane;
(b) other than to the extent the Administrative Agent shall have established a Reserve in its Permitted Discretion for liabilities that secure any other Liens, such Rental Fleet Crane is subject to a first priority perfected Lien in favor of the Administrative Agent governed by the laws of the jurisdiction in which the Rental Fleet Crane in question is located and is free and clear of all other Liens of any nature whatsoever (except for Liens as permitted under Section 6.02(b), or Permitted Encumbrances, in each case, which do not have priority over the Lien in favor of the Administrative Agent);
(c) the full purchase price for such Rental Fleet Crane has been paid by such Loan Party;
(d) such Rental Fleet Crane is controlled by any Loan Party (or on lease or rent with a customer in the ordinary course of business) and is not located outside of the United States or Germany;
(e) such Rental Fleet Crane (i) is in good working order and condition (ordinary wear and tear excepted), (ii) is held for sale, lease or rental (or is leased or rented to other Persons) by such Loan Party in the ordinary course of business by such Loan Party, and (iii) constitutes “Inventory” under the UCC;
(f) other than any lease, rental agreement or other similar agreement with the applicable customer, such Rental Fleet Crane (i) is not subject to any agreement which restricts the ability of such Loan Party to use, sell, transport or dispose of such Rental Fleet Crane or which restricts the Administrative Agent’s ability to take possession of, sell or otherwise dispose of such Rental Fleet Crane and (ii) has not been purchased from, or leased to, a Sanctioned Person;
(g) such Rental Fleet Crane does not constitute “Fixtures” under the applicable laws of the jurisdiction in which such Rental Fleet Crane is located;
(h) such Rental Fleet Crane has not been determined by the Administrative Agent in its Permitted Discretion to not be marketable for sale or lease; or
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(i) any other eligibility criteria consistent with comparable asset-based lending transactions involving rental assets, as determined by the Administrative Agent in its Permitted Discretion based upon the results of field examinations, appraisals and other due diligence of Rental Fleet Cranes of such Loan Party.
Notwithstanding anything to the contrary in this Agreement, no Rental Fleet Crane shall be included in the Domestic Borrowing Base or German Borrowing Base until the Administrative Agent shall have received, and be reasonably satisfied with the results of, a field examination and appraisal with respect to Rental Fleet Cranes owned by Domestic Loan Parties or German Loan Parties, as applicable, from an examiner reasonably acceptable to the Administrative Agent, and such other appropriate due diligence as determined by the Administrative Agent in its Permitted Discretion. In the event that Rental Fleet Cranes of any Loan Party with an aggregate value in excess of $5,000,000 and which were previously Eligible Rental Fleet Cranes cease to be Eligible Rental Fleet Crane hereunder (other than as a result of a sale or disposition) and any Loan Party or the Borrower Representative shall have knowledge of the same, such Loan Party or the Borrower Representative shall notify the Administrative Agent thereof on and at the time of submission to the Administrative Agent of the next Borrowing Base Certificate.
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to (i) the environment, (ii) preservation or reclamation of natural resources, (iii) the management, Release or threatened Release of any Hazardous Material or to (iv) health and safety matters as relates to Hazardous Materials.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company or any Restricted Subsidiary directly or indirectly resulting from or based upon (a) any violation of any applicable Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) any 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 by or imposed on the Company or any Restricted Subsidiary with respect to any of the foregoing.
“Equipment” has the meaning assigned to such term in the applicable Security Agreement.
“Equipment Amortization Factor” means, with respect to any Equipment on any date of determination, 1 minus a fraction, the numerator of which is the number of full fiscal quarters of the Company elapsed as of such date (including any such fiscal quarter ending on such date) since March 31, 2019 (or, if later, the date of the Administrative Agent’s receipt of the results of the most recent completed appraisal of such Equipment conducted at the request of the Loan Parties pursuant to Section 5.11 hereof) and the denominator of which is 28.
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“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing, but excluding any debt securities convertible into any of the foregoing; provided that “Equity Interests” shall not include Indebtedness that is convertible (but has not yet been converted) into Equity Interests.
“Equity Offering” means any public or private sale or issuance of Qualified Capital Stock of the Company, other than (i) public offerings with respect to the Company’s common stock on Form S-8 and (ii) issuances to any Subsidiary of the Company.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
“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 Section 4001(14) of ERISA 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 failure to satisfy the “minimum funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived, with respect to any Plan; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by any Borrower or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by any 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 ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal of any Borrower or any ERISA Affiliate from any Plan or Multiemployer Plan; or (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 of the imposition upon any Borrower or any ERISA Affiliate of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in critical status, within the meaning of Title IV of ERISA.
“Establishment” means, in respect of any Person, any place of operations where such Person carries out a non-transitory economic activity with human means and goods, assets or services.
“ESTR” means, with respect to any Business Day, a rate per annum equal to the Euro Short Term Rate for such Business Day published by the ESTR Administrator on the ESTR Administrator’s Website.
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“ESTR Administrator” means the European Central Bank (or any successor administrator of the Euro Short Term Rate).
“ESTR Administrator’s Website” means the European Central Bank’s website, currently at http://www.ecb.europa.eu, or any successor source for the Euro Short Term Rate identified as such by the ESTR Administrator from time to time.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“EURIBOR Interpolated Rate” means, at any time, with respect to any Eurodollar Borrowing denominated in Euros and for any Interest Period, the rate per annum (rounded to the same number of decimal places as the EURIBOR Screen Rate) determined by the Administrative Agent in good faith (which determination shall be conclusive and binding absent demonstrable error) to be equal to the rate that results from interpolating on a linear basis between: (a) the EURIBOR Screen Rate for the longest period (for which the EURIBOR Screen Rate is available for Euros) that is shorter than the Impacted EURIBOR Rate Interest Period; and (b) the EURIBOR Screen Rate for the shortest period (for which the EURIBOR Screen Rate is available for Euros) that exceeds the Impacted EURIBOR Rate Interest Period, in each case, at such time; provided that, if any EURIBOR Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“EURIBOR Rate” means, with respect to any EurodollarTerm Benchmark Borrowing denominated in Euros and for any Interest Period, the EURIBOR Screen Rate at approximately 11:00 a.m., Brussels time, twotwo (2) TARGET Days prior to the commencement of such Interest Period; provided that, if the EURIBOR Screen Rate shall not be available at such time for such Interest Period (an “Impacted EURIBOR Rate Interest Period”) with respect to Euros then the EURIBOR Rate shall be the EURIBOR Interpolated Rate.
“EURIBOR Screen Rate” means the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters as of published at approximately 11:00 a.m. Brussels time two (2) TARGET Days prior to the commencement of such Interest Period. If such page or service ceases to be available, the Administrative Agent may specify another page or service displaying the relevant rate after consultation with the Borrower Representative, which specification shall be consistent with such specification generally under other substantially similar credit facilities for which it acts as the administrative agent. If the EURIBOR Screen Rate shall be less than zero, the EURIBOR Screen Rate shall be deemed to be zero for purposes of this Agreement.
“Euro” or “€” means the single currency of the Participating Member States.
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“Eurodollar”, when used in reference to a Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate or the Adjusted EURIBOR Rate.
“EurodollarEurocurrency Payment Office” of the Administrative Agent shall meanmeans, for each Foreign Currency, the office, branch, affiliate or correspondent bank of the Administrative Agent for such currency as specified from time to time by the Administrative Agent to the Company and each Lender.
“Event of Default” has the meaning assigned to such term in Article VII.
“Exchange Rate” means, on any day, with respect to any Foreign Currency, the rate at which such Foreign Currency may be exchanged into U.S. Dollars, as set forth at approximately 11:00 a.m., Local Time, on such date on the Reuters World Currency Page for such Foreign Currency. In the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate with respect to such Foreign Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent or, in the event no such service is selected, such Exchange Rate shall instead be calculated on the basis of the arithmetical mean of the buy and sell spot rates of exchange of the Administrative Agent for such Foreign Currency on the London market at 11:00 a.m., Local Time, on such date for the purchase of U.S. Dollars with such Foreign Currency, for delivery two (2) Business Days later; provided that, if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent, after consultation with the Borrower Representative, may use any reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.
“Excluded Accounts” has the meaning assigned to such term in the definition of the term “Excluded Assets”.
“Excluded Assets” means (a) any lease, license, contract, document, instrument or agreement to which any Loan Party is a party, to the extent that the creation of a Lien on such assets would, (i) under the express terms of such lease, license, contract, document, instrument or agreement, result in a breach of the terms of, create a right of termination in favor of any other party thereto (other than the Loan Parties or any of their Restricted Subsidiaries), or constitute a default or violation under, such lease license, contract, document, instrument or agreement (other than to the extent that any such term (x) has been waived (without any obligation on the Loan Parties to obtain such waiver) or (y) would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408, 9-409 or other applicable provisions of the UCC of any relevant jurisdiction or any other applicable law) or (ii) require governmental or regulatory, consent, or authorization not obtained (without any requirement to obtain such approval, consent or authorization); provided that, immediately upon the ineffectiveness, lapse or termination of any such express term or such Governmental Authority has otherwise expressly consented in writing to the creation of a Lien hereunder, such assets shall automatically cease to constitute “Excluded Assets”, (b) (i) any
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property that is subject to a purchase money Lien or a financing or capital lease permitted under the Loan Documents if the agreement pursuant to which such Lien is granted (or in the document providing for such financing or capital lease) prohibits or requires the consent of any Person other than any Borrower and/or its Affiliates which has not been obtained (without any obligation on the Loan Parties to obtain such consent) as a condition to the creation of any other Lien on such property and (ii) any property that is subject to a Lien permitted by Section 6.02(bb), (c) any leasehold interests in real property and improvements and Fixtures thereon, (d) subject to Section 5.14(j), anyany Non-Mortgaged Real Property (and improvements and Fixtures relating thereto), (e) payroll accounts, trust accounts, employee benefit accounts and zero-balance disbursement accounts (that are not collection accounts) and other deposit accounts (that are not collection accounts) with an aggregate amount on deposit therein of not more than $500,000 at any one time for all Loan Parties (provided that the amount on deposit in any individual deposit account for such deposit account to constitute “Excluded Assets” pursuant to the foregoing de minimis threshold must be less than $100,000 at all times) (such accounts, collectively, the “Excluded Accounts”), (f) any application for registration of a Trademark filed in the U.S. Patent and Trademark Office on the basis of the applicant's intent-to-use such Trademark pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, unless and until evidence of use has been filed with the U.S. Patent and Trademark Office pursuant to Section 1(d) of the Lanham Act or Section 1(c) of the Lanham Act (15 U.S.C. §1051, et seq.) with respect thereto, solely to the extent, if any, that and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any such Trademark application or the registration that issues from such application under applicable federal law, (g) any asset or property of Unrestricted Subsidiaries and Excluded Subsidiaries, (h) other than with respect to the Secured Obligations of the German Loan Parties, any Equity Interests in or assets of (A) a direct or indirect Foreign Subsidiary of the Company or a CFC Holding Company, except that Excluded Assets shall not include 65% of the outstanding voting Equity Interests and 100% of the non-voting Equity Interests of each such First Tier Foreign Subsidiary or CFC Holding Company, provided, however, that no more than 65% of the voting Equity Interests of a First Tier Foreign Subsidiary or CFC Holding Company, as applicable, in the aggregate, may be pledged to secure the Secured Obligations or (B) a direct or indirect Subsidiary of a CFC, (i) any aircraft, (j) any other property, to the extent the granting of a Lien therein is prohibited by any Requirement of Law (other than to the extent that such prohibition would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408, 9-409 or other applicable provisions of the UCC of any relevant jurisdiction or any other applicable law), (k) any assets if and for so long as the burden or cost (including any adverse Tax consequences) of obtaining a security interest therein or perfection thereof exceeds the practical benefits to the Secured Parties afforded thereby as reasonably determined between the Borrower Representative and the Administrative Agent, (l) any governmental or regulatory licenses, authorizations, permits, approvals and consents to the extent a security interest therein is prohibited or restricted thereby or requires any consent or authorization from a Governmental Entity not obtained (without any requirement to obtain such consent or authorization), (m) Equity Interests in any joint venture to the extent a pledge thereof is not permitted by the terms of the applicable joint venture or similar agreements and documents; provided that, immediately upon the ineffectiveness, lapse or
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termination of any such prohibitions, such assets shall automatically cease to constitute “Excluded Assets”), (n) margin stock and (o) accounts receivable sold under any Factoring Agreement permitted hereunder; provided further that (x) “Excluded Assets” shall not include any proceeds, products, substitutions or replacements of Excluded Assets (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Assets) and (y) the foregoing exclusions shall not apply to any asset or property of the Company and its Subsidiaries on which a Lien has been granted to secure any obligations under any Junior Indebtedness.
“Excluded Subsidiary” means a Subsidiary that is not a German Loan Party and is (A) a direct or indirect Subsidiary of a CFC or CFC Holding Company, (B) a CFC or a CFC Holding Company, (C) non-wholly owned, (D) a captive insurance company, (E) a not-for-profit or special purpose entity, (F) a Subsidiary to the extent the cost of obtaining a guarantee by such Subsidiary (including adverse tax consequences) outweighs the benefit afforded thereby as reasonably determined by the Administrative Agent and the Borrower Representative, (G) is not a Material Restricted Subsidiary, (H) an Unrestricted Subsidiary and (I) a Subsidiary to the extent the provision of a guarantee is otherwise prohibited by Requirements of Law (including financial assistance, fraudulent conveyance, preference, thin capitalization or other similar laws or regulations) or regulations or contractual provisions existing on the Effective Date (or, if later, on the date such Person becomes a Subsidiary, if not entered into in contemplation thereof).
“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an ECP at the time the Guarantee of such Loan Party or the grant of such security interest becomes or would become effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, being a resident for the purposes of or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal, and German withholding Taxes (excluding German withholding Taxes imposed on payments of interest to a Recipient with respect to which the applicable Recipient fulfills the conditions relating to that Recipient to be entitled to claim a full exemption from Tax imposed by Germany on interest under
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an income Tax treaty subject to completing the applicable procedural formalities) imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(f), (d) any withholding Taxes imposed under FATCA, (e) any VAT for which Section 2.17(h) applies and (f) any German Taxes levied due to the fact that any Secured Obligations is secured (directly or indirectly) by real estate located in Germany (inländische Grundstücke) or domestic rights treated as real property under German civil law (inländische Rechte, die den Vorschriften des Bürgerlichen Rechts über Grundstücke unterliegen).
“Existing Credit Agreement” means that certain Credit Agreement, dated as of March 3, 2016, by and among the Company, the other loan parties party thereto, the financial institutions party thereto as lenders and Wells Fargo Bank, National Association, as administrative agent.
“Existing Junior Secured Notes” means the senior secured notes issued under that certain Indenture dated as of February 18, 2016, among the Company, as successor by merger to MTW Cranes Escrow Corp., as issuer, the guarantors from time to time party thereto, and Wells Fargo Bank, National Association, as trustee and collateral agent, as it may be amended, supplemented or otherwise modified prior to the date hereof.
“Existing Letters of Credit” means the letters of credit issued under the Existing Credit Agreement described on Schedule 1.01(c) hereto.
“Extenuating Circumstance” means any period during which the Administrative Agent has determined in its sole discretion (i) that due to unforeseen and/or nonrecurring circumstances, it is impractical and/or not feasible to submit or receive a Borrowing Request or Interest Election Request by email or fax or through Electronic System, and (ii) to accept a Borrowing Request or Interest Election Request telephonically.
“Factor” means, collectively, one or more purchasers of receivables under a Factoring Agreement.
“Factoring Agreement” means one or more receivables purchase agreements (or similar agreements) entered into by a Foreign Subsidiary of the Company (other than a German Restricted Subsidiary) with one or more Factors, as the same may be amended, modified, supplemented and/or replaced from time to time so long as any such replacement agreement is on terms no less
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favorable to the Company or its Restricted Subsidiaries that are in any material respect than those terms set forth in the Factoring Agreements as in effect on the Effective Date.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“FCA” has the meaning assigned to such term in Section 1.07.
“FCCR Test Period” means any period (a) commencing on the last day of the most recent period of four consecutive fiscal quarters of the Company then ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)) on or prior to the date Aggregate Availability is less than the greater of (x) 10% of the Line Cap and (y) $20,000,000 at any time and (b) ending on the first day after Aggregate Availability has exceeded the greater of (x) 10% of the Line Cap and (y) $20,000,000 for sixty (60) consecutive days.
“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the U.S.
“FEMA” means the Federal Emergency Management Agency (or any successor agency).
“Field Exam and Appraisal Period” means any period of time (a) commencing with the date on which the Aggregate Availability is less than the greater of (x) 12.5% of the Line Cap and (y) $25,000,000 at any time and (b) ending on the first day after Aggregate Availability has exceeded the greater of (x) 12.5% of the Line Cap and (y) $25,000,000 for sixty (60) consecutive days.
“Financial Officer” means the chief financial officer, principal accounting officer, treasurer, regional treasurer or controller of the Company.
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“Financing Lease Obligation” means an obligation that is required to be accounted for as a financing or capital lease (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP. At the time any determination thereof is to be made, the amount of the liability in respect of a financing or capital lease would be the amount required to be reflected as a liability on such balance sheet (excluding the footnotes thereto) in accordance with GAAP.
“First Tier Foreign Subsidiary” means each Foreign Subsidiary with respect to which the Company, any Domestic Subsidiary and/or any CFC Holding Company described in clause (b) of the definition thereof, directly owns or Controls more than 50% of such Foreign Subsidiary’s issued and outstanding Equity Interests.
“Fixed Charge Coverage Ratio” means, for any period, the ratio of (a) EBITDA minus Unfinanced Capital Expenditures to (b) Fixed Charges, all calculated for the period of four consecutive fiscal quarters ended on such date (or, if such date is not the last day of a fiscal quarter, ended on the last day of the fiscal quarter most recently ended prior to such date), all calculated for the Company and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP.
“Fixed Charges” means, for any period, without duplication, cash Interest Expense, plus scheduled principal payments on Indebtedness actually made (for the avoidance of doubt, other than prepayments and repayments of the Revolving Loans), plus expenses for Taxes paid in cash, plus, solely for purposes of determining satisfaction of the Payment Conditions, Restricted Payments paid in cash (other than Restricted Payments made by any Loan Party or any Subsidiary of a Loan Party to any Loan Party that subsequently distributes the proceeds of such Restricted Payments to one or more Loan Parties), plus Financing Lease Obligation payments, plus quarterly reductions in the Domestic PP&E Component pursuant to clauses (a)(i) and (a)(ii) of the definition thereof during such period, plus, quarterly reductions in the German PP&E Component pursuant to clause (a) of the definition thereof during such period, all calculated for the Company and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP.
“Fixtures” has the meaning assigned to such term in the applicable Security Agreement.
“Flood Laws” means the National Flood Insurance Reform Act of 1994 and related legislation.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to LIBOthe Adjusted Term SOFR Rate, Adjusted EURIBOR Rate or, each Daily Simple RFR or the Central Bank Rate, as applicable. As of the Amendment No. 1 Effective Date, the Floor is 0%.
“Foreign Currencies” means Agreed Currencies other than U.S. Dollars.
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“Foreign Lender” means (a) if a Borrower is a U.S. Person, a Lender, with respect to such Borrower, that is not a U.S. Person, and (b) if a Borrower is not a U.S. Person, a Lender, with respect to such Borrower, that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for Tax purposes.
“Foreign Pension Plan” means any pension plan, pension undertaking, supplemental pension, retirement savings or other retirement income plan, obligation or arrangement or any kind that is not subject to U.S. law and that is established, maintained or contributed to by any Loan Party or any of its Subsidiaries or Affiliates in respect of which any Loan Party or any of its Subsidiaries or Affiliates has any liability, obligation or contingent liability.
“Foreign Subsidiary” means any Subsidiary which is not a Domestic Subsidiary.
“Funding Account” has the meaning assigned to such term in Section 4.01(a).
“GAAP” means generally accepted accounting principles in the U.S.
“German Borrower” means Manitowoc Crane Group Germany GmbH, a German limited liability company (Gesellschaft mit beschränkter Haftung).
“German Borrower LC Exposure” means, at any time, the sum of (a) the aggregate undrawn U.S. Dollar Amount of all outstanding German Letters of Credit at such time plus (b) the aggregate U.S. Dollar Amount of all LC Disbursements in respect of German Letters of Credit that have not yet been reimbursed by or on behalf of the Borrowers at such time. The German Borrower LC Exposure of any Lender at any time shall be its Percentage of the total German Borrower LC Exposure at such time.
“German Borrower Swingline Exposure” means, at any time, the U.S. Dollar Amount of the aggregate principal amount of all outstanding German Swingline Loans that the Lenders have purchased participations in pursuant to the terms hereof. The German Borrower Swingline Exposure of any Lender at any time shall be its Percentage of the total German Borrower Swingline Exposure at such time.
“German Borrowing” means a Borrowing comprised of German Revolving Loans.
“German Borrowing Base” means, at any time, the sum of (a) 85% of the Eligible Accounts (excluding any Eligible Credit Insured Accounts) of the German Borrower at such time, plus (b) without duplication of other Eligible Accounts, 90% of the Eligible Credit Insured Accounts of the German Borrower at such time, plus (c) the lesser of (i) 75% of the Eligible Inventory of the German Borrower at such time and (ii) the product of 85% of the Net Orderly Liquidation Value multiplied by the Eligible Inventory of the German Borrower at such time, valued at the lower of cost or market value, determined on a first-in-first-out basis, plus (cd) the German PP&E Component at such time in an aggregate amount not to exceed 25% of the aggregate German
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Borrowing BaseSublimit at such time, plus (e) the lesser of (i) 95% of the Eligible Rental Fleet Cranes of the German Borrower at such time and (ii) the product of 85% of the Net Orderly Liquidation Value multiplied by the Eligible Rental Fleet Cranes of the German Borrower at such time, valued at the lower of cost or market value, determined on a first-in-first-out basis, in an aggregate amount for the foregoing clause (e), together with clause (e) of the definition of “Domestic Borrowing Base”, not to exceed 20% of the Line Cap at such time, minus (df) Reserves pertaining to the German Borrower (without duplication of any Reserves accounted for in the German PP&E Component), such Eligible Accounts, such Eligible Credit Insured Accounts or such Eligible Inventory. The German Borrowing Base at any time shall be determined by reference to the most recent applicable Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 4.01(j) or 5.01(f), subject to adjustments for changes to, or implementation of, Reserves established by the Administrative Agent in its Permitted Discretion as provided herein.
“German Collateral” has the meaning assigned to such term in Section 8.07(d).
“German Collateral Documents” means the German Security Agreements and each other pledge agreement, security agreement, or other collateral agreement (including each intellectual property right security transfer and assignment agreement) that is entered into by any German Loan Party (or any share pledge with respect to the shares of any German Loan Party) in favor of the Administrative Agent, securing the German Secured Obligations, in each case, entered into pursuant to the terms of this Agreement or any other Loan Document (including Section 5.14).
“German GAAP” means generally accepted accounting principles in Germany.
“German Guaranty Limitations” means Section 11.14 of this Agreement.
“German Holdings” means Manitowoc Crane Group Holding Germany GmbH.
“German Insolvency Event” means:
(a) a German Relevant Entity is unable or admits its inability to pay its debts as they fall due or is deemed to or declared to be unable to pay its debts under applicable law, suspends or threatens to suspend making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness, including a stoppage of payment situation (Zahlungsunfähigkeit), a status of over‑indebtedness (Überschuldung), the presumed inability to pay its debts as they fall due (drohende Zahlungsunfähigkeit), or actual insolvency proceedings;
(b) a moratorium is declared in respect of any Indebtedness of a German Relevant Entity;
(c) (i) such German Relevant Entity is otherwise in a situation to file for insolvency because of any of the reasons set out in Sections 17 to 19 of the German Insolvency Code and (ii)
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a petition for insolvency proceedings in respect of its assets (Antrag auf Eröffnung eines insolvenzverfahrens) has been filed based on Sections 17 to 19 of the German Insolvency Code (Insolvenzordnung); or
(d) any procedure or step analogous to the foregoing taken in any jurisdiction;
provided that, this definition shall not apply to any insolvency petition which is frivolous or vexatious and is discharged, stayed or dismissed within fourteen (14) days of notice thereof to any German Relevant Entity becoming aware of the same.
“German Letter of Credit” means any Letter of Credit issued for the account of the German Borrower under the Commitments pursuant to this Agreement.
“German Loan Parties” means, collectively, the German Borrower, German Holdings and each Material German Restricted Subsidiary or other Person that is organized under the laws of Germany and guarantees the German Secured Obligations or becomes a party to a German Security Agreement pursuant to Section 5.14.
“German PP&E Component” means, at the time of any determination, an amount equal to (a) the sum of the following amounts calculated for each item of Eligible Equipment of the German Borrower: the applicable Equipment Amortization Factor for such Eligible Equipment multiplied by 85% of the Net Orderly Liquidation Value of such Eligible Equipment less (b) Reserves applicable to the German PP&E Component and, without duplication of Reserves set forth in clause (df) of the definition of “German Borrowing Base,” the German Borrower and established by the Administrative Agent in its Permitted Discretion.
“German Relevant Entity” means any German Loan Party or any Loan Party capable of becoming the subject of insolvency proceedings under the German Insolvency Code (Insolvenzordnung).
“German Restricted Subsidiary” means any Restricted Subsidiary that is organized under the laws of Germany.
“German Revolving Exposure” means, with respect to any Lender at any time, and without duplication, the sum of (a) the U.S. Dollar Amount of the outstanding principal amount of such Lender’s German Revolving Loans plus (b) the U.S. Dollar Amount of such Lender’s German Borrower LC Exposure plus (c) the U.S. Dollar Amount of such Lender’s German Borrower Swingline Exposure plus the (d) U.S. Dollar Amount of such Lender’s Applicable Percentage of the aggregate principal amount of Protective Advances to the German Borrower outstanding at such time.
“German Revolving Loan” means a Loan made by a Lender to the German Borrower pursuant to Section 2.01.
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“German Secured Obligations” means all Secured Obligations of the German Loan Parties arising under the Loan Documents. For the avoidance of doubt, the German Secured Obligations exclude all Secured Obligations of the Domestic Loan Parties.
“German Security Agreements” means, collectively, any (a) global assignment agreement between a German Loan Party as assignor and the Administrative Agent as assignee, regarding the assignment of trade receivables, insurance claims and/or intra-group receivables, (b) security transfer agreement between a German Loan Party as transferor and the Administrative Agent as transferee, regarding the security transfer of title of inventory and machinery, and (c, cranes, current moveable assets, fixed moveable assets, fixtures, equipment and machinery, (c) security transfer and assignment agreement between a German Loan Party as transferor and the Administrative Agent as transferee, regarding intellectual property rights, (d) share pledge agreement between, inter alios, a Loan Party as pledgor and the Administrative Agent as pledgee, regarding the shares in a German Loan Party and (e) account pledge agreement between, inter alios, a German Loan Party as pledgor and the Administrative Agent as pledgee, regarding the pledge over certain bank accounts that, in each case, is governed by the laws of Germany.
“German Sublimit” means an amount equal to $75,000,000, as such sublimit may be increased from time to time pursuant to Section 2.09(e).
“German Subsidiary” means a Subsidiary organized under the laws of Germany.
“German Swingline Loan” has the meaning assigned to such term in Section 2.05.
“Germany” means the Federal Republic of Germany.
“Governmental Authority” means the government of the U.S., any other nation or any political subdivision thereof, whether state, provincial, territorial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity (including any European supranational body) exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, including the European Central Bank and the Council of Ministers of the European Union.
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation 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
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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 letter of 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. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.
“Guaranteed Obligations” has the meaning assigned to such term in Section 10.01 or 11.01, as the case may be.
“Guarantor Payment” has the meaning assigned to such term in Section 10.11(a).
“Hazardous Materials” means: (a) any substance, material, or waste that is included within the definitions of “hazardous substances,” “hazardous materials,” “hazardous waste,” “toxic substances,” “toxic materials,” “toxic waste,” or words of similar import in any Environmental Law; (b) those substances listed as hazardous substances by the United States Department of Transportation (or any successor agency) (49 C.F.R. 172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor agency) (40 C.F.R. Part 302 and amendments thereto); and (c) any substance, material, or waste that is petroleum, petroleum-related, or a petroleum by-product, asbestos or asbestos-containing material, polychlorinated biphenyls, flammable, explosive, radioactive, freon gas, radon, or a pesticide, herbicide, or any other agricultural chemical.
“Impacted EURIBOR Rate Interest Period” has the meaning assigned to such term in the definition of “EURIBOR Rate.”
“Impacted LIBO Rate Interest Period” has the meaning assigned to such term in the definition of “LIBO Rate.”
“Improved Mortgaged Real Property” means any Mortgaged Real Property that constitutes “improved real property” or on which any “building” (in each case, as defined in the Flood Laws) is located.
“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (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 (i) deferred compensation, trade payables and accrued expenses incurred in the ordinary course of business, (ii) earnout obligations contingent on the performance of an acquired business except as provided in clause (k) below and (iii) royalty payments payable in the ordinary course of business in respect of
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non-exclusive licenses), (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; provided that the amount of such Indebtedness will be the lesser of (x) the fair market value of such property as determined by such Person in good faith at such time and (y) the amount of such Indebtedness, (f) all Guarantees by such Person of Indebtedness of others, (g) all Financing Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers' acceptances, (j) obligations under any earnout that has become a liability on the balance sheet of such Person in accordance with GAAP without giving effect to footnotes thereto and (k) obligations, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (i) any and all Swap Agreements, and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction, in each case, to the extent required to be shown as a liability on the balance sheet of such Person in accordance with GAAP. 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. Notwithstanding anything to the contrary in the foregoing, the term “Indebtedness” shall not include (i) licenses and operating leases or (ii) accrued and unpaid interest, premium, fees or expenses unless capitalized in accordance with the terms of the applicable agreements governing the applicable Indebtedness.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made or required to be made by, or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in the foregoing clause (a) hereof, Other Taxes.
“Indemnitee” has the meaning assigned to such term in Section 9.03(b).
“Ineligible Institution” has the meaning assigned to such term in Section 9.04(b).
“Information” has the meaning assigned to such term in Section 9.12.
“Insolvency Event” has the meaning assigned to such term in Article XIII.
“Intercompany Indebtedness” has the meaning assigned to such term in Article XIII.
“Interest Election Request” means a request by the Borrower Representative to convert or continue a Revolving Borrowing in accordance with Section 2.08.
“Interest Expense” means, for any period, the sum of, without duplication:
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(a) the aggregate of the interest expense, net of interest income, with respect to outstanding Indebtedness for such period (including, (a) the net amortization of original issue discount and original issuance premium from the issuance of Indebtedness; (b) the net costs under Swap Obligations with respect to Indebtedness; (c) all capitalized interest; and (d) all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing), but excluding (i) amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses, (ii) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (iii) non cash interest expense attributable to the movement of the mark to market valuation of Indebtedness or obligations under Swap Obligations or other derivative instruments pursuant to FASB Accounting Standards Codification Topic 815—Derivatives and Hedging, (iv) any one time cash costs associated with breakage in respect of hedging agreements for interest rates, (v) commissions, discounts, yield, make whole premium and other fees and charges (including any interest expense) incurred in connection with any Factoring Agreements, (vi) any “additional interest” owing pursuant to a registration rights agreement with respect to any securities, (vii) any payments with respect to make whole premiums or other breakage costs of any Indebtedness, (viii) penalties and interest relating to taxes, (ix) accretion or accrual of discounted liabilities not constituting Indebtedness, (x) interest expense attributable to a direct or indirect parent entity resulting from push down accounting and (xi) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto and with respect to any acquisition or Investment permitted hereunder; and
(b) the interest component of financing lease obligations paid, accrued or scheduled to be paid or accrued during such period;
all calculated for the Company and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP.
“Interest Payment Date” means (a) with respect to any ABR Loan (in each case, other than a Swingline Loan), the first Business Day of each calendar month and the Maturity Date, (b) with respect to any RFR Loan, each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) and the Maturity Date, (c) with respect to any EurodollarTerm Benchmark Loan, the last day of each Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a EurodollarTerm Benchmark 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 the Maturity Date and (d) with respect to any Swingline Loan, the day that such Loan is required to be repaid and the Maturity Date. To the extent not addressed pursuant to the foregoing clauses (a) through (d), the Interest Payment Date for interest payable on Loans or other amounts bearing interest based on the Applicable Overnight Rate shall be the day that any such Loan or amount is required to be repaid and the Maturity Date.
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“Interest Period” means with respect to any EurodollarTerm Benchmark 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 (or, with the consent of each Lender, twelve months) thereafter (in each case, subject to the availability for the Benchmark applicable to the relevant Loan or Commitment for any Agreed Currency), as the Borrower Representative 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, in the case of a Eurodollar Borrowing only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the immediately preceding Business Day, (ii) any Interest Period pertaining to a Eurodollar Borrowing 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 and (iii) no tenor that has been removed from this definition pursuant to Section 2.14(fe) shall be available for specification in such Borrowing Request or Interest Election Request. 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 Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Inventory” has the meaning assigned to such term in the applicable Security Agreement.
“Investment” has the meaning assigned to such term in Section 6.04.
“IRS” means the United States Internal Revenue Service.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Issuing Bank” means, individually and collectively, (a) as of the Effective Date, each of JPMorgan Chase Bank, N.A., Bank of America, N.A. and Bank of Montreal, each in its capacity as an issuer of Letters of Credit and (b) any other Lender from time to time designated by the Borrower Representative as an Issuing Bank, with the consent of such Lender and the Administrative Agent, and their respective successors in such capacity as provided in Section 2.06(i). Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by its Affiliates, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. At any time there is more than one Issuing Bank, all singular references to the Issuing Bank shall mean any Issuing Bank, either Issuing Bank, each Issuing Bank, the Issuing Bank that has issued the applicable Letter of Credit, or both (or all) Issuing Banks, as the context may require.
“Issuing Bank Sublimit” means, as of the Effective Date, (i) $25,000,000, in the case of each of JPMorgan Chase Bank, N.A., Bank of America, N.A. and Bank of Montreal, each in its
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capacity as an Issuing Bank, and (ii) as of the date any Lender is designated as an Issuing Bank, such amount as shall be designated to the Administrative Agent and the Borrower Representative in writing by another Issuing Bank. Each Issuing Bank’s Issuing Bank Sublimit may be decreased or increased from time to time with the written consent of the Company and such Issuing Bank.
“Joinder Agreement” means a Joinder Agreement in substantially the form of Exhibit D and/or such other joinder form reasonably acceptable to the Administrative Agent and the Borrower Representative.
“JPMCB” means JPMorgan Chase Bank, N.A., a national banking association, in its individual capacity, and its successors.
“Junior Indebtedness” means, as applicable, the Indebtedness incurred pursuant to the Junior Notes or a Permitted Term Loan Agreement and any Additional Junior Indebtedness.
“Junior Indebtedness Amount” means an aggregate principal amount equal to the sum of:
(x) $300,000,000370,000,000; plus
(y) an additional unlimited amount; provided that the Fixed Charge Coverage Ratio computed on a Pro Forma Basis as of the last day of the most recent four fiscal quarter period of the Company for which financial statements have been delivered pursuant to Section 5.01 (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01, the most recent financial statements referred to in Section 3.04(a)), shall be greater than 1.11.0 to 1.0.
“Junior Intercreditor Agreement” means, as applicable, the Junior Notes Intercreditor Agreement, or any other intercreditor agreement entered into in connection with any Junior Indebtedness, by and among the Administrative Agent, the other creditors party thereto, and each of the Loan Parties party thereto, in form and substance reasonably acceptable to the Administrative Agent.
“Junior Notes” means the notes issued under the Junior Notes Indenture.
“Junior Notes Indenture” means that certain Indenture dated as of the date hereof, among the Company, as issuer, the guarantors from time to time party thereto, and U.S. Bank National Association, as trustee, collateral agent and paying agent, as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms of the Junior Notes Intercreditor Agreement, and as it may be refinanced or replaced (including any increase in the amount of Junior Notes issued thereunder) in accordance with and as contemplated by Section 6.08(b)(viii).
“Junior Notes Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the date hereof, between the Administrative Agent, and U.S. Bank National Association, as
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collateral agent, under the Junior Notes, and acknowledged and consented to by the Company and each other Loan Party, as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.
“LC Collateral Account” has the meaning assigned to such term in Section 2.06(j).
“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 U.S. Dollar Amount of all outstanding Letters of Credit at such time plus (b) the aggregate U.S. Dollar Amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrowers at such time. The LC Exposure of any Lender at any time shall be its Percentage of the total LC Exposure at such time.
“Lead Arranger” means JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger for the credit facility evidenced by this Agreement.
“Leased Properties” has the meaning assigned to such term in Section 3.05(b).
“Lenders” means the Persons listed on the Commitment Schedule and any other Person that shall have become a Lender hereunder pursuant to Section 2.09 or an Assignment and Assumption or otherwise, other than any such Person that ceases to be a Lender hereunder pursuant to an Assignment and Assumption or otherwise. Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender and the Issuing Bank.
“Letter of Credit Agreement” has the meaning assigned to such term in Section 2.06(b).
“Letter of Credit Currency” means each Agreed Currency.
“Letters of Credit” means the letters of credit or bank guarantees issued pursuant to this Agreement, and the term “Letter of Credit” means any one of them or each of them singularly, as the context may require and shall include the Existing Letters of Credit.
“LIBO Interpolated Rate” means, at any time, with respect to any Eurodollar Borrowing denominated in U.S. Dollars and for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent in good faith (which determination shall be conclusive and binding absent demonstrable error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period (for which the LIBO Screen Rate is available for the applicable Agreed Currency) that is shorter than the Impacted LIBO Rate Interest Period; and (b) the LIBO Screen Rate for the shortest period (for which the LIBO Screen Rate is available for the applicable Agreed Currency) that exceeds the Impacted LIBO Rate Interest Period, in each case, at such time; provided that if any LIBO Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
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“LIBO Rate” means, with respect to any Eurodollar Borrowing denominated in U.S. Dollars and for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted LIBO Rate Interest Period”) with respect to such Agreed Currency then the LIBO Rate shall be the LIBO Interpolated Rate.
“LIBO Screen Rate” means, for any day and time, with respect to any Eurodollar Borrowing denominated in U.S. Dollars and for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for such Agreed Currency for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion, which selection shall be consistent with such selection generally under other substantially similar credit facilities for which it acts as the administrative agent); provided that if the LIBO Screen Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“LIBOR” has the meaning assigned to such term in Section 1.07.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge, assignment or transfer by way of security or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, financing or capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“Limited Condition Acquisition” means any Permitted Acquisition the consummation of which is not conditioned upon the availability of, or on obtaining, third party financing or in connection with which any fee or expense would be payable by a Borrower or its Subsidiaries to the seller or target in the event financing to consummate the acquisition is not obtained as contemplated by the Limited Condition Acquisition Agreement.
“Limited Condition Acquisition Agreement” means, with respect to any Limited Condition Acquisition, the definitive acquisition documentation in respect thereof.
“Limited Condition Transaction” means each of (i) any Limited Condition Acquisition, (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment and (iii) any disposition pursuant to Section 6.05.
“Line Cap” means, at any time, the lesser of (a) the Aggregate Borrowing Base and (b) the Aggregate Commitment.
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“Loan Documents” means, collectively, this Agreement, each Joinder Agreement, any promissory notes issued pursuant to this Agreement, any Letter of Credit Agreement, the Collateral Documents, the Loan Guaranty, any Junior Intercreditor Agreement or other intercreditor agreement and all other agreements, instruments, documents and certificates executed and delivered by a Loan Party to, or in favor of, the Administrative Agent or any Lender or Issuing Bank pursuant to the transactions contemplated hereby (excluding Swap Agreements and agreements evidencing Banking Services Obligations or Designated Secured Foreign Products Obligations). Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.
“Loan Guarantor” means each Loan Party, and shall include each Domestic Loan Party in the case of Article X and each German Loan Party in the case of Article XI.
“Loan Guaranty” means, collectively, Articles X and XI of this Agreement and, if applicable, each separate Guarantee, in form and substance reasonably satisfactory to the Administrative Agent, delivered by each Loan Guarantor that is a German Restricted Subsidiary (which Guarantee shall be governed by the laws of Germany).
“Loan Parties” means, collectively, the Domestic Loan Parties and the German Loan Parties.
“Loans” means the loans and advances made by the Lenders pursuant to this Agreement, including Swingline Loans and Protective Advances.
“Local Time” means (i) New York City time in the case of a Loan, Borrowing or LC Disbursement denominated in U.S. Dollars and (ii) local time in the case of a Loan, Borrowing or LC Disbursement denominated in a Foreign Currency (it being understood that such local time shall mean London, England time unless otherwise notified by the Administrative Agent).
“Management Notification” has the meaning assigned to such term in Section 11.14(c).
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations, or financial condition of the Company and its Subsidiaries taken as a whole, (b) the ability of the Loan Parties, taken as a whole, to perform any of their payment obligations under the Loan Documents, (c) the Collateral, or the Administrative Agent’s Liens (on behalf of itself and other Secured Parties) on the Collateral or the priority of such Liens, or (d) the rights of or benefits available to the Administrative Agent, the Issuing Bank or the Lenders under any of the Loan Documents.
“Material Domestic Restricted Subsidiary” means each Domestic Restricted Subsidiary that (a) as of the most recent fiscal quarter of the Company, for the period of four consecutive
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fiscal quarters then ended, for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)), (i) contributed greater than five percent (5%) of EBITDA for such period or (ii) contributed greater than five percent (5%) of Total Assets as of such date and/or (b) is a guarantor of any Junior Indebtedness; provided that, if at any time the aggregate amount of EBITDA or Total Assets attributable to all Domestic Restricted Subsidiaries that are not Material Domestic Restricted Subsidiaries exceeds five percent (5%) of EBITDA for any such period or five percent (5%) of Total Assets as of the end of any such fiscal quarter, the Borrower Representative (or, in the event the Borrower Representative has failed to do so within ten (10) Business Days, the Administrative Agent) shall designate sufficient Domestic Restricted Subsidiaries as “Material Domestic Restricted Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Domestic Restricted Subsidiaries; provided further that the Borrower Representative may at any time designate any Subsidiary as a Material Domestic Restricted Subsidiary in its sole discretion, even if not required to satisfy the foregoing.
“Material German Restricted Subsidiary” means each German Restricted Subsidiary (a) that is a guarantor of any Junior Indebtedness, and/or (b) each German Restricted Subsidiary (i) which, as of the most recent fiscal quarter of the Company, for the period of four consecutive fiscal quarters then ended, for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)), contributed greater than five percent (5%) of EBITDA for such period or (ii) which contributed greater than five percent (5%) of Total Assets as of such date; provided that, if at any time the aggregate amount of EBITDA or Total Assets attributable to all German Restricted Subsidiaries that are not Material German Restricted Subsidiaries exceeds five percent (5%) of EBITDA for any such period or five percent (5%) of Total Assets as of the end of any such fiscal quarter, the Borrower Representative (or, in the event the Borrower Representative has failed to do so within ten (10) Business Days, the Administrative Agent) shall designate sufficient German Restricted Subsidiaries as “Material German Restricted Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material German Restricted Subsidiaries; provided further that the Borrower Representative may at any time designate any Subsidiary as a Material German Restricted Subsidiary in its sole discretion, even if not required to satisfy the foregoing.
“Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Borrowers or any Restricted Subsidiary in an aggregate principal amount exceeding $30,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of any Borrower or any Restricted Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that such Borrower or
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Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at such time.
“Material Restricted Subsidiary” means a Material Domestic Restricted Subsidiary or a Material German Restricted Subsidiary, as applicable.
“Maturity Date” means March 25(a) May 19, 20242027, or (b) any earlier date on which the Commitments are reduced to zero or otherwise terminated pursuant to the terms hereof; provided however, in each case of the foregoing clauses (a) and (b), if such day is not a Business Day, the Maturity Date shall be the immediately preceding Business Day.; provided, further, that if the aggregate outstanding principal amount of the Junior Notes and all related obligations have not, on or prior to December 30, 2025, been repaid in full or refinanced with a new maturity date no earlier than August 18, 2027, the date referred to in the foregoing clause (a) shall instead be December 30, 2025.
“Maximum Liability” has the meaning assigned to such term in Section 10.10 and 11.11, as applicable.
“Maximum Rate” has the meaning assigned to such term in Section 9.17.
“MIRE Event” means, if there are any Mortgaged Real Properties at such time, any increase, extension or renewal of any of the Commitments or Loans (including any incremental credit facilities pursuant to Section 2.09 or otherwise, but excluding (i) any continuation or conversion of Borrowings, (ii) the making of any Loan or (iii) the issuance, renewal or extension of Letters of Credit).
“Moody’s” means Moody’s Investors Service, Inc.
“Mortgage” means any mortgage, deed of trust or other agreement which conveys or evidences a Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, including any amendment, restatement, modification or supplement thereto, together with any other related forms or documents that are required or customary to effect the recording of such mortgage or deed of trust, in each case, in form and substance reasonably satisfactory to the Administrative Agent.
“Mortgaged Real Property” means the real property set forth on Schedule 3.05(a) (as may be updated following the Effective Date pursuant to Section 5.14(j)), each of which is or shall be subject to a Mortgage pursuant to the terms of this Agreement.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
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“Net Income” means, for any period, the aggregate net income (or loss) of the Company and its Restricted Subsidiaries for such period on a consolidated basis, determined in accordance with GAAP; provided that there shall be excluded therefrom:
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“Net Orderly Liquidation Value” means, with respect to Inventory or, Equipment or Rental Fleet Cranes of any Person, the orderly liquidation value thereof as determined in a manner acceptable to the Administrative Agent in its Permitted Discretion based on the most recent appraisal of such Inventory or, Equipment or Rental Fleet Cranes, as applicable, completed in accordance with the terms hereof by an appraiser reasonably acceptable to the Administrative Agent, net of all costs of liquidation thereof.
“Net Proceeds” means, with respect to any event, (a) the cash proceeds received in respect of such event including (i) any cash received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment or otherwise, but excluding any interest payments), but only as and when received, (ii) in the case of a casualty, insurance proceeds and (iii) in the case of a condemnation or similar event, condemnation awards and similar payments, minus (b) the sum of (i) all fees and out-of-pocket expenses paid to third parties (other than Affiliates) in connection with such event (including attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer Taxes, deed or mortgage recording Taxes, underwriting discounts and commissions, and brokerage, consultant, and accountant fees), (ii) in the case of a sale, transfer or other disposition of an asset (including pursuant to a Sale and
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Leaseback Transaction or a casualty or a condemnation or similar proceeding), the amount of all payments required to be made as a result of such event to repay Indebtedness secured by such asset or otherwise subject to mandatory prepayment or offer to purchase as a result of such event and (iii) the amount of all Taxes paid (or reasonably estimated to be payable) and the amount of any reserves established to fund contingent liabilities reasonably estimated to be payable, in each case during the year that such event occurred or the next succeeding year and that are directly attributable to such event (as determined reasonably and in good faith by a Financial Officer of the Borrower Representative).
“Non-Cash Charges” means, for any period, the aggregate depreciation, amortization and other non-cash expenses (including amortization of intangibles) of the Company and its Restricted Subsidiaries reducing Net Income of the Company and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.
“Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(e).
“Non-Mortgaged Real Property” means any real property owned by a Loan Party (and improvements and Fixtures relating thereto) that is not subject to a Mortgage on the Effective Date, other than the Specified Wisconsin Real Property, to the extent it has become a Mortgaged Real Property hereunder pursuant to Section 5.14(j).
“Non-U.S. Pension Plan” means any plan, scheme, fund (including any superannuation fund) or other similar program, established, sponsored or maintained outside the United States by the Company or any one or more of its Restricted Subsidiaries primarily for the benefit of employees of the Company or such Restricted Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
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“Obligated Party” has the meaning assigned to such term in Section 10.02 or 11.02, as applicable.
“Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations and indebtedness (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) of any of the Loan Parties to any of the Lenders, the Administrative Agent, the Issuing Bank or any indemnified party, individually or collectively, existing on the Effective Date or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, in each case, arising by contract, operation of law or otherwise, arising or incurred under this Agreement or any of the other Loan Documents or in respect of any of the Loans made or reimbursement or other obligations incurred under any of the Letters of Credit or other instruments at any time evidencing any thereof; provided that Obligations shall not include Excluded Swap Obligations.
“Obligor” has the meaning assigned to such term in Article XIII.
“Original Currency” has the meaning assigned to such term in Section 2.18.
“Other Benchmark Rate Election” means, if the then current Benchmark with respect to U.S. Dollars is LIBO Rate, the occurrence of:
(1) a notification by the Administrative Agent to (or the request by the Borrower Representative to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding U.S. Dollar denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed), in lieu of a LIBOR-based rate, a term benchmark rate that is not a SOFR-based rate as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2) the joint election by the Administrative Agent and the Borrower Representative to trigger a fallback from LIBO Rate and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower Representative and the Lenders.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than a connection arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Loan, Letter of Credit or any Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security
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interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are (a) Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19) or (b) imposed as a result of any voluntary registration by a Lender of any Loan Document.
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowingseurodollar transactions denominated in U.S. Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Overnight Rate” means, for any day, (a) with respect to any amount denominated in U.S. Dollars (other than with respect to any Borrowing made by the German Borrower denominated in U.S. Dollars), the NYFRB Rate and, (b) with respect to any Borrowing made by the German Borrower denominated in U.S. Dollars, the applicable Daily Simple RFR, and (c) with respect to any amount denominated in an Alternative Currency, an overnight rate determined by the Administrative Agent or the Issuing Bank, as the case may be, in accordance with banking industry rules on interbank compensation.
“Overnight Rate Borrowing” means, as to any Borrowing, the Overnight Rate Loans comprising such Borrowing.
“Overnight Rate Loan” means a Loan that bears interest at a rate determined by reference to the Applicable Overnight Rate.
“Parallel Debt” has the meaning assigned to such term in Section 8.07(e).
“Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.
“Participant” has the meaning assigned to such term in Section 9.04(c).
“Participant Register” has the meaning assigned to such term in Section 9.04(c).
“Participating Member State” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to economic and monetary union.
“Payment” has the meaning assigned to it in Section 8.06(c).
“Payment Conditions” means, with respect to any proposed designated action on any date, a condition that is satisfied if either (a) after giving effect to such proposed designated action as if it occurred on the first day of the applicable Pro Forma Period, the pro forma Aggregate
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Availability shall be greater than the greater of (x) 17.5% of the Line Cap and (y) $35,000,000 at all times during such Pro Forma Period or (b) both (i) after giving effect to such proposed designated action as if it occurred on the first day of such Pro Forma Period, the pro forma Aggregate Availability shall be greater than the greater of (x) 15% of the Line Cap and (y) $30,000,000 at all times during such Pro Forma Period and (ii) the Fixed Charge Coverage Ratio, computed on a Pro Forma Basis for the period of four consecutive fiscal quarters ending on the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to Section 5.01, shall be greater than 1.11.0 to 1.0.
“Payment Notice” has the meaning assigned to it in Section 8.06(c).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Percentage” means, with respect to any Lender, a percentage equal to a fraction the numerator of which is such Lender’s Commitment and the denominator of which is the Aggregate Commitment (provided that, if the Commitments have terminated or expired, the Percentages shall be determined based upon such Lender’s share of the Aggregate Revolving Exposure); provided that, in accordance with Section 2.20, so long as any Lender shall be a Defaulting Lender, such Lender’s Commitment shall be disregarded in the foregoing calculation.
“Permitted Acquisition” means any Acquisition by any Loan Party or Restricted Subsidiary in a transaction that satisfies each of the following requirements:
(a) such Acquisition is not a hostile or contested acquisition;
(b) such Person or division or line of business being acquired is engaged in or constitutes a business that is permitted pursuant to Section 6.03(b);
(c) no Event of Default exists at the time of such Acquisition or would result therefrom; provided that, solely with respect to Limited Condition Acquisitions, the condition set forth in this clause (c) shall be required to be satisfied only at the time of execution of the applicable Limited Condition Acquisition Agreement;
(d) if such Acquisition involves a merger or a consolidation involving the Company or any other Loan Party, the Company or a Loan Party, as applicable, shall be the surviving entity, or the surviving entity shall become a Loan Party substantially concurrently with the consummation of such merger or consolidation, all in compliance with Section 6.03 and subject to the terms set forth in Section 5.14 (without giving effect to any grace periods set forth therein);
(e) if the purchase price paid by such Loan Party or such Subsidiary in connection with such Acquisition (or any series of related Acquisitions) exceeds $20,000,000, as soon as available, but not less than five (5) days prior to the consummation of such Acquisition (or such shorter time
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as the Administrative Agent may agree in its sole discretion), the Borrower Representative has provided the Administrative Agent (i) notice of such Acquisition and (ii) a copy of all business and financial information reasonably requested by the Administrative Agent including pro forma financial statements, statements of cash flow, and Aggregate Availability projections;
(f) the Company shall have delivered to the Administrative Agent final executed material documentation relating to such Acquisition promptly after the consummation of such Acquisition;
“Permitted Discretion” means a commercially reasonable determination made in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) credit or business judgment in accordance with customary business practices of the Administrative Agent for comparable asset-based lending transactions.
“Permitted Encumbrances” means:
(a) Liens imposed by law for Taxes, assessments, charges or other governmental levies that are not yet due or payable or as to which the period of grace, if any, related thereto has not expired, or (i) are being contested in compliance with Section 5.04, (ii) for which adequate reserves with respect thereto have been set aside to the extent required by GAAP or (iii) the failure to make payment pending contest thereof would not reasonably be expected to have a Material Adverse Effect;
(b) statutory Liens such as carriers’, warehousemen’s, mechanics’, materialmen’s and supplier’s (including sellers of goods), landlords’, repairmen’s or other Liens imposed by law or pursuant to customary reservations of retention of title arising in the ordinary course of business (i) which are not overdue for a period of more than sixty (60) days, (ii) which are being contested in good faith by appropriate proceedings or for which adequate reserves with respect thereto have been set aside to the extent required by GAAP or (iii) for which the failure to make payments pending contest thereof would not reasonably be expected to have a Material Adverse Effect;
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(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements in the ordinary course of business and obligations in respect of letters of credit issued in support of the foregoing; with respect to Subsidiaries incorporated in Germany this shall include security created or subsisting in order to comply with the requirements of Section 8a of the German Partial Retirement Act (Altersteilzeitgesetz) and of Section 7e of the German Social Security Code IV (Sozialgesetzbuch IV);
(d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, contractual or warranty requirements, surety and appeal bonds, performance bonds and other obligations of a like nature or obligations in respect of letters of credit issued in support thereof, in each case in the ordinary course of business;
(e) Liens arising out of judgments, decrees and attachments not resulting in an Event of Default;
(f) Easements (including reciprocal easement agreements and utility agreements), zoning restrictions, rights-of-way, reservations, encroachments, variations, survey exceptions, restrictions on the use of real property, any zoning, building or similar laws or rights reserved to or vested in any Governmental Authority, minor defects or irregularities in title, lessor’s liens and similar encumbrances on real property imposed by law or arising in the ordinary course of business that, in the case of each of the foregoing, do not secure any monetary obligations (subject to clauses (a) and (b) above) and do not materially detract from the value of the affected real property or materially interfere with the ordinary conduct of business by the Company or any Restricted Subsidiary;
(g) any interest or title of a lessor, licensor or sublessor under any lease, license or sublease entered into by the Company or any Restricted Subsidiary thereof in the ordinary course of its business and covering only the assets so leased, licensed or subleased;
(h) assignments of insurance or condemnation proceeds provided to landlords (or their mortgagees) pursuant to the terms of any lease and Liens or rights reserved in any lease for rent or for compliance with the terms of such lease;
(i) Liens evidenced by precautionary UCC financing statements in respect of operating leases;
(j) Liens arising in the ordinary course of business by virtue of any contractual, statutory or common law provision relating to banker’s Liens, rights of setoff or similar rights and remedies covering deposit or securities accounts (including funds or other assets credited thereto) or other funds maintained with a depository institution or securities intermediary, but in the case of Collection Accounts, such Liens shall be waived or subordinated, as applicable, to the satisfaction
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of the Administrative Agent or the Administrative Agent shall be permitted to establish a Reserve in its Permitted Discretion;
(k) Liens in favor of the Issuing Bank, Swingline Lender or the Administrative Agent to cash collateralize or otherwise secure the obligations of a Defaulting Lender as required hereunder;
(l) with respect to any Mortgaged Real Property, (i) any exceptions listed on title insurance policies accepted by the Administrative Agent with respect to such Mortgaged Real Property and (ii) matters that are disclosed by surveys accepted by the Administrative Agent; and
(m) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any of the foregoing; provided that such extension, renewal or replacement Lien shall be limited to all or a part of the property which secured the Lien so extended, renewed or replaced (plus improvements, accessions and attachments on such property);
provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness, except with respect to clauses (d), (e), (j) and (k) above.
“Permitted Investments” means:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the U.S. (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the U.S.), in each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within one year 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 one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any Lender or any domestic office of any commercial bank organized under the laws of the U.S. or any State thereof which has a combined capital and surplus and undivided profits of not less than $250,000,000 at the time of acquisition thereof;
(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;
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(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 and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000;
(f) in the case of any German Restricted Subsidiary, other investments that are analogous to the foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such German Restricted Subsidiary for cash management purposes;
(g) other investments similar in scope and type as the other investments set forth in this definition from time to time approved by the Administrative Agent, such approval not to be unreasonably withheld or delayed; and
(h) marketable direct obligations issued by any state of the U.S. or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s.
“Permitted Long-Term Indebtedness” means unsecured Indebtedness for borrowed money of any Loan Party (and the Guarantees thereof by any Loan Party); provided that (a) such Indebtedness shall mature later than, and shall not be subject to any scheduled payment of principal, mandatory sinking fund requirement or similar unconditional repayment obligation prior to, 180 days after the Maturity Date, (b) such Indebtedness shall not be subject to any terms requiring any obligor of such Indebtedness to pay (or offer to pay) such Indebtedness other than (i) pursuant to scheduled payments of principal that comply with clause (a) above and (ii) pursuant to Customary Mandatory Prepayment Terms and (c) such Indebtedness is not Subordinated Indebtedness.
“Permitted Term Loan Agreement” means an agreement providing for the incurrence of term loans by the Company or any Restricted Subsidiary, which term loans are subject to a Junior Intercreditor Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time and as replaced or refinanced in whole or in part (whether with the same group of lenders or a different group of lenders) in accordance with the terms hereof and of such Junior Intercreditor Agreement.
“Person” means any natural person, firm, consortium, corporation, limited liability company, trust, joint venture, association, company, unlimited liability company, partnership, Governmental Authority or other entity (whether or not having separate legal personality).
“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 in respect of which any Borrower or any ERISA Affiliate is (or, if such plan were terminated,
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would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
“PP&E Components” means, collectively, the Domestic PP&E Component and the German PP&E Component.
“Prepayment Event” means, any of the following events that occur from and after the date on which Aggregate Availability is less than 20% of the Line Cap, and until such subsequent date, if any, on which Aggregate Availability is equal to or greater than 20% of the Line Cap:
(a) (x) any sale, transfer or other disposition of any property or asset of any Loan Party (other than any Collateral consisting of Eligible Equipment and/or Eligible Real Property) pursuant to Section 6.05(m), (n) or (p), with an aggregate value, or generating aggregate Net Proceeds, exceeding $10,000,000 in any fiscal year, or (y) any sale, transfer or other disposition (but excluding any permitted sale, transfer or disposition between Loan Parties) of any Collateral consisting of Eligible Equipment and/or Eligible Real Property; or
(b) any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of any Loan Party with an aggregate value, or generating aggregate Net Proceeds, exceeding $20,000,000.
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Priority Payables Reserves” means reserves for amounts which rank or are capable of ranking in priority to the Liens granted to the Administrative Agent to secure the Secured Obligations, including, in the Permitted Discretion of the Administrative Agent, any such amounts due and not paid for wages, vacation pay, severance pay, employee deductions, income Tax, VAT, amounts due and not paid under any legislation relating to workers’ compensation or to employment insurance, amounts currently or past due and not paid for Taxes and pension obligations.
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“Pro Forma Basis” means, for purposes of calculating EBITDA, Fixed Charges, Fixed Charge Coverage Ratio or the satisfaction of Payment Conditions, that such calculations shall be made:
(a) after giving effect on a pro forma basis for the period of such calculation to the incurrence, assumption, guarantee, redemption, repayment, reclassification, discharge, defeasance, repurchase or extinguishment of any Indebtedness (and the application of the proceeds thereof) giving rise to the need to make such calculation and any incurrence, assumption, guarantee, redemption, repayment, reclassification, discharge, defeasance, repurchase or extinguishment of other Indebtedness (and the application of the proceeds thereof), other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during such period or at any time subsequent to the last day of such period and on or prior to the date of the transaction giving rise to the need to calculate EBITDA, Fixed Charges, Fixed Charge Coverage Ratio or the satisfaction of Payment Conditions, as applicable, on a pro forma basis (the “Transaction Date”), as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of such period; and
(b) Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and any operational changes, business realignment projects or initiatives, restructurings or reorganizations that the Company or any Restricted Subsidiary has determined to make or made during the applicable period or subsequent thereto and on or prior to or simultaneously with the Transaction Date (each, for purposes of this definition, a “pro forma event”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and other operational changes, business realignment projects or initiatives, restructurings or reorganizations (and the change of any associated fixed charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of such period. If since the beginning of the applicable period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period shall have made any Investment, acquisition, disposition, merger, consolidation, amalgamation, operational change, business realignment project or initiative, restructuring or reorganization, in each case with respect to an operating unit of a business, that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger, amalgamation, consolidation, operational change, business realignment project or initiative, restructuring or reorganization had occurred at the beginning of such period. If since the beginning of any applicable period any Restricted Subsidiary is designated an Unrestricted Subsidiary, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such designation had occurred at the beginning of such period.
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“Pro Forma Period” means the period commencing thirty (30) days prior to the date of any proposed designated action and ending on the date of such proposed designated action.
“Protective Advance” has the meaning assigned to such term in Section 2.04.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning assigned to it in Section 9.22.
“Qualified Capital Stock” means any Equity Interests that are not Disqualified Capital Stock.
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Loan Guaranty or grant of the relevant security interest becomes or would become effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Real Property Amortization Factor” means, with respect to any real property on any date of determination, 1 minus a fraction, the numerator of which is the number of full fiscal quarters of the Company elapsed as of such date (including any such fiscal quarter ending on such date) since March 31, 2019 (or, if later, the date of the Administrative Agent’s receipt of the results of the most recent completed appraisal of such real property conducted at the request of the Loan Parties pursuant to Section 5.11 hereof) and the denominator of which is 60.
“Recipient” means (a) the Administrative Agent, (b) any Lender and (c) the Issuing Bank, or any of the foregoing or any combination thereof (as the context requires).
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is LIBOthe Term SOFR Rate, 11:00 a.m. (London5:00 a.m. (Chicago time) on the day that is two London banking daysBusiness Days preceding the date of such setting, (2) if such Benchmark is EURIBOR Rate, 11:00 a.m. Brussels time two TARGET Days preceding the date of such setting, (3) if the RFR for such Benchmark is SONIA, then 4four Business Days prior to such setting, or (4) if such Benchmark is none of the LIBOTerm SOFR Rate, the EURIBOR Rate, or SONIA or ESTR, the time determined by the Administrative Agent in its reasonable good faith discretion. Notwithstanding the foregoing, solely for purposes of determining the Reference Time in respect of an Applicable Overnight Rate based on Daily Simple RFR, any such
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determination of the Reference Time for a Benchmark for which the RFR is SONIA or ESTR shall be made as of the day of such setting of the then-current Benchmark rather than the day 4 Business Days prior to such setting.
“Refinance Indebtedness” has the meaning assigned to such term in Section 6.01(i).
“Register” has the meaning assigned to such term in Section 9.04.
“Regulation” means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, partners, members, trustees, employees, agents, administrators, managers, representatives and advisors of such Person and such Person’s Affiliates.
“Release” means any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, disposing or dumping of any substance into the environment.
“Relevant Governmental Body” means (i) with respect to a Benchmark Replacement in respect of Loans denominated in U.S. Dollars, the Federal Reserve Board and/or the NYFRB, the CME Term SOFR Administrator, as applicable, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto, (ii) with respect to a Benchmark Replacement in respect of Loans denominated in Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto, and (iii) with respect to a Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor thereto.
“Relevant Party” has the meaning assigned to such term in Section 2.17(h).
“Relevant Rate” means (i) with respect to any EurodollarTerm Benchmark Borrowing denominated in U.S. Dollars, the LIBOAdjusted Term SOFR Rate, (ii) with respect to any EurodollarTerm Benchmark Borrowing denominated in Euros, the Adjusted EURIBOR Rate, or (iii) with respect to any Borrowing denominated in Sterling and any Swingline Loan denominated in Euros, the applicable Daily Simple RFR, as applicable.
“Relevant Screen Rate” means (i) with respect to any EurodollarTerm Benchmark Borrowing denominated in U.S. Dollars, the LIBO ScreenTerm SOFR Reference Rate, or (ii) with respect to any EurodollarTerm Benchmark Borrowing denominated in Euros, the EURIBOR Screen Rate.
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“Rental Fleet Crane” means any crane owned by a Loan Party that is leased or held for lease to a customer in the ordinary course of business of such Loan Party.
“Rental Fleet Property” has the meaning assigned to such term in Section 6.01(cc).
“Report” means reports prepared by the Administrative Agent or another Person showing the results of appraisals, field examinations or audits pertaining to the assets of the Loan Parties from information furnished by or on behalf of the Borrowers, after the Administrative Agent has exercised its rights of inspection pursuant to this Agreement, which Reports may be distributed to the Lenders by the Administrative Agent.
“Required Lenders” means, subject to Section 2.20, at any time, Lenders having Revolving Exposure and Unused Commitments representing more than 50% of the sum of the Aggregate Revolving Exposure and Unused Commitments at such time; provided, however, that in no event shall Required Lenders be constituted by less than two (2) unaffiliated Lenders at any time when there are two (2) or more unaffiliated Lenders; provided further that, for purposes of declaring the Loans to be due and payable pursuant to Article VII, and for all purposes after the Loans become due and payable pursuant to Article VII or the Commitments expire or terminate, then, as to each Lender, clause (a) of the definition of Swingline Exposure shall only be applicable for purposes of determining its Revolving Exposure to the extent such Lender shall have funded its participation in the outstanding Swingline Loans.
“Requirement of Law” means, with respect to any Person, (a) the charter, articles or certificate of organization or incorporation and bylaws or operating, management or partnership agreement, constitutional documents, articles of association, memorandum of association or other organizational or governing documents of such Person and (b) any statute, law (including common law), treaty, rule, regulation, code, ordinance, order, decree, writ, judgment, injunction or determination of any arbitrator or court or other Governmental Authority (including Environmental Laws and Anti-Corruption Laws), in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Reserves” means any and all reserves which the Administrative Agent deems necessary, in its Permitted Discretion, to maintain (including, without limitation (but without duplication), Banking Services Reserves ranking pari passu with the payment of principal, Priority Payables Reserves, reserves for “extended” or “extendable” retention of title, reserves for rent at locations leased by any Loan Party and for consignee’s, warehousemen’s and bailee’s charges (but (x) only for locations where Eligible Inventory or Eligible Equipment is located and, other than with respect to reserves for rent (as opposed to reserves for consignee’s, warehousemen’s and bailee’s charges) for locations in Germany, not to exceed three months’ rent and other charges and, with respect to reserves for rent for locations in Germany, not to exceed the rent for periods subsequent to the current and the following year of the lease less any existing security for such rent) and (y) only for locations in jurisdictions in which such landlord’s, consignee’s, warehousemen’s or bailee’s Liens
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on such Eligible Inventory or Eligible Equipment have priority over the Administrative Agent’s Liens as a matter of law), reserves for dilution of Accounts (to the extent dilution exceeds 5%), reserves for Inventory shrinkage, reserves for customs charges and shipping charges related to any Eligible Inventory in transit, reserves for Swap Agreement Obligations ranking pari passu with the payment of principal, reserves for Designated Secured Foreign Products Obligations, reserves for contingent liabilities of any Loan Party, reserves for uninsured losses of any Loan Party with respect to assets included in the Borrowing Base, reserves for Taxes, fees, assessments, reserves for VAT, and other governmental charges and reserves for fees payable to an insolvency administrator pursuant to Section 171 of the German Insolvency Code (or relevant successor provision)) with respect to the Collateral or any Loan Party; provided that, notwithstanding the foregoing, the Administrative Agent may not implement any new reserves or increase the amount of any existing Reserves without at least three (3) Business Days’ prior notice to the Borrower Representative (it being understood, however, that if the implementation of any such new or increased reserve would result in the Borrowers not being in compliance with the Revolving Exposure Limitations after giving effect to any requested Revolving Loan or Letter of Credit, notwithstanding anything contained in this Agreement to the contrary, the Lenders and the Issuing Bank shall have no obligation to make such Revolving Loan or issue such Letter of Credit during such three (3) Business Day period). The Administrative Agent shall be available to discuss any proposed Reserve during the three (3) Business Day period described above, and the Borrowers may take such action as may be required so that the event, condition or matter that is the basis for such new or increased Reserve no longer exists or exists in a manner that would result in the establishment of a lower Reserve or result in a lesser increase, in each case, in a manner and to the extent satisfactory to the Administrative Agent in its Permitted Discretion. The amount of any Reserve established by the Administrative Agent, and any change in the amount of any Reserve, shall have a reasonable relationship to the event, condition or other matter that is the basis for such Reserve or such change. Notwithstanding anything herein to the contrary, Reserves shall not duplicate eligibility criteria contained in the definition of Eligible Accounts, Eligible Credit Insured Accounts, Eligible Equipment, Eligible Inventory, Eligible Real Property or any other Reserve then established. No Reserves (other than in respect to any potential Reserves with respect to the German Borrowing Base) may be taken after the Effective Date based on circumstances, conditions, events or contingencies known to the Administrative Agent as of the Effective Date and for which no reserves were imposed on the Effective Date, except if such circumstances, conditions, events or contingencies (including, without limitation, the amount thereof) shall have changed in any material adverse respect since the Effective Date.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the president, Financial Officer or other executive officer of the applicable Borrower, or, in relation to a German Loan Party, any managing director (Geschäftsführer).
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“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Company or any Restricted 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 Company or any Restricted Subsidiary or any option, warrant or other right to acquire any such Equity Interests.
“Restricted Subsidiaries” means all Subsidiaries of the Company other than the Unrestricted Subsidiaries.
“Revolving Exposure” means, with respect to any Lender at any time, the sum of (a) the U.S. Dollar Amount of the outstanding principal amount of such Lender’s Revolving Loans, LC Exposure and Swingline Exposure at such time, plus (b) an amount equal to its Applicable Percentage of the aggregate principal amount of Protective Advances outstanding at such time.
“Revolving Exposure Limitations” has the meaning set forth in Section 2.01.
“Revolving Lender” means, as of any date of determination, a Lender with a Revolving Commitment or, if the Revolving Commitments have terminated or expired, a Lender with Revolving Exposure.
“Revolving Loan” means a Loan made pursuant to Section 2.01.
“RFR” means, for any RFR Loan denominated in (a) Sterling, SONIA and, (b) Euros, ESTR, and (c) U.S. Dollars, Daily Simple SOFR.
“RFR Administrator” means the SONIA Administrator or, the ESTR Administrator, or the SOFR Administrator, as applicable.
“RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such Borrowing.
“RFR Business Day” means, for any RFR Loan denominated in (a) Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London and, (b) Euros, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London or for the settlement of payments and foreign exchange transactions in Brussels, and (c) U.S. Dollars, a U.S. Government Securities Business Day.
“RFR Interest Day” has the meaning specified in the definition of “Daily Simple RFR”.
“RFR Loan” means a Loan that bears interest at a rate based on Daily Simple RFR.
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“S&P” means S&P Global Ratings, a Standard & Poor’s Financial Services LLC business.
“Sale and Leaseback Transaction” has the meaning assigned to such term in Section 6.06.
“Sanctioned Country” means, at any time, a country, region or territory which is itself or whose governmentgovernments is the subject or target of any comprehensive Sanctions (as of theat the time of Amendment No. 2 Effective Date, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region of Ukraine, Cuba, Iran, North Korea and Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom, (b) any Person located, organized or resident in a Sanctioned Country, (c) any Person owned 50% or more or controlled by any such Person or Persons described in the foregoing clauses, (a) or (b).
“Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.
“SEC” means the Securities and Exchange Commission of the U.S.
“Secured Obligations” means all Obligations, together with all (i) Banking Services Obligations, (ii) Swap Agreement Obligations and (iii) Designated Secured Foreign Products Obligations, in each case, owing to one or more Lenders or their respective Affiliates; provided, however, that the definition of “Secured Obligations” shall not create any guarantee by any Loan Party of (or grant of security interest by any Loan Party to support, as applicable) any Excluded Swap Obligations of such Loan Party for purposes of determining any obligations of any Loan Party.
“Secured Parties” means (a) the Administrative Agent, (b) the Lenders, (c) the Issuing Banks, (d) each provider of Banking Services, to the extent the Banking Services Obligations in respect thereof constitute Secured Obligations, (e) each counterparty to any Swap Agreement, to the extent the obligations thereunder constitute Secured Obligations, (f) each provider of Designated Secured Foreign Products, to the extent the obligations thereunder constitute Secured Obligations and (g) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document.
“Securities Account” has the meaning assigned to such term in the applicable Security Agreement.
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“Securities Account Control Agreement” has the meaning assigned to such term in the applicable Security Agreement.
“Security Agreements” means, collectively, the Domestic Security Agreement and the German Security Agreements.
“Settlement” has the meaning assigned to such term in Section 2.05(b).
“Settlement Date” has the meaning assigned to such term in Section 2.05(b).
“Significant Subsidiary” means any Subsidiary (or group of Subsidiaries) that satisfies the criteria for a “significant subsidiary” set forth in Rule 1-02(w) of Regulation S-X promulgated by the U.S. Securities and Exchange Commission, as in effect on the Effective Date, substituting “5 percent” for “10 percent”.
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day publishedas administered by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s Website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Date” has the meaning specified in the definition of “Daily Simple SOFR”.
“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“Solvent” means, as of any date of determination, in reference to the Company and its Restricted Subsidiaries taken as a whole, (i) the fair value of the assets of the Company and its Restricted Subsidiaries, taken as a whole, at a fair valuation, will exceed their debts and liabilities, subordinated, contingent or unliquidated; (ii) the present fair saleable value of the property of the Company and its Restricted Subsidiaries taken as a whole will be greater than the amount that will be required to pay the probable liability of their debts and other liabilities, subordinated, contingent or unliquidated, as such debts and other liabilities become absolute and matured; (iii) the Company and its Restricted Subsidiaries taken as a whole will be able to pay their debts and liabilities, subordinated, contingent or unliquidated, as such debts and liabilities become absolute and matured; and (iv) the Company and its Restricted Subsidiaries taken as a whole does not have unreasonably small capital with which to conduct the business.
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“SONIA” means, with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website on the immediately succeeding Business Day (provided, that for any request for a Swingline Loan denominated in Sterling, SONIA shall be based on the published rate for SONIA as of the Business Day of such request).
“SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“Special Flood Hazard Area” means a “Special Flood Hazard Area” as designated on any Flood Insurance Rate Map published by FEMA.
“Specified Cranes” means the cranes listed on Schedule 1.01(b).
“Specified Event of Default” means any (i) Event of Default under clauses (a), (h), (i) or (j) of Article VII, (ii) any Event of Default arising from the failure of any Loan Party to deliver a Borrowing Base Certificate required to be delivered hereunder or any material inaccuracy contained in any Borrowing Base Certificate, (iii) any Event of Default arising from the failure of any Loan Party to comply with its obligations under this Agreement and the Security Agreements to make or direct payments into Deposit Accounts over which the Administrative Agent has a first priority perfected Lien and dominion and control or to maintain such Lien and dominion and control over Deposit Accounts (other than Excluded Accounts) and (iv) any Event of Default arising from the failure of the Loan Parties to comply with the financial covenant contained in Section 6.12 at any time that such financial covenant is applicable pursuant to the terms hereof.
“Specified KYC Materials” has the meaning set forth in Section 1.09.
“Specified Wisconsin Real Property” means (a) the real property located at 2401 South 30th Street, Manitowoc, Wisconsin and owned by Grove U.S. L.L.C. on the Effective Date, or (b) if Grove U.S. L.L.C. (or any successor owner) has disposed of any portion of the real property described in clause (a) after the Effective Date, the remaining portion of such real property at the time Borrower elects to add such real property as a Mortgaged Real Property pursuant to Section 5.14(j), provided such real property shall be subject to the approval of Administrative Agent, which approval shall not be unreasonably withheld, conditioned or delayed.
“Specified Refinance Indebtedness” has the meaning assigned to such term in Section 6.08(b)(viii).
“Statements” has the meaning assigned to such term in Section 2.18(f).
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“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 percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Federal Reserve Board to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate or Adjusted EURIBOR Rate, as applicable, for Eurodollareurocurrency funding (currently referred to as “EurodollarEurocurrency liabilities” in Regulation D) or any other reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans. Such reserve percentage shall include those imposed pursuant to Regulation D. EurodollarTerm Benchmark Loans shall be deemed to constitute Eurodollareurocurrency 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 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.
“Sterling” or “₤” means the lawful currency of the U.K.
“Subordinated Indebtedness” means any Indebtedness for borrowed money of any Loan Party (and the Guarantees thereof by any Loan Party); provided that (a) such Indebtedness shall mature later than, and shall not be subject to any scheduled payment of principal, mandatory sinking fund requirement or similar unconditional repayment obligation prior to, 180 days after the Maturity Date, (b) such Indebtedness shall not be subject to any terms requiring any obligor of such Indebtedness to pay (or offer to pay) such Indebtedness other than pursuant to scheduled payments of principal that comply with clause (a) above, and (c) such Indebtedness shall be subordinated to the Secured Obligations on terms reasonably satisfactory to the Administrative Agent.
“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 and/or one or more subsidiaries of the parent.
“Subsidiary” means any direct or indirect subsidiary of the Company or a Loan Party, as applicable.
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“Supermajority Lenders” means, at any time, Lenders (other than Defaulting Lenders) having Revolving Exposures and Unused Commitments representing more than 66 2/3% of the sum of the Aggregate Revolving Exposure and Unused Commitments at such time; provided, however, that in no event shall Supermajority Lenders be constituted by less than two (2) unaffiliated Lenders at any time when there are two (2) or more unaffiliated Lenders.
“Supplier” has the meaning assigned to such term in Section 2.17(h).
“Supported QFC” has the meaning assigned to it in Section 9.22.
“Swap Agreement” means any agreement with respect to any swap, forward, spot, future, credit default 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 Company or its Subsidiaries shall be a Swap Agreement.
“Swap Agreement Obligations” means any and all obligations of the Loan Parties (or any Subsidiaries of the Loan Parties if the Borrower Representative has provided written notice to the Administrative Agent of the services in favor of such Subsidiaries to be secured), whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Swap Agreements permitted hereunder with a Lender or an Affiliate of a Lender, and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction permitted hereunder with a Lender or an Affiliate of a Lender.
“Swap Obligation” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder.
“Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Revolving Lender at any time shall be the sum of (a) its Applicable Percentage of the aggregate Swingline Exposure at such time other than with respect to any Swingline Loans made by such Revolving Lender in its capacity as the Swingline Lender and (b) the principal amount of all Swingline Loans made by such Revolving Lender in its capacity as the Swingline Lender outstanding at such time (less the amount of participations funded by the other Lenders in such Swingline Loans).
“Swingline Exposure Limitations” has the meaning set forth in Section 2.05.
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“Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of Swingline Loans hereunder. References to the “Swingline Lender” shall include any other branch or affiliate of JPMorgan Chase Bank, N.A. designated by JPMorgan Chase Bank, N.A. for the purpose of performing such obligations in such capacity.
“Swingline Loan” means a Loan made pursuant to Section 2.05.
“Syndication Agent” mean JPMorgan Chase Bank, N.A., in its capacity as syndication agent for the credit facility evidenced by this Agreement.
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
“TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, reasonably determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings, (including backup withholding), or any other goods and services, use or sales taxes, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term Benchmark” 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 Term SOFR Rate or the Adjusted EURIBOR Rate.
“Term SOFR Notice” means a notification by the Administrative Agent to the Lenders and the Borrower Representative of the occurrence of a Term SOFR Transition Event.Determination Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate.
“Term SOFR Transition Event” means the determination by the Administrative Agent, in its good faith discretion, that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent in accordance with the convention for this rate selected or recommended by the Relevant Governmental Body for determining “Term SOFR” for syndicated business loans and (c) a Benchmark Transition Event or an Early Opt-in Election (and, for the avoidance of doubt, not an Other Benchmark Rate Election), as applicable, has previously occurred resulting in a Benchmark Replacement in accordance with Section 2.14 that is not Term SOFR.Rate” means,
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with respect to any Term Benchmark Borrowing denominated in U.S. Dollars and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Borrowing denominated in U.S. Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum determined by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding Business Day is not more than five (5) Business Days prior to such Term SOFR Determination Day.
“Total Assets” means, as of the date of any determination thereof, total assets of the Company and its Restricted Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date.
“Trademark” has the meaning assigned to such term in the applicable Security Agreement.
“Transactions” means, collectively, the execution, delivery and performance by the Loan Parties of this Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions and the issuance of Letters of Credit hereunder.
“Type”, when used in reference to any Loan or 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 LIBOTerm SOFR Rate, the Adjusted EURIBOR Rate, the Alternate Base Rate, the Daily Simple RFR or any Applicable Overnight Rate.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York or in any other state the laws of which are required to be applied in connection with the issue of perfection of security interests.
“UK Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which
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includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unfinanced Capital Expenditures” means, for any period, Capital Expenditures made during such period which are (a) not financed from the proceeds of any Indebtedness (other than the Revolving Loans), it being understood and agreed that, to the extent any Capital Expenditures are financed with Revolving Loans, such Capital Expenditures shall be deemed Unfinanced Capital Expenditures and (b) not paid for using the proceeds of any casualty or other insurance.
“Unliquidated Obligations” means, at any time, any Secured Obligations (or portion thereof) that are contingent in nature or unliquidated at such time, including any Secured Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under a letter of credit issued by it; (ii) any other obligation (including any guarantee) that is contingent in nature at such time; or (iii) an obligation to provide collateral to secure any of the foregoing types of obligations.
“Unrestricted Subsidiary” means each of MMG Holding Co., LLC, a Nevada limited liability company, The Manitowoc Company Foundation, a Michigan corporation, and any other Subsidiary of the Company subsequently designated by the Borrower Representative as such in writing in accordance with Section 5.14(i), which designation is reasonably acceptable to the Administrative Agent.
“Unused Commitment” means, at any time, the Aggregate Commitment minus the Aggregate Revolving Exposure.
“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
“U.S.” means the United States of America.
“U.S. Dollar Amount” of any currency at any date shall mean (i) the amount of such currency if such currency is U.S. Dollars or (ii) the equivalent amount thereof in U.S. Dollars if such currency is a Foreign Currency, calculated on the basis of the Exchange Rate for such currency, on or as of the most recent Computation Date provided for in Section 1.06.
“U.S. Dollars” or “$” refers to lawful money of the U.S.
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“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Special Resolution Regime” has the meaning assigned to it in Section 9.22.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f)(ii)(B)(3).
“VAT” means (a) any Tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and (b) any other Tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such Tax referred to in clause (a) of this definition or imposed elsewhere.
“Wholly-Owned Subsidiary” of any Person shall mean a Subsidiary of such Person, all of the Equity Interests of which are owned by such Person or another Wholly-Owned Subsidiary of such Person.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Withholding Agent” means any Loan Party and the Administrative Agent.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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Each day upon or as of which the Administrative Agent determines U.S. Dollar Amounts as described in the preceding clauses (a), (b) and (c) is herein described as a “Computation Date” with respect to each Credit Event for which a U.S. Dollar Amount is determined on or as of such day.
Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a EurodollarTerm Benchmark Loan or an RFR Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in U.S. Dollars, but such Borrowing, Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the U.S. Dollar Amount of such amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as reasonably determined by the Administrative Agent or the Issuing Bank, as the case may be.
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The Credits
subject, in each case, to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.04. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans. The limitations on
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Borrowings referred to in clauses (i) through (iv) above are referred to collectively as the “Revolving Exposure Limitations”.
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If no election as to the Type of Revolving Borrowing is specified, then (a) in the case of a Borrowing denominated in U.S. Dollars to a Domestic Borrower, the requested Revolving Borrowing shall be an ABR Borrowing, (b) in the case of a Borrowing denominated in U.S. Dollars or Euros to the German Borrower, the requested Revolving Borrowing shall be a EurodollarTerm Benchmark Borrowing, and (c) in the case of a Borrowing denominated in Sterling to the German Borrower, the requested Revolving Borrowing shall be an RFR Borrowing. If no Interest Period is specified with respect to any requested EurodollarTerm Benchmark Borrowing, then the Borrower Representative shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing
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Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
Notwithstanding the foregoing, in no event shall the Domestic Borrower be permitted to request an RFR Loan in U.S. Dollars (it being understood and agreed that Daily Simple RFR shall only apply to RFR Loans to the Domestic Borrower denominated in U.S. Dollars to the extent provided in Sections 2.14(a) and 2.14(f), or if Daily Simple RFR becomes the current Benchmark pursuant Section 2.14(b)).
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If any such Interest Election Request requests a EurodollarTerm Benchmark Borrowing but does not specify an Interest Period, then the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration.
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(d) All such amounts pursuant to Section 2.11(c) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, and second to prepay the Revolving Loans
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(including Swingline Loans) without a corresponding reduction in the Commitments and third, if an Event of Default shall have occurred and be continuing, to cash collateralize outstanding LC Exposure. Notwithstanding the foregoing, (i) Net Proceeds received by any Domestic Loan Party in respect of any Prepayment Event shall be used to prepay the Secured Obligations (other than the German Secured Obligations and the Secured Obligations that constitute a Guarantee of the German Secured Obligations) before being applied to any of the other Secured Obligations, (ii) no Net Proceeds received by any German Loan Party in respect of any Prepayment Event shall be used to prepay any Secured Obligations other than the German Secured Obligations and (iii) Net Proceeds received by any German Loan Party in respect of any Prepayment Event shall be subject to the German Guaranty Limitations.
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then the Administrative Agent shall give notice thereof to the Borrower Representative and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist (which notice the Administrative Agent shall promptly provide at such time as such circumstances no longer exist), (A) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a EurodollarTerm Benchmark Borrowing shall be ineffective, (B) if any Borrowing Request that requests a EurodollarTerm Benchmark Borrowing in U.S. Dollars, such Borrowing shall be made as shall instead be deemed to be a Borrowing Request for (x) an RFR Borrowing denominated in U.S. Dollars so long as the Daily Simple RFR for U.S. Dollar Borrowings is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Borrowing (or, with respect to a Borrowing by the German Borrower, an OvernightAlternate Rate Borrowing) if the Daily Simple RFR for U.S. Dollar Borrowings also is the subject of Section 2.14(a)(i) or (ii) above, and (C) if any Borrowing Request requests a EurodollarTerm Benchmark Borrowing or an RFR Borrowing for the relevant rate above in an Alternative Currency, then such request shall be ineffective; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted. Furthermore, if any EurodollarTerm Benchmark Loan or RFR Loan in any Agreed Currency is outstanding on the date of the Borrower Representative’s receipt of the notice from the Administrative Agent referred to in this Section 2.14(a) with respect to a
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Relevant Rate applicable to such EurodollarTerm Benchmark Loan or RFR Loan, then until the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist (which notice the Administrative Agent shall promptly provide at such time as such circumstances no longer exist), (i) if such EurodollarTerm Benchmark Loan is denominated in U.S. Dollars, then on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing denominated in U.S. Dollars so long as the Daily Simple RFR for U.S. Dollar Borrowings is not also the subject of Section 2.14(a)(i) or (ii) above or (y) an ABR Loan denominated in U.S. Dollars on such day, (or, with respect to a Loan to the German Borrower, an OvernightAlternate Rate Loan denominated in U.S. Dollars on such day) if Daily Simple RFR for U.S. Dollar Borrowings is the subject of Section 2.14(a)(i) or (ii) above, and (ii) if such EurodollarTerm Benchmark Loan is denominated in any Agreed Currency other than U.S. Dollars, then such Loan shall, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day) bear interest at the Central Bank Rate for the applicable Agreed Currency plus the Applicable Rate; provided that, if the Administrative Agent determines in good faith (which determination shall be conclusive and binding absent demonstrable error) that the Central Bank Rate for the applicable Agreed Currency cannot be determined, any outstanding affected EurodollarTerm Benchmark Loans denominated in any Agreed Currency other than U.S. Dollars shall, at the Borrower Representative’s election prior to such day: (A) be prepaid by the Borrowers on such day or (B) solely for the purpose of calculating the interest rate applicable to such EurodollarTerm Benchmark Loan, such EurodollarTerm Benchmark Loan denominated in any Agreed Currency other than U.S. Dollars shall be deemed to be a EurodollarTerm Benchmark Loan denominated in U.S. Dollars and shall accrue interest at the same interest rate applicable to EurodollarTerm Benchmark Loans denominated in U.S. Dollars at such time or, (iii) if such RFR Loan is denominated in any Agreed Currency other than U.S. Dollars, then such Loan shall bear interest at the Central Bank Rate for the applicable Agreed Currency plus the Applicable Rate, or (iv) if such RFR Loan is denominated in U.S. Dollars, then such Loan shall bear interest at the Alternate Rate; provided that, if the Administrative Agent determines in good faith (which determination shall be conclusive and binding absent demonstrable error) that the Central Bank Rate for the applicable Agreed Currency cannot be determined, any outstanding affected RFR Loans denominated in any Agreed Currency other than U.S. Dollars, at the Borrower Representative’s election, shall either (A) be converted into Overnight Rate Loans denominated in U.S. Dollars (in an amount equal to the U.S. Dollar Amount of such Alternative Currency) immediately or (B) be prepaid in full immediately.
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(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, with respect to a Loan denominated in U.S. Dollars, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower Representative a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after the occurrence of a Term SOFR Transition Event and may do so in its sole discretion (however, for the avoidance of doubt, the Benchmark Replacement Date cannot occur unless such Term SOFR Notice has been provided and the other applicable requirements in the definition of “Benchmark Replacement Date” have been satisfied).
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and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting into or maintaining any Loan or of maintaining its obligation to make any such Loan (including pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to increase the cost to such Lender, the Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (including pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder, whether of principal, interest or otherwise (including pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency), then the applicable Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered as reasonably determined by the Administrative Agent, such
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Lender or the Issuing Bank (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and generally consistent with similarly situated customers of the Administrative Agent, such Lender or the Issuing Bank, as applicable, under agreements having provisions similar to this Section 2.15, after consideration of such factors as the Administrative Agent, such Lender or the Issuing Bank, as applicable, then reasonably determines to be relevant; provided that none of the Administrative Agent, such Lender or the Issuing Bank, as applicable, shall be required to disclose any confidential or proprietary information in connection therewith).
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(b) With respect to RFR Loans, in the event of (i) the payment of any principal of any RFR Loan other than on the Interest Payment Date applicable thereto (including as a result of an Event of Default), (ii) the conversion of any RFR Loan other than on the Interest Payment Date applicable thereto, (iii) the failure to borrow, convert, continue or prepay any RFR Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.11(b) and is revoked in accordance therewith), (iv) the assignment of any RFR Loan other than on the Interest Payment Date applicable thereto as a result of a request by the Borrower pursuant to Section 2.19 or (v) the failure by the
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Borrower to make any payment of any Loan or drawing under any Letter of Credit (or interest due thereof) denominated in an Alternative Currency on its scheduled due date or any payment thereof in a different currency, then, in any such event, the Borrowers shall compensate each Lender for the loss, cost and expense attributable to such event. A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower Representative and shall be conclusive absent manifest error. The Borrowers shall pay such Lender the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower Representative and the Administrative Agent in writing of its legal inability to do so.
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If (i) a Bankruptcy Event or Bail-In Action with respect to the Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, reasonably satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.
In the event that each of the Administrative Agent, the Borrowers, the Issuing Bank and the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
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SECTION 2.25. Encumbrance of Specified Wisconsin Real Property. Notwithstanding anything to the contrary set forth herein, the Specified Wisconsin Real Property shall not become a Mortgaged Real Property pursuant to Section 5.14(j) until the date that is (a) if the Specified Wisconsin Real Property is not located in a Special Flood Hazard Area, ten (10) days or (b) if the Specified Wisconsin Real Property is located in a Special Flood Hazard Area, forty-five (45) days, after (i) the Administrative Agent has delivered to the Lenders the following documents in respect of the Specified Wisconsin Real Property: (A) a completed flood hazard determination from a third party vendor; (B) if the Specified Wisconsin Real Property is located in a Special Flood Hazard Area, (1) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (2) evidence of the receipt by the applicable Loan Parties of such notice; and (ii) if required by applicable Flood Laws, Borrower has provided to the Administrative Agent evidence of required flood insurance to the extent that flood insurance has been made available under applicable Flood Laws; provided that, subject to Section 5.14(j), the Specified Wisconsin Real Property may become a Mortgaged Real Property hereunder prior to such period expiring if the Administrative Agent shall have received confirmation from each Lender that such Lender has completed any necessary flood insurance due diligence to its reasonable satisfaction.
Representations and Warranties
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Each Loan Party represents and warrants to the Lenders that:
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The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such notice shall be conclusive and binding.
Affirmative Covenants
Until the Commitments shall have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full (other than (w) contingent indemnification obligations as to which no claim has arisen, (x) Swap Agreement Obligations that, at such time, are not required to be repaid pursuant to the terms hereof, (y) Banking Services Obligations that are cash collateralized or, at such time, not required to be repaid and (z) Designated Secured Foreign Products Obligations that are cash collateralized or, at such time, not required to be repaid) and all Letters of Credit shall have expired, terminated, been cash
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collateralized in the manner set forth in Section 2.06(j) or backstopped by a letter of credit issued by an issuer, and in each case, in form and substance reasonably satisfactory to the Administrative Agent and without any pending draw, and all LC Disbursements shall have been reimbursed, each Loan Party executing this Agreement covenants and agrees, jointly and severally with all of the other Loan Parties, with the Lenders that:
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Documents required to be delivered pursuant to Section 5.01(a), (b), (c) or (j)(iv) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (EDGAR); or (ii) on which such documents are posted on a Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether made available by the Administrative Agent); provided that: (A) upon written request by the Administrative Agent (or any Lender through the Administrative Agent) to the Borrower Representative, the Borrower Representative shall deliver paper copies of such documents to the Administrative Agent or such
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Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Borrower Representative shall notify the Administrative Agent and each Lender (by fax or through Electronic Systems) of the posting of any such documents and provide to the Administrative Agent through Electronic Systems electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by any Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such document to it and maintaining its copies of such documents.; and
“Cranes” means all "Grove Mobile Cranes", "Manitowoc Crawler Cranes", "National Crane Truck Mounted Cranes" and "Potain Tower Cranes" as well as any other cranes, crane truck chassis and vehicles.
“German Security Transfer Agreement” means the German law security transfer agreement entered into between the German Borrower as transferor and the Administrative Agent as transferee dated 25 March 2019, as amended from time to time.
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Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Company setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
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(j) The Specified Wisconsin Real Property shall be deemed a Mortgaged Real Property and Eligible Real Property upon the satisfaction of each of the following conditions:
(i) the Borrower Representative shall have delivered written notice to the Administrative Agent of its election to (x) remove the Specified Wisconsin Real Property from the definition of Excluded Assets and (y) treat the Specified Wisconsin Real Property as a Mortgaged Real Property and Eligible Real Property, which notice shall be delivered at least thirty (30) days (or such lesser time as the Administrative Agent may agree to in its sole discretion) prior to the Specified Wisconsin Real Property being included in the determination of the Domestic PP&E Component;
(ii) each of the conditions set forth in Sections 2.25, 4.01(n), 4.01(o) and 4.01(u) as applied to, and with respect to, the Specified Wisconsin Real Property shall have been satisfied, in each case as determined by the Administrative Agent and each Lender in their reasonable discretion;
(iii) the Administrative Agent and each Lender, each in its sole discretion, shall have reviewed and approved the environmental condition of the Specified Wisconsin Real Property, including, without limitation, review and approval of the results of any Phase I environmental site assessment (whether existing on, or prepared after, the Effective Date);
(iv) the Administrative Agent shall have received, with respect to the Specified Wisconsin Real Property, such other information, documentation, evidences, agreements, estoppels, consents, permits, licenses, certificates of occupancy, easements, and certifications, in each case as would be customarily required by an institutional lender in connection with the delivery of a mortgage of real property similar to the Specified Wisconsin Real Property and as may be reasonably required by Administrative Agent; and
(v) the Borrower Representative shall have delivered to the Administrative Agent with an executed certificate of a Responsible Officer (A) attaching an updated copy of Schedule 3.05(a) and (B) certifying that, as of the date such election is deemed to occur (x) no Event of Default has occurred and is continuing and (y) the representations and warranties contained in the Loan Documents are true and correct in all material respects as of such date (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, and that
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any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects).
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Negative Covenants
Until the Commitments shall have expired or been terminated and the principal of and interest on each Loan and all fees, expenses and other amounts payable under any Loan Document shall have been paid in full (other than (w) contingent indemnification obligations as to which no claim has arisen, (x) Swap Agreement Obligations that, at such time, are not required to be repaid pursuant to the terms hereof, (y) Banking Services Obligations that are cash collateralized or, at such time, not required to be repaid and (z) Designated Secured Foreign Products Obligations that are cash collateralized or, at such time, not required to be repaid) and all Letters of Credit shall have expired or terminated or been cash collateralized in the manner set forth in Section 2.06(j) backstopped by a letter of credit issued by an issuer, and in form and substance satisfactory to the Administrative Agent, in each case without any pending draw, and all LC Disbursements shall have been reimbursed, each Loan Party executing this Agreement covenants and agrees, jointly and severally with all of the other Loan Parties, with the Lenders that:
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For purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the categories of permitted Indebtedness described in clauses (c) through (bbcc) above, the Company and the Restricted Subsidiaries, in their sole discretion, will be permitted to divide and classify such item of Indebtedness (or any portion thereof) on the date of incurrence, and at any time and from time to time may later reclassify all or any portion of any item of Indebtedness as having been incurred under any category of permitted Indebtedness described in clauses (c) through (bbcc) above so
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long as such Indebtedness is permitted to be incurred pursuant to such provision at the time of reclassification.
For purposes of determining compliance with any U.S. Dollar-denominated restriction on Indebtedness in this Agreement where the Indebtedness is denominated in a currency other than U.S. Dollar, the amount of such Indebtedness will be the U.S. Dollar equivalent thereof determined on the date of the incurrence of such Indebtedness.
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Notwithstanding the foregoing, none of the Liens may at any time attach to any Loan Party’s Borrowing Base Collateral, other than (i) Liens created pursuant to any Loan Document, (ii) those permitted under the definition of Permitted Encumbrances, and (iii) so long as such Liens are junior to the Liens on the Borrowing Base Collateral, Liens permitted under clauses (b), (c), (d), (k), (n), (o), (q), (v), (w), (x) and (y) of this Section 6.02.
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For purposes of determining compliance with this Section 6.04, in the event that an Investment (or any portion thereof) meets the criteria of more than one of the categories of permitted Investments described in clauses (a) through (aa) above, the Company and the Restricted Subsidiaries, in their sole discretion, will be permitted to divide and classify such Investment (or any portion thereof) on the date of incurrence, and at any time and from time to time may later reclassify all or any portion of any Investment as having been incurred under any category of permitted Investments described in clauses (a) through (aa) above so long as such Investment is permitted to be incurred pursuant to such provision at the time of reclassification. For the avoidance of doubt, an Investment entered into in reliance on clause (o) above that was permitted at the time entered into shall continue to be permitted under such clause notwithstanding any failure to satisfy the Payment Conditions (or any other condition in such clause) at a later date with respect to any subsequent Investment.
For purposes of determining the amount of any Investment outstanding, such amount shall be deemed to be the amount of such Investment when made, purchased or acquired
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(without adjustment for subsequent increases or decreases in the value of such Investment, but giving effect to any net reduction in such Investment resulting from any repurchase, repayment or redemption of such Investment, proceeds realized on the sale of such Investments and taking into account any funds returned to the Person making the Investments (including amounts received representing interest, dividends or any other return of capital)).
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provided, however, that no such payment or distribution shall be made in respect of any Indebtedness in violation of any intercreditor agreement or subordination provisions applicable thereto.
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Events of Default
If any of the following events (“Events of Default”) shall occur:
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then, and in every such event (other than an event with respect to any Borrower 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 Representative, take any or all of the following actions, at the same or different times: (i) terminate the Commitments, whereupon the Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole (or in part, but ratably as among the Classes of Loans and the Loans of each Class at the time outstanding, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), whereupon 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, in each case without presentment, demand, protest or
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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 2.06(j) hereof; and in the case of any event with respect to the Borrowers described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding and the cash collateral for the LC Exposure, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, increase the rate of interest applicable to the Loans and other Obligations as set forth in this Agreement and exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC.
The Administrative Agent
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, the Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Issuing Bank or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Issuing Bank in any such proceeding.
The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Bank, and, except solely to the extent of the Borrowers’ right to consent pursuant to and subject to the conditions set forth in this Article, no Borrower nor any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Secured Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.
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“Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent, any Lender or Issuing Bank by means of electronic communications pursuant to this Section, including through an Approved Electronic Platform.
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Miscellaneous
(i) if to any Loan Party, to the Borrower Representative at:
The Manitowoc Company, Inc.
One Park Plaza
11270 West Park Place
Suite 1000
Milwaukee, WI 53224
Attention: Chief Financial Officer and Treasurer
Fax No.: (414) 760-4602
(ii) if to the Administrative Agent, Swingline Lender or Issuing Bank, to:
JPMorgan Chase Bank, N.A.
10 South Dearborn, Floor 22
Chicago, IL 60603
Attention: Asset Based Lending Operations
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Fax No: (312) 377-1091
and, in the case of a notice regarding the German Borrower or any German Swingline Loans, to:
J.P. Morgan Europe Limited
25 Bank Street, Canary Wharf
London E145JP
United Kingdom
Attention: Matthew Sparkes
Fax: +44 (0)20 3493 1365
Email: matthew.c.sparkes@jpmorgan.com
And, in the case of German Swingline Loans, to:
J.P. Morgan Europe Limited
Loans Agency 6th floor
25 Bank Street, Canary Wharf
London E145JP
United Kingdom
Attention: Loans Agency
Fax: +44 20 7777 2360
Email: Loan_and_agency_london@jpmorgan.com
with a copy to:
JPMorgan Chase Bank, N.A.
10 South Dearborn, Floor 7
Chicago, IL 60603
Attention: Asset Based Lending Operations
Fax No: (312) 377-1091
(iii) if to any other Lender, to it at its address or fax number set forth in its Administrative Questionnaire.
All such notices and other communications (i) sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received, (ii) sent by fax shall be deemed to have been given when sent, provided that if not given during normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business on the next Business Day of the recipient, or (iii) delivered through Electronic Systems or Approved Electronic Platforms, as applicable, to the extent provided in paragraph (b) below shall be effective as provided in such paragraph.
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Advisors and professionals (other than legal counsel and professionals hired in connection with field exams, appraisals, environmental reviews and insurance diligence and compliance prepared or made in connection with the Loan Documents) shall have been hired with the consent of the Company (such consent not to be unreasonably withheld); provided that such consent shall not be required upon the occurrence and continuation of a Specified Event of Default. All of the foregoing fees, costs and expenses may be charged to the Company as Revolving Loans or to another deposit account, all as described in Section 2.18(c). This Section 9.03(a) is subject to the limitations set forth in Sections 9.20 and 11.14.
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For the purposes of this Section 9.04(b), the terms “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 or its parent company, (c) holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof or (d) a Loan Party or a Subsidiary or other Affiliate of a Loan Party.
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Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.19(b) with respect to any Participant. 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 Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement or any other Loan Document (the “Participant Register”); provided that, no Lender shall have any obligation to disclose all or any portion of the Participant Register (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 Loan Document) to any Person 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 or otherwise comply with Tax law. 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.
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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 COMPANY, AND ITS AFFILIATES AND THEIR 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 BORROWERS OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY
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CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWERS, THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWERS 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, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
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In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
Loan Guaranty of Domestic Loan Parties
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Loan Guaranty of German Loan Parties
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The Borrower Representative.
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Subordination of Intercompany Indebtedness.
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[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective authorized officers as of the day and year first above written.
THE MANITOWOC COMPANY, INC.
By:
Name:
Title:
GROVE U.S. L.L.C.
By:
Name:
Title:
MANITOWOC CRANE GROUP U.S. HOLDING, LLC
By:
Name:
Title:
MANITOWOC CRANE COMPANIES, LLC
By:
Name:
Title:
MANITOWOC RE-MANUFACTURING, LLC
By:
Name:
Title:
Signature Page to Credit Agreement
The Manitowoc Company, Inc.
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MANITOWOC CP, INC.
By:
Name:
Title:
Signature Page to Credit Agreement
The Manitowoc Company, Inc.
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MANITOWOC CRANE GROUP GERMANY GMBH
By:
Name:
Title:
By:
Name:
Title:
MANITOWOC CRANE GROUP HOLDING GERMANY GMBH
By:
Name:
Title:
By:
Name:
Title:
Signature Page to Credit Agreement
The Manitowoc Company, Inc.
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JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent, Issuing Bank and Swingline Lender
By:
Name:
Title:
Signature Page to Credit Agreement
The Manitowoc Company, Inc.
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BANK OF MONTREAL, as a Lender
By:
Name:
Title:
Signature Page to Credit Agreement
The Manitowoc Company, Inc.
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BANK OF AMERICA, N.A., as a Lender
By:
Name:
Title:
Signature Page to Credit Agreement
The Manitowoc Company, Inc.
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COMMITMENT SCHEDULE
Lender | Commitment |
JPMorgan Chase Bank, N.A. | $123,750,000 |
Bank of Montreal | $75,625,000 |
Bank of America, N.A. | $75,625,000 |
|
|
Total | $275,000,000 |
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EXHIBIT B
Modified Form of Borrowing Request
[Attached]
278145257v.3Exhibit H
[FORM OF] BORROWING REQUEST
JPMorgan Chase Bank, N.A.
10 South Dearborn, Floor 22
Chicago, IL 60603
Attention: [__]Asset Based Lending Operations
Telephone No: [__]
Fax No: [__](312) 377-1091
[J.P. Morgan Europe Limited
Loans Agency 6th floor
25 Bank Street, Canary Wharf
London E145JP
United Kingdom
Attention: Loans Agency
Fax: +44 20 7777 2360
Email: [__Loan_and_agency_london@jpmorgan.com]
Date:
Ladies and Gentlemen:
This Borrowing Request is furnished pursuant to Section 2.03 of that certain the Credit Agreement dated as of March 25, 2019 (as amended, restated, supplemented renewed, extended or otherwise modified from time to time, the “Credit Agreement”) among The Manitowoc Company, Inc., GROVE U.S. L.L.C., Manitowoc Crane Group Germany GmbH, the other Loan Parties party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. Unless otherwise defined herein, capitalized terms used in this Borrowing Request have the meanings ascribed thereto in the Credit Agreement. The Borrower Representative identified below represents that, as of this date, the conditions precedent set forth in Section[s] [4.01 and]1 4.02 of the Credit Agreement are satisfied.
The Borrower Representative hereby notifies the Administrative Agent pursuant to Section 2.03 of the Credit Agreement of its request for the following Borrowing:
1. Name of applicable Borrower(s): | _____________________
|
2. Aggregate amount of the requested Borrowing:
| $____________________ |
3. Borrowing Date of the Borrowing (must be a Business Day):
| ________________, 20__ |
4. Type of Borrowing: 2 | [Adjusted LIBO Rate][Term Benchmark][RFR][ABR] [Overnight LIBO Rate]
|
5. Class: | [Domestic][German] [Revolving] [Swingline] Loan
|
6. Interest Period and last day thereof: | [one][two][three][six] month[s], ending on ____________, 20__
|
7. Agreed Currency: | [U.S. Dollars][Euro][Sterling]
|
8. Proceeds of Borrowing are to be disbursed to the following account(s) of the applicable Borrower(s): | Amount: ______________________ Bank Name: ___________________ ABR Routing No.: ______________ Bank Address: _________________ _________________ Account No.: __________________ Account Name: ________________ Attn/Reference: ________________
|
[Signature Page Follows]
Exhibit H
1234369360v2234369360v.1
THE MANITOWOC COMPANY, INC., as the Borrower Representative
By:
Name:
Title:
EXHIBIT C
Closing Checklist
[Attached]
THE MANITOWOC COMPANY, INC.
and
GROVE U.S. L.L.C.
as Domestic Borrowers
and
MANITOWOC CRANE GROUP GERMANY GMBH
as German Borrower
AMENDMENT NO. 2 TO CREDIT AGREEMENT
May 19, 2022
LIST OF CLOSING DOCUMENTS
A. LOAN DOCUMENTS
EXHIBITS
Exhibit A -- Modified Credit Agreement
Exhibit B -- Modified Form of Borrowing Request
Exhibit C -- Closing Checklist
B. U.S. COLLATERAL DOCUMENTS
Schedule A | -- | Registered Patents; Patent Applications; Other Patents |
C. U.S. CORPORATE DOCUMENTS
D. U.S. OPINIONS
E. CLOSING CERTIFICATES AND MISCELLANEOUS
F. GERMAN DOCUMENTATION
G. U.S. REAL PROPERTY DOCUMENTATION
APPENDIX A
Mortgaged Real Property Locations
Entity of Record | Common Name and Address | Purpose/Use | Legal Description | Filing Office for Mortgage |
GROVE U.S. L.L.C. | 1190 Mineral Springs Drive Port Washington, WI 53074 | Manufacturing facility | See Mortgage. | Register of Deeds of Ozaukee County, Wisconsin |
GROVE U.S. L.L.C. | 1565 Buchanan Trail East Shady Grove, PA 17256 | Manufacturing/ Processing | See Mortgage. | Franklin County, Pennsylvania Recorder |