Exhibit 10.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of November 26, 2019 (together with all exhibits and schedules hereto, this “Amendment”), is entered into by and among Element Solutions Inc (f/k/a Platform Specialty Products Corporation), a Delaware corporation (“ESI”), MacDermid, Incorporated, a Connecticut corporation (“MacDermid” and, together with ESI, the “Borrowers”), certain subsidiaries of ESI party hereto, Barclays Bank PLC, as collateral agent and administrative agent (in such respective capacities, the “Collateral Agent” and the “Administrative Agent”; collectively, the “Agent”) and the Lenders party hereto. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement (as defined below).
RECITALS
A.Pursuant to that certain Credit Agreement, dated as of January 31, 2019, by and among the Borrowers, the Agent, the lending institutions parties thereto and the other agents and entities party thereto (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”), the Lenders have extended, and have agreed to extend, credit to the Borrowers, including the Initial Term Loans, the Initial Revolving Credit Loans and Initial Revolving Credit Commitments.
B.Pursuant to the Credit Agreement, the Borrowers may obtain Incremental Term Loans by, among other things, entering into an Incremental Amendment in accordance with the terms and conditions of the Credit Agreement.
C.On the Funding Date (as defined below), the Borrowers shall borrow, on a joint and several basis, new term loans denominated in Dollars in an aggregate principal amount of $744,375,000 from the parties to this Amendment designated as a “Tranche B-1 Term Loan Lender” on such party’s signature page hereto (each, a “Tranche B-1 Term Loan Lender” and, collectively, the “Tranche B-1 Term Loan Lenders”) incurred as a new tranche of term loans constituting Refinancing Incremental Term Loans (the “Tranche B-1 Term Loans”) under and in accordance with Section 2.14 of the Credit Agreement, and each Tranche B-1 Term Loan Lender severally agrees to fund an amount equal to its “Tranche B-1 Term Loan Commitment” set forth on its signature page hereto.
D.The Borrowers, the other Loan Parties party hereto, the Agent, the Lenders party hereto have agreed to amend the Credit Agreement as provided in Section 2 hereof on the Funding Date.
E.Each of the Borrowers and the Loan Parties party hereto (each, a “Reaffirming Party” and, collectively, the “Reaffirming Parties”) expects to realize substantial direct and indirect benefits as a result of this Amendment (including the agreements set forth in Section 2 hereof becoming effective and the consummation of the transactions contemplated thereby) and desires to reaffirm its obligations pursuant to the Collateral Documents to which it is a party.
NOW THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:



SECTION 1.Funding. Pursuant to and in accordance with Section 2.14 of the Credit Agreement and subject to the satisfaction (or waiver by the Administrative Agent in its sole discretion) of the conditions set forth in Section 4 hereof, on the Funding Date, each Tranche B-1 Term Loan Lender severally agrees to make Tranche B-1 Term Loans to the Borrowers in Dollars in an amount equal to its “Tranche B-1 Term Loan Commitment” set forth on its signature page hereto. Except as set forth in this Amendment, the Tranche B-1 Term Loans shall have identical terms as the Initial Term Loans and shall otherwise be subject to the provisions of the Credit Agreement.
SECTION 2. Amendments to Credit Agreement as of the Funding Date. The Borrowers, the other Loan Parties, the Tranche B-1 Term Loan Lenders and the Administrative Agent hereby agree that effective as of the Funding Date,
(a) the Credit Agreement shall be amended, in accordance with the provisions of Section 2.14 and Section 11.01 of the Credit Agreement, in the form of the Credit Agreement set forth in Exhibit A hereto (i) by deleting each term thereof which is reflected in strike-through font and (ii) by inserting each term thereof which is reflected in double underlined font, in each case in the place where such term appears therein;
(b) Schedule 1.01(c) of the Credit Agreement is hereby amended and restated in its entirety in the form attached hereto as Exhibit B; and
(c) Schedule 2.01 of the Credit Agreement is hereby amended and restated in its entirety in the form attached hereto as Exhibit C.
SECTION 3. Representations and Warranties. The Borrowers and the other Loan Parties party hereto represent and warrant to the Agent and the Lenders as of the Funding Date that:
(a)The execution, delivery and performance by each Loan Party of this Amendment and other documents executed in connection herewith to which such Person is a party, and the consummation of the transactions contemplated herein, are within such Loan Party’s corporate or other powers, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any material Lien under, or require any material payment to be made under (i) any material Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Restricted Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law that would adversely affect the rights of the Lenders, the Administrative Agent or the Collateral Agent under the Loan Documents.
(b)This Amendment and each other document executed in connection herewith has been duly executed and delivered by each Loan Party that is a party hereto and thereto. This Amendment and each other document executed in connection herewith constitutes a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is a party hereto and thereto in accordance with its terms, except to the extent that enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).
2



(c)(i) Immediately before and after the Funding Date, no Default or Event of Default has occurred and is continuing, and (ii) all representations and warranties of each Borrower and each other Loan Party contained in Article VI of the Credit Agreement or any other Loan Document are true and correct in all material respects on and as of such dates, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(d)Neither the amendment of the Credit Agreement effected on the Funding Date pursuant to this Amendment nor the execution, delivery, performance or effectiveness of this Amendment: (i) impairs (or will impair as of the Funding Date) the validity, effectiveness or priority of the Liens granted pursuant to any Loan Document (as defined in the Credit Agreement), and such Liens continue unimpaired with the same priority to secure repayment of the Obligations (as defined in the Credit Agreement), whether heretofore or hereafter incurred or (ii) requires (or will require as of the Funding Date) that any new filings be made or other action taken to perfect or to maintain the perfection of such Liens (other than any filings in connection with the addition of new Loan Parties and any actions contemplated by Section 7.12 and Section 7.14(b) of the Credit Agreement).
SECTION 4. Conditions to the Funding Date. This Amendment shall become a binding agreement of the parties hereto and the agreements set forth herein and the amendments set forth in Section 2 shall each become effective on the date (the “Funding Date”) on which each of the following conditions is satisfied or waived:
(a)The Administrative Agent shall have received from (i) each Borrower and each other Loan Party, (ii) the Tranche B-1 Term Loan Lenders and (iii) Lenders collectively constituting the Required Lenders, a counterpart of this Amendment signed on behalf of such party.
3



(b)The Administrative Agent shall have received a customary closing certificate from a secretary, assistant secretary or similar officer or foreign representative of each Borrower and each Loan Party that is a party hereto, in each case, certifying as to (i) resolutions duly adopted by the board of directors (or equivalent governing body) of each such Borrower and each such Loan Party authorizing the execution, delivery and performance of this Amendment (and the Loan Documents or other documents executed in connection therewith or herewith in each case as amended on the Funding Date), (ii) the accuracy and completeness of copies of the certificate or articles of incorporation, association or organization (or memorandum of association or other equivalent thereof) of each Loan Party party hereto certified by the relevant authority of the jurisdiction of organization of such Loan Party (to the extent relevant and available in the jurisdiction of organization of such Loan Party) and copies of the by-laws or operating, management, partnership or similar agreement (to the extent applicable and/or relevant and available in the jurisdiction of organization of such Loan Party) of each Loan Party party hereto and that such documents or agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date) (or, if applicable, a certification that there has been no change to the organizational documents of such entity previously delivered to the Administrative Agent on January 31, 2019, and that such organizational documents remain in full force and effect as of the Funding Date), (iii) incumbency (to the extent applicable) and specimen signatures of each officer, director or authorized representative executing any Loan Document on behalf of each such Borrower and each such Loan Party and (iv) the good standing (or subsistence or existence) of each such Borrower and each such Loan Party from the Secretary of State (or similar state, province or foreign official) of the state, province or other jurisdiction of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party).
(c)The Borrowers shall have paid (i) to the Administrative Agent all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent required in connection with this Amendment pursuant to Section 11.04 of the Credit Agreement and (ii) to the Agent and Lead Arrangers (as defined below) all reasonable and documented out-of-pocket costs, expenses and fees (including any payment of fees separately agreed to in writing by ESI and the Agent and each Lead Arranger) that are due on or before to the Funding Date, including reasonable expenses associated with the arrangement, negotiation and preparation of this Amendment, and the reasonable and documented fees, disbursements and other charges of one firm of counsel, Latham & Watkins LLP, plus one local counsel in each appropriate jurisdiction.
(d)The Administrative Agent shall have received the executed legal opinions of (i) Kane Kessler P.C., counsel to the Borrowers, and, to the limited extent New York law is applicable, the other Loan Parties party hereto, as customary for transactions of this type, and (ii) local counsel to the other Loan Parties party hereto, as customary for transactions of this type.
(e)Each Tranche B-1 Term Loan Lender shall have received, if requested at least five Business Days in advance of the Funding Date, a Term Loan Note, payable to the order of such Tranche B-1 Term Loan Lender, duly executed by each Borrower.
(f)To the extent requested at least 10 Business Days prior to the Funding Date, the Lenders shall have received (i) all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act, and (ii) a Beneficial Ownership Certification in relation to any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, in each case, at least five Business Days prior to the Funding Date.
(g)The Administrative Agent shall have received a Request for Credit Extension prior to (i) 12:00 p.m., New York City time, one Business Day prior to the anticipated Funding Date in the case of Base Rate Loans and (ii) 12:00 p.m., New York City time, two Business Days prior to the anticipated Funding Date in the case of Eurocurrency Rate Loans requesting that each Tranche B-1 Term Loan Lender make the Tranche B-1 Term Loans on the Funding Date and specifying the amount to be borrowed.
(h)The Administrative Agent shall have received a certificate from a financial officer of the applicable Borrowers substantially in the form attached hereto as Exhibit C, to the effect that, immediately before and after giving effect to the Tranche B-1 Term Loans and the other transactions contemplated hereby, ESI and its Subsidiaries, taken as a whole, are Solvent (as defined in the Credit Agreement).
4



(i)The Administrative Agent shall have received a completed standard “life of loan” flood hazard determination form for each Mortgaged Property, and if the property is located in an area designated by the U.S. Federal Emergency Management Agency (or any successor agency) as having special flood or mud slide hazards, (A) a Borrower Notice and (if applicable) notification to the Borrowers that flood insurance coverage under the NFIP created by the U.S. Congress pursuant to the Flood Laws is not available because the applicable community does not participate in the NFIP, (B) documentation evidencing the Borrowers’ receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (C) if Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrowers’ application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Collateral Agent and in compliance with the Flood Laws.
(j)The Administrative Agent shall have received confirmation that (i) the representations and warranties of the Loan Parties contained in Section 3 shall be true and correct in all materials respects and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date and (ii) at the time of the Funding Date (and after giving effect thereto) no Default or Event of Default shall exist.
(k)The Administrative Agent shall have received (i) a notice of prepayment in accordance with Section 2.05(a) of the Credit Agreement, (ii) for the account of each Initial Term Loan Lender, all accrued and unpaid interest on the Initial Term Loans held by such Lender up to but excluding the Funding Date and (iii) for the account of each Initial Term Loan Lender that does not consent to this Amendment, any loss, cost or expense due to such Lender under Section 3.05 of the Credit Agreement.
Each party hereto agrees that their respective signatures to this Amendment, once delivered, are irrevocable and may not be withdrawn. Each Lender, by delivering its signature page to this Amendment, shall be deemed to have consented to, approved and accepted each of the amendments to the Credit Agreement set forth in Section 2 hereof.
SECTION 5. [Reserved].
SECTION 6. Counterparts. This Amendment and each other Loan Document may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or e-mail (including “.pdf” or “.tif”) of an executed counterpart of a signature page to this Amendment and each other Loan Document shall be effective as delivery of an original executed counterpart of this Amendment and such other Loan Document. The Administrative Agent may also require that any such documents and signatures delivered by telecopier be confirmed by a manually-signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier.
SECTION 7. Applicable Law. THIS AMENDMENT AND ANY OTHER LOAN DOCUMENT AND ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, AND
5



CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW RULES THAT WOULD RESULT IN THE APPLICATION OF A DIFFERENT GOVERNING LAW (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OR PRIORITY OF THE SECURITY INTERESTS).
SECTION 8. Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Amendment.
SECTION 9. Effect of Amendment.
(a)Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Agents under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. The parties hereto expressly acknowledge that it is not their intention that this Amendment or any of the other Loan Documents executed or delivered pursuant hereto constitute a novation of any of the obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, but a modification thereof pursuant to the terms contained herein. As of the Funding Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the other Loan Documents to the Credit Agreement (including, without limitation, by means of words like “thereunder”, “thereof” and words of like import), shall mean and be a reference to the Credit Agreement as amended hereby, and this Amendment and the Credit Agreement shall be read together and construed as a single instrument. Each of the table of contents and lists of Exhibits and Schedules of the Credit Agreement shall be amended to reflect the changes made in this Amendment as of the Funding Date. This Amendment shall constitute a Loan Document (as defined in the Credit Agreement, both before and after giving effect to the amendment thereof hereby).
(b)On the Funding Date, each Tranche B-1 Term Loan Lender, if not already a Lender immediately prior to the Funding Date, shall, as applicable, (i) become a “Lender” and a “Term Loan Lender”, in each case, for all purposes of the Credit Agreement and the other Loan Documents and (ii) have the “Tranche B-1 Term Loan Commitment” set forth on such Tranche B-1 Term Loan Lender’s signature page hereto be a “Tranche B-1 Term Loan Commitment” under the Credit Agreement and such Tranche B-1 Term Loan Lender’s Tranche B-1 Term Loans be “Tranche B-1 Term Loans” under the Credit Agreement.
(c)Except as provided herein, the Tranche B-1 Term Loans shall be treated as Term Loans for all purposes under the Credit Agreement, including, without limitation with respect to maturity, prepayments, repayments, interest rate and other economic terms.
SECTION 10. Affirmation. Each Loan Party which is a party hereto (i) reaffirms its obligations under the Loan Documents to which it is a party, (ii) acknowledges and agrees that all of its obligations under the Pledge and Security Agreement and the other Collateral Documents to which it is party are reaffirmed and remain in full force and effect on a continuous basis, (iii) reaffirms each Lien granted by it to the Collateral Agent for the benefit of the Secured Parties and its guarantees made pursuant to the
6



Guaranty (both before and after the Funding Date) and (iv) confirms that its guarantee under the Guaranty and its obligations under any other Collateral Document (both before and after the Funding Date), as applicable, shall apply to the Borrowers’ obligations under the Credit Agreement (including as amended hereby).
SECTION 11. Submission to Jurisdiction; WAIVERS OF JURY TRIAL. Section 11.16(b) and (c) of the Credit Agreement is hereby incorporated by reference herein. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING OR DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 12. FATCA.
(a) For purposes of determining withholding Taxes imposed under FATCA, the Borrowers and the Administrative Agent shall treat (and the Tranche B-1 Term Loan Lenders party hereto hereby authorize the Administrative Agent to treat) the Tranche B-1 Term Loans as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
(b) The Borrowers and the Administrative Agent request each Lender to provide the U.S. federal income tax documentation as required under Section 11.14 of the Credit Agreement (including documentation required under Section 11.14(c) of the Credit Agreement to allow the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine whether such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment).
SECTION 13. Lead Arrangers. The Borrowers agree that each of Barclays Bank PLC and Credit Suisse Loan Funding LLC (collectively, in such capacities, the “Lead Arrangers”) (a) are hereby appointed as joint lead arrangers and bookrunners for the Tranche B-1 Term Loans and shall be entitled to the privileges, indemnification, immunities and other benefits afforded to the Arranger pursuant to Article X and Section 11.04 of the Credit Agreement and (b) except as otherwise agreed to in writing by the Borrowers and the Lead Arrangers, shall have no duties, responsibilities or liabilities with respect to this Amendment, the Credit Agreement or any other Loan Document.
[Signature pages follow]


7



IN WITNESS WHEREOF, the undersigned have set their hands as of the date first written above.
ELEMENT SOLUTIONS INC
By: /s/ Denis Bräuer
Name: Denis Bräuer
Title: Vice President & Corporate Treasurer
MACDERMID, INCORPORATED
By: /s/ Denis Bräuer
Name: Denis Bräuer
Title: Vice President & Corporate Treasurer

[Signature Page to Amendment No. 1]



ALENT USA HOLDING, INC.
ALENT INVESTMENTS, INC.
ALENT, INC.
ALPHA ASSEMBLY SOLUTIONS INC.
AR MEXICAN HOLDINGS, INC.
BAYPORT CHEMICAL SERVICE, INC.
COMPUGRAPHICS U.S.A. INC.
EI LIQUIDATION, INC.
MACDERMID ACUMEN, INC.
MACDERMID AMERICAS ACQUISITIONS INC.
MACDERMID ANION, INC.
MACDERMID BRAZIL, INC.
MACDERMID ENTHONE INC.
MACDERMID GRAPHICS SOLUTIONS, LLC
MACDERMID HOUSTON, INC.
MACDERMID INTERNATIONAL INVESTMENTS, LLC
MACDERMID INVESTMENT CORP.
MACDERMID OFFSHORE SOLUTIONS, LLC
MACDERMID OVERSEAS ASIA LIMITED
MACDERMID PRINTING SOLUTIONS ACUMEN, INC.
MACDERMID TEXAS, INC.
MD GRAPHICS SOLUTIONS INC.
MRD ACQUISITION CORP.
NAPP PRINTING PLATE DISTRIBUTION, INC.
NAPP SYSTEMS INC.
OMI INTERNATIONAL CORPORATION
SPECIALTY POLYMERS, INC.
W. CANNING INC.
W. CANNING USA, LLC
By: /s/ John E. Capps
Name: John E. Capps 
Title: Secretary

[Signature Page to Amendment No. 1]



MACDERMID INTERNATIONAL PARTNERS
By: MacDermid, Incorporated, its partner
By: /s/ John E. Capps
Name: John E. Capps 
Title: Secretary
By: MacDermid Overseas Asia Limited, its partner
By:/s/ John E. Capps
Name: John E. Capps 
Title: Secretary


W. CANNING LTD.

By: MacDermid Houston, Inc., its General Partner



By: /s/ John E. Capps
Name: John E. Capps 
Title: Secretary
By: MacDermid Texas, Inc., its Limited Partner
By:/s/ John E. Capps
Name: John E. Capps 
Title: Secretary
ROCKVILLE VENTURE, LLC
By: MacDermid, Incorporated, its sole member


By:/s/ John E. Capps
Name: John E. Capps 
Title: Secretary

[Signature Page to Amendment No. 1]



VERNON-ROCKVILLE VENTURE, LLC
By: Rockville Venture, LLC, its sole member
By: MacDermid, Incorporated, its sole member
By:/s/ John E. Capps
Name: John E. Capps 
Title: Secretary

[Signature Page to Amendment No. 1]



BARCLAYS BANK PLC,
as Agent and a Tranche B-1 Term Loan Lender


By: /s/ Nicholas J. Fall
Name: Nicholas J. Fall
Title: Managing Director

Tranche B-1 Term Loan Commitment: $744,375,000


[Signature Page to Amendment No. 1]



EXHIBIT A
Credit Agreement
(as amended by the Amendment)
[see attached]



EXHIBIT A

CREDIT AGREEMENT
dated as of January 31, 2019
(as amended by Amendment No. 1 to Credit Agreement, dated as of November 26, 2019)
by and among
ELEMENT SOLUTIONS INC (f/k/a PLATFORM SPECIALTY PRODUCTS CORPORATION)
and
MACDERMID, INCORPORATED,
as Borrowers,
THE GUARANTORS FROM TIME TO TIME PARTY HERETO,
THE LENDERS AND L/C ISSUERS FROM TIME TO TIME PARTY HERETO,
BARCLAYS BANK PLC,
as Administrative Agent and Collateral Agent
and
CREDIT SUISSE LOAN FUNDING LLC,
as Syndication Agent
______________________________
CREDIT SUISSE LOAN FUNDING LLC, BARCLAYS BANK PLC, UBS SECURITIES LLC, HSBC SECURITIES (USA) INC., CITIGROUP GLOBAL MARKETS INC., DEUTSCHE BANK SECURITIES INC., GOLDMAN SACHS BANK USA, NOMURA SECURITIES INTERNATIONAL, INC. and WELLS FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Joint Bookrunners






TABLE OF CONTENTS

Page
1



2



3



4




SCHEDULES

1.01(a) Existing Letters of Credit
1.01(c) Mortgaged Properties
1.01(d) Existing Investments
1.01(e) Dormant Subsidiaries
1.01(f) Subsidiary Guarantors
1.01(g) Immaterial Subsidiaries
2.01 Commitments and Pro Rata Shares
6.06 Litigation
6.09 Environmental Matters
6.12 ERISA
6.13 Subsidiaries
6.17 Intellectual Property Matters
6.22 Labor Matters
7.17  Post-Closing Matters
8.01(c) Existing Liens
8.02 Existing Indebtedness
8.04 Certain Dispositions
11.02 Administrative Agent’s Office, Certain Addresses for Notices

EXHIBITS

A Assignment and Assumption
B Committed Loan Notice
C Compliance Certificate
D Solvency Certificate
E Perfection Certificate
F Pledge and Security Agreement
G Subsidiary Joinder Agreement
H-1 Term Loan Note
H-2 Revolving Credit Note
I Prepayment Notice


5



CREDIT AGREEMENT
This Credit Agreement is entered into as of January 31, 2019 by and among Element Solutions Inc (f/k/a Platform Specialty Products Corporation), a Delaware corporation (“ESI”), MacDermid, Incorporated, a Connecticut corporation (“MacDermid”), the Guarantors from time to time party hereto, the lenders from time to time party hereto (collectively, the “Lenders” and, individually, a “Lender”), the L/C Issuers from time to time party hereto and Barclays Bank PLC, as administrative agent (in such capacity and together with its successors, the “Administrative Agent”) and collateral agent (in such capacity and together with its successors, the “Collateral Agent”) and Credit Suisse Loan Funding LLC, as syndication agent (in such capacity, the “Syndication Agent”).
WHEREAS, on the Closing Date, (a) the Term Loan Lenders extended term loans hereunder (the “Initial Term Loans”) in an aggregate principal amount of $750,000,000, (b) the Revolving Credit Lenders provided Initial Revolving Credit Commitments in an aggregate principal amount of $330,000,000 and (c) the L/C Issuers agreed to issue Letters of Credit in an aggregate amount available to be drawn not in excess of the Letter of Credit Sublimit;
WHEREAS, on the Amendment No. 1 Funding Date, the Borrowers have requested that the Tranche B-1 Term Loan Lenders extend Tranche B-1 Term Loans hereunder in an aggregate principal amount of $744,375,000, the proceeds of which will be used to refinance in full the Initial Term Loans outstanding on such date; and
WHEREAS, the Lenders and the L/C Issuers are willing to provide such extensions of credit, subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
2022 Senior Notes” means those certain 6.50% senior notes due 2022 denominated in Dollars issued pursuant to the terms of the 2022/2023 Senior Notes Indenture.
2022/2023 Senior Notes Indenture” means that certain Indenture, dated February 2, 2015, among PSPC Escrow Corp., Computershare Trust Company, N.A., as trustee, and Société Générale Bank & Trust, as paying agent, registrar and transfer agent for the 2023 Senior Notes, governing the 2022 Senior Notes and the 2023 Senior Notes, as amended by that certain First Supplemental Indenture, dated February 13, 2015, among ESI, the Initial Guarantors named therein, Computershare Trust Company, N.A., as trustee, and Société Générale Bank & Trust, as paying agent, registrar and transfer agent, and as further amended by that certain Second Supplemental Indenture, dated May 20, 2015, that certain Third Supplemental Indenture, dated January 26, 2016, and that certain Fourth Supplemental Indenture, dated April 13, 2016, each as among ESI, each of the subsidiaries of ESI identified as a “Subsequent Guarantor” on the signature pages thereto, the other guarantors named therein, Computershare Trust Company, N.A., as trustee, and Société Générale Bank & Trust, as paying agent, registrar and transfer agent.



2023 Senior Notes” means those certain 6.00% senior notes due 2023 denominated in Euros issued pursuant to the terms of the 2022/2023 Senior Notes Indenture.
2025 Senior Notes” means those certain 5.875% senior notes due 2025 denominated in Dollars issued pursuant to the terms of the 2025 Senior Notes Indenture.
2025 Senior Notes Indenture” means that certain Indenture, dated November 24, 2017, among ESI, the guarantors named therein and Computershare Trust Company, N.A., as trustee for the 2025 Senior Notes.
Acquired Entity” has the meaning specified in the definition of “Permitted Acquisition”.
Acquired Indebtedness” means with respect to any specified Person (i) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, provided such Indebtedness is not incurred (x) in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such specified Person or (y) for purposes of financing the acquisition of such other Person; and (ii) Indebtedness that is secured by a Lien encumbering any asset acquired by such specified Person.
Additional Borrower” has the meaning specified in Section 2.14(a).
Adjusted Eurocurrency Rate” means, for any Interest Period, an interest rate per annum equal to the greater of (a) 0.00% per annum and (b) the product of (A) the Eurocurrency Rate in effect for such Interest Period and (B) Statutory Reserves.
Administrative Agent” has the meaning specified in the preamble hereto.
Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Administrative Agent may from time to time notify ESI and the Lenders.
Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
Advisory Agreement” means the Advisory Services Agreement, dated as of October 31, 2013 between ESI and Mariposa Capital, LLC.
Affiliate” means, with respect to any Person, another Person (other than, in the case of the Loan Parties, a Subsidiary of such Person) that directly, or indirectly through one or more intermediaries, Governs or is Governed by or is under common Governance with the Person specified. “Govern” 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. “Governing” and “Governed” have meanings correlative thereto.
Agent Parties” has the meaning specified in Section 11.02(c).
Agents” has the meaning specified in Section 10.01(b).
Agreement” means this Credit Agreement.
2



Alternate Currency LIBO Rate” has the meaning specified in the definition of “Eurocurrency Rate”.
Alternative Currency” means, (x) with respect to Revolving Credit Loans, Yen, Euros and Pounds Sterling and (y) with respect to a New Term Loan Facility, Euros and Pounds Sterling.
Amendment No. 1” means that certain Amendment No. 1 to Credit Agreement, dated as of November 26, 2019, by and among the Borrowers, the other Loan Parties party thereto, the Administrative Agent, the Collateral Agent and the Lenders party thereto.
Amendment No. 1 Funding Date” has the meaning assigned to the term “Funding Date” in Section 4 of Amendment No. 1.
Anti-Corruption Laws” means the (i) United States Foreign Corrupt Practices Act of 1977, as amended, (ii) the United Kingdom Bribery Act of 2010 and any applicable anti-bribery or anti-corruption related provisions and/or anti-bribery, and corruption and/or anti-money laundering laws of any jurisdiction in which a Borrower conducts business.
Anticipated Cure Deadline” shall have the meaning assigned to such term in Section 8.10(b).
Applicable Rate” means (a) with respect to any Tranche B-1 Term Loan that is (i) a Eurocurrency Rate Loan, 2.00% per annum and (ii) a Base Rate Loan, 1.00% per annum, (b) with respect to any Revolving Credit Loan that is (i) a Eurocurrency Rate Loan, 2.25% per annum and (ii) a Base Rate Loan, 1.25% per annum, (c) with respect to the Letter of Credit Fees, 2.25% per annum and (d) with respect to the Commitment Fees, (i) until delivery of a Compliance Certificate for the first full fiscal quarter ending after the Closing Date, 0.50% per annum and (ii) at any time thereafter, (x) 0.50% per annum if the First Lien Net Leverage Ratio as of the most recent determination date is greater than 1.50 to 1.00 or (y) 0.375% per annum if the First Lien Net Leverage Ratio as of the most recent determination date is less than or equal to 1.50 to 1.00. Notwithstanding the foregoing, it is understood and agreed that for all periods prior to the Amendment No. 1 Funding Date, the “Applicable Rate” for all purposes was as set forth in the Credit Agreement as in effect immediately prior to the Amendment No. 1 Effective Date.
Approved Fund” has the meaning specified in Section 11.06(g).
Approved Member State” means each of the following: Belgium, Canada, France, Germany, Italy, Luxembourg, The Netherlands, Spain, Sweden and the United Kingdom.
Arrangers” means Credit Suisse Loan Funding LLC, Barclays Bank PLC, UBS Securities LLC, HSBC Securities (USA) Inc., Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Goldman Sachs Bank USA, Nomura Securities International, Inc. and Wells Fargo Securities, LLC.
Arysta Sale” means the sale by ESI of its agricultural solutions business, which consists of Arysta LifeScience Inc. and its subsidiaries, to UPL Corporation Ltd. or an Affiliate thereof.
Arysta Sale Agreement” means the Share Purchase Agreement dated July 20, 2018 by and between ESI, as the seller, and UPL Corporation Ltd. as the purchaser.
Asset Sale” means the Disposition (by way of merger, casualty, condemnation or otherwise) by ESI or any of its Restricted Subsidiaries to any Person other than a Loan Party of (a) any
3



Equity Interests of any Restricted Subsidiary (other than directors’ qualifying shares and employee options granted in the ordinary course of business) or (b) any other assets of ESI or any of its Restricted Subsidiaries, including Equity Interests of any Person that is not a Subsidiary (other than (i) inventory disposed of in the ordinary course of business or the disposition of excess, damaged, obsolete, worn out or no longer needed assets, scrap and Cash Equivalents, (ii) dispositions between Restricted Subsidiaries permitted by Section 8.04(c), clause (c) of the definition of “Permitted Intercompany Transaction” with respect to dispositions or acquisitions of any Subsidiary of a Borrower that is not a Loan Party or clause (d) of the definition of “Permitted Intercompany Transaction” relating to Dispositions with respect to any Excluded Subsidiary), (iii) dispositions permitted by Section 8.04(h) and dispositions of non-core assets acquired in connection with any Permitted Acquisition or Investment permitted hereunder and (iv) any Permitted Sale Leaseback Transaction); provided that any asset sale or series of related asset sales described above having a value not in excess of $5,000,000 in any single transaction or series of related transactions shall be deemed not to be an “Asset Sale” for purposes of this Agreement and provided further that the Arysta Sale shall not be deemed to be an “Asset Sale” for purposes of this Agreement.
Assignee Group” means, with respect to any Lender, such Lender’s Affiliates and Approved Funds with respect to such Lender.
Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit A or such other form approved by the Administrative Agent.
Attorney Costs” means and includes all reasonable fees, expenses and disbursements of any law firm or other external counsel.
Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP and (b) in respect of any Synthetic Lease Obligation, as of any date of determination, the total obligation (discounted to present value at the rate of interest implicit in the lease included in such transaction) of the lessee for rental payments (other than accounts required to be paid on account of property taxes, maintenance, repairs, insurance, assessments, utilities, operating and labor costs and other items which do not constitute payments for property rights) during the remaining portion of the term (including extensions which are at the sole option of the lessor) of the lease included in such transaction (in the case of any lease which is terminable by the lessee upon the payment of a penalty, such rental obligation shall also include the amount of such penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated).
Audited Financial Statements” means the audited consolidated balance sheet of ESI and its then Restricted Subsidiaries for the fiscal years ended December 31, 2017, December 31, 2016 and December 31, 2015 and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of ESI and its then Restricted Subsidiaries, including the notes thereto.
Auto-Renewal Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
Available Amount” means, on any date of determination (the “Reference Date”), an amount (which shall not be less than zero) determined on a cumulative basis equal to the sum of (without duplication): an amount equal to (i) $100,000,000 plus (ii) Net Cash Proceeds from any sale or issuance of Equity Interests of ESI (excluding Disqualified Stock) to the extent such Net Cash Proceeds are received by ESI after the Closing Date (other than any Net Cash Proceeds (x) from any Cure Amount, (y)
4



to the extent such Net Cash Proceeds have been used to build any other basket for the incurrence of Indebtedness or the making of any Investment or Restricted Payment or (z) from the sale of any Equity Interests to any employee, director, officer, manager or consultant of ESI, any direct or indirect parent of ESI and any Subsidiary of ESI), plus (iii) Net Cash Proceeds of Indebtedness and Disqualified Stock of ESI, in each case, issued after the Closing Date, which has been exchanged or converted into Equity Interests (excluding Disqualified Stock) of ESI (other than with respect to any such exchange or conversion involving the sale or issuance of Equity Interests to any employee, director, officer, manager or consultant of ESI, any direct or indirect parent of ESI and any Subsidiary of ESI), plus (iv)(x) the cumulative amount of Excess Cash Flow for all fiscal years of ESI completed after the Closing Date (commencing with the fiscal year ending on December 31, 2019) and prior to the Reference Date minus (y) the portion of such Excess Cash Flow that has been (or will be) after the Closing Date and on or prior to the Reference Date required to be offered to prepay the Loans in accordance with Section 2.05(b) (without giving effect to any dollar-for-dollar reduction in respect of voluntary prepayments of the Loans as therein provided), plus (v) to the extent not (A) included in Consolidated Net Income or (B) already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment, the aggregate amount of all cash dividends and other cash distributions received by any Borrower or any Restricted Subsidiary from any Unrestricted Subsidiaries during the period from and including the Business Day immediately following the Closing Date and prior to the Reference Date in respect of Investments made by the Borrowers or any Restricted Subsidiary in reliance on the Available Amount, plus (vi) to the extent not (A) included in Consolidated Net Income or (B) already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment, the Investments of the Borrowers and their Restricted Subsidiaries in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary or that has been merged or consolidated with or into any Borrower or any Restricted Subsidiaries (up to the lesser of (x) the fair market value (as determined in good faith by ESI) of the investments of the Borrowers and their respective Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such re-designation or merger or consolidation and (y) the fair market value (as determined in good faith by ESI) of the original investments by the Borrowers and their Restricted Subsidiaries in such Unrestricted Subsidiary) plus (vii) to the extent not (A) included in Consolidated Net Income, (B) already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment or (C) required to be applied to prepay the Loans in accordance with Section 2.05(b), the aggregate amount of all Net Cash Proceeds received by the Borrowers or any of their Restricted Subsidiaries in connection with the sale, transfer or other Disposition of its ownership interest in any Unrestricted Subsidiary, to the extent that the original Investments in such Unrestricted Subsidiary were made in reliance on the Available Amount plus (viii) the aggregate amount of Retained Declined Proceeds plus (ix) to the extent not (A) included in Consolidated Net Income, (B) already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment or (C) duplicative of any amount added pursuant to clause (ii) above that is attributable to such proceeds, the aggregate net cash proceeds received from the Arysta Sale pursuant to the Arysta Sale Agreement in excess of $4,050,000,000 without taking into effect debt paydowns or incurrence of new debt and related financing transactions to the extent received on or prior to the date that is twelve months after the Closing Date minus (x) the sum, without duplication, of the aggregate amount of Restricted Payments made pursuant to Section 8.05(k) after the Closing Date and on or prior to the Reference Date.
Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Bail-In Legislation” means, 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
5



Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on such day plus ½ of 1.00%, (b) the Prime Rate in effect on such day and (c) the Adjusted Eurocurrency Rate determined on such day (or if such day is not a Business Day, the immediately preceding Business Day) for a Eurocurrency Rate Loan with a one-month Interest Period plus 1.00%.
Base Rate Loan” means a Loan that bears interest based on the Base Rate.
Beneficial Ownership Certification” means a certification regarding beneficial ownership 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 ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) 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”.
BHC Act Affiliate” has the meaning specified in Section 11.25(b).
Borrower Materials” has the meaning specified in Section 7.02.
Borrower Notice” has the meaning specified in Section 7.12(b)(iv).
Borrowers” means ESI, MacDermid and each Additional Borrower (and each, a “Borrower”).
Borrowing” means each of a Term Loan Borrowing or a Revolving Credit Borrowing, as the context may require.
Business Day” means (a) any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurocurrency Rate Loan, on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurocurrency market and (b)(i) when such term is used for the purposes of determining the date on which the Eurocurrency Rate is determined for any Term Loan denominated in Euros or Pounds Sterling for any Interest Period therefor and for purposes of determining the first and last day of any Interest Period, a Target Operating Day or a day of the year on which banks are not required or authorized to close in New York; and (ii) for notices, determinations, fundings and payments in connection with any Term Loan denominated in Euros or Pounds Sterling, a Target Operating Day or a day of the year on which banks are not required or authorized to close in New York.
Capital Expenditures” means, for any period, with respect to any Person, without duplication (a) the net additions to property, plant and equipment and other capital expenditures of such Person and its consolidated subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of such Person for such period prepared in accordance with GAAP and (b) capital lease obligations incurred by such Person and its consolidated subsidiaries during such period.
6



Cash Collateralize” has the meaning specified in Section 2.03(g).
Cash Equivalents” means any of the following types of Investments, to the extent owned by the Borrowers or any of their Restricted Subsidiaries free and clear of all Liens:
(a) (i) readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than 360 days from the date of acquisition thereof; provided that the full faith and credit of the United States of America is pledged in support thereof; (ii) securities issued by any state or municipality within the United States of America (or, in the case of securities arising from student loans, approved by any such state or municipality) that are rated “A2” or better by S&P or “P2” or better by Moody’s or the equivalent rating from any other nationally recognized rating agency; and (iii) securities issued or fully guaranteed or insured by any Approved Member State, or an agency or instrumentality thereof (provided, that the full faith and credit of the applicable Approved Member State is pledged in support of those securities) and having maturities of not more than one year;
(b) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $250,000,000, in each case with maturities of not more than one year from the date of acquisition thereof;
(c) commercial paper issued by any Person organized under the laws of any state of the United States of America and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than 270 days from the date of acquisition thereof; and
(d) Investments classified in accordance with GAAP as Current Assets of ESI or any of its Restricted Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this definition.
Change of Control” means, an event or series of events by which:
(a)a “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding (x) any employee benefit plan of such Person or its subsidiaries, and any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan and (y) Martin E. Franklin and/or his Affiliates) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the fully vested right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 50% of the equity securities of ESI entitled to vote for members of the board of directors or equivalent governing body of such Person on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);
7



(b)MacDermid or any Additional Borrower shall cease to be a Wholly-Owned Restricted Subsidiary of ESI; or
(c)any change of control (or similar event, however denominated) with respect to ESI or any of its Restricted Subsidiaries shall occur under any indenture or agreement to which ESI or any of its Restricted Subsidiaries is a party, the effect of which is to cause Indebtedness having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) in excess of the Threshold Amount after taking into account any amount paid or payable under Section 2.05(b) to (i) be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise) prior to its stated maturity date, or (ii) become subject to the requirement that ESI or any of its Restricted Subsidiaries make an offer to repurchase, prepay, defease or redeem such Indebtedness prior to its stated maturity date, other than for the avoidance of doubt, with respect to the 2022 Senior Notes and the 2023 Senior Notes.
Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Credit Loans or Term Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Credit Commitment or Term Loan Commitment.
Closing Date” means January 31, 2019.
Code” means the Internal Revenue Code of 1986, as amended from time to time (unless as specifically provided otherwise).
Collateral” means all of the “Collateral” or “Pledged Collateral” referred to in the Collateral Documents, the Mortgaged Property and all of the other property and assets that are or are intended under the terms of the Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties.
Collateral Agent” has the meaning specified in the preamble hereto.
Collateral Documents” means, collectively, the Pledge and Security Agreement, the Mortgages, the Intellectual Property Security Agreements, or other similar agreements delivered to the Collateral Agent and the Lenders pursuant to Section 7.12, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of any Secured Party.
Commitment” means, with respect to any Lender, such Lender’s Revolving Credit Commitment and Term Loan Commitment.
Commitment Fee” has the meaning specified in Section 2.09(a).
Committed Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit B or such other form approved by the Administrative Agent.
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.
8



Compliance Certificate” means a certificate substantially in the form of Exhibit C or such other form approved by the Administrative Agent and acceptable to ESI.
Consolidated EBITDA” means, for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) Consolidated Interest Charges for such period, (ii) consolidated income tax expense for such period (including any franchise taxes imposed in lieu of income taxes and any income taxes that would be payable if the entity were to become a taxable entity for purposes of federal, state or local income taxes), (iii) all amounts attributable to depreciation and amortization for such period (including those related to any Receivables Facility), (iv) any non-cash charges, expenses or losses (including, but not limited to, non-cash rent expense, impairment of goodwill or other intangible assets and exchange rate losses) of ESI or any of its Restricted Subsidiaries for such period (excluding any such charge, expense or loss incurred that constitutes an accrual of or a reserve for cash charges for any future period or an amortization of a prepaid cash expense paid in a prior period or writeoff or writedown of reserves with respect to current assets); provided, however, that cash payments made in such period or in any future period in respect of such non-cash items (excluding any non-cash items to the extent representing an accrual for a future cash expenditure) shall be subtracted from Consolidated Net Income in calculating Consolidated EBITDA in the period when such payments are made, (v) any extraordinary, unusual, or non-recurring cash charges or expenses for such period (including business optimization expenses, restructuring charges, integration, acquisition and disposition (or potential acquisition or disposition) related costs (whether incurred prior to, or after, the consummation of any such acquisition)) and severance, retention bonuses, separation payments or other similar one time compensation payments made to employees of ESI or any of its Restricted Subsidiaries or made in connection with a Permitted Acquisition, (vi) deferred compensation, stock-option or employee benefits-based and other equity-based compensation expenses for such period, (vii) transaction fees and expenses in connection with the Transactions for such period and the tender offer and/or redemption of the 2022 Senior Notes and the 2023 Senior Notes, (viii) transaction fees, costs and expenses during such period in connection with any investment (including any Permitted Acquisition), Disposition, recapitalization or issuance of Equity Interests and incurrence of Indebtedness or similar transactions, in each case, to the extent permitted under this Agreement and whether or not such investment, Disposition, recapitalization, issuance of Equity Interests or Indebtedness or acquisition shall have been consummated, (ix) losses or price adjustments to the extent reimbursable by third parties in connection with any Permitted Acquisition, as determined in good faith by ESI, for such period; provided, however, that if the Administrative Agent, acting reasonably, determines in such period or the immediately succeeding period that such losses or price adjustments, or any portion thereof (which, in each case, were included in Consolidated EBITDA in such period or such immediately preceding period pursuant to this clause (ix)), are no longer reimbursable or are not likely to be reimbursed, then such losses, or any portion thereof, shall be subtracted from Consolidated Net Income in calculating Consolidated EBITDA in each such applicable period, (x) unrealized losses in respect of Obligations under Swap Contracts during such period, (xi) any loss or expense during such period from a disposition or discontinued operations or any loss or expense incurred in connection with the disposal of a business or product line, whether or not treated as discontinued operations in accordance with GAAP (or if not in accordance with GAAP as otherwise reasonably acceptable to the Administrative Agent) and whether or not such disposition or discontinuance shall have been consummated or completed, (xii) fees paid during such period in accordance with the Advisory Agreement as in effect on the Closing Date, (xiii) non-cash charges or amounts recorded in connection with purchase accounting for such period (including any applicable to future Permitted Acquisitions), (xiv) non-cash purchase accounting adjustments during such period relating to the writedown of deferred revenue (whether billed or unbilled) that are the result of accounting for any acquisition, (xv) fees, costs and expenses incurred under this Agreement for such period, (xvi) the cumulative effect of a change in
9



accounting principles for such period and to the extent permitted by Section 1.03(b), (xvii) expenses during such period in connection with the settlement of any litigation or claim involving ESI or any of its Restricted Subsidiaries, (xviii) debt discount and debt issuance costs, fees, charges, commissions or other related or similar costs during such period, in each case incurred in connection with Indebtedness permitted to be incurred hereunder (whether or not such Indebtedness has been incurred), (xix) the amount of net cost savings, operating expense reductions, other operating improvements or initiatives and acquisition synergies projected by the Borrowers in good faith to be realized during such period (calculated on a Pro Forma Basis as though such items had been realized on the first day of such period) as a result of actions taken or to be taken in connection with any established cost reduction program, restructuring, acquisition, operation change, initiative or disposition by ESI or any Restricted Subsidiary, net of the amount of actual benefits realized during such period that are otherwise included in the calculation of Consolidated EBITDA from such actions, provided that (A) a duly completed certificate signed by a Responsible Officer of the Borrowers shall be delivered to the Administrative Agent together with the Compliance Certificate required to be delivered pursuant to Section 7.02(a), certifying that (x) such cost savings, operating expense reductions and synergies are reasonably expected and factually supportable as determined in good faith by ESI, and (y) such actions are to be taken within 24 months after the consummation or initiation, as the case may be, of the relevant action, which is expected to result in such cost savings, expense reductions or synergies, (B) no cost savings, operating expense reductions and synergies shall be added pursuant to this clause (xix) to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period, (C) projected amounts (and not yet realized) may no longer be added in calculating Consolidated EBITDA pursuant to this clause (xix) to the extent occurring more than eight full fiscal quarters after the specified action taken in order to realize such projected cost savings, operating expense reductions and synergies and (D) the aggregate amount of add backs made pursuant to this clause (xix) shall not exceed an amount equal to 20% of Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended prior to the determination date (without giving effect to any adjustments pursuant to this clause (xix)), (xx) the amount of any expense related to minority interests, (xxi) any loss resulting from the payment of earn-out obligations, (xxii) any non-cash expenses or charges recorded in accordance with GAAP relating to currency valuation of foreign denominated debt, and any non-cash expenses or charges recorded in accordance with GAAP relating to equity interests issued to non-employees in exchange for services provided in connection with any acquisition or business arrangement (in each case, including any such transaction undertaken but not completed), (xxiii) expenses and charges related to the incurrence of the 2025 Senior Notes, any refinancing of the Existing Senior Notes, the Arysta Sale and amending or incurring additional financings in connection therewith, (xxiv) the amount of any dividends paid in cash to Series A preferred stockholders of ESI and (xxv) any net payments made to UPL Corporation Ltd. after the Closing Date in connection with the Arysta Sale, including any Purchase Price Adjustment (as defined in the Arysta Sale Agreement) and minus (b) without duplication (i) to the extent included in determining such Consolidated Net Income, any extraordinary, unusual, or non-recurring gains or income and all non-cash items of income or gains for such period, all determined on a consolidated basis in accordance with GAAP, (ii) unrealized gains in respect of Obligations under Swap Contracts, (iii) any gains resulting from the payment of earn-out obligations and (iv) any net proceeds received after the Closing Date in connection with the Arysta Sale, including any Purchase Price Adjustments; provided that solely for purposes of calculating the First Lien Net Leverage Ratio, the Total Net Leverage Ratio and the Fixed Charge Coverage Ratio for any period (A) the Consolidated EBITDA of any Acquired Entity acquired by any Borrower or any Restricted Subsidiaries pursuant to a Permitted Acquisition during such period shall be included on a Pro Forma Basis for such period (assuming the consummation of such acquisition and the incurrence or assumption of any Indebtedness in connection therewith occurred as of the first day of such period) and (B) the Consolidated EBITDA of any Person or line of business sold or otherwise disposed of by any Borrower
10



or any Restricted Subsidiaries during such period shall be excluded for such period (assuming the consummation of such sale or other disposition and the repayment of any Indebtedness in connection therewith occurred as of the first day of such period).
Consolidated First Lien Indebtedness” means Consolidated Indebtedness that is secured by a first priority Lien (other than Permitted Liens) on assets of any Borrower or Restricted Subsidiary.
Consolidated Indebtedness” means, at any time, the aggregate amount of Indebtedness of ESI and its Restricted Subsidiaries outstanding at such time, in the amount that would be reflected on a balance sheet prepared at such time on a consolidated basis in accordance with GAAP.
Consolidated Interest Charges” means, for any period, the sum of, without duplication, (a) the interest expense (including imputed interest expense in respect of capital lease obligations and Synthetic Lease Obligations) of ESI and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP (including, for the avoidance of doubt, (i) any amounts of premium or penalty payable in connection with the payment of make-whole amounts or other prepayment premiums payable in connection with any Indebtedness of ESI or any of its Restricted Subsidiaries, and (ii) all commissions, discounts and other fees and charges owed in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP) plus (b) any interest accrued during such period in respect of Indebtedness of ESI or any of its Restricted Subsidiaries that is required to be capitalized rather than included in consolidated interest expense for such period in accordance with GAAP and minus (c) any consolidated interest income of such Persons for such period, in each case as recorded by ESI pursuant to GAAP. For purposes of the foregoing, interest expense shall be determined after giving effect to any net payments made or received by ESI or any of its Restricted Subsidiaries with respect to interest rate Swap Contracts.
Consolidated Net Income” means, for any period, for ESI and its Restricted Subsidiaries on a consolidated basis, the net income (including, without duplication, interest income but excluding extraordinary gains and extraordinary losses, including such extraordinary items set forth in the definition of Consolidated EBITDA) of ESI and its Restricted Subsidiaries for such period determined before any reduction in respect of preferred stock dividends and any amounts attributable to minority interests in PDH; provided that there shall be excluded (a) the income or loss of any Person accrued prior to the date it becomes a Restricted Subsidiary or is merged into or consolidated with any Borrower or any Restricted Subsidiary or the date that such Person’s assets are acquired by any Borrower or any of its Restricted Subsidiaries; provided, however, that such income or loss of such Person shall be included for such period to the extent Consolidated Net Income and Consolidated EBITDA are being calculated on a Pro Forma Basis in accordance with this Agreement, (b) the income of any Person (other than a Restricted Subsidiary) in which any other Person (other than a Borrower or a Wholly-Owned Restricted Subsidiary or any director holding qualifying shares in accordance with applicable law) has an interest, except to the extent of the amount of dividends or other distributions actually paid to a Borrower or a Wholly-Owned Restricted Subsidiary by such Person during such period, and (c) any net unrealized gain or loss (after any offset) resulting in such period from obligations in respect of Hedge Agreements or other derivative instruments and the application of Statement of Financial Accounting Standards No. 133. For the avoidance of doubt, cash amounts used by ESI or its Subsidiaries to make purchases of debt (including, without limitation, purchases of Term Loans) shall not reduce Consolidated Net Income, nor will any non-cash gain associated with the cancellation of such purchased debt increase Consolidated Net Income.
11



Consolidated Senior Secured Debt” means, as at any date of determination, the aggregate principal amount of Consolidated Indebtedness outstanding on such date that is secured by a Lien (other than Permitted Liens) on assets of any Borrower or Restricted Subsidiary.
Consolidated Total Assets” means, as of any date, the total assets of ESI and its consolidated Restricted Subsidiaries, determined in accordance with GAAP, as set forth on the consolidated balance sheet of ESI as of such date.
Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
Covered Entity” has the meaning specified in Section 11.25(b).
Covered Party” has the meaning specified in Section 11.25.
Credit Agreement Refinancing Indebtedness” means (a) Permitted Equal Priority Refinancing Debt, (b) Permitted Junior Priority Refinancing Debt or (c) Permitted Unsecured Refinancing Debt; provided that, in each case, such Indebtedness is incurred to refinance, in whole or in part, existing Term Loans (“Refinanced Debt”); provided, further, that (i) the final maturity date of any such Indebtedness, (x) in the case of any Permitted Equal Priority Refinancing Debt, shall be no earlier than the maturity date of the Refinanced Debt and (y) in the case of any Permitted Junior Priority Refinancing Debt and/or any Permitted Unsecured Refinancing Debt, shall be at least 91 days beyond the final maturity date for the Refinanced Debt, (ii) the weighted average life to maturity of any such Indebtedness shall be no shorter than the weighted average life to maturity of the Refinanced Debt, (iii) there shall be no obligors in respect of any such Indebtedness that are not Loan Parties, (iv) the covenants, events of default and other terms and conditions of such Indebtedness (excluding, for the avoidance of doubt, interest rates, margins and floors, fees, funding discounts, original issue discounts and prepayment or redemption premiums and terms) are, when taken as a whole, substantially identical in all material respects to, or less favorable to the persons providing any such Indebtedness than, those applicable to the Refinanced Debt (other than covenants, events of default and other terms and conditions applicable only to periods after the Latest Maturity Date), (v) except to the extent otherwise permitted under this Agreement (subject to a dollar-for-dollar usage of any other basket set forth in Section 8.02, if applicable), such Indebtedness shall not have a greater principal amount (or shall not have a greater accreted value, if applicable) than the principal amount of the Refinanced Debt plus accrued interest, fees and premiums (if any) thereon and fees and expenses associated with the refinancing and (vi) such Refinanced Debt shall be repaid, defeased or satisfied and discharged on a dollar-for-dollar basis, and all accrued interest, fees and premiums (if any) in connection therewith which shall also be paid, substantially concurrently with the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained (but excluding any non-material fees, charges, expenses or reimbursements, which may be paid when due prior to or after such date), in each case, in accordance with this Agreement.
Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
Cure Amount” shall have the meaning assigned to such term in Section 8.10(b).
Cure Right” shall have the meaning assigned to such term in Section 8.10(b).
12



Current Assets” means, at any time, the consolidated current assets (other than (i) cash and Cash Equivalents and (ii) the current portion of current and deferred Taxes) of ESI and its Restricted Subsidiaries in accordance with GAAP.
Current Liabilities” means, at any time, the consolidated current liabilities of ESI and its Restricted Subsidiaries at such time in accordance with GAAP, but excluding, without duplication, (a) the current portion of any long term Indebtedness and any accrued interest thereon (other than interest expense that is past due and unpaid), (b) outstanding Revolving Credit Loans and any accrued interest thereon (other than interest expense that is past due and unpaid) and (c) the current portion of current and deferred Taxes.
Customary Intercreditor Agreement” means (a) in connection with the incurrence of Indebtedness intended to be secured by Liens (other than Permitted Liens) on the Collateral ranking equal in priority to the Liens on the Collateral securing the Obligations (but without regard to the control of remedies), at the option of ESI and the Administrative Agent acting together in good faith, a customary intercreditor agreement, in form and substance reasonably acceptable to the Administrative Agent and ESI, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank equal in priority to the Liens on the Collateral securing the Obligations (but without regard to the control of remedies) and (b) in connection with the incurrence of Indebtedness secured by Liens (other than Permitted Liens) on the Collateral ranking junior to the Liens on the Collateral securing the Obligations, at the option of ESI and the Administrative Agent acting together in good faith, a customary intercreditor agreement, in form and substance reasonably acceptable to the Administrative Agent and the Borrowers, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank junior to the Liens on the Collateral securing the Obligations.
Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate applicable to Base Rate Loans plus (c) 2.0% per annum; provided, however, that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2.0% per annum, in each case to the fullest extent permitted by applicable Laws.
Default Right” has the meaning specified in Section 11.25(b).
Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and ESI in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two Business Days of the date when due, (b) has notified ESI,
13



the Administrative Agent or any L/C Issuer in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or ESI, to confirm in writing to the Administrative Agent and ESI that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and ESI), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law or any applicable bankruptcy law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) upon delivery of written notice of such determination to ESI, each L/C Issuer and each Lender.
Defaulting Revolving Credit Lender” shall have the meaning assigned to such term in Section 2.15(a)(iv)(C).
Designation Date” has the meaning set forth in Section 2.16(e).
Disclosed Litigation” has the meaning set forth in Section 6.06.
Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
Disqualified Stock” means, with respect to any Person, any Equity Interest that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the Equity Interest), or upon the happening of any event (other than any event solely within the control of the issuer thereof), matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Equity Interest, in whole or in part, on or prior to the date that is 91 days after the Latest Maturity Date; provided, however, that only the portion of the Equity Interest that so mature or are mandatorily redeemable, are so convertible or exchangeable, so accrue dividends, or are so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided further, however, that if such Equity Interests are issued to any employee or to any plan for the benefit of employees of ESI or its Restricted Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely because they may be required to be repurchased by ESI in order to satisfy applicable
14



statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided further, however, that any class of Equity Interests in such person that by its terms authorizes such person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock. Notwithstanding the preceding sentence, any Equity Interest that would constitute Disqualified Stock solely because the holders of the Equity Interest have the right to require a Borrower to repurchase such Equity Interest upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Equity Interest provide that such Borrower may not repurchase or redeem any such Equity Interest pursuant to such provisions unless such repurchase or redemption complies with Section 8.05.
Distribution Amount” has the meaning set forth in Section 8.05(a).
Dollar” and “$” mean lawful money of the United States.
Dollar Equivalent” means, on the applicable Valuation Date, (a) with respect to any amount denominated in Dollars, such amount and (b) with respect to any amount denominated in an Alternative Currency, the equivalent in Dollars of such amount, determined by the Administrative Agent pursuant to Section 1.08 using the applicable Exchange Rate with respect to such Alternative Currency at the time in effect on the Valuation Date under the provisions of such Section 1.08.
Domestic Subsidiary” means any Restricted Subsidiary that is organized under the laws of any political subdivision of the United States.
Dutch Auction” means an auction conducted by ESI or one of its Restricted Subsidiaries in order to purchase Term Loans of any Tranche in accordance with the procedures as may be agreed to between the Administrative Agent and ESI.
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 clause (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.
Eligible Assignee” has the meaning set forth in Section 11.06(g).
EMU” means Economic and Monetary Union as contemplated in the Treaty on European Union.
EMU Legislation” means the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states, being in part legislative measures to implement EMU.
15



Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive, by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law, (ii) in connection with any Environmental Liability, or (iii) in connection with any actual or alleged damage, injury, threat or harm to natural resources or the environment.
Environmental Laws” means any and all Laws, judgments, orders, decrees, permits, concessions, grants, franchises, agreements or governmental restrictions relating to pollution, the protection of human health or the environment, or the Release of any Hazardous Materials into the environment, including those related to hazardous materials, substances or wastes (including the exposure thereto), air emissions and discharges to waste or public systems.
Environmental Liability” means any liability (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) of any Loan Party or any Restricted Subsidiary directly or indirectly resulting from or based upon (a) any non-compliance with, or liability pursuant to, any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment, disposal or presence of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed, retained or imposed with respect to any of the foregoing.
Environmental Permit” means any permit, approval, registration, identification number, license or other authorization required under any Environmental Law.
Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto, and the rules and regulations promulgated thereunder.
ERISA Affiliate” means any trade or business (whether or not incorporated) which, together with any Borrower is treated as a single employer under Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code or Section 302 of ERISA).
ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Borrower or any ERISA Affiliate from a Pension Plan during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in “insolvency” (within the meaning of Section 4245 of ERISA), or “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (d) the filing of a notice
16



of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower or any ERISA Affiliate; (g) the failure to meet the minimum funding standard of Section 412 or 430 of the Code or Sections 302 or 303 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (h) a determination that any Pension Plan is, or is expected to be in “at-risk” status (as defined in Section 303(i) of ERISA or Section 430(i) of the Code); (i) the assertion of a material claim (other than routine individual claims for benefits) against any Plan other than a Multiemployer Plan or the assets thereof, or against any Loan Party or any of their respective ERISA Affiliates in connection with any Plan; (j) receipt from the IRS of notice of the failure of any Pension Plan (or any other Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; (k) any other event or condition with respect to any Plan that would reasonably be expected to result in material liability of the Loan Parties, taken as a whole; or (l) the imposition of a lien under Section 430(k) of the Code or Section 303(k) of ERISA with respect to any Pension Plan.
ESI” has the meaning specified in the preamble hereto.
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.
Euro” or “” shall mean the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the EMU Legislation
EURIBO Rate” has the meaning assigned to such term in the definition of “Eurocurrency Rate”.
Eurocurrency Liabilities” has the meaning specified in Section 3.04(c).
Eurocurrency Rate” means for any Interest Period: (A) as to any Eurocurrency Rate Loan denominated in Dollars, (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (such page currently being the LIBOR01 page) (the “US LIBO Rate”) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time), two Business Days prior to the commencement of such Interest Period, or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays the US LIBO Rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period; provided that if US LIBO Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the US LIBO Rate shall be equal to
17



the Interpolated Rate; provided, further, that if any such rate determined pursuant to the preceding clauses (i) or (ii) is below zero, the Eurocurrency Rate will be deemed to be zero, (B) as to any Eurocurrency Rate Loan denominated in Euros, (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays the European interbank offered rate administered by the Banking Federation of the European Union (such page currently being the EURIBOR01) (the “EURIBO Rate”) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (Brussels, Belgium time), two Business Days prior to the commencement of such Interest Period, or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays the EURIBO Rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period; provided that if EURIBO Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the EURIBO Rate shall be equal to the Interpolated Rate; provided, further, that if any such rate determined pursuant to the preceding clauses (i) or (ii) is below zero, the Eurocurrency Rate will be deemed to be zero and (C) as to any Eurocurrency Rate Loan denominated in an Alternative Currency other than Euros, (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (the “Alternate Currency LIBO Rate”) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in such Alternate Currency, determined as of approximately 11:00 a.m. (London, England time), two Business Days prior to the commencement of such Interest Period, or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays the Alternate Currency LIBO Rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in such Alternate Currency, determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period; provided that if Alternate Currency LIBO Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the Alternate Currency LIBO Rate shall be equal to the Interpolated Rate; provided, further, that if any such rate determined pursuant to the preceding clauses (i) or (ii) is below zero, the Eurocurrency Rate will be deemed to be zero.
Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on the Adjusted Eurocurrency Rate.
Event of Default” has the meaning specified in Section 9.01.
Excess Cash Flow” means, for any fiscal year of ESI, (a) the sum, without duplication, of (i) Consolidated EBITDA for such fiscal year and (ii) reductions to noncash working capital of ESI and its Restricted Subsidiaries for such fiscal year (i.e., the decrease, if any, in Current Assets minus Current Liabilities from the beginning to the end of such fiscal year) including any realized and unrealized losses relating to mark-to-market of amounts denominated in foreign currencies resulting from the application of FASB ASC 830 (including realized and unrealized losses from exchange rate fluctuations on intercompany balances and balance sheet items, net of realized and unrealized gains from related Hedge Agreements) (excluding any changes in working capital due to the effects of purchase accounting adjustments)) minus (b) the sum, without duplication, of (i) the amount of any taxes paid in cash by ESI
18



and its Restricted Subsidiaries with respect to such fiscal year (including any franchise taxes imposed in lieu of income taxes), (ii) Consolidated Interest Charges with respect to such fiscal year paid in cash, (iii) the amount of any Capital Expenditures and the cash used during such period for investments (including any Permitted Acquisition) made by ESI and its Restricted Subsidiaries, in each case, to the extent permitted under this Agreement (whether or not such Capital Expenditure, investment or acquisition shall have been consummated) and that are made in cash during such fiscal year, except to the extent financed with the proceeds of Indebtedness, equity issuances, casualty proceeds, condemnation proceeds or other proceeds that would not be included in Consolidated EBITDA, (iv) permanent repayments of Indebtedness, including any premium, make-whole or penalty payments paid in respect of such Indebtedness (other than Voluntary Prepayments and mandatory prepayments of the Loans under Section 2.05(b)) made in cash by ESI and its Restricted Subsidiaries during such fiscal year, but only to the extent that the Indebtedness so prepaid by its terms cannot be reborrowed or redrawn and such prepayments do not occur in connection with a refinancing of all or any portion of such Indebtedness, (v) the cash amounts added back to Consolidated EBITDA during such fiscal year pursuant to the definition of such term (excluding, for the avoidance of doubt, amounts added back to Consolidated EBITDA pursuant to clauses (a)(i) and (ii) in the definition thereof to the extent such amounts are otherwise deducted from Excess Cash Flow pursuant to this clause (b)), (vi) additions to noncash working capital with respect to such fiscal year (i.e., the increase, if any, in Current Assets minus Current Liabilities from the beginning to the end of such fiscal year) including any realized and unrealized gains relating to mark-to-market of amounts denominated in foreign currencies resulting from the application of FASB ASC 830 (including realized and unrealized gains from exchange rate fluctuations on intercompany balances and balance sheet items, net of realized and unrealized losses from related Hedge Agreements), (vii) cash earnout and royalty payments made during such fiscal year to former owners of Acquired Entities that were not deducted as expenses in determining Consolidated Net Income, (viii) the aggregate amount of Restricted Payments made in cash during such fiscal year in accordance with Section 8.05(a), (ix) the aggregate amount of any fees and expenses paid in cash during such fiscal year in connection with any Indebtedness permitted to be incurred pursuant to Section 8.02 (whether or not consummated), (x) the aggregate amount of any dividends paid in cash to Series A preferred stockholders of ESI during such fiscal year and (xi) the amount of cash payments made in respect of pensions and other postemployment benefits paid during such fiscal year, to the extent not deducted as expenses in determining Consolidated Net Income. The working capital adjustment in clause (a)(ii) or (b)(vi) above, as applicable, shall include (x) with respect to any Permitted Acquisition of or by a Restricted Subsidiary consummated during such fiscal year, the amount by which the noncash working capital attributable to such Restricted Subsidiary as of the date of the consummation of such acquisition exceeds (or is less than) the noncash working capital attributable to such Restricted Subsidiary as of the end of such fiscal year and (y) with respect to any disposition of a Restricted Subsidiary (or disposition of all or substantially all of the assets of a Restricted Subsidiary or a line of business of a Restricted Subsidiary) consummated during such fiscal year, the amount by which the noncash working capital attributable to such Restricted Subsidiary as of the beginning of such fiscal year exceeds (or is less than) the noncash working capital attributable to such Restricted Subsidiary as of the date of consummation of such disposition.
Exchange Rate” means on any day, with respect to any Alternative Currency, the rate at which such Alternative Currency may be exchanged into Dollars, as set forth at approximately 11:00 a.m. (London time) on such day on the Bloomberg Key Cross-Currency Rates Page for such Alternative Currency. In the event that such rate does not appear on any Bloomberg Key Cross-Currency Rates Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and ESI, or, in the absence of such agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such
19



Alternative Currency are then being conducted, at or about 10:00 a.m. (London time) on such date for the purchase of Dollars for delivery two 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 ESI, may use any reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.
Excluded Assets” has the meaning specified in the Pledge and Security Agreement.
Excluded Domestic Subsidiary” means any Domestic Subsidiary that is disregarded as a separate entity for U.S. federal income tax purposes and owns no material assets other than the Equity Interests of one or more Foreign Subsidiaries (held directly or indirectly through one or more disregarded entities).
Excluded Subsidiary” means (i) any Immaterial Subsidiary, (ii) any Unrestricted Subsidiary, (iii) any Excluded Domestic Subsidiary, (iv) any Non-Wholly Owned Subsidiary (for so long as such Subsidiary remains a Non-Wholly Owned Subsidiary), (v) any Subsidiary with respect to which ESI and the Administrative Agent reasonably agree that the cost and/or burden of providing a guaranty of the Obligations outweighs the benefits accruing to the Lenders, (vi) any subsidiary listed on Schedule 1.01(e) as of the Closing Date, (vii) any Receivables Subsidiary, and (viii) solely in the case of any obligation under any secured hedging agreement that constitutes a “swap” within the meaning of section 1(a)(47) of the Commodity Exchange Act, any subsidiary that is not an “Eligible Contract Participant” as defined under the Commodity Exchange Act (after giving effect to the “keepwell provisions”).
Excluded Swap Obligation” means, with respect to any Guarantor, (a) as it relates to all or a portion of the Guarantee of such Guarantor, any Swap Obligation if, and to the extent that, 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 Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor becomes effective with respect to such Swap Obligation or (b) as it relates to all or a portion of the grant by such Guarantor of a security interest, any Swap Obligation if, and to the extent that, such Swap Obligation (or such security interest in respect 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 Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the security interest of such Guarantor becomes 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.
Existing Credit Agreement” means the Second Amended and Restated Credit Agreement, dated as of August 6, 2014, by and among ESI and MacDermid as US Borrowers (as defined therein), the other borrowers party thereto, the guarantors party thereto, the lenders party thereto and Barclays Bank PLC, as administrative agent and collateral agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Closing Date.
Existing Credit Agreement Refinancing” means the repayment in full of the Indebtedness of the Borrowers and their Subsidiaries under the Existing Credit Agreement and the termination and release of all commitments, security interests and guarantees in connection therewith.
20



Existing Letters of Credit” means the letters of credit set forth on Schedule 1.01(a) hereto.
Existing Loans” has the meaning specified in Section 2.16(a).
Existing Revolving Credit Commitments” has the meaning specified in Section 2.16(a).
Existing Revolving Loans” has the meaning specified in Section 2.16(a).
Existing Revolving Tranche” has the meaning specified in Section 2.16(a).
Existing Senior Notes” means, collectively, the 2022 Senior Notes, the 2023 Senior Notes and the 2025 Senior Notes.
Existing Term Loan Tranche” has the meaning specified in Section 2.16(a).
Existing Term Loans” has the meaning specified in Section 2.16(a).
Existing Tranche” has the meaning specified in Section 2.16(a).
Extended Loans” has the meaning specified in Section 2.16(a).
Extended Revolving Credit Commitments” has the meaning specified in Section 2.16(a).
Extended Revolving Credit Loans” has the meaning specified in Section 2.16(a).
Extended Revolving Credit Tranche” has the meaning specified in Section 2.16(a).
Extended Term Loans” has the meaning specified in Section 2.16(a).
Extended Term Tranche” has the meaning specified in Section 2.16(a).
Extended Tranche” has the meaning specified in Section 2.16(a).
Extending Lender” has the meaning specified in Section 2.16(b).
Extension” has the meaning specified in Section 2.16(b).
Extension Amendment” has the meaning specified in Section 2.16(c).
Extension Date” has the meaning specified in Section 2.16(c).
Extension Election” has the meaning specified in Section 2.16(b).
Extension Request” has the meaning specified in Section 2.16(a).
Extension Request Deadline” has the meaning specified in Section 2.16(b).
Facility” means each of (a) the Tranche B-1 Term Loan Commitments and the Tranche B-1 Term Loans made thereunder (the “Tranche B-1 Term Loan Facility”), (b) any New Term Loan
21



Facility, (c) the Initial Revolving Credit Facility and (d) any New Revolving Credit Facility, as the context may require.
Factoring Agreement” means an agreement by and between a Borrower or a Subsidiary of a Borrower and a Factoring Company pursuant to which a Borrower or such Subsidiary shall, pursuant to customary terms for the size and type of transaction involved, sell, transfer and assign its rights, title and interests in certain accounts receivable, specifically identified therein, to a Factoring Company.
Factoring Company” means any counterparty to any Factoring Agreement to whom a Borrower or any Subsidiary of a Borrower sells, transfers and assigns its right, title and interests in certain accounts receivable pursuant to the terms of such Factoring Agreement.
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 agreements entered into pursuant to Section 1471(b)(1) of the Code.
Federal Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided, that if the Federal Funds Effective Rate for any day is less than zero, the Federal Funds Effective Rate for such day will be deemed to be zero.
First-Tier Foreign Subsidiary” means any Foreign Subsidiary that is owned directly by a Loan Party.
First Lien Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated First Lien Indebtedness as of such date minus the unrestricted cash and Cash Equivalents of the Borrowers and their Restricted Subsidiaries as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ending on such date.
Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of the four fiscal quarters most recently ending on such date to (b) Fixed Charges for the period of the four fiscal quarters most recently ending on such date.
Fixed Charges” means, for any period, the sum of (1) the cash portion of Consolidated Interest Charges for such period, (2) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of preferred stock during such period; and (3) all cash dividends or other distributions paid or accrued (excluding items eliminated in consolidation) on any series of Disqualified Stock during such period; provided that, solely for purposes of calculating the Fixed Charge Coverage Ratio for any period, (i) the cash portion of Consolidated Interest Charges attributable to any Indebtedness repaid during such period shall be excluded for such period (assuming such Indebtedness had been repaid immediately prior to the beginning of such period) and (ii) the cash portion of Consolidated Interest Charges attributable to any Indebtedness incurred during such period shall be annualized for such period (assuming such Indebtedness had been incurred on the first day of such period).
Flood Laws” has the meaning specified in Section 7.12(b)(iv).
22



Foreign Government Scheme or Arrangement” has the meaning specified in Section 6.12(d).
Foreign Lender” has the meaning specified in Section 11.14(a).
Foreign Plan” has the meaning specified in Section 6.12(d).
Foreign Subsidiary” means any Restricted Subsidiary that is not a Domestic Subsidiary.
FRB” means the Board of Governors of the Federal Reserve System of the United States.
Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to each L/C Issuer, such Defaulting Lender’s Pro Rata Share of the L/C Obligations with respect to Letters of Credit issued by such L/C Issuer other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof.
Fully Satisfied” means, with respect to the Obligations as of any date, that, as of such date, (a) all principal of and interest accrued to such date which constitute Obligations shall have been irrevocably paid in full in cash, (b) all fees, expenses and other amounts then due and payable which constitute Obligations shall have been irrevocably paid in cash, (c) all outstanding Letters of Credit shall have been (i) terminated, (ii) fully irrevocably Cash Collateralized or (iii) secured by one or more letters of credit on terms and conditions, and with one or more financial institutions, reasonably satisfactory to the applicable L/C Issuer and (d) the Commitments shall have expired or been terminated in full.
Fund” has the meaning specified in Section 11.06(g).
GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
Govern” has the meaning specified in the definition of “Affiliate.”
Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government including, without limitation, any agency of the European Union or similar monetary or multinational authority.
Granting Lender” has the meaning specified in Section 11.06(b)(vii).
Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to
23



purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). 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. The term “Guarantee” as a verb has a corresponding meaning.
Guarantors” means a collective reference to the Subsidiary Guarantors and, except with respect to their own respective Obligations, the Borrowers; provided that the Guarantors shall not include any Excluded Subsidiaries.
Guaranty” means, collectively, the Guaranty made by the Guarantors in favor of the Administrative Agent and the Lenders pursuant to Article IV.
Hazardous Materials means any material, substance or waste that is listed, regulated, or otherwise defined as hazardous, toxic, radioactive, a pollutant or a contaminant (or words of similar regulatory intent or meaning) under applicable Environmental Law, or which could give rise to liability under any Environmental Law, including, but not limited to, all explosive or radioactive substances or wastes, petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and pesticides.
Hedge Bank” means any Person that is an Agent, Arranger, Lender or any Affiliate of any of the foregoing, in each case, at the time the applicable Secured Hedge Agreement is entered into, irrespective of whether such Person ceases to be an Agent, Arranger, Lender or any Affiliate of any of the foregoing after entering into the applicable Secured Hedge Agreement.
Honor Date” has the meaning specified in Section 2.03(c)(i).
Immaterial Subsidiary” means each Restricted Subsidiary designated as such by the Borrowers to the Administrative Agent in writing that meets all of the following criteria calculated on the Pro Forma Basis by reference to the most recently delivered set of financial statements delivered pursuant to Section 7.01(a): (a) the consolidated total assets of such Restricted Subsidiary and its subsidiaries which qualify as Restricted Subsidiaries as of the date of such financial statements, do not exceed an amount equal to 5.0% of the Consolidated Total Assets of ESI and its Restricted Subsidiaries as of such date; and (b) the consolidated total assets of all Immaterial Subsidiaries and their respective subsidiaries, taken as a whole, as of the date of such financial statements, do not exceed an amount equal to 10.0% of the Consolidated Total Assets of the Borrowers and their Restricted Subsidiaries as of such date. As of the Closing Date, the Borrowers designate each of the Restricted Subsidiaries listed on Schedule 1.01(g) hereto as Immaterial Subsidiaries.
Increased Amount Date” has the meaning specified in Section 2.14(a).
24



Incremental Amendment” has the meaning specified in Section 2.14(a).
Incremental Commitment” means any commitment made by a lender to provide all or any portion of an Incremental Facility or Incremental Loans.
Incremental Facilities” has the meaning assigned to such term in Section 2.14(a).
Incremental Loans” has the meaning assigned to such term in Section 2.14(a).
Incremental Revolving Credit Facility” has the meaning assigned to such term in Section 2.14(a).
Incremental Revolving Credit Loans” has the meaning assigned to such term in Section 2.14(a).
Incremental Term Facility” has the meaning assigned to such term in Section 2.14(a).
Incremental Term Loans” has the meaning assigned to such term in Section 2.14(a).
Indebtedness” means, as to any Person at a particular time, without duplication, all of the following:
(a)all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements, convertible securities (to the extent that they have put provisions that are exercisable during the term of this Agreement) or other similar instruments;
(b)all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
(c)all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business);
(d)indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(e)capital leases and Synthetic Lease Obligations; and
(f)all Guarantees of such Person in respect of any of the foregoing;
if and to the extent that any of the foregoing Indebtedness (other than Guarantees, Letters of Credit and Swap Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is
25



expressly made non-recourse to such Person. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. Notwithstanding the foregoing, however, Indebtedness shall not include any obligations under (i) The Austria Plan, MacDermid Retirement Indemnity Plans, MacDermid Profit Sharing and Employee Stock Ownership Plan, Alent Germany GmbH Jubilee, Alpha Assembly Solutions Germany GmbH Jubilee, Alpha Assembly Solutions Germany GmbH Pension, MacDermid Enthone GmbH ATZ, MacDermid Cannings GmbH, MacDermid Enthone GmbH Jubilee, MacDermid Enthone GmbH Pension, Italy MacDermid TFR, MPSMS – Seniority Premium, MPSMS – Severance Termination, Alent Taiwan, Taiwan Former Enthone Plan, The MacDermid Chemical Taiwan LTD Defined Benefit Pension Plan, Alent, Inc. US Central SERP, The MacDermid Incorporated All Employees Pension Plan, The MacDermid Supplement Executive Retirement Plan, The MacDermid, Incorporated Retiree Medical/Dental Plan, MacDermid Retiree Medical, Anion MacDermid Brazil, Alent, Inc. Postretirement Welfare Plan, MacDermid Incorporated Retiree Health Plan, Nippon MacDermid Co., Ltd., any Foreign Plan, Foreign Government Scheme or Arrangement or another employee benefit plan.
Indemnitee” has the meaning specified in Section 11.04(b).
Information” has the meaning specified in Section 11.07.
Informational Website” has the meaning specified in Section 7.02.
Initial Availability Period” means the period from and including the Closing Date to but excluding the earliest of (a) the Initial Revolving Credit Maturity Date, (b) the date of termination of the Initial Revolving Credit Commitments pursuant to Section 2.06 and (c) the date of termination of the commitment of each Initial Revolving Credit Lender to make Initial Revolving Credit Loans and of the obligation of each L/C Issuer to make L/C Credit Extensions pursuant to Section 9.02.
Initial Revolving Credit Commitments” means, as to each Initial Revolving Credit Lender, its obligation to (a) make Initial Revolving Credit Loans to a Borrower pursuant to Section 2.01 and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Initial Revolving Credit Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Revolving Credit Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of Initial Revolving Credit Commitments on the Closing Date is $330,000,000.
Initial Revolving Credit Facility” means the Initial Revolving Credit Commitments and the extensions of credit made thereunder.
Initial Revolving Credit Lenders” means, at any time, any Revolving Credit Lender that has an Initial Revolving Credit Commitment or an outstanding Initial Revolving Credit Loan at such time.
Initial Revolving Credit Loan” has the meaning specified in Section 2.01.
Initial Revolving Credit Maturity Date” means, with respect to any Initial Revolving Credit Loan, the earlier of (i) the date that is five years after the Closing Date, which date is January 31, 2024, and (ii) the date of termination in whole of the Initial Revolving Credit Commitments and the Letter of Credit Commitments pursuant to Section 2.06 or 9.02.
Initial Term Loans” has the meaning specified in the recitals hereto.
26



Intellectual Property Security Agreement” means each Patent Security Agreement, Trademark Security Agreement and Copyright Security Agreement to be executed and delivered by a Loan Party, substantially in the form of Exhibits A, B and C to the Pledge and Security Agreement, respectively, or such other form approved by the Administrative Agent.
Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and in the case of any Term Loans, the applicable Term Loan Maturity Date, or in the case of Revolving Credit Loans, the applicable Revolving Credit Maturity Date; provided, however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and in the case of any Term Loans, the applicable Term Loan Maturity Date, or in the case of Revolving Credit Loans, the applicable Revolving Credit Maturity Date.
Interest Period” means, as to (a) each Term Loan that is a Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter (or twelve months, if agreed to by all applicable Term Loan Lenders) and (b) each Revolving Credit Loan that is a Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter (or one week, two weeks or twelve months, if agreed to by all applicable Revolving Credit Lenders; provided that each Revolving Credit Lender shall be deemed to have agreed to the selection of any one-week or two-week Interest Period unless such Revolving Credit Lender shall object in writing to the Administrative Agent within one Business Day after receiving notice of such selection), in each case, as selected by any Borrower in its Committed Loan Notice; provided that:
(i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond, in the case of any Term Loans, the applicable Term Loan Maturity Date, or in the case of Revolving Credit Loans, the applicable Revolving Credit Maturity Date.
Interpolated Rate” means, in relation to the US LIBO Rate, EURIBO Rate or Alternate Currency LIBO Rate, as applicable, the rate which results from interpolating on a linear basis between:
(i) the applicable US LIBO Rate, EURIBO Rate or Alternate Currency LIBO Rate, as applicable, for the longest period (for which that US LIBO Rate, EURIBO Rate or Alternate Currency LIBO Rate, as applicable, is available) which is less than the Interest Period of that Loan; and
27



(ii) the applicable US LIBO Rate, EURIBO Rate or Alternate Currency LIBO Rate, as applicable, for the shortest period (for which that US LIBO Rate, EURIBO Rate or Alternate Currency LIBO Rate, as applicable, is available) which exceeds the Interest Period of that Loan,
in each case, as of 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period of that Loan.
Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
IRS” means the United States Internal Revenue Service.
Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application and any other document, agreement and instrument entered into by the applicable L/C Issuer and any Borrower or any Restricted Subsidiary or in favor of the applicable L/C Issuer and relating to such Letter of Credit.
Judgment Currency” shall have the meaning assigned to such term in Section 11.23(a).
Judgment Currency Conversion Date” shall have the meaning assigned to such term in Section 11.23(a).
Latest Maturity Date” shall mean, at any date, the latest maturity date of all classes of Loans or Commitments that are outstanding on such date.
Laws” means, collectively, all international, foreign, Federal, state and local laws, statutes, treaties, rules, regulations or any determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such person or any of its Real Property or personal property or to which such person or any of its property of any nature is subject.
L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.
L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
L/C Issuer” means as the context may require, each of Credit Suisse AG, Cayman Islands Branch, Barclays Bank PLC, UBS AG, Stamford Branch, HSBC Bank USA, N.A., Citibank, N.A., Deutsche Bank AG New York, Goldman Sachs Bank USA, Nomura Corporate Funding Americas, LLC and Wells Fargo Bank, National Association and any other Revolving Credit Lender that may
28



become an L/C Issuer pursuant to Section 2.03(m), with respect to Letters of Credit issued by such Revolving Credit Lender. Any L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by affiliated or unaffiliated financial institutions of such L/C Issuer, in which case the term “L/C Issuer” shall include any such affiliated or unaffiliated financial institutions of such L/C Issuer with respect to Letters of Credit issued by such affiliated or unaffiliated financial institutions of such L/C Issuer.
L/C Obligations” means, as at any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.
LCA Election” means ESI’s election to exercise its right to designate any acquisition (or similar Investment) as a Limited Condition Acquisition pursuant to the terms hereof.
LCA Test Date” means the date on which the definitive agreement for any such Limited Condition Acquisition is entered into.
Leases” means any and all leases, subleases, tenancies, options, concession agreements, rental agreements, occupancy agreements, franchise agreements, access agreements and any other agreements (including all amendments, extensions, replacements, renewals, modifications and/or guarantees thereof), whether or not of record and whether now in existence or hereafter entered into, affecting the use or occupancy of all or any portion of any Real Property.
Lender” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the L/C Issuers.
Lender Counterparty” means any Person that is an Agent, Arranger or Lender or any Affiliate of any of the foregoing, in each case, at the time the applicable Secured Treasury Management Agreement is entered into, irrespective of whether such Person ceases to be an Agent, Arranger, Lender or any Affiliate of any of the foregoing after entering into the applicable Secured Treasury Management Agreement.
Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify ESI and the Administrative Agent.
Letter of Credit” means any letter of credit issued hereunder and shall include the Existing Letters of Credit. A Letter of Credit shall be a standby letter of credit.
Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer.
Letter of Credit Commitment” means the commitment of the L/C Issuers to issue Letters of Credit pursuant to Section 2.03.
Letter of Credit Expiration Date” means the day that is five Business Days prior to the Initial Revolving Credit Maturity Date (or, if such day is not a Business Day, the next preceding Business Day).
Letter of Credit Fee” has the meaning specified in Section 2.03(i).
29



Letter of Credit Sublimit” means an amount equal to $100,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.
Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to Real Property, and any financing lease having substantially the same economic effect as any of the foregoing).
Limited Condition Transaction” shall mean any (i) acquisition or Investment by one or more of the Borrowers or any Restricted Subsidiary of or in any assets, business or Person permitted by this Agreement or (ii) repayment or redemption of, or offer to purchase, any indebtedness permitted by this Agreement, in each case the consummation of which is not conditioned on the availability of, or on obtaining, third party financing.
Loan” means an extension of credit by a Lender to any Borrower under Article II in the form of a Term Loan or a Revolving Credit Loan.
Loan Documents” means, collectively, this Agreement, each Note, each Issuer Document, Amendment No. 1, each joinder agreement referred to in Section 2.14, each Subsidiary Joinder Agreement and the Collateral Documents.
Loan Parties” means, collectively, the Borrowers and the Guarantors.
MacDermid” has the meaning specified in the preamble hereto.
Majority Facility Lenders” means (a) with respect to the Term Loan Facility, the holders of a majority of the aggregate unpaid principal amount of the Term Loan Commitments and Term Loans outstanding under the Term Loan Facility and (b) with respect to the Revolving Credit Facility, the holders of a majority of the sum of (i) the unused portion of the Revolving Credit Commitments then in effect and (ii) the Total Outstandings at such time.
Market Capitalization” means, with respect to the making of any Restricted Payment, an amount equal to the product of (a) the total number of issued and outstanding shares of common Equity Interests of ESI on the date of declaration of such Restricted Payment multiplied by (b) the arithmetic mean of the closing prices per share of such Equity Interests on the principal securities exchange on which such Equity Interests are listed for the 30 consecutive trading days immediately preceding the date of declaration of such Restricted Payment.
Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of ESI and its Restricted Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.
Material Real Property” means any parcel of Real Property now or hereafter owned in fee by any Loan Party that, together with any improvements thereon, individually has a fair market value of at least $5,000,000 as at (i)(x) the Closing Date, for Real Property owned as of the Closing Date or (y) the date of acquisition for Real Property acquired after the Closing Date, in each case as reasonably
30



estimated in good faith by ESI or (ii) the time of any material improvement on such Real Property described in clause (i)(y); provided that “Material Real Property” shall not include the property located at 244–256 Culver Avenue, Jersey City, NJ 07304 for so long as such property is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the National Flood Insurance Act of 1968.
Maximum Rate” has the meaning specified in Section 11.09.
MFN Adjustment” has the meaning specified in Section 2.14(d).
Minimum Collateral Amount” means, at any time, (a) with respect to cash collateral consisting of cash or deposit account balances, an amount equal to 103% of the Fronting Exposure of any L/C Issuer with respect to Letters of Credit issued and outstanding at such time and (b) for purposes of Section 2.15, an amount reasonably determined by the Administrative Agent and the applicable L/C Issuer.
Minimum Eurocurrency Borrowing Amount” means, (i) with respect to Section 2.02(a)(2), a principal amount equal to the Dollar Equivalent of $2,000,000 or a whole multiple of $1,000,000 in excess thereof and (ii) with respect to Section 2.05(a)(ii), a principal amount equal to the Dollar Equivalent of $1,000,000 or a whole multiple of $500,000 in excess thereof.
Minimum Extension Condition” has the meaning specified in Section 2.16(e).
Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
Mortgage” means an agreement, including, but not limited to, a fee mortgage, deed of trust, deeds to secure debt, assignment of rents and leases or any other document, creating and evidencing a Lien on a Mortgaged Property and delivered pursuant to Section 7.12, as may be amended, modified, supplemented, extended and/or consolidated from time to time, which shall be in form reasonably satisfactory to the Administrative Agent, with such schedules and including such provisions as shall be necessary to conform such document to applicable local or foreign law or as shall be customary under applicable local or foreign law.
Mortgaged Property” means (a) each owned Material Real Property located in the United States of America and identified as a “Mortgaged Property” on Schedule 1.01(c) and (b) each Material Real Property located in the United States of America, if any, owned by any Loan Party and which shall be subject to a Mortgage delivered after the Closing Date pursuant to Section 7.12.
Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding six plan years, has made or been obligated to make contributions.
Net Cash Proceeds” means, (a) with respect to any Asset Sale, Recovery Event or Permitted Sale Leaseback Transaction, the excess, if any, of (i) the sum of cash and Cash Equivalents received therefrom (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by such asset and that is required to be repaid in connection with the sale thereof (other than Indebtedness under the Loan Documents), (B) the out-of-pocket expenses incurred by any Borrower or any Restricted Subsidiary in
31



connection therewith and (C) income taxes reasonably estimated to be actually payable as a result of any gain recognized in connection therewith; provided, however, that, if (x) the Borrowers shall deliver a certificate of a Responsible Officer of the Borrowers to the Administrative Agent at the time of receipt thereof setting forth the Borrowers’ intent to reinvest such proceeds to acquire, maintain, develop, construct, improve, upgrade or repair productive assets of a kind then used or usable in the business of the Borrowers and the Restricted Subsidiaries (including, without limitation, through a Permitted Investment or Permitted Acquisition) within (1) 360 days of receipt of such proceeds or (2) if the Borrowers enter into a legally binding commitment to reinvest such proceeds within 360 days following receipt thereof, within the earlier of 180 days following the date such legally binding commitment is entered into and the date on which such legally binding commitment terminates or is abandoned without the consummation of the reinvestment contemplated thereby (such applicable period described in clause (1) or (2), the “Reinvestment Period”) and (y) no Default or Event of Default shall have occurred and shall be continuing at the time of such certificate or at the proposed time of the application of such proceeds, such proceeds shall not constitute Net Cash Proceeds except to the extent not so used at the end of the Reinvestment Period, at which time such proceeds shall be deemed to be Net Cash Proceeds; provided, further, that any proceeds of such a Recovery Event (from settlement of insurance or otherwise) shall be remitted to the Borrowers so long as such proceeds are not deemed to be Net Cash Proceeds; and (b) with respect to any issuance or disposition of Indebtedness, the cash proceeds thereof, net of all taxes and reasonable and customary fees, commissions, costs and other expenses incurred by the Borrowers and the Restricted Subsidiaries in connection therewith.
New Incremental Lender” has the meaning specified in Section 2.14(a).
New Revolving Credit Facility” has the meaning assigned to such term in Section 2.14(a) of this Agreement.
New Term Loan Commitments” mean the commitments in respect of any New Term Loan Facility.
New Term Loan Facility” has the meaning assigned to such term in Section 2.14(a) of this Agreement and shall include the Tranche B-1 Term Loan Facility.
New Term Loan Maturity Date” means the maturity date or expiration date of any New Term Loan.
New Term Loans” means any advance made by a Lender under a New Term Loan Facility.
NFIP” has the meaning specified in Section 7.12(b)(iv).
Non-Consenting Lender” has the meaning specified in Section 11.01.
Non-Excluded Taxeshas the meaning specified in Section 3.01(a).
Non-Extending Lender” has the meaning specified in Section 2.16(d).
Non-Wholly Owned Subsidiary” means any Subsidiary all of the Equity Interests in which (except directors’ qualifying shares and as a result of the PDH Minority Interest) are not, at the time, directly or indirectly owned by ESI, other than any Subsidiary that becomes a Non-Wholly Owned Subsidiary after the Closing Date as a result of (A) the Disposition or issuance of Equity Interests of such
32



Subsidiary, in either case, to a Person that is an Affiliate, (B) any transaction entered into primarily for the purpose of such Subsidiary ceasing to constitute a Guarantor or (C) the Disposition or issuance of Equity Interest of such Subsidiary for less than the fair market value of such shares (as reasonably determined by the Borrower).
Nonrenewal Notice Date” has the meaning specified in Section 2.03(b)(iii).
Note” or “Notes” means the Term Loan Notes and/or the Revolving Credit Notes, individually or collectively, as appropriate.
Obligation Currency” has the meaning specified in Section 11.23(a).
Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under (i) any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising including the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, attorneys’ fees and disbursements, indemnities and other amounts payable by any Loan Party under any Loan Document and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, (ii) any Secured Hedge Agreement and (iii) any Secured Treasury Management Agreement and (b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that any Lender, in its reasonable sole discretion, may elect to pay or advance on behalf of such Loan Party. Notwithstanding anything to the contrary, the “Obligations” shall not include any Excluded Swap Obligations.
OFAC” means the Office of Foreign Assets Control of the U.S. Treasury Department or the U.S. Department of State.
OID” has the meaning specified in the definition of “Yield”.
option right” has the meaning specified in the definition of “Change of Control”.
Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
Other Taxes” has the meaning specified in Section 3.01(b).
Outstanding Amount” means (i) with respect to Revolving Credit Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans occurring on such date and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C
33



Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.
Participant” has the meaning specified in Section 11.06(d).
Participant Register” has the meaning specified in Section 11.06(d).
Patriot Act” has the meaning specified in Section 11.19.
Paying Agent” has the meaning specified in Section 10.07.
PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
PDH” means Platform Delaware Holdings, Inc., a Delaware corporation.
PDH Minority Interest” means up to 5% of the Equity Interests of PDH held by Tartan Holdings, LLC and others.
Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to either Title IV of ERISA or Section 412 of the Code and is sponsored or maintained by any Borrower or any ERISA Affiliate or to which any Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding six plan years.
Perfection Certificate” means the Pre-Closing UCC Diligence Certificate substantially in the form of Exhibit E or such other form approved by the Administrative Agent.
Permitted Acquisition” means the acquisition by any Borrower or any Wholly-Owned Restricted Subsidiary of all or substantially all the assets of a Person or line of business of such Person, or of not less than 50.1% of the outstanding Equity Interests of a Person (referred to herein as the “Acquired Entity”); provided that (i) the Acquired Entity shall be a going concern and shall be in a similar line of business (or one reasonably ancillary or complementary thereto, or which is a reasonable extension, development or expansion thereof, including, but not limited to, any line of business in the specialty chemicals market) as that of the Borrowers and the Restricted Subsidiaries as conducted during the current and most recently concluded calendar year; (ii)(A) no Event of Default or Default shall have occurred and be continuing both immediately before and immediately after the execution of the acquisition agreement by the relevant Restricted Group member and applicable seller(s), and (B) at the time of such transaction, ESI shall be in Pro Forma Compliance with the financial covenant set forth in Section 8.10 (whether or not such covenant is then applicable); provided, that if the Borrowers would not be in Pro Forma Compliance at the time of such transaction, then the foregoing requirement to so be in Pro Forma Compliance shall not be required so long as the aggregate amount of the consideration paid in connection with such acquisition of an Acquired Entity that does not become a Guarantor and any related acquisitions of an Acquired Entity that does not become a Guarantor pursuant to clause (e) of the definition of “Permitted Investments” (including Indebtedness of the Acquired Entity that is assumed by or on behalf of the Borrowers and the Restricted Subsidiaries for any such purchase or other acquisition of an entity that does not become a Guarantor (including by way of merger) when aggregated with the total cash and noncash consideration (calculated on the same basis) paid by or on behalf of the Borrowers
34



and the Restricted Subsidiaries for all other purchases and other acquisitions made by the Borrowers and the Restricted Subsidiaries after the Closing Date of entities that do not become Guarantors (including by way of merger)), shall not exceed the greater of (x) $460,000,000 and (y) 100% of the cumulative Consolidated EBITDA for all fiscal years of ESI completed after the Closing Date and prior to the date of such Permitted Acquisition; (iii) upon the consummation of such Permitted Acquisition, the Acquired Entity shall be a Restricted Subsidiary, (iv) ESI and its Restricted Subsidiaries shall not incur or assume any Indebtedness in connection with such acquisition, except as permitted by Section 8.02; and (v) ESI shall comply, and shall cause the Acquired Entity to comply, with the applicable provisions of Sections 7.12 and 7.14 and the Collateral Documents.
Permitted Equal Priority Refinancing Debt” means any secured Indebtedness incurred by any Loan Party in the form of one or more series of senior secured notes, bonds or debentures; provided that (a) such Indebtedness is secured by Liens on all or a portion of the Collateral on an equal priority basis with the Liens on the Collateral securing the Obligations (but without regard to the control of remedies) and is not secured by any property or assets of any Loan Party other than the Collateral, (b) such Indebtedness satisfies the applicable requirements set forth in the provisos to the definition of “Credit Agreement Refinancing Indebtedness”, (c) such Indebtedness is not at any time guaranteed by any Restricted Subsidiary that is not a Loan Party and (d) the holders of such Indebtedness (or their representative) and the Administrative Agent and/or Collateral Agent shall become parties to a Customary Intercreditor Agreement providing that the Liens on the Collateral securing such obligations shall rank equal in priority to the Liens on the Collateral securing the Obligations (but without regard to the control of remedies).
Permitted Intercompany Transaction” means (a) a merger or consolidation solely of one or more Subsidiaries of ESI (provided that, (x) if one of such Subsidiaries is a Loan Party, the result of such merger or consolidation is that the surviving entity is a Loan Party, (y) if one of the Subsidiaries is a Restricted Subsidiary, the result of such merger or consolidation is that the surviving entity is a Restricted Subsidiary and (z) if one of such Subsidiaries is an Additional Borrower, the result of such merger or consolidation is that the surviving entity is an Additional Borrower); (b) a transaction consisting of the acquisition (which may, without limitation, occur through the liquidation and/or dissolution of a Subsidiary) of (i) all or substantially all of the Equity Interests of any Subsidiary of ESI, (ii) all or substantially all of the assets of any Subsidiary of the Borrowers or (iii) all or substantially all of the assets constituting the business of a division, branch or other unit operation of any Subsidiary of the Borrowers, in each case, by any one or more Loan Parties (provided, that if the transaction consists of the acquisition of the Equity Interests, assets or business of a division, branch or other unit or operation of an Additional Borrower, the acquiring party shall be either a Borrower or an Additional Borrower); (c) a transaction consisting of the acquisition (which may, without limitation, occur through the liquidation and/or dissolution of such Subsidiary) of (i) all or substantially all of the Equity Interests of any Subsidiary of the Borrowers that is not a Loan Party, (ii) all or substantially all of the assets of any Subsidiary of the Borrowers that is not a Loan Party, (iii) all or substantially all of the assets constituting the business of a division, branch or other unit operation of any Subsidiary of the Borrowers that is not a Loan Party or (iv) any other similar intercompany transaction by any one or more Subsidiaries of the Borrowers that is consented to by the Administrative Agent and is not materially adverse to the Lenders as reasonably determined by the Administrative Agent in its sole discretion; provided that, (x) if the transaction consists of the acquisition of Equity Interests, assets or business of a division, branch or other unit or operation of a Subsidiary that is a Restricted Subsidiary, the acquiring party shall be a Borrower, an Additional Borrower or a Restricted Subsidiary and (y) after giving effect to any transaction described in clauses (a) through (c), the Borrowers shall comply with Section 7.12 to the extent applicable and (d)
35



the liquidation, wind up, dissolution, deregistration or similar action with respect to any Excluded Subsidiary.
Permitted Investments” means:
(a)Investments outstanding as of the Closing Date (such Investments in excess of $10,000,000 are set forth on Schedule 1.01(d));
(b)(i) Investments by the Borrowers and the Restricted Subsidiaries existing on the Closing Date in the Borrowers and the Restricted Subsidiaries and (ii) additional Investments by the Borrowers and the Restricted Subsidiaries in the Borrowers and the Restricted Subsidiaries; provided that (A) if such Investment shall be in the form of an investment in Equity Interests, any such Equity Interests held by a Loan Party shall be pledged pursuant to the Pledge and Security Agreement (subject to the limitation referred to in the proviso of Section 7.12(a)(iii) in the case of any First-Tier Foreign Subsidiary or Excluded Domestic Subsidiary), (B) the aggregate amount of Investments under this clause (b)(ii) by Loan Parties in Restricted Subsidiaries that are not Subsidiary Guarantors (other than (1)(x) investments in Equity Interests and (y) intercompany loans and advances, in each case, from a Loan Party to a Restricted Subsidiary that is not a Subsidiary Guarantor the proceeds of which are used solely to finance a Permitted Acquisition and (2) intercompany loans and advances from a Loan Party in Restricted Subsidiaries that are not Subsidiary Guarantors having a term not exceeding 90 days (inclusive of any roll over or extensions of terms)) shall not exceed the sum of (I) the greater of (x) $180,000,000 and (y) 40% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding plus (II) an amount equal to any reduction in the amount of Investments by Loan Parties in Restricted Subsidiaries that are not Subsidiary Guarantors set forth in clause (b)(i) above after the Closing Date, and (C) if such Investment shall be in the form of a loan or advance, such loan or advance shall be unsecured, and, in the case of a loan or advance owed by a Loan Party to a Restricted Subsidiary that is not a Loan Party, shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent and, if such loan or advance shall be made by a Loan Party, shall be evidenced by a promissory note and such promissory note shall be pledged to the Collateral Agent for the ratable benefit of the Secured Parties pursuant to the Pledge and Security Agreement;
(c)deposits with, or time deposits with, including certificates of deposits issued by, (i) any office located in the United States of any bank or trust company that is organized under the laws of the United States or any state thereof and has capital surplus and undivided profits aggregating at least $100,000,000, (ii) any Lender or (iii) any foreign bank for which S&P or Moody’s issues a rating of “A” or higher and which has capital surplus and undivided profits aggregating at least $100,000,000;
(d)Investments held by ESI or any Restricted Subsidiary in the form of Cash Equivalents;
(e)Permitted Acquisitions;
36



(f)Investments permitted pursuant to Section 8.02, 8.03, 8.05 or 8.07;
(g)Investments consisting of Permitted Swap Obligations;
(h)intercompany loans and advances to ESI and its Restricted Subsidiaries pursuant to Section 8.02(e); provided that such intercompany loans and advances (i) shall be made for the purposes, and shall be subject to all the applicable limitations set forth in, Section 8.02(e) and (ii) shall be unsecured and subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(i)advances, loans or extensions of credit to customers and suppliers or to employees, in the ordinary course of business by any Borrower or any of its Restricted Subsidiaries;
(j)other Investments in an aggregate amount not to exceed the greater of (x) $225,000,000 and (y) 50% of Consolidated EBITDA as of the last day of the last Test Period for which financial statements have been delivered pursuant to Section 7.01 at any time outstanding;
(k)Investments in a Receivables Subsidiary or relating to a Factoring Agreement that, in the good faith determination of ESI are necessary or advisable to effect any Receivables Facility or Factoring Agreement incurred in compliance with Section 8.02 hereof or any transaction in connection therewith; provided that such Investment is in the form of a contribution of accounts receivable and the proceeds thereof and other assets customarily transferred in connection therewith or as equity; and
(l)Investments in joint ventures engaged in any similar line of business (or one reasonably ancillary or complementary thereto, including, but not limited to, anything in the specialty chemicals market) in an aggregate amount, taken together with all other Investments made pursuant to this clause (l) that are at that time outstanding, not to exceed the greater of $50 million and 10% of Consolidated Total Assets.
For all purposes of this Agreement, the amount of any Investment shall be the original costs of such Investment plus the cost of all additions thereto, without adjustments for increases or decreases in value, write-ups, write-downs or write-offs with respect to such Investment, reduced by (without duplication of any reduction as a result of such Investment (or any portion thereof) deemed to no longer be outstanding as of any date) any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by ESI or a Restricted Subsidiary in respect of such Investment.
Permitted Junior Priority Refinancing Debt” means secured Indebtedness incurred by any Loan Party in the form of one or more series of junior lien secured notes, bonds or debentures or junior lien secured loans; provided that (a) such Indebtedness is secured by all or a portion of the Collateral on a junior priority basis to the Liens on the Collateral securing the Obligations and is not secured by any property or assets of any Loan Party other than the Collateral, (b) such Indebtedness satisfies the applicable requirements set forth in the provisos in the definition of “Credit Agreement Refinancing Indebtedness” (provided that such Indebtedness may be secured by a Lien on the Collateral that ranks junior to the Liens on the Collateral securing the Obligations, notwithstanding any provision to the contrary contained in the definition of “Credit Agreement Refinancing Indebtedness”), (c) the holders of such Indebtedness (or their representative) and the Administrative Agent and/or the Collateral Agent shall become parties to a Customary Intercreditor Agreement providing that the Liens on the Collateral securing such obligations shall rank junior to the Liens on the Collateral securing the Obligations and (d) such Indebtedness is not at any time guaranteed by any Restricted Subsidiary that is not a Loan Party.
37



Permitted Liens” means:
(a)in the case of Real Property, easements, restrictions, exceptions, reservations or defects which, individually or in the aggregate, (a) do not materially interfere with the ordinary conduct of the business of ESI or any of its Restricted Subsidiaries at such Real Property and (b) do not materially affect the value thereof;
(b)non-consensual Liens, if contested in good faith by appropriate proceedings and appropriate reserves are maintained, in accordance with generally accepted accounting principles, with respect thereto;
(c)pledges or deposits to secure obligations under workmen’s compensation, employment and unemployment insurance and other social security legislation or similar legislation or to secure performance in connection with bids, tenders and contracts (other than contracts for the payment of borrowed money) to which any Borrower or any of its Restricted Subsidiaries is a party;
(d)deposits to secure public or statutory obligations of any Borrower or any of its Restricted Subsidiaries;
(e)materialmen’s, landlords’, warehousemens’, mechanics’, carriers’, workmen’s or similar Liens arising in the ordinary course of business, or deposits of cash or United States obligations to obtain the release of such Liens;
(f)deposits to secure surety or performance bonds and other obligations of a like nature or appeal bonds in proceedings to which any Borrower or any of its Restricted Subsidiaries is a party;
(g)Liens for Taxes not yet due and payable or being contested in good faith by appropriate proceedings with adequate reserves on the books of any Borrower or the applicable Restricted Subsidiary with respect thereto in accordance with GAAP;
(h)Leases, subleases or licenses of properties owned, leased or licensed by any Borrower or any of its Restricted Subsidiaries, in each case, entered into in the ordinary course of business so long as such Leases, subleases and licenses are subordinate in all respects to the Liens granted and evidenced by the Collateral Documents and do not, individually or in the aggregate, (i) interfere in any material respect with the ordinary conduct of the business of any Borrower or any Restricted Subsidiary, or (ii) materially impair the use (for its intended purposes) or the value of the property subject thereto;
(i)Liens solely on any cash earnest money deposits made by ESI or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;
(j)Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(k)licenses of patents, trademarks, trade secrets, and other intellectual property rights granted by any Borrowers or any Restricted Subsidiary in the ordinary course of business, which do not interfere in any material respect with the business of any Borrower or any of its Restricted Subsidiaries;
38



(l)easements, rights-of-way, restrictions, encroachments, protrusions and other similar encumbrances and minor title defects affecting Real Property which, in the aggregate, do not in any case materially interfere with the ordinary course of the business of ESI or any of its Restricted Subsidiaries;
(m)judgment Liens securing judgments not constituting an Event of Default under Article IX;
(n)Liens arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to, including obligations in respect of Letters of Credit or bank Guarantees for the benefit of insurance carriers;
(o)bankers, liens, rights of setoff and other similar Liens on deposits in one or more accounts maintained by any Borrower or any Restricted Subsidiary, in each case, granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements;
(p)Liens in favor of Foreign Plans arising in the ordinary course of business; and
(q)Liens in favor of any Borrower or any other Guarantor; and
(r)Liens granted by any Restricted Subsidiary that is not a Loan Party in favor of any Restricted Subsidiary that is not a Loan Party.
Permitted Refinancing Indebtedness” means Indebtedness issued or incurred (including by means of the extension or renewal of existing Indebtedness) to the extent used to refinance, refund, extend, renew or replace existing Indebtedness (“Refinanced Indebtedness”); provided that (a) the principal amount of such refinancing, refunding, extending, renewing or replacing Indebtedness is not greater than the principal amount of such Refinanced Indebtedness plus the amount of any premiums or penalties and accrued and unpaid interest paid thereon and reasonable fees and expenses, in each case associated with such refinancing, refunding, extension, renewal or replacement, (b) such refinancing, refunding, extending, renewing or replacing Indebtedness has a final maturity that is no sooner than, and a weighted average life to maturity that is no shorter than, such Refinanced Indebtedness, (c) if such Refinanced Indebtedness or any Guarantees thereof are subordinated to the Obligations, such refinancing, refunding, extending, renewing or replacing Indebtedness and any Guarantees thereof remain so subordinated and shall have a lien priority no greater than the priority of the liens securing the Refinanced Indebtedness to the Liens securing the Obligations in accordance with, and otherwise subject to, the terms of a Customary Intercreditor Agreement, (d) if any Loan Party is an obligor in respect of such Refinanced Indebtedness immediately prior to such refinancing, refunding, extending, renewing or replacing, any obligors in respect of such refinancing, refunding, extending, renewing or replacing Indebtedness must either (x) be a Loan Party or (y) have been an obligor in respect of such Refinanced Indebtedness immediately prior to such refinancing, refunding, extending, renewing or replacing and (e) such refinancing, refunding, extending, renewing or replacing Indebtedness contains covenants and events of default and is benefited by Guarantees, if any, which, taken as a whole, are determined in good faith by a Responsible Officer of the Borrowers to not be materially less favorable to the Borrowers or the applicable Restricted Subsidiary and the than the covenants and events of default or Guarantees, if any, in respect of such Refinanced Indebtedness.
Permitted Sale Leaseback Transaction” has the meaning specified in Section 8.13.
39



Permitted Swap Obligations” means all obligations (contingent or otherwise) of any Borrower or any Restricted Subsidiary existing or arising under Swap Contracts, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments or assets held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person in conjunction with a securities repurchase program not otherwise prohibited hereunder, and not for purposes of speculation or taking a “market view”.
Permitted Unsecured Refinancing Debt” means unsecured Indebtedness incurred by any Loan Party in the form of one or more series of senior unsecured notes, bonds or debentures or loans; provided that (a) such Indebtedness satisfies the applicable requirements set forth in the provisos in the definition of “Credit Agreement Refinancing Indebtedness” and (b) such Indebtedness is not at any time guaranteed by any Restricted Subsidiary that is not a Loan Party.
Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA), other than a Multiemployer Plan, that is established by any Borrower or any of its Restricted Subsidiaries or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate, in any case, that is not a Foreign Plan.
Platform” has the meaning specified in Section 7.02.
Pledge and Security Agreement” means the Pledge and Security Agreement, dated as of the Closing Date, executed by each of the Loan Parties and the Administrative Agent for the benefit of the holders of the Obligations, in substantially the form of Exhibit F, as may be further amended or modified from time to time in accordance with the terms hereof.
Pledged Collateral” has the meaning assigned to it in the Pledge and Security Agreement.
Pounds Sterling” and the symbol “£” means the lawful currency of the United Kingdom.
primary obligor” has the meaning specified in the definition of “Guarantee”.
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).
Pro Forma Basis” means, with respect to compliance with any test or covenant hereunder, compliance with such covenant or test after giving effect to any proposed incurrence of Indebtedness, Permitted Acquisition, Asset Sale (which relates to assets meeting the definition of clause (c) of the definition of “Investments”), the making of any Restricted Payment, Investment, Disposition or any designation of any Restricted Subsidiary as an Unrestricted Subsidiary or any Subsidiary Redesignation (including pro forma adjustments arising out of events which are directly attributable to the
40



proposed transaction, are factually supportable and are expected to have a continuing impact, in each case which adjustments (a) are based on reasonably detailed written assumptions reasonably acceptable to the Administrative Agent and (b) are certified by a Responsible Officer of ESI as having been prepared in good faith based upon reasonable assumptions) or other payment or event subject to a test or covenant hereunder using, for purposes of determining such compliance, the historical financial statements of all entities or assets so acquired, sold or otherwise tested hereunder, or to be acquired, sold or tested hereunder, and the consolidated financial statements of ESI and its Restricted Subsidiaries which shall be reformulated as if such transaction or other event subject to testing, and any other such transactions or events subject to testing that have been consummated or occurred during the period, and any Indebtedness or other liabilities incurred in connection with any such Permitted Acquisitions had been consummated and incurred at the beginning of such period.
Pro Forma Compliance” means, at any date of determination, that ESI shall be in pro forma compliance with the covenant set forth in Section 8.10 to the extent (unless otherwise stated herein to the contrary) that such covenant shall be applicable to ESI at such time, as of the last day of the most recent fiscal quarter end (computed on the basis of (a) balance sheet amounts as of the most recently completed fiscal quarter, and (b) income statement amounts for the most recently completed period of four consecutive fiscal quarters, in each case, for which financial statements shall have been delivered to the Administrative Agent and calculated on a Pro Forma Basis in respect of the event giving rise to such determination).
Pro Forma Financial Statements” means a pro forma consolidated balance sheet and related pro forma consolidated income statement of ESI and its Restricted Subsidiaries as of and for the 12-month period ending on the last day of the most recently completed four-fiscal quarter period ended for which Unaudited Financial Statements or Audited Financial Statements have been delivered, prepared after giving effect to the Transactions and the tender offer and/or redemption of the 2022 Senior Notes and the 2023 Senior Notes as if such transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).
Pro Rata Share” means, (a) with respect to each Term Loan Lender at any time, a percentage (carried out to the ninth decimal place) of the principal amount of the Term Loans or any Tranche of Term Loans, as the case may be, funded by such Term Loan Lender and (b) with respect to each Revolving Credit Lender with respect to the Revolving Credit Loans, or any Tranche thereof, at any time, a percentage (carried out to the ninth decimal place), the numerator of which is the amount of the Revolving Credit Commitment of such Revolving Credit Lender at such time and the denominator of which is the amount of the Total Revolving Credit Commitments at such time; provided that if the commitment of each Revolving Credit Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02, then the Pro Rata Share of each Revolving Credit Lender shall be determined based on the Pro Rata Share of such Revolving Credit Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof. The initial Pro Rata Share of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
property” means any right, title or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible and including Equity Interests or other ownership interests of any Person and whether now in existence or owned or hereafter entered into or acquired, including all Real Property.
41



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.
Public Lender” has the meaning specified in Section 7.02.
QFC” has the meaning specified in Section 11.25(b).
QFC Credit Support” has the meaning specified in Section 11.25.
Qualified ECP Guarantor” means, in respect of any Swap Obligations, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes 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” means, collectively, all right, title and interest (including any leasehold, mineral or other estate) in and to any and all parcels of or interests in Real Property owned, leased or operated by any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.
Receivables Facility” means any of one or more receivables financing facilities, as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the Obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to ESI or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which ESI or any of its Restricted Subsidiaries sells its accounts receivable to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary that in turn sells its accounts receivable to a Person that is not a Restricted Subsidiary.
Receivables Subsidiary” means any Subsidiary formed for the purpose of, and that solely engages only in one or more Receivables Facilities and other activities reasonably related thereto.
Recovery Event” means any settlement of or payment in respect of any property or casualty insurance claim or any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of ESI or any of its Restricted Subsidiaries (excluding, in each case, business interruption insurance claims) provided that any recovery event described above having a value not in excess of $5,000,000 in any single transaction or series of related transactions shall be deemed not to be a “Recovery Event” for purposes of this Agreement.
Reference Date” has the meaning specified in the definition of “Available Amount”.
Refinanced Debt” has the meaning specified in the definition of “Credit Agreement Refinancing Indebtedness.”
Refinanced Indebtedness” has the meaning specified in the definition of “Permitted Refinancing Indebtedness.”
42



Refinancing Incremental Revolving Credit Commitments” has the meaning assigned to such term in Section 2.14(a).
Refinancing Incremental Term Loans” has the meaning assigned to such term in Section 2.14(a).
Register” has the meaning set forth in Section 11.06(c).
Regulation” means the Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings.
Reinvestment Period” has the meaning specified in the definition of “Net Cash Proceeds”.
Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, trustees, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials into or through the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Materials), including the movement of any Hazardous Materials through the air, soil, surface water or groundwater.
Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.
Repricing Transaction” means the prepayment, refinancing, substitution or replacement of all or a portion of the Tranche B-1 Term Loans with the incurrence by any Borrower or any Restricted Subsidiary of any new or replacement tranche of term loans bearing interest at an “effective” interest rate (with the comparative determinations to be made by the Administrative Agent consistent with generally accepted financial practices, after giving effect to, among other factors, margin, interest rate floors, upfront or similar fees or original issue discount shared with all providers of such financing, but excluding the effect of any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all providers of such bank loans, and without taking into account any fluctuations in the Adjusted Eurocurrency Rate) that is less than the “effective” interest rate (as determined by the Administrative Agent on the same basis) of such Tranche B-1 Term Loans, including as may be effected through any amendment to this Agreement relating to the “effective” interest rate of such Tranche B-1 Term Loans.
Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Committed Loan Notice and (b) with respect to an L/C Credit Extension, a Letter of Credit Application.
Required Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of (a) the Term Loans, (b) the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Lender for purposes of this definition) and (c) the aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and the portion of the Total Outstandings
43



held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
Required Prepayment Percentage” means (a) in the case of any Asset Sale or Recovery Event, 100% or, if on the date of the applicable prepayment, the First Lien Net Leverage Ratio is less than or equal to 1.75 to 1.00 but greater than 1.25 to 1.00, 50%, or if on the date of the applicable prepayment, the First Lien Net Leverage Ratio is less than or equal to 1.25 to 1.00, 0%; (b) in the case of any issuance or other incurrence of Indebtedness (except as incurred pursuant to Section 8.02), 100%; (c) in the case of any Excess Cash Flow, 50%, or, if on the date of the applicable prepayment, the First Lien Net Leverage Ratio is less than or equal to 3.00 to 1.00 but greater than 2.50 to 1.00, 25%, or if on the date of the applicable prepayment, the First Lien Net Leverage Ratio is less than or equal to 2.50 to 1.00, 0%; and (d) in the case of any Permitted Sale Leaseback Transaction, 100%.
Responsible Officer” means the chief executive officer, president, chief financial officer, chief operating officer, treasurer or assistant treasurer or corporate secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
Restricted Group” means, collectively, ESI and the Restricted Subsidiaries.
Restricted Payment” means (a) any dividend or other payment or distribution (except dividends or distributions payable solely in shares of such Person’s common stock or to any Borrower or any of its Restricted Subsidiaries) with respect to any capital stock or other Equity Interest of ESI or any of its Restricted Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest (other than any such capital stock or other Equity Interests owned by any Borrower or any of its Restricted Subsidiaries), or on account of any return of capital to the stockholders, partners or members (or the equivalent Persons thereof) of any Borrower or any of its Restricted Subsidiaries, (b) any Investment other than a Permitted Investment and (c) any prepayment, redemption, purchase, defeasance or other satisfaction prior to the scheduled maturity thereof in any manner, or payment in violation of any applicable subordination terms, in each case, with respect to (i) any Indebtedness that is secured by a second priority Lien on the assets of ESI or any of its Restricted Subsidiaries and (ii) any Indebtedness that is subordinated in right of payment to the Obligations.
Restricted Subsidiary” means any Subsidiary of ESI that is not an Unrestricted Subsidiary.
Retained Declined Proceeds” has the meaning specified in Section 2.05(b)(vii).
Revolving Credit Borrowing” means an Initial Revolving Credit Borrowing or any borrowing under any Extended Revolving Credit Tranche consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period.
Revolving Credit Commitment” means the Initial Revolving Credit Commitment and any Extended Revolving Credit Commitments, as the context may require, and “Revolving Credit Commitments” means all of them, collectively.
44



Revolving Credit Facility means the Initial Revolving Credit Facility and any Extended Revolving Credit Facility, as the context may require.
Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit Commitment or an outstanding Revolving Credit Loan at such time.
Revolving Credit Loan” means the Initial Revolving Credit Loans and any Extended Revolving Credit Loans, as the context may require.
Revolving Credit Maturity Date” means, with respect to any Initial Revolving Credit Loan, the Initial Revolving Credit Maturity Date, and with respect to any Revolving Credit Loan under any Extended Revolving Credit Tranche, the earlier of the maturity date set forth in the applicable Extension Amendment and the date of termination in whole of the Extended Revolving Credit Commitments in respect of such Extended Revolving Credit Tranche and the Letter of Credit Commitments pursuant to Section 2.06 or 9.02.
Revolving Credit Note” has the meaning specified in Section 2.11(a).
S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.
Sanctioned Country” means any country or territory that may, from time to time, be the target of Sanctions (presently, Cuba, Iran, North Korea, Syria, or the Crimea region of Ukraine).
Sanctioned Person” means any Person that is the target of Sanctions, including: (a) any Person listed in any list of designated Persons maintained by OFAC or other applicable U.S. or non-U.S. authority under Sanctions; (b) any Person 50% or more owned or, where relevant under applicable Sanctions, controlled by any such Person or Persons or acting for or on behalf of such Person; or (c) any person organized or ordinarily resident in a Sanctioned Country.
Sanctions” means comprehensive 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 OFAC, 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, or any Governmental Authority succeeding to any of its principal functions.
Second Lien Indebtedness” has the meaning specified in Section 8.01(h).
Section 2.16 Additional Amendment” has the meaning specified in Section 2.16(c).
Secured Hedge Agreement” means any Swap Contract that is entered into by and between any Loan Party and any Hedge Bank.
Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Syndication Agent, the Lenders, the L/C Issuers, the Hedge Banks, the Lender Counterparties, each co-agent or sub-agent appointed by the Agents from time to time pursuant to Section 10.01(b) and any other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.
45



Secured Treasury Management Agreement” any Treasury Management Agreement that is entered into by and between any Loan Party and any Lender Counterparty.
Senior Secured Net Leverage Ratio” means as of any date of determination, the ratio of (a) Consolidated Senior Secured Debt as of such date minus the unrestricted cash and Cash Equivalents of ESI and its Restricted Subsidiaries as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ending on such date.
Significant Subsidiary” means, at any date of determination, any Restricted Subsidiary that, either individually or together with its subsidiaries which qualify as Restricted Subsidiaries, taken as a whole, has (a) revenues in an amount equal to at least 10% of the consolidated revenues of ESI and its Restricted Subsidiaries for the most recently completed fiscal quarter for which the Lenders have received financial statements of ESI and its Restricted Subsidiaries pursuant to Section 7.01(a) or 7.01(b), (b) assets in an amount equal to at least 10% of the Consolidated Total Assets of ESI and its Restricted Subsidiaries as of the last day of the most recently completed fiscal quarter for which the Lenders have received financial statements of ESI and its Restricted Subsidiaries pursuant to Section 7.01(a) or 7.01(b), or (c) earnings in an amount equal to at least 10% of the consolidated net earnings of ESI and its Restricted Subsidiaries for the most recently completed fiscal quarter for which the Lenders have received financial statements of ESI and its Restricted Subsidiaries pursuant to Section 7.01(a) or 7.01(b), in each case determined in accordance with GAAP for such period.
Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
SPC” has the meaning specified in Section 11.06(b)(vii).
Specified Existing Tranche” has the meaning specified in Section 2.16(a).
Statutory Reserves” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board of Governors of the Federal Reserve System of the United States of America and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Eurocurrency Rate Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
46



Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrowers.
Subsidiary Guarantor” means, collectively, the Restricted Subsidiaries listed on Schedule 1.01(f) and each other Restricted Subsidiary that shall be required to execute and deliver a Subsidiary Joinder Agreement pursuant to Section 7.12.
Subsidiary Joinder Agreement” means a joinder agreement substantially in the form of Exhibit G or such other form approved by the Administrative Agent, executed and delivered by a Restricted Subsidiary in accordance with the provisions of Section 7.12.
Subsidiary Redesignation” has the meaning set forth in the definition “Unrestricted Subsidiary”.
Supported QFC” has the meaning specified in Section 11.25.
Survey” means a survey of any Mortgaged Property (and all improvements thereon) which is (a) (i) prepared by a surveyor or engineer licensed to perform surveys in the jurisdiction where such Mortgaged Property is located, (ii) dated (or redated) not earlier than six months prior to the date of delivery thereof unless there shall have occurred within six months prior to such date of delivery any exterior construction on the site of such Mortgaged Property or any easement, right of way or other interest in the Mortgaged Property has been granted or become effective through operation of law or otherwise with respect to such Mortgaged Property which, in either case, can be depicted on a survey, in which events, as applicable, such survey shall be dated (or redated) after the completion of such construction or if such construction shall not have been completed as of such date of delivery, not earlier than 20 days prior to such date of delivery, or after the grant or effectiveness of any such easement, right of way or other interest in the Mortgaged Property, (iii) certified by the surveyor (in a manner reasonably acceptable to the Administrative Agent) to the Administrative Agent, the Collateral Agent and the Title Company, (iv) complying in all material respects with the minimum detail requirements of the American Land Title Association as such requirements are in effect on the date of preparation of such survey and (v) sufficient for the Title Company to remove all standard survey exceptions from the title insurance policy (or commitment) relating to such Mortgaged Property and issue the endorsements of the type required by Section 7.12(b) or (b) otherwise reasonably acceptable to the Collateral Agent.
Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate swaps and options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the
47



International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
Swap Obligation” means, with respect to any Borrower or Restricted Subsidiary, 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.
Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
Syndication Agent” has the meaning specified in the preamble hereto.
Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“Target Operating Day” means any date that is not (a) a Saturday or Sunday, (b) Christmas Day or New Year’s Day or (c) any other day on which the Trans-European Real-time Gross Settlement Express Transfer payment system (or any successor settlement system) is not operating (as determined by the Administrative Agent).
Tax Compliance Certificate” has the meaning specified in Section 11.14(a).
Taxes” has the meaning specified in Section 3.01(a).
Term Loan” means a Tranche B-1 Term Loan, a New Term Loan and/or an Extended Term Loan, as the context may require.
Term Loan Borrowing” means a Borrowing comprised of Tranche B-1 Term Loans or New Term Loans, as the context may require.
Term Loan Commitment” means a Tranche B-1 Commitment or a New Term Loan Commitment, as the context may require.
Term Loan Facility” means the Tranche B-1 Term Loan Facility or any New Term Loan Facility, as the context may require.
Term Loan Lender” means a Tranche B-1 Term Loan Lender or a Lender in respect of a New Term Loan Facility, as the context may require.
48



Term Loan Maturity Date” means the Tranche B-1 Loan Maturity Date, the New Term Loan Maturity Date or, with respect to any Extended Term Loan, the maturity date set forth in the applicable Extension Amendment, as the case may be.
Term Loan Note” has the meaning specified in Section 2.11(a).
Test Period” means a period of four consecutive fiscal quarters.
Threshold Amount” means $100,000,000.
Title Company” means Chicago Title Insurance Company or any other title insurance company as shall be retained by Borrowers and reasonably acceptable to the Administrative Agent.
Title Policy” shall have the meaning assigned to such term in Section 7.12(b)(i).
Total Net Leverage Ratio” shall mean, on any date of determination, the ratio of (a) Consolidated Indebtedness on such date minus the unrestricted cash and Cash Equivalents of the Borrowers and the Restricted Subsidiaries as of such date to (b) Consolidated EBITDA for the period of four fiscal quarters most recently ending on such date.
Total Outstandings” means the aggregate Outstanding Amount of all Revolving Credit Loans and all L/C Obligations.
Total Revolving Credit Commitment” means, at any time, the aggregate amount of the Revolving Credit Commitments, as in effect at such time. The Total Revolving Credit Commitment on the Closing Date is $330,000,000.
Tranche” means (a) with respect to Term Loans or commitments, refers to whether such Term Loans or commitments are (1) Tranche B-1 Term Loans or Tranche B-1 Term Loan Commitments, (2) New Term Loans with the same terms and conditions made on the same day and increased from time to time or (3) Extended Term Loans (of the same Extension Series) and (b) with respect to Revolving Credit Loans or commitments, refers to whether such Revolving Credit Loans or commitments are (1) Initial Revolving Credit Commitments or Initial Revolving Credit Loans or (2) Extended Revolving Credit Loans or Extended Revolving Credit Commitments (of the same Extension Series).
Tranche B-1 Term Loan” has the meaning specified in Section 2.01.
Tranche B-1 Term Loan Commitment” means, as to each Tranche B-1 Term Loan Lender, its obligation to make Tranche B-1 Term Loans to the Borrowers (i) pursuant to Amendment No. 1 on the Amendment No. 1 Funding Date in an aggregate principal amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Tranche B-1 Term Loan Commitment”, (ii) in the Assignment and Assumption pursuant to which such Lender becomes a party hereto and (iii) pursuant to Section 2.14 in an aggregate principal amount at any one time outstanding not to exceed the amount agreed to by such Lender in compliance with Section 2.14, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of Tranche B-1 Term Loan Commitments on the Amendment No. 1 Funding Date is $744,375,000.
Tranche B-1 Term Loan Facility” has the meaning specified in the definition of “Facility”.
49



Tranche B-1 Term Loan Lender” means, at any time, any Lender that has a Tranche B-1 Term Loan Commitment or an outstanding Tranche B-1 Term Loan at such time.
Tranche B-1 Term Loan Maturity Date” means the date that is seven years after the Closing Date, which date is January 31, 2026.
Transactions” means (a) the borrowing of the Loans on the Closing Date, (b) the Arysta Sale and (c) the Existing Credit Agreement Refinancing and the payment of fees, costs and expenses in connection therewith.
Treasury Management Agreement” means any agreement governing the provision of treasury or cash management services, including deposit accounts, pool accounts, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation, credit cards and reporting and trade finance services.
Triggering Event” shall have the meaning set forth in Section 8.10(a).
Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.
U.S. Special Resolution Regimes” has the meaning specified in Section 11.25.
Unaudited Financial Statements” means the unaudited consolidated balance sheet of ESI and its then Restricted Subsidiaries for the fiscal quarters ended March 31, 2018, June 30, 2018 and September 30, 2018 and each subsequent fiscal quarter ended at least 45 days prior to the Closing Date, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter of ESI and its Restricted Subsidiaries.
Uniform Commercial Code” and “UCC” mean (i) the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or (ii) the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral. References in this Agreement and the other Loan Documents to specific sections of the Uniform Commercial Code are based on the Uniform Commercial Code as in effect in the State of New York on the Closing Date. In the event such Uniform Commercial Code is amended or another Uniform Commercial Code described in clause (ii) is applicable, such section reference shall be deemed to be references to the comparable section in such amended or other Uniform Commercial Code.
United States” and “U.S.” mean the United States of America.
Unreimbursed Amount” has the meaning set forth in Section 2.03(c)(i).
Unrestricted Subsidiary” means (a) any Subsidiary of ESI designated by ESI as an Unrestricted Subsidiary hereunder by written notice to the Administrative Agent; provided that ESI shall only be permitted to so designate an Unrestricted Subsidiary after the Closing Date and so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) immediately after giving effect to such designation, ESI shall be in Pro Forma Compliance with the financial covenant set forth in Section 8.10 (whether or not such covenant is then applicable), (iii) such Unrestricted Subsidiary shall be capitalized (to the extent capitalized by ESI or any of its Restricted Subsidiaries) through Investments as permitted by, and in compliance with, Section 8.05, (iv) without duplication of clause (iii), any assets owned by such Unrestricted Subsidiary at the time of the initial designation thereof
50



shall be treated as Investments pursuant to Section 8.05, and (v)  ESI shall have delivered to the Administrative Agent a certificate executed by a Responsible Officer of ESI, certifying compliance with the requirements of preceding clauses (i) through (v), and containing the calculations required by the preceding clause (ii) and (b) any Subsidiary of an Unrestricted Subsidiary. ESI may designate any Unrestricted Subsidiary to be a Restricted Subsidiary for purposes of this Agreement by written notice to the Administrative Agent (each, a “Subsidiary Redesignation”); provided that (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) immediately after giving effect to such Subsidiary Redesignation, ESI shall be in Pro Forma Compliance with the financial covenant set forth in Section 8.10 (whether or not such covenant is then applicable), (C) any Indebtedness of the applicable Subsidiary and any Liens encumbering its property existing as of the time of such Subsidiary Redesignation shall be deemed newly incurred or established, as applicable, at such time, and (D) ESI shall have delivered to the Administrative Agent a certificate executed by a Responsible Officer of ESI, certifying compliance with the requirements of preceding clauses (A) and (B), and containing the calculations required by the preceding clause (B). Notwithstanding the foregoing, any Unrestricted Subsidiary that has been re-designated a Restricted Subsidiary may not be subsequently re-designated as an Unrestricted Subsidiary. No Borrower may be designated as an Unrestricted Subsidiary. No Unrestricted Subsidiary shall own any intellectual property that is used in and material to the operation of the business of any of the Loan Parties. Notwithstanding any provision of the Loan Documents, actions taken directly by an Unrestricted Subsidiary will not be deemed to have been taken, directly or indirectly, by ESI or any Restricted Subsidiary.
US Borrower” means any Borrower that is treated as a United States person within the meaning of Section 7701(a)(30) of the Code.
US LIBO Rate” has the meaning assigned to such term in the definition of “Eurocurrency Rate”.
Valuation Date” means (i) in connection with borrowing any Revolving Credit Loan, the date two Business Days prior to the making, continuing or converting of any Revolving Credit Loan and (ii) in connection with the repayment of any Revolving Credit Loan, the date of such repayment.
Voluntary Prepayment” means a prepayment of principal of Term Loans pursuant to Section 2.05(a) in any year to the extent that such prepayment reduces the scheduled installments of principal due in respect of Term Loans as set forth in Section 2.07 in any subsequent year.
Wholly-Owned Restricted Subsidiary” means any Restricted Subsidiary all of the Equity Interests in which (except directors’ qualifying shares and as a result of the PDH Minority Interest) are, at the time, directly or indirectly owned by ESI.
Write-Down and Conversion Powers” means, 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.
Yen” and the symbol “¥” means the lawful currency of Japan.
Yield” means, with respect to any Term Loan or New Term Loan, as the case may be, on any date of determination as reasonably determined by the Administrative Agent in consultation with ESI and consistent with generally accepted financial practices, the sum of (x) any interest rate margin applicable to such Indebtedness and (y) if such Indebtedness is initially issued at a discount or the lenders
51



making the same receive up-front fees (other than customary arrangements and commitment fees and, if applicable, consent fees for amendments) directly or indirectly from or on behalf of the borrower thereunder for doing so (the amount of such discount or fee, expressed as a percentage of the applicable Indebtedness, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Indebtedness and (B) four.
Yield Differential” has the meaning specified in Section 2.14(d).
1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b)(i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.
(iii) The term “including” is by way of example and not limitation.
(iv) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
(c) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(d) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms. (a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either ESI or the Required Lenders shall so request, the Administrative Agent, the Lenders and ESI shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) ESI shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of
52



such ratio or requirement made before and after giving effect to such change in GAAP. Any change in GAAP occurring after, but not including, December 31, 2018 that would require on or after January 1, 2019 a lease liability of ESI for operating leases to be treated as a capital lease or an on-balance sheet asset or on-balance sheet liability shall be disregarded for the purposes of determining Indebtedness and any financial ratio or compliance or covenant requirement contained in any Loan Document.
1.04 Rounding. Any financial ratios required to be maintained by ESI pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.05 References to Agreements and Laws. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.
1.06 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
1.07 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the available amount of such Letter of Credit at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum available amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum amount may be drawn immediately at such time.
1.08 Conversion of Foreign Currencies
(a)Consolidated Indebtedness. Consolidated Indebtedness denominated in any currency other than Dollars shall be calculated using the Dollar Equivalent thereof as of the date of the applicable financial statements on which such Consolidated Indebtedness is reflected.
(b)Dollar Equivalents. The Administrative Agent shall determine the Dollar Equivalent of any amount as of each Valuation Date (whether to determine compliance with any covenants specified herein or otherwise), and a determination thereof by the Administrative Agent shall be conclusive absent manifest error. Such determination shall become effective as of such Valuation Date. The Administrative Agent may, but shall not be obligated to, rely on any determination made by any Loan Party in any document delivered to the Administrative Agent. The Administrative Agent may determine or redetermine the Dollar Equivalent of any amount on any date either in its reasonable discretion or upon the reasonable request of any Lender or L/C Issuer.
(c)Rounding-Off. The Administrative Agent may set up appropriate rounding off mechanisms or otherwise round-off amounts hereunder to the nearest higher or lower amount in whole Dollar or cent to ensure amounts owing by any party hereunder or that otherwise need to be calculated or converted hereunder are expressed in whole Dollars or in whole cents, as may be necessary or appropriate.
53



1.09 Divisions. Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, Restricted Subsidiary, Unrestricted Subsidiary, joint venture or any other like term shall also constitute such a Person or entity). For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
1.10 Limited Condition Transactions. For purposes of (a) determining compliance with any provision of this Agreement which requires the calculation of the First Lien Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the Total Net Leverage Ratio or the Fixed Charge Coverage Ratio, (b) testing availability under any basket (including any basket measured as a percentage of Consolidated EBITDA or Consolidated Total Assets) or (c) determining compliance with the accuracy of any representations and warranties or the absence of any Default or Event of Default, in each case, in connection with a Limited Condition Transaction, if ESI makes an LCA Election, the date of determination for calculation of any such ratios or baskets shall be deemed to be the LCA Test Date and if, after giving pro forma effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent test period ending prior to the LCA Test Date, ESI or any Restricted Subsidiary could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if ESI has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including fluctuations in Consolidated EBITDA or Consolidated Total Assets of ESI or the target Person(s) subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If ESI has made an LCA Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Permitted Acquisition or Investment on or following the relevant LCA Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket (other than, in the period prior to funding of a Permitted Acquisition or Investment financed with any Incremental Facilities, any basket measured as a percentage of Consolidated EBITDA) shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
54



2.01 The Loans. Subject to the terms and conditions set forth herein, each Tranche B-1 Term Loan Lender severally agrees to make term loans (each such loan, a “Tranche B-1 Term Loan”) to the Borrowers on the Amendment No. 1 Funding Date in Dollars in an aggregate amount of up to such Tranche B-1 Term Loan Lender’s Tranche B-1 Term Loan Commitment. Amounts repaid or prepaid in respect of Term Loans may not be reborrowed. Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein. Subject to the terms and conditions set forth herein, each Initial Revolving Credit Lender severally agrees to make revolving loans (each such loan, an “Initial Revolving Credit Loan”) in Dollars or an Alternative Currency to a Borrower from time to time, on any Business Day during the Initial Availability Period, in an aggregate amount up to, at any time outstanding, such Initial Revolving Credit Lender’s Initial Revolving Credit Commitment; provided, however, that after giving effect to any Revolving Credit Borrowing, the Total Outstandings shall not exceed the Total Revolving Credit Commitments. Within the limits of each Revolving Credit Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, a Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Revolving Credit Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein. Each Revolving Credit Borrowing (including any deemed Revolving Credit Borrowings made pursuant to Section 2.03) shall be allocated pro rata among the outstanding Tranches of Revolving Credit Commitments.
2.02 Borrowings, Conversions and Continuations of Loans.
55



(a) (1) Except as set forth below in clause (2) with respect to Revolving Credit Loans that are Eurocurrency Rate Loans and New Term Loans, in each case denominated in a currency other than Dollars, each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon any Borrower’s irrevocable notice to the Administrative Agent; provided that such notice may state that such notice is conditioned upon the receipt of proceeds of any refinancing facilities, the effectiveness of other credit facilities or the consummation of an acquisition or sale, in which case such notice may be revoked by the Borrower by notice to the Administrative Agent on or prior to the specified effective date if such condition is not satisfied. Each such notice must be received by the Administrative Agent not later than (i) 12:00 p.m. on the second Business Day prior to the date of the proposed Loans in the case of Eurocurrency Rate Loans or (ii) 11:00 a.m. on the same Business Day of the proposed Loans in the case of Base Rate Loans. The applicable Borrower shall deliver such notice to the Administrative Agent in the form of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the applicable Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Committed Loan Notice shall specify (i) whether such Borrower is requesting a Borrowing of Term Loans, a Revolving Credit Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued and location of the account to which funds are to be disbursed, (iv) the Type of Loans to be borrowed or to which existing Tranche are to be converted, (v) if such Borrowing is a Revolving Credit Borrowing, whether such Borrowing is in Dollars, Yen, Pounds Sterling or Euro and (vi) if applicable, the duration of the Interest Period with respect thereto. If such Borrower fails to specify a Type of Loan in a Committed Loan Notice or if such Borrower fails to give a timely notice requesting a conversion or continuation, then Loans (other than Loans denominated in an Alternative Currency) shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If such Borrower fails to specify an Interest Period with respect to a Eurocurrency Rate Loan, it will be deemed to have specified an Interest Period of one month.
(2) Each Borrowing and each continuation of Revolving Credit Loans that are Eurocurrency Rate Loans and New Term Loans, in each case denominated in a currency other than Dollars, shall be made upon any Borrower’s irrevocable notice to the Administrative Agent. Each such notice must be received by the Administrative Agent not later than 12:00 p.m. on the fourth Business Day prior to the date of the proposed borrowing or continuation of such Eurocurrency Rate Loans; provided, that in the case of a Borrowing or continuation of Revolving Credit Loans in Yen, such notice must be received by the Administrative Agent not later than 2:00 p.m. on the fourth Business Day prior to the date of the proposed borrowing or continuation of such Eurocurrency Rate Loans. Each Borrowing of or continuation of such Eurocurrency Rate Loans shall be in a principal amount that is not less than the Minimum Eurocurrency Borrowing Amount.
(b)Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each applicable Lender of the amount of its Pro Rata Share of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the applicable Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in Section 2.02(a). Each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02, the Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent by wire transfer of such funds, in accordance with instructions provided to the Administrative Agent by such Borrower in the Committed Loan Notice.
(c)Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. Upon notice ESI from the Administrative Agent given at the request of the Required Lenders, during the existence of a Default, Loans may not be requested as, converted to or continued as Eurocurrency Rate Loans without the consent of the Required Lenders; provided, however, that Revolving Credit Loans may be continued as Eurocurrency Rate Loans with an Interest Period of one month.
(d)The Administrative Agent shall promptly notify the Borrowers and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. The determination of the Eurocurrency Rate and the Adjusted Eurocurrency Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrowers and the Lenders of any change in the Prime Rate used in determining the Base Rate promptly following the announcement of such change.
(e)After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than 10 Interest Periods in effect.
(f)The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
56



2.03 Letters of Credit.
(a)The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon (among other things) the agreements of the other Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until 30 days prior to the Initial Revolving Credit Maturity Date (or, if such day is not a Business Day, the next preceding Business Day), to issue Letters of Credit denominated in Dollars for the account of each Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the account of each Borrower or any of its Wholly-Owned Restricted Subsidiaries on a pro rata basis in accordance with their respective Pro Rata Share of the Total Revolving Credit Commitments; provided that, on the Closing Date, the aggregate amount of any Existing Letters of Credit shall be reallocated among the Revolving Credit Lenders so that, after giving effect thereto, the Revolving Credit Lenders shall share ratably participations in such Letters of Credit in accordance with their Pro Rata Share of the Revolving Credit Commitment (after giving effect to any L/C Credit Extension and expiration of any Letter of Credit on the Closing Date); provided, further, that any Letter of Credit issued on behalf of any Restricted Subsidiary of ESI shall be issued naming ESI as the account party on any such Letter of Credit, but such Letter of Credit may contain a statement that it is being issued for the benefit of such Restricted Subsidiary; provided, further, that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Revolving Credit Lender shall be obligated to participate in any Letter of Credit if, as of the date of such L/C Credit Extension, (w) the amount available to be drawn under Letters of Credit issued by such L/C Issuer would exceed such L/C Issuer’s Pro Rata Share of the Letter of Credit Sublimit, (x) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender plus such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations would exceed such Revolving Credit Lender’s Revolving Credit Commitment, (y) the Total Outstandings would exceed the Total Revolving Credit Commitments or (z) the Outstanding Amount of all L/C Obligations would exceed the Letter of Credit Sublimit. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by a Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the first proviso in the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, each Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly each such Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss,
57



cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than 12 months after the date of issuance or last extension (or as otherwise agreed by the Administrative Agent and such L/C Issuer);
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all of the Lenders have approved such expiry date or the L/C Issuer has approved such expiry date and such requested Letter of Credit has been Cash Collateralized by the applicant requesting such Letter of Credit in accordance with Section 2.03(g) at least five Business Days prior to the Letter of Credit Expiration Date;
(D) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer;
(E) except as otherwise agreed by the applicable L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000;
(F) any Lender is at such time a Defaulting Lender hereunder, unless such L/C Issuer has entered into satisfactory arrangements with the Borrowers or such Lender to eliminate such L/C Issuer’s risk with respect to such Lender or reallocate such risk pursuant to Section 2.15(a)(v); or
(G) if it is determined that the applicant or the account party or the beneficiary of the Letter of Credit is considered an “affiliate” of L/C Issuer as such term is defined in Regulation W of the Federal Reserve.
(iii) No L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(iv) Each L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Agents in Article X with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Agents” as used in Article X included the L/C Issuers with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuers.
(b)Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit.
58



(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of each Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application and including agreed-upon draft language for such Letter of Credit reasonably acceptable to the applicable L/C Issuer, appropriately completed and signed by a Responsible Officer of the applicable Borrower. Such Letter of Credit Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 1:00 p.m. at least three Business Days (or such later date and time as the applicable L/C Issuer may agree in a particular instance in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be; provided that with respect to any Letter of Credit to be requested to Nomura Corporate Funding Americas, LLC, such Letter of Credit Application must be received by Nomura Corporate Funding Americas, LLC not later than 1:00 p.m. at least five Business Days prior to the proposed issuance date of date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and requested currency thereof and the absence of specification of currency shall be deemed a request for a Letter of Credit denominated in Dollars; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the applicable L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the applicable L/C Issuer may reasonably require. Additionally, the Borrowers shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the applicable L/C Issuer or the Administrative Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by such L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of such Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Letter of Credit.