Full Press Release Details
Table of Contents
The Other Loan Parties Party Hereto
The Lenders Party Hereto
JPMORGAN CHASE BANK, N.A.
Administrative Agent
CREDIT SUISSE LOAN FUNDING LLC
as Syndication Agent
BANK, N.A., BNP PARIBAS, BARCLAYS BANK PLC, HSBC BANK USA, NATIONAL
ASSOCIATION, GOLDMAN SACHS BANK USA, CITIGROUP GLOBAL MARKETS INC.,
TD BANK, N.A., THE BANK OF NOVA SCOTIA, MUFG BANK, LTD., BMO
CAPITAL MARKETS CORP., RBC CAPITAL MARKETS, SUMITOMO MITSUI BANKING
CORPORATION and BANK OF AMERICA, N.A.
as Co-Documentation Agents
BANK, N.A., CREDIT SUISSE LOAN FUNDING LLC, CITIZENS BANK, N.A.,
BNP PARIBAS, BARCLAYS BANK PLC, HSBC BANK USA, NATIONAL ASSOCIATION,
GOLDMAN SACHS BANK USA and CITIGROUP GLOBAL MARKETS INC.
as Joint Bookrunners
Joint Lead Arrangers
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| Page | ||||||||
| ARTICLE I DEFINITIONS | 1 | |||||||
| SECTION 1.01. | Defined Terms | 1 | ||||||
| SECTION 1.02. | Classification of Loans and Borrowings | 39 | ||||||
| SECTION 1.03. | Terms Generally | 40 | ||||||
| SECTION 1.04. | Accounting Terms; GAAP; Pro Forma Calculations | 40 | ||||||
| SECTION 1.05. | Interest Rates; LIBOR Notification | 41 | ||||||
| ARTICLE II THE CREDITS | 41 | |||||||
| SECTION 2.01. | Commitments | 41 | ||||||
| SECTION 2.02. | Loans and Borrowings | 42 | ||||||
| SECTION 2.03. | Requests for Borrowings | 43 | ||||||
| SECTION 2.04. | Determination of Dollar Amounts | 43 | ||||||
| SECTION 2.05. | Swingline Loans | 44 | ||||||
| SECTION 2.06. | [Intentionally Omitted] | 46 | ||||||
| SECTION 2.07. | Funding of Borrowings | 46 | ||||||
| SECTION 2.08. | Interest Elections | 46 | ||||||
| SECTION 2.09. | Termination and Reduction of Commitments | 47 | ||||||
| SECTION 2.10. | Repayment and Amortization of Loans; Evidence of Debt | 48 | ||||||
| SECTION 2.11. | Prepayment of Loans | 49 | ||||||
| SECTION 2.12. | Fees | 51 | ||||||
| SECTION 2.13. | Interest | 51 | ||||||
| SECTION 2.14. | Alternate Rate of Interest | 52 | ||||||
| SECTION 2.15. | Increased Costs | 54 | ||||||
| SECTION 2.16. | Break Funding Payments | 55 | ||||||
| SECTION 2.17. | Taxes | 55 | ||||||
| SECTION 2.18. | Payments Generally; Allocations of Proceeds; Pro Rata Treatment; Sharing of Setoffs | 58 | ||||||
| SECTION 2.19. | Mitigation Obligations; Replacement of Lenders | 60 | ||||||
| SECTION 2.20. | Incremental Facilities | 61 | ||||||
| SECTION 2.21. | Judgment Currency | 63 | ||||||
| SECTION 2.22. | Defaulting Lenders | 63 | ||||||
| SECTION 2.23. | Extension of Maturity Date | 65 | ||||||
| ARTICLE III REPRESENTATIONS AND WARRANTIES | 67 | |||||||
| SECTION 3.01. | Existence, Qualification and Power | 67 | ||||||
| SECTION 3.02. | Authorization; No Contravention | 67 | ||||||
| SECTION 3.03. | Governmental Authorization; Other Consents | 68 | ||||||
| SECTION 3.04. | Binding Effect | 68 | ||||||
| SECTION 3.05. | Litigation | 68 | ||||||
| SECTION 3.06. | Financial Statements; No Material Adverse Effect | 68 | ||||||
| SECTION 3.07. | Disclosure | 68 | ||||||
| SECTION 3.08. | Margin Regulations | 69 | ||||||
| SECTION 3.09. | Investment Company Act | 69 | ||||||
| SECTION 3.10. | Solvency | 69 | ||||||
| SECTION 3.11. | ERISA Compliance | 69 | ||||||
| SECTION 3.12. | Environmental Compliance | 69 | ||||||
| SECTION 3.13. | Taxes | 69 |
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| Page | ||||||||
| SECTION 3.14. | Use of Proceeds | 70 | ||||||
| SECTION 3.15. | Anti-Corruption Laws; Anti-Terrorism Laws; OFAC | 70 | ||||||
| SECTION 3.16. | Security Interest in Collateral | 70 | ||||||
| ARTICLE IV CONDITIONS | 71 | |||||||
| SECTION 4.01. | Effective Date | 71 | ||||||
| SECTION 4.02. | Trigger Date | 72 | ||||||
| SECTION 4.03. | Each Borrowing | 74 | ||||||
| ARTICLE V AFFIRMATIVE COVENANTS | 75 | |||||||
| SECTION 5.01. | Compliance with Laws | 75 | ||||||
| SECTION 5.02. | Payment of Obligations | 75 | ||||||
| SECTION 5.03. | Compliance with Environmental Laws | 75 | ||||||
| SECTION 5.04. | Maintenance of Insurance | 75 | ||||||
| SECTION 5.05. | Preservation of Existence, Etc | 76 | ||||||
| SECTION 5.06. | Inspection Rights | 76 | ||||||
| SECTION 5.07. | Books and Records | 76 | ||||||
| SECTION 5.08. | Maintenance of Properties | 76 | ||||||
| SECTION 5.09. | Transactions with Affiliates | 77 | ||||||
| SECTION 5.10. | Covenant to Guarantee Obligations and Provide Security | 77 | ||||||
| SECTION 5.11. | Use of Proceeds | 78 | ||||||
| SECTION 5.12. | Reporting Requirements | 78 | ||||||
| SECTION 5.13. | Financial Covenants | 80 | ||||||
| ARTICLE VI NEGATIVE COVENANTS | 80 | |||||||
| SECTION 6.01. | Liens | 80 | ||||||
| SECTION 6.02. | Debt | 81 | ||||||
| SECTION 6.03. | Change in Nature of Business | 82 | ||||||
| SECTION 6.04. | Fundamental Changes | 82 | ||||||
| SECTION 6.05. | Dispositions | 83 | ||||||
| SECTION 6.06. | Investments | 84 | ||||||
| SECTION 6.07. | Restricted Payments | 85 | ||||||
| SECTION 6.08. | Accounting Changes | 86 | ||||||
| SECTION 6.09. | Speculative Transactions | 87 | ||||||
| SECTION 6.10. | Anti-Corruption; Sanctions Laws and Regulations | 87 | ||||||
| SECTION 6.11. | Material TEU Amendments | 87 | ||||||
| ARTICLE VII EVENTS OF DEFAULT | 88 | |||||||
| SECTION 7.01. | Events of Default | 88 | ||||||
| SECTION 7.02. | Remedies Upon an Event of Default | 90 | ||||||
| SECTION 7.03. | Application of Payments | 91 | ||||||
| ARTICLE VIII THE ADMINISTRATIVE AGENT | 92 | |||||||
| SECTION 8.01. | Authorization and Action | 92 | ||||||
| SECTION 8.02. | Administrative Agent s Reliance, Indemnification, Etc | 95 | ||||||
| SECTION 8.03. | Posting of Communications | 96 | ||||||
| SECTION 8.04. | The Administrative Agent Individually | 97 | ||||||
| SECTION 8.05. | Successor Administrative Agent | 97 | ||||||
| SECTION 8.06. | Acknowledgements of Lenders | 98 |
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| Page | ||||||||
| SECTION 8.07. | Collateral Matters | 98 | ||||||
| SECTION 8.08. | Credit Bidding | 99 | ||||||
| SECTION 8.09. | Certain ERISA Matters | 100 | ||||||
| SECTION 8.10. | Certain Foreign Pledge Matters | |||||||
| ARTICLE IX MISCELLANEOUS | 101 | |||||||
| SECTION 9.01. | Notices | 101 | ||||||
| SECTION 9.02. | Waivers; Amendments | 102 | ||||||
| SECTION 9.03. | Expenses; Indemnity; Damage Waiver | 105 | ||||||
| SECTION 9.04. | Successors and Assigns | 107 | ||||||
| SECTION 9.05. | Survival | 110 | ||||||
| SECTION 9.06. | Counterparts; Integration; Effectiveness; Electronic Execution | 111 | ||||||
| SECTION 9.07. | Severability | 111 | ||||||
| SECTION 9.08. | Right of Setoff | 111 | ||||||
| SECTION 9.09. | Governing Law; Jurisdiction; Consent to Service of Process | 112 | ||||||
| SECTION 9.10. | WAIVER OF JURY TRIAL | 112 | ||||||
| SECTION 9.11. | Headings | 113 | ||||||
| SECTION 9.12. | Confidentiality | 113 | ||||||
| SECTION 9.13. | USA PATRIOT Act | 114 | ||||||
| SECTION 9.14. | Release of Subsidiary Guarantors and Collateral | 114 | ||||||
| SECTION 9.15. | Appointment for Perfection | 114 | ||||||
| SECTION 9.16. | Interest Rate Limitation | 114 | ||||||
| SECTION 9.17. | No Fiduciary Duty, etc. | 115 | ||||||
| SECTION 9.18. | Acknowledgement and Consent to Bail-In of EEA Financial Institutions | 115 | ||||||
| ARTICLE X GUARANTY | 116 | |||||||
| SECTION 10.01. | Guaranty, Limitation of Liability | 116 | ||||||
| SECTION 10.02. | Guaranty Absolute | 117 | ||||||
| SECTION 10.03. | Waivers and Acknowledgments | 118 | ||||||
| SECTION 10.04. | Subrogation | 118 | ||||||
| SECTION 10.05. | Guaranty Supplements | 119 | ||||||
| SECTION 10.06. | Subordination | 119 | ||||||
| SECTION 10.07. | Continuing Guaranty; Assignments | 120 | ||||||
| SECTION 10.08. | Guaranty Fallaway Provision | 120 | ||||||
| SECTION 10.09. | Keepwell | 120 |
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| Page | ||
| SCHEDULES : | ||
| Schedule 2.01 Commitments Schedule 5.10 Specified Sale Process | ||
| EXHIBITS : | ||
| Exhibit A Form of Assignment and Assumption | ||
| Exhibit B List of Closing Documents | ||
| Exhibit C Form of Solvency Certificate | ||
| Exhibit D-1 Form of U.S. Tax Certificate (Foreign Lenders That Are Not Partnerships) | ||
| Exhibit D-2 Form of U.S. Tax Certificate (Foreign Participants That Are Not Partnerships) | ||
| Exhibit D-3 Form of U.S. Tax Certificate (Foreign Participants That Are Partnerships) | ||
| Exhibit D-4 Form of U.S. Tax Certificate (Foreign Lenders That Are Partnerships) | ||
| Exhibit E-1 Form of Borrowing Request | ||
| Exhibit E-2 Form of Interest Election Request | ||
| Exhibit F Form of Guaranty Supplement Exhibit G Form of Compliance Certificate |
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CREDIT AGREEMENT (this Agreement ) dated as of December 17, 2018
among COLFAX CORPORATION, the other LOAN PARTIES from time to time party hereto, the LENDERS from time to time party hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CREDIT SUISSE LOAN FUNDING LLC, as Syndication Agent and CITIZENS BANK,
N.A., BNP PARIBAS, BARCLAYS BANK PLC, HSBC BANK USA, NATIONAL ASSOCIATION, GOLDMAN SACHS BANK USA, CITIGROUP GLOBAL MARKETS INC., TD BANK, N.A., THE BANK OF NOVA SCOTIA, MUFG BANK, LTD., BMO CAPITAL MARKETS CORP., RBC CAPITAL MARKETS, SUMITOMO
MITSUI BANKING CORPORATION and BANK OF AMERICA, N.A., as Co-Documentation Agents.
hereto agree as follows:
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
ABR when used in reference to any Loan or Borrowing, refers to such Loan, or the Loans comprising such Borrowing, bearing
interest at a rate determined by reference to the Alternate Base Rate.
Additional Commitment Lender has the meaning
assigned to it in Section 2.23(d).
Additional Guarantor has the meaning assigned to it in Section 10.05(b).
Additional Lender has the meaning assigned to such term in Section 2.20(c).
Adjusted LIBO Rate means, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum
equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
Agent means JPMorgan Chase Bank, N.A. (including its branches and affiliates), in its capacity as administrative agent for the Lenders hereunder.
Administrative Questionnaire means an Administrative Questionnaire in a form supplied by the Administrative Agent.
Affiliate means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under
common control with such Person or is a director or officer of such Person. For purposes of this definition, the term control (including the terms controlling, controlled by and under common control
with ) of a Person means the possession, direct or indirect, of the power to vote 10% or more of the Voting Interests of such Person or to direct or cause the direction of the management and policies of such Person, whether through the
ownership of Voting Interests, by contract or otherwise.
Agreed Currencies means (i) Dollars, (ii) euro,
(iii) Pounds Sterling and (iv) any other currency (x) that is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars, (y) for which a LIBO Screen Rate is available in
the Administrative Agent s determination and (z) that is agreed to by the Administrative Agent and each of the Revolving Lenders.
Agreement has the meaning assigned to such term in the introductory paragraph.
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Agreement Value means, for each Hedge Agreement, on any date of
determination, an amount determined by the Administrative Agent equal to the mark-to-market value of such Hedge Agreement, which will be the unrealized loss on such
Hedge Agreement to the Loan Party or Subsidiary of a Loan Party party to such Hedge Agreement determined by the Administrative Agent as the amount, if any, by which (a) the present value of the future cash flows (determined in accordance with
the Master Agreement (Multicurrency Cross Border) published by the International Swap and Derivatives Association, Inc. with respect to such Hedge Agreement) to be paid by such Loan Party or Subsidiary exceeds (b) the present value of the
future cash flows (as so determined) to be received by such Loan Party or Subsidiary pursuant to such Hedge Agreement.
Revolving Commitment means the aggregate of the Revolving Commitments of all of the Revolving Lenders, as reduced or increased from time to time pursuant to the terms and conditions hereof.
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 1 2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period in Dollars on such day (or if
such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not
available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be
effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.14, 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.
Alternative Rate has the
meaning assigned to such term in Section 2.14(a).
Anti-Corruption Laws means all laws, rules, and regulations of
any jurisdiction applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption, including but not limited to, the United Kingdom Bribery Act 2010 and the U.S. Foreign Corrupt Practices Act of
Applicable Maturity Date has the meaning assigned to it in Section 2.23(a).
Applicable Party has the meaning assigned to it in Section 8.03(c).
Applicable Percentage means, with respect to any Lender, (a) with respect to Revolving Loans or Swingline Loans, the
percentage equal to a fraction the numerator of which is such Lender s Revolving Commitment and the denominator of which is the aggregate Revolving Commitments of all Revolving Lenders (if the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments), (b) with respect to the Term A-1 Loans, (i) at any time
prior to advancing the Term A-1 Loans, a percentage equal to a fraction the numerator of which is such Lender s Term A-1 Loan Commitment and the denominator of
which is the aggregate Term A-1 Loan Commitments of all Term A-1 Lenders and (ii) at any time after advancing the Term A-1
Loans, a percentage equal to a fraction the numerator of which is such Lender s outstanding principal amount of the Term A-1 Loans and the denominator of which is the aggregate outstanding principal
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Term A-1 Loans of all Term A-1 Lenders and (c) with respect to the Term
A-2 Loans, (i) at any time prior to advancing the Term A-2 Loans, a percentage equal to a fraction the numerator of which is such Lender s Term A-2 Loan Commitment and the denominator of which is the aggregate Term A-2 Loan Commitments of all Term A-2 Lenders and (ii) at
any time after advancing the Term A-2 Loans, a percentage equal to a fraction the numerator of which is such Lender s outstanding principal amount of the Term A-2
Loans and the denominator of which is the aggregate outstanding principal amount of the Term A-2 Loans of all Term A-2 Lenders; provided that in the case of each
of the foregoing clauses (a), (b) and (c), in the case of Section 2.22 when a Defaulting Lender shall exist, any such Defaulting Lender s Revolving Commitment, Term A-1 Loan Commitment and/or Term A-2 Loan Commitment, as applicable, shall be disregarded in the calculation.
Percentage means (a) in the case of a pledge by the Borrower or any Loan Party of its voting Equity Interests in a First Tier Foreign Subsidiary or a CFC Holding Company, 65%, and (b) in all other cases, 100%.
Applicable Rate means, for any day, with respect to any Eurocurrency Loan, any ABR Loan or with respect to the commitment
fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption Eurocurrency Spread , ABR Spread or Commitment Fee Rate , as the case may be:
| Pricing Level | Total Leverage Ratio: | Applicable Rating S&P/Moody s | Eurocurrency Spread for Term Loans | ABR Spread | Commitment Fee Rate | |||||
| 1 | 0.50 to 1.00 | BBB/Baa2 or better | 1.25% | 0.25% | 0.15% | |||||
| 2 | > 0.50 to 1.00 but 1.50 to 1.00 | BBB-/Baa3 | 1.375% | 0.375% | 0.20% | |||||
| 3 | > 1.50 to 1.00 but 2.50 to 1.00 | BB+/Ba1 | 1.50% | 0.50% | 0.25% | |||||
| 4 | > 2.50 to 1.00 but 3.50 to 1.00 | BB/Ba2 | 1.75% | 0.75% | 0.35% | |||||
| 5 | > 3.50 to 1.00 | BB-/Ba3 or lower | 2.00% | 1.00% | 0.45% |
For purposes of this definition, until
the date on which the Administrative Agent receives a Compliance Certificate pursuant to Section 5.12(c) for the Borrower s first fiscal quarter ending after the Effective Date, the Applicable Rate will be based on
Pricing Level 4 in respect of the table above. Thereafter, the Applicable Rate will be based on the Pricing Level, as determined by reference to either (x) the Total Leverage Ratio (as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 5.12(b) or 5.12(c)) or (y) a public corporate family rating from S&P or Moody s (the Applicable Rating , for the purposes of
this definition, being the higher of the two corporate family ratings, in the case of a differential of not more than one level between such ratings, or the rating one level below the higher of such two ratings, in the case of a differential of two
levels or more). If the differential between the Pricing Levels by reference to the Total Leverage Ratio and Applicable Rating is not more than one level, the lower Pricing Level shall apply, and if the differential
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between the Pricing Levels by reference to the Total Leverage Ratio and Applicable Rating is two or more levels, the Pricing Level which is one level higher than the Pricing Level which would
result in the lower Applicable Rate shall apply. If S&P and/or Moody s shall not have a public corporate family rating in effect for the Borrower, the Pricing Level shall be determined solely by reference to the Total Leverage Ratio.
Any increase or decrease in the Applicable Rate resulting from (i) a change in the Total Leverage Ratio shall become effective as of the
first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 5.12(b) or 5.12(c), as applicable, or (ii) a publicly announced change in the Applicable Ratings Level shall become effective on
the date of the public announcement thereof through the date immediately preceding the effective date of the next such change; provided, however, that (i) if a Compliance Certificate is not delivered when due in
accordance with such Section 5.12, then Pricing Level 5 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which