columbusmckinnon-commitm






Execution Version  JPMORGAN CHASE BANK, N.A.   383 Madison Avenue   New York, New York 10179  March 1, 2021  Columbus McKinnon Corporation  205 Crosspoint Parkway  Getzville, New York  14068   Attention: Greg Rustowicz  Commitment Letter  Ladies and Gentlemen:  You have advised JPMorgan Chase Bank, N.A. (“JPMorgan”, the “Commitment Party”, “us” or  “we”) that Columbus McKinnon Corporation, a New York corporation (“you” or the “Company”) intends  to acquire, directly or indirectly through a wholly-owned subsidiary, all of the capital stock of the company  you have identified to us as “Dorner” (the “Target”) and consummate the other transactions described on  Exhibit A hereto (the “Transactions”).  Capitalized terms used but not defined herein are used with the  meanings assigned to them on the Exhibits attached hereto (such Exhibits, together with this letter,  collectively, the “Commitment Letter”).    1. Commitments  In connection with the Transactions, JPMorgan is pleased to advise you of its commitment to  provide, and hereby commits to provide, 100% of the aggregate amount of the First Lien Facilities (together  with any other credit facilities the proceeds of which are used to finance the transactions on terms to be  agreed, the “Senior Secured Facilities”), upon the terms and conditions set forth in this letter and Exhibits  B and C hereto (collectively, the “Term Sheets”).   2. Titles and Roles   It is agreed that:  (a) (i) JPMorgan will act as sole lead arranger and sole bookrunner for the First Lien Facilities  and any other credit facilities the proceeds of which are used to finance the transactions on terms to be  agreed (acting in such capacities, the “First Lien Lead Arranger”); provided that the Company agrees that  JPMorgan may perform its responsibilities hereunder through its affiliate, J.P. Morgan Securities LLC  (“JPMS”) and (ii) JPMorgan (and as applicable, any of JPMorgan’s designated affiliates, including, without  limitation, J.P. Morgan AG) will act as sole administrative agent for the First Lien Facilities (acting is such  capacity, the “First Lien Administrative Agent”); and  (b) JPMorgan will have “left” placement in any marketing materials or other documentation  used in connection with the Senior Secured Facilities.  Notwithstanding the foregoing, you may, on or prior to the date which is twenty (20) business days  after the date of this Commitment Letter, appoint additional agents, co-agents, lead arrangers, bookrunners,  managers or arrangers (any such agent, co-agent, lead arranger, bookrunner, manager or arranger, an  “Additional Agent”) or confer other titles (other than Administrative Agent or Collateral Agent) in respect  





 






2  of any Senior Secured Facility in a manner determined by you and the First Lien Lead Arranger, and having  aggregate economics not in excess of 40% of the economics of the First Lien Term Facility (it being  understood that, (x) each such Additional Agent (or its affiliate) shall assume a proportion of the  commitments with respect to the First Lien Term Facility that is equal to the proportion of the economics  allocated to such Additional Agent (or its affiliates), (y) to the extent you appoint Additional Agents or  confer other titles in respect of any Senior Secured Facility, the economics allocated to, and the commitment  amounts of, the relevant initial lenders in respect of the First Lien Term Facility will be proportionately  reduced by the amount of the economics allocated to, and the commitment amount of, such Additional  Agent (or its affiliate), in each case upon the execution and delivery by such Additional Agent of customary  joinder documentation acceptable to you and, thereafter, each such Additional Agent shall constitute a  “Commitment Party,” and/or “First Lien Lead Arranger”, as applicable, under this Commitment Letter and  under the Arranger Fee Letter delivered in connection herewith) and (z) in no event shall the Commitment  Party party to this Commitment Letter as of the date hereof (the “Initial Commitment Parties”), be entitled  to less than 60% of the aggregate economics of the First Term Loan Facility and 100% of the aggregate  economics of the Revolving Facility (exclusive of the fees set forth in the Administrative Agent Fee Letter).  3. Syndication  We intend to syndicate the Senior Secured Facilities to a group of lenders identified by us in  consultation with you (together with JPMorgan, the “Lenders”). The Commitment Party intends to  commence syndication efforts promptly, and you agree actively to assist (and to use your commercially  reasonable efforts to cause the Target to actively assist) the Commitment Party in completing a syndication  satisfactory to the Commitment Party. Such assistance shall include, prior to the earlier of (a) 120 days  following the Closing Date and (b) the date on which a Successful Syndication (as defined in the Arranger  Fee Letter) is achieved (A) your using commercially reasonable efforts to ensure that the syndication efforts  benefit from your and your affiliates’, the Target’s and the Target’s affiliates’ existing banking relationships,  (B) direct contact between your senior management and advisors and the proposed Lenders (and using your  commercially reasonable efforts to ensure such contact between senior management of the Target and the  proposed Lenders), (C) your preparing and providing to the Commitment Party all information, including  financial information, with respect to you and your subsidiaries (and using your commercially reasonable  efforts to cause the Target to prepare and provide information, including financial information, with respect  to the Target and its subsidiaries) and the Acquisition, including Projections (as defined below), as the  Commitment Party may reasonably request in connection with the arrangement and syndication of the Senior  Secured Facilities and your assistance (and using your commercially reasonable efforts to cause the Target  to assist) in the preparation of one or more confidential information memoranda (each, a “Confidential  Information Memorandum”) and other marketing materials to be used in connection with the syndication  (all such information, memoranda and material, “Information Materials”), (D) your hosting, with the  Commitment Party, of one or more meetings of prospective Lenders at times and locations to be mutually  agreed (and using your commercially reasonable efforts to cause the officers of the Target to be available for  such meetings), (E) your using your commercially reasonable efforts to obtain (x) indicative corporate credit  and/or corporate family ratings for you (after giving effect to the Transactions) and (y) ratings for the Senior  Secured Facilities, in each case from each of Moody’s Investors Service, Inc. (“Moody’s”) and Standard &  Poor’s Financial Services LLC (“S&P”) as soon as practicable and in any event prior to the commencement  of syndication of the Senior Secured Facilities, and (F) your ensuring that there is no competing offering,  placement, arrangement or syndication of any debt securities or bank financing (other than the Senior  Secured Facilities) or announcement thereof by or on behalf of you or your subsidiaries. Upon the request  of the Commitment Party, you will use your commercially reasonable efforts to furnish and to cause the  Target to furnish, for no fee, to the Commitment Party an electronic version of your or Target’s, as applicable,  trademarks, service marks and corporate logos for use in marketing materials for the purpose of facilitating  the syndication of the Senior Secured Facilities (the “License”), including for purposes of posting copies  thereof to a deal site on IntraLinksTM, DebtDomain, SyndTrak, ClearPar or any other electronic platform  





 






3  chosen by the Commitment Party to be its electronic transmission system (an “Electronic Platform”);  provided, however, that the License shall be used solely for the purpose described above and may not be  assigned or transferred.  You also understand and acknowledge that we may provide to market data  collectors, such as league table, or other service providers to the lending industry, information regarding the  closing date, size, type, purpose of, and parties to, the Senior Secured Facilities.  Notwithstanding any other provision of this Commitment Letter to the contrary and  notwithstanding any syndication, assignment or other transfer by the Commitment Party, (a) the  Commitment Party shall not be relieved, released or novated from its obligations hereunder (including its  obligation to fund its applicable percentage of any First Lien Facility on the Closing Date if the conditions  set forth on Exhibits B and C are satisfied or waived by Commitment Party) in connection with any  syndication, assignment or other transfer until after the initial funding of Commitment Party’s commitment  under such First Lien Facility on the Closing Date, (b) no such syndication, assignment or other transfer  shall become effective with respect to any portion of Commitment Party’s commitments in respect of any  First Lien Facility until the initial funding in full of such First Lien Facility on the Closing Date and (c)  unless the Borrower agrees in writing in its sole discretion, Commitment Party shall retain exclusive control  over all rights and obligations with respect to its commitments in respect of each First Lien Facility,  including all rights with respect to any consent, waiver, modification, supplement and/or amendment, until  the Closing Date has occurred.  The Commitment Party will manage, in consultation with you, all aspects of the syndication,  including decisions as to the selection of institutions to be approached and when they will be approached,  when commitments will be accepted, which institutions will participate, the allocation of the commitments  among the Lenders and the amount and distribution of fees among the Lenders. You hereby acknowledge  and agree that the Commitment Party will have no responsibility other than to arrange the syndication as set  forth herein and in no event shall the Commitment Party be subject to any fiduciary or other implied duties  in connection with the transactions contemplated hereby.  At the request of the Commitment Party, you agree to assist in the preparation of a version of each  Confidential Information Memorandum or other Information Material (a “Public Version”) consisting  exclusively of information with respect to you and your subsidiaries, the Target and its subsidiaries and the  Acquisition that is either publicly available (or would be publicly available if the Target was a public  reporting company) or not material with respect to you and your subsidiaries, the Target and its subsidiaries,  any of your or the Target’s respective securities or the Acquisition for purposes of United States federal  and state securities laws (such information, “Non-MNPI”).  Such Public Versions, together with any other  information prepared by you or the Target or your or its affiliates or representatives and conspicuously  marked “Public” (collectively, the “Public Information”), which at a minimum means that the word  “Public” will appear prominently on the first page of any such information, may be distributed by us to  prospective Lenders who have advised us that they wish to receive only Non-MNPI (“Public Side  Lenders”).  You acknowledge and agree that, in addition to Public Information and unless you promptly  notify us otherwise, (a) drafts and final definitive documentation with respect to the Senior Secured  Facilities, (b) administrative materials prepared by the Commitment Party for prospective Lenders (such as  a lender meeting invitation, allocations and funding and closing memoranda) and (c) notifications of  changes in the terms of the Senior Secured Facilities may be distributed to Public Side Lenders.  You  acknowledge that the Commitment Party’s public-side employees and representatives who are publishing  debt analysts may participate in any meetings held pursuant to clause (D) of the second preceding  paragraph; provided that such analysts shall not publish any information obtained from such meetings (i)  until the syndication of the Senior Secured Facilities has been completed upon the making of allocations  by the First Lien Lead Arranger and the First Lien Lead Arranger freeing the Senior Secured Facilities to  trade or (ii) in violation of any confidentiality agreement between you or the Target and the Commitment  Party.  





 






4  In connection with our distribution to prospective Lenders of any Confidential Information  Memorandum and, upon our request, any other Information Materials, you will execute and deliver to us a  customary authorization letter authorizing such distribution and, in the case of any Public Version thereof  or other Public Information, representing that it only contains Non-MNPI. Each Confidential Information  Memorandum will be accompanied by a disclaimer exculpating you and us with respect to any use thereof  and of any related Information Materials by the recipients thereof.  Notwithstanding the foregoing, neither the commencement nor the completion of syndication of  the Senior Secured Facilities shall be a condition to the availability of the First Lien Facilities on the Closing  Date.  The Commitment Party acknowledges that the Company, as part of the syndication of the Senior  Secured Facilities, would like to increase the amount of the Revolving Facility to $100 million subject to  the receipt of sufficient commitments from Lenders pursuant to such syndication efforts (it being  understood that the commitment under this Commitment Letter to provide the Revolving Facility is limited  to $60 million) (such increased amount, the “Additional Revolving Amount”).  4. Information  You hereby represent and warrant that with respect to any information relating to you, or to your  knowledge, any information relating to the Target and its subsidiaries (a) all information (including all  Information Materials), other than the Projections and information of a general economic or industry  specific nature (the “Information”), that has been or will be made available to us by you or any of your  representatives in connection with the transactions contemplated hereby, when taken as a whole, does not  or will not, when furnished to us, contain any untrue statement of a material fact or omit to state a material  fact necessary in order to make the statements contained therein not materially misleading in light of the  circumstances under which such statements are made (giving effect to all supplements thereto) and (b) the  financial projections and other forward-looking information (the “Projections”) that have been or will be  made available to us by you or any of your representatives in connection with the transactions contemplated  hereby have been or will be prepared in good faith based upon assumptions believed by you to be reasonable  at the time furnished to us (it being recognized by the Commitment Party that such Projections are not to  be viewed as facts and that actual results during the period or periods covered by any such Projections may  differ from the projected results, and such differences may be material). You agree that if, at any time prior  to the Closing Date and thereafter until completion of our syndication efforts, you become aware that any  of the representations in the preceding sentence would be incorrect if such Information or Projections were  furnished at such time and such representations were remade, in any material respect, then you will (or,  with respect to the Information and Projections relating to the Target and its subsidiaries, will use  commercially reasonable efforts to) promptly supplement the Information and the Projections so that (with  respect to Information and Projections relating to the Target and its subsidiaries, to your knowledge) such  representations when remade would be correct, in all material respects, under those circumstances. You  understand that in arranging and syndicating the Senior Secured Facilities we may use and rely on the  Information and Projections without independent verification thereof.  5. Fees  As consideration for the commitments and agreements of the Commitment Party hereunder, you  agree to pay or cause to be paid the nonrefundable fees described in the Arranger Fee Letter, dated the date  hereof and delivered herewith (the “Arranger Fee Letter”) and the Administrative Agent Fee Letter, dated  the date hereof and delivered herewith (the “Administrative Agent Fee Letter” and together with the Arranger  Fee Letter, the “Fee Letters”), in each case, on the terms and subject to the conditions set forth therein.   





 






5  You agree that, once paid, the fees or any part thereof payable hereunder or under the Fee Letters  shall not be refundable under any circumstances, regardless of whether the transactions or borrowings  contemplated by this Commitment Letter are consummated, except as otherwise agreed in writing by you  and JPMorgan.  All fees payable hereunder and under the Fee Letters shall be paid in immediately available  funds in U.S. Dollars and shall not be subject to reduction by way of withholding, setoff or counterclaim or  be otherwise affected by any claim or dispute related to any other matter. In addition, all fees payable  hereunder shall be paid without deduction for any taxes, levies, imposts, duties, deductions, charges or  withholdings imposed by any national, state or local taxing authority, or will be grossed up by you for such  amounts.  6. Conditions  The Commitment Party’s commitments and agreements hereunder are subject only to the  conditions set forth in Exhibit B under the heading “CERTAIN CONDITIONS – Initial Conditions” and in  Exhibit C.  Notwithstanding anything in this Commitment Letter, the Fee Letters, the First Lien Facilities  Documentation (as defined in Exhibit B) to the contrary, (a) the only representations relating to you and  your subsidiaries and the Target and its subsidiaries and their respective businesses the accuracy of which  shall be a condition to availability of the First Lien Facilities on the Closing Date shall be (i) such of the  representations made by and on behalf of the Target in the Purchase Agreement as are material to the  interests of the Lenders, but only to the extent that the accuracy of any such representation is a condition to  your (or your affiliate’s) obligations to close under the Purchase Agreement or you have (or your affiliate  has) the right to terminate your (or its) obligations under the Purchase Agreement as a result of a breach of  such representations in the Purchase Agreement (the “Purchase Agreement Representations”) and (ii) the  Specified Representations (as defined below), and (b) the terms of the First Lien Facilities Documentation  shall be in a form such that they do not impair availability of the funding for the First Lien Facilities on the  Closing Date if the conditions set forth in this Commitment Letter are satisfied.  For purposes hereof,  “Specified Representations” means the representations and warranties referred to in the Term Sheets  relating to corporate existence and qualification of the Company and the Guarantors, power and authority  of the Company and the Guarantors, due authorization, execution and delivery by the Company and the  Guarantors of, and enforceability against the Company and the Guarantors of, the First Lien Facilities  Documentation, effectiveness, validity and perfection of priority liens in the collateral under the security  documents (subject to the limitations set forth in the preceding sentence), no conflicts with organizational  documents, use of proceeds, Investment Company Act, solvency (on a consolidated basis as of the Closing  Date), Patriot Act, use of proceeds not in violation of OFAC or FCPA, Federal Reserve margin regulations  and the Investment Company Act.  Notwithstanding anything in this Commitment Letter or the Fee Letters  to the contrary, the only conditions to availability of the First Lien Facilities on the Closing Date are set  forth in each of the relevant Term Sheets under the heading “CERTAIN CONDITIONS – Initial  Conditions” (in the case of Exhibit B) and in Exhibit C.  This paragraph, and the provisions herein, shall be  referred to as the “Limited Conditionality Provision”.  7. Limitation of Liability, Indemnification and Expenses  (a) Limitation of Liability. You agree that (i) in no event shall any of JPMorgan, First Lien Lead Arranger, and their respective  affiliates and their respective officers, directors, employees, advisors, and agents (each, and including,  without limitation, JPMorgan and any other First Lien Lead Arranger, an “Arranger-Related Person”) have  any Liabilities, on any theory of liability, for any special, indirect, consequential or punitive damages  incurred by you, your affiliates or your respective equity holders arising out of, in connection with, or as a  





 






6  result of, this Commitment Letter, the Fee Letters or any other agreement or instrument contemplated  hereby and (ii) no Arranger-Related Person shall have any Liabilities arising from, or be responsible for,  the use by others of Information or other materials (including, without limitation, any personal data)  obtained through electronic, telecommunications or other information transmission systems, including an  Electronic Platform or otherwise via the internet; provided that, nothing in this clause (a) shall relieve you  of any obligation you may have to indemnify an indemnified person, as provided in clause (b) below,  against any special, indirect, consequential or punitive damages asserted against such Indemnified Person  by a third party.  You agree, to the extent permitted by applicable law, to not assert any claims against any  Arranger-Related Person with respect to any of the foregoing.  As used herein, the term “Liabilities” shall  mean any losses, claims (including intraparty claims), demands, damages or liabilities of any kind.  (b) Indemnity and Expenses. You agree (A) to indemnify and hold harmless the Commitment Party, its affiliates and their  respective directors, officers, employees, advisors, agents and other representatives (each, an “indemnified  person”) from and against any and all losses, claims, damages and liabilities to which any such indemnified  person may become subject arising out of or in connection with this Commitment Letter, the Fee Letters,  the Senior Secured Facilities, the use of the proceeds thereof or the Acquisition and the Transactions or any  claim, litigation, investigation or proceeding (a “Proceeding”) relating to any of the foregoing, regardless  of whether any indemnified person is a party thereto, whether or not such Proceedings are brought by you,  your equity holders, affiliates, creditors or any other person, and to reimburse each indemnified person upon  demand for any reasonable legal or other out-of-pocket expenses incurred in connection with investigating  or defending any of the foregoing, provided that the foregoing indemnity will not, as to any indemnified  person, apply to losses, claims, damages, liabilities or related expenses to the extent they are found by a  final, nonappealable judgment of a court of competent jurisdiction to arise from the willful misconduct or  gross negligence of, or material breach of this Commitment Letter by, such indemnified person or its control  affiliates, directors, officers or employees (collectively, the “Related Parties”) and (B) regardless of whether  the Closing Date occurs, to reimburse the Commitment Party and its affiliates for all reasonable,  documented out-of-pocket expenses that have been invoiced at least one business day prior to the Closing  Date or following termination or expiration of the commitments hereunder (including due diligence  expenses, syndication expenses, travel expenses, and the fees, charges and disbursements of counsel)  incurred in connection with each of the Senior Secured Facilities and any related documentation (including  this Commitment Letter and the definitive financing documentation) or the administration, amendment,  modification or waiver thereof. It is further agreed that the Commitment Party shall only have liability to  you (as opposed to any other person) and that the Commitment Party shall be liable solely in respect of its  own commitment to the Senior Secured Facilities on a several, and not joint, basis with any other  Commitment Party. No indemnified person shall be liable for any damages arising from the use by others  of Information or other materials obtained through electronic, telecommunications or other information  transmission systems, except to the extent any such damages are found by a final, nonappealable judgment  of a court of competent jurisdiction to arise from the gross negligence or willful misconduct of such  indemnified person (or any of its Related Parties). None of the indemnified persons or you, or any of your  or their respective affiliates or the respective directors, officers, employees, advisors, and agents of the  foregoing shall be liable for any indirect, special, punitive or consequential damages in connection with this  Commitment Letter, the Fee Letters, the Senior Secured Facilities or the transactions contemplated hereby,  provided that nothing contained in this sentence shall limit your indemnity obligations to the extent set forth  in this Section 7.  8. Sharing of Information, Absence of Fiduciary Relationship, Affiliate Activities  You acknowledge that the Commitment Party (or an affiliate) is a full service securities firm and  such person may from time to time effect transactions, for its own or its affiliates’ account or the account  





 






7  of customers, and hold positions in loans, securities or options on loans or securities of you, your affiliates,  the Target and its affiliates and of other companies that may be the subject of the transactions contemplated  by this Commitment Letter. In addition, the Commitment Party and its affiliates will not use confidential  information obtained from you or your affiliates or on your or their behalf by virtue of the transactions  contemplated hereby in connection with the performance by the Commitment Party and its affiliates of  services for other companies or persons and the Commitment Party and its affiliates will not furnish any  such information to any of their other customers. You also acknowledge that the Commitment Party and  their respective affiliates have no obligation to use in connection with the transactions contemplated hereby,  or to furnish to you, confidential information obtained from other companies or persons.  You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between  you and the Commitment Party is intended to be or has been created in respect of any of the transactions  contemplated by this Commitment Letter, irrespective of whether the Commitment Party has advised or are  advising you on other matters, (b) you are capable of evaluating and understanding, and you understand and  accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter, (c) you  have been advised that the Commitment Party is engaged in a broad range of transactions that may involve  interests that differ from your interests and that the Commitment Party has no obligation to disclose such  interests and transactions to you, (d) you have consulted your own legal, accounting, regulatory and tax  advisors to the extent you have deemed appropriate, (e) the Commitment Party has been, is, and will be  acting solely as a principal and, except as otherwise expressly agreed in writing by it and the relevant parties,  has not been, is not, and will not be acting as an advisor, agent or fiduciary for you, any of your affiliates or  any other person or entity and (f) the Commitment Party has no obligation to you or your affiliates with  respect to the transactions contemplated hereby except those obligations expressly set forth herein or in any  other express writing executed and delivered by the Commitment Party and you or any such affiliate. You  agree that you will not assert any claim against the Commitment Party based on an alleged breach of fiduciary  duty by the Commitment Party in connection with this Commitment Letter and the transactions contemplated  hereby.  9. Confidentiality  This Commitment Letter is delivered to you on the understanding that neither this Commitment  Letter nor the Fee Letters nor any of their terms or substance shall be disclosed by you, directly or indirectly,  to any other person except (a) you and your officers, directors, employees, affiliates, members, partners,  stockholders, attorneys, accountants, agents and advisors, and those of the Target and its subsidiaries and  the Target itself, in each case on a confidential and need-to-know basis (provided that any disclosure of any  Fee Letter or its terms or substance to the Target or its officers, directors, employees, attorneys, accountants,  agents or advisors shall be redacted in respect of the amount of fees and “market flex” set forth therein,  unless the Commitment Party otherwise agrees), (b) in any legal, judicial or administrative proceeding or  as otherwise required by law or regulation or as requested by a governmental authority (in which case you  agree, to the extent permitted by law, to inform us promptly in advance thereof), (c) upon notice to the  Commitment Party, this Commitment Letter and the existence and contents hereof (but not the Fee Letters  or the contents thereof other than the existence thereof and the contents thereof as part of projections, pro  forma information and a generic disclosure of aggregate sources and uses to the extent customary in  marketing materials and other required filings) may be disclosed in any syndication or other marketing  material in connection with the Senior Secured Facilities or in connection with any public filing  requirement, and (d) the Term Sheets may be disclosed to potential Lenders and to any rating agency in  connection with the Acquisition and the Senior Secured Facilities.  The Commitment Party shall use all nonpublic information received by it in connection with the  Acquisition and the related transactions solely for the purposes of providing the services that are the subject  of this Commitment Letter and shall treat confidentially all such information; provided, however, that  





 






8  nothing herein shall prevent the Commitment Party from disclosing any such information (a) to rating  agencies, (b) to any Lenders or participants or prospective Lenders or participants, (c) in any legal, judicial,  administrative proceeding or other compulsory process or as required by applicable law or regulations (in  which case the Commitment Party shall promptly notify you, in advance, to the extent permitted by law), (d)  upon the request or demand of any regulatory authority having jurisdiction over the Commitment Party or  its affiliates, (e) to the employees, legal counsel, independent auditors, professionals and other experts or  agents of the Commitment Party (collectively, “Representatives”) who are informed of the confidential  nature of such information and are or have been advised of their obligation to keep information of this type  confidential and the Commitment Party shall be responsible for its Representatives’ compliance with this  paragraph, (f) to any of its respective affiliates (provided that any such affiliate is advised of its obligation to  retain such information as confidential, and the Commitment Party shall be responsible for its affiliates’  compliance with this paragraph), (g) to the extent any such information becomes publicly available other  than by reason of disclosure by the Commitment Party, its affiliates or Representatives in breach of this  Commitment Letter, (h) to market data collectors and service providers providing services in connection  with the syndication or administration of the Senior Secured Facilities, and (i) for purposes of establishing  a “due diligence” defense; provided that the disclosure of any such information to any Lenders or  prospective Lenders or participants or prospective participants referred to above shall be made subject to  the acknowledgment and acceptance by such Lender or prospective Lender or participant or prospective  participant that such information is being disseminated on a confidential basis in accordance with the  standard syndication processes of the Commitment Party or customary market standards for dissemination  of such type of information. The provisions of this paragraph shall automatically terminate one year  following the date of this Commitment Letter.  10. Miscellaneous  This Commitment Letter shall not be assignable by any party hereto without the prior written  consent of the other parties hereto (and any purported assignment without such consent shall be null and  void, it being understood that the Commitment Party may syndicate the facilities as contemplated herein,  subject to the second paragraph of Section 3 hereof), is intended to be solely for the benefit of the parties  hereto and the indemnified persons and is not intended to and does not confer any benefits upon, or create  any rights in favor of, any person other than the parties hereto and the indemnified persons to the extent  expressly set forth herein. The Commitment Party reserves the right to employ the services of their  affiliates in providing services contemplated hereby and to allocate, in whole or in part, to their affiliates  certain fees payable to the Commitment Party in such manner as the Commitment Party and its affiliates  may agree in their sole discretion; provided that no such action shall relieve any Commitment Party from  its obligations hereunder. This Commitment Letter may not be amended or waived except by an instrument  in writing signed by you and the Commitment Party. This Commitment Letter may be executed in any  number of counterparts, each of which shall be an original, and all of which, when taken together, shall  constitute one agreement. Delivery of an executed signature page of this Commitment Letter by facsimile  or electronic transmission (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed  counterpart hereof. This Commitment Letter and the Fee Letters are the only agreements that have been  entered into among us and you with respect to the Senior Secured Facilities and set forth the entire  understanding of the parties with respect thereto. This Commitment Letter and any claim or controversy  arising hereunder or related hereto shall be governed by, and construed and interpreted in accordance with,  the laws of the State of New York; provided that the interpretation of (i) Material Adverse Effect (as  defined in the Purchase Agreement) and whether a Material Adverse Effect (as defined in the Purchase  Agreement) has occurred under the Purchase Agreement, (ii) the accuracy of any Purchase Agreement  Representation and whether as a result of any inaccuracy thereof the Company or any of its subsidiaries  have the right to terminate their respective obligations (or to refuse to consummate the Acquisition) under  the Purchase Agreement and (iii) whether the Acquisition has been consummated in accordance with the  Purchase Agreement, shall be governed by, and construed in accordance with, the laws of the State of  





 






9  Delaware, without giving effect to conflicts of laws principles that would result in the application of the  Law (as defined in the Purchase Agreement) of any other state (this proviso, the “Governing Law  Exceptions”).  You and we hereby irrevocably and unconditionally submit to the exclusive jurisdiction and venue  of the United States District Court for the Southern District of New York sitting in the Borough of  Manhattan in the City of New York (or if such court lacks subject matter jurisdiction, the Supreme Court  of the State of New York sitting in the Borough of Manhattan in the City of New York) over any suit, action  or proceeding arising out of or relating to the Transactions or the other transactions contemplated hereby,  this Commitment Letter or the Fee Letters or the performance of services hereunder or thereunder;  provided, that with respect to any suit, action or proceeding arising out of or relating to the Purchase  Agreement or the transactions contemplated thereby and which does not involve claims against us or the  Lenders or any protected person, this sentence shall not override any jurisdiction provision set forth in the  Purchase Agreement. You and we agree that service of any process, summons, notice or document by  registered mail addressed to you or us shall be effective service of process for any suit, action or proceeding  brought in any such court. You and we hereby irrevocably and unconditionally waive any objection to the  laying of venue of any such suit, action or proceeding brought in any such court and any claim that any  such suit, action or proceeding has been brought in any inconvenient forum. You and we hereby irrevocably  agree to waive trial by jury in any suit, action, proceeding, claim or counterclaim brought by or on behalf  of any party related to or arising out of the Transactions, this Commitment Letter or the Fee Letters or the  performance of services hereunder or thereunder.  Each of the parties hereto agrees that each of this Commitment Letter and the Fee Letters is a  binding and enforceable agreement with respect to the subject matter contained herein or therein (including  an obligation to negotiate the definitive documentation for each of the First Lien Facilities in good faith);  it being acknowledged and agreed that, notwithstanding anything to the contrary contained in this  Commitment Letter or the Fee Letters, the commitments to fund each of the First Lien Facilities on the  Closing Date are subject only to the applicable conditions set forth on Exhibit B and C; provided that  nothing contained in this Commitment Letter obligates you or any of your affiliates to consummate the  Acquisition or to draw down any portion of any of the Credit Facilities.    The Commitment Party hereby notifies you that, pursuant to the requirements of the USA  PATRIOT Act, Title III of Pub. L. 107-56 (signed into law on October 26, 2001) (the “PATRIOT Act”)  and 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), it and its affiliates is required to obtain,  verify and record information that identifies the Company and each Guarantor, which information includes  names, addresses, tax identification numbers and other information that will allow such Lender to identify  the Company and each Guarantor in accordance with the PATRIOT Act and the Beneficial Ownership  Regulation. This notice is given in accordance with the requirements of the PATRIOT Act and Beneficial  Ownership Regulation and is effective for the Commitment Party and each Lender.  The indemnification, fee, expense, jurisdiction, syndication and confidentiality provisions  contained herein and in the Fee Letters shall remain in full force and effect regardless of whether  definitive financing documentation shall be executed and delivered and notwithstanding the termination  of this Commitment Letter or the commitments hereunder; provided that your obligations under this  Commitment Letter (other than your obligations with respect to (a) assistance to be provided in  connection with the syndication thereof (including as to the provision of information and representations  with respect thereto) and (b) confidentiality) shall automatically terminate and be superseded, to the  extent comparable, by the provisions of the First Lien Facilities Documentation upon the initial funding  thereunder, and you shall automatically be released from all liability in connection therewith at such time,  in each case to the extent the First Lien Facilities Documentation has comparable provisions with  comparable coverage.  





 






10  If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of  this Commitment Letter and the Fee Letters by returning to us executed counterparts of this Commitment  Letter, the Fee Letters and a fully executed copy of the Purchase Agreement not later than 5:00 p.m., New  York City time, on March 4, 2021 (the countersign date, the “Signing Date”). This offer will automatically  expire at such time if we have not received such executed counterparts in accordance with the preceding  sentence. In the event that the initial borrowing under the Senior Secured Facilities does not occur on or  before the Expiration Date, then this Commitment Letter and the commitments hereunder shall  automatically terminate unless we shall, in our discretion, agree to an extension. “Expiration Date” means  the earliest of (i) April 30, 2021, (ii) the closing of the Acquisition without the use of the First Lien Term  Facility and (iii) the valid and legally binding termination of the Purchase Agreement by you or with your  written consent prior to the closing of the Acquisition; provided that the termination of any commitment or  this Commitment Letter pursuant to this paragraph does not prejudice your rights and remedies in respect  of any breach or repudiation of this Commitment Letter that occurred prior to such termination.  





 






 





 






Commitment Letter Signature Page  Accepted and agreed to as of the date first written above:  COLUMBUS MCKINNON CORPORATION    By:   Name: Greg Rustowicz  Title: Vice President Finance & CFO  





 






A-1  EXHIBIT A  TRANSACTION SUMMARY  Capitalized terms used but not defined in this Exhibit A shall have the meanings set forth in the  Commitment Letter to which this Exhibit A is attached and in Exhibits B and C thereto.  Columbus McKinnon Corporation (the “Company”) intends to acquire (the “Acquisition”) the  company identified to us as “Dorner” (the “Target”) pursuant to an Agreement and Plan of Merger, dated  as of March 1, 2021 among Dorner Merger Sub Inc., the Target and the Company (together with all exhibits,  schedules, annexes, other attachments and other related documentation, the “Purchase Agreement”).   In connection therewith, it is intended that:  (a) The Company will obtain a term loan facility (the “First Lien Term Facility”) in  an aggregate amount of $650 million, as described in Exhibit B.   (b) The Company will obtain a revolving facility (the “Revolving Facility” and,  together with the First Lien Term Facility, the “First Lien Facilities”; the First Lien Facilities and  any other credit facilities the proceeds of which are used to finance the transactions on terms to be  agreed, the “Senior Secured Facilities”) in an aggregate amount of $60 million, as described in  Exhibit B.  (c) The proceeds of the Senior Secured Facilities will be applied on the Closing Date  (i) to refinance certain existing indebtedness of the Company and the Target, (ii) to pay the cash  consideration for the Acquisition and (iii) to pay the fees and expenses incurred in connection with  the Transactions.  The transactions described above are collectively referred to herein as the “Transactions”.  For purposes of  this Commitment Letter and the Fee Letters, “Closing Date” shall mean the date of the satisfaction or waiver  of the conditions set forth in Exhibit C and the initial funding of the relevant Senior Secured Facilities.  





 






B-1  EXHIBIT B  $710 million  First Lien Facilities   Summary of Terms and Conditions  Set forth below is a summary of the principal terms and conditions for the First Lien Facilities.  Capitalized terms used but not defined shall have the meanings set forth in the Commitment Letter to which  this Exhibit B is attached and in Exhibits A, C and D attached thereto.  1. PARTIES  Borrowers: Columbus McKinnon Corporation (the “Company”), Columbus  McKinnon EMEA GMBH (the “German Borrower”) and certain  designated subsidiaries of the Company (the German Borrower  and each other designated subsidiary, a “Designated Borrower”  and, together with the Company, the “Borrowers”).   Guarantors: Each of the Company’s direct and indirect, existing and future, U.S.  subsidiaries and certain non-U.S. subsidiaries (the “Guarantors”;  together with the Company, the “Loan Parties”), subject to  exceptions substantially similar to those set forth in the Existing  Credit Agreement (as defined below).  Sole Lead Arranger and  Sole Bookrunner: JPMorgan Chase Bank, N.A. (and as applicable, any of its  designated affiliates, including, without limitation, J.P. Morgan  AG) (“JPMorgan” or in such capacity, the “First Lien Lead  Arranger”).   Administrative Agent: JPMorgan (in such capacity, the “First Lien Administrative  Agent”).  Lenders: A syndicate of banks, financial institutions and other entities  arranged by the Commitment Party (collectively, the “First Lien  Lenders”).   2. TYPES AND AMOUNTS OF FIRST LIEN FACILITIES  A. First Lien Term Facility  Type and Amount: A 7 year term loan facility (the “First Lien Term Facility”) in the  amount of $650 million (the loans thereunder, the “First Lien  Term Loans”).  Maturity and Amortization: The First Lien Term Loans will mature on the date that is 7 years  after the funding of the First Lien Term Loans (the “First Lien  Term Maturity Date”).  





 






B-2  The First Lien Term Loans shall be repayable in equal quarterly  installments in an aggregate annual amount equal to 1.00% of the  original amount of the First Lien Term Facility.  The balance of the First Lien Term Loans will be repayable on the  Term Maturity Date.  Availability: The First Lien Term Loans shall be made to the Company in a  single drawing on the Closing Date.  Repayments and  prepayments of the First Lien Term Loans may not be reborrowed.  Use of Proceeds: The proceeds of the First Lien Term Loans will be used to finance  in part the Transactions and to pay related fees and expenses.  B. Revolving Facility:   Type and Amount: A 5-year revolving facility (the “Revolving Facility”; and together  with the First Lien Term Facility, the “First Lien Facilities”; the  commitments thereunder, the “Revolving Commitments”) in the  amount of $60 million (the loans thereunder, together with (unless  the context otherwise requires) the Swingline Loans referred to  below, the “Revolving Loans”; and together with the First Lien  Term Loans, the “First Lien Loans”).   A portion of the Revolving Facility not in excess $40 million will  be available in Canadian Dollars, Euros, Hong Kong Dollars,  Sterling, Swiss Francs and Yen and other currencies approved by  the Revolving Lenders.  Availability and  Maturity: The Revolving Facility shall be available on a revolving basis  during the period commencing on the Closing Date and ending on  the date that is 5 years after the Closing Date (the “Revolving  Termination Date”). The Revolving Commitments will expire,  and the Revolving Loans will mature, on the Revolving  Termination Date.  Letters of Credit: A portion of the Revolving Facility not in excess of $40 million  shall be available for the issuance of letters of credit (the “Letters  of Credit”) by the First Lien Lead Arranger or other First Lien  Lenders reasonably satisfactory to the Company (in such capacity,  the “Issuing Lender”). The letters of credit outstanding under that  certain Credit Agreement, dated as of January 31, 2017, by and  among, inter alios, the Company and JPMorgan (as amended from  time to time, the “Existing Credit Agreement”) shall be rolled over  and constitute Letters of Credit under the Revolving Facility. No  Letter of Credit shall have an expiration date after the earlier of  (a) one year after the date of issuance unless consented to by the  Issuing Lender and (b) five business days prior to the Revolving  Termination Date, provided that any Letter of Credit with a one- 





 






B-3  year tenor may provide for the renewal thereof for additional one- year periods (which shall in no event extend beyond the date  referred to in clause (b) above). Drawings under any Letter of  Credit shall be reimbursed by the Company (whether with its own  funds or with the proceeds of Revolving Loans) within one  business day. To the extent that the Company does not so  reimburse the Issuing Lender, the First Lien Lenders under the  Revolving Facility shall be irrevocably and unconditionally  obligated to fund participations in the reimbursement obligations  on a pro rata basis.  Swingline Loans: A portion of the Revolving Facility not in excess of $10 million  shall be available for swingline loans (the “Swingline Loans”)  from the First Lien Administrative Agent on same-day notice.  Any Swingline Loans will reduce availability under the Revolving  Facility on a dollar-for-dollar basis. Each First Lien Lender under  the Revolving Facility shall be irrevocably and unconditionally  required to purchase, under certain circumstances, a participation  in each Swingline Loan on a pro rata basis. The total exposure of  JPMorgan Chase Bank, N.A. with respect to the Revolving  Commitments (including the full amount of the swingline loans  that are outstanding) shall at no time exceed its Revolving  Commitment.  Use of Proceeds: The proceeds of the Revolving Loans shall be used to finance the  working capital needs and general corporate purposes of the  Borrowers and their subsidiaries. The amount of the Revolving  Loans borrowed on the Closing Date shall not exceed $5 million.    C. Incremental Facilities: The First Lien Facilities Documentation will permit the Company  to add one or more incremental term loan facilities to the First  Lien Term Facility (each, an “First Lien Incremental Term  Facility”) and/or increase commitments under the Revolving  Facility (any such increase, an “Incremental Revolving Facility”;  together with any First Lien Incremental Term Facilities, the  “First Lien Incremental Facilities”) in an aggregate principal  amount (the “Available Incremental Amount”) of the sum of (a)  $100 million (shared with any second lien facility) plus (b)  unlimited amounts subject to pro forma compliance (assuming, in  the case of an Incremental Revolving Facility, the full drawing  thereunder and after giving effect to other permitted pro forma  adjustment events and any permanent repayment of indebtedness  after the beginning of the relevant determination period but prior  to or simultaneous with such borrowing, but excluding the usage  of any amount under clause (a) on the same day) with a Secured  Leverage Ratio (to be defined in a manner consistent with the  Existing Credit Agreement) of 3.50:1.00 (it being understood that  the Borrowers shall be deemed to have used the amounts under  clause (b) prior to utilization of clause (a)); provided that (i) no  First Lien Lender will be required to participate in any such First  Lien Incremental Facility, (ii) no event of default or default exists  





 






B-4  or would exist after giving effect thereto, (iii) on a pro forma basis  after giving effect to the incurrence of any such Incremental  Facility (assuming, in the case of an Incremental Revolving  Facility, the full drawing thereunder and after giving effect to  other permitted pro forma adjustment events and any permanent  repayment of indebtedness after the beginning of the relevant  determination period but prior to or simultaneous with such  borrowing), the Company is in compliance with the financial  covenants in the First Lien Facilities Documentation recomputed  as of the last day of the most recently ended fiscal quarter of the  Company for which financial statements are available, (iv) the  representations and warranties in the First Lien Facilities  Documentation shall be true and correct in all material respects  immediately prior to, and after giving effect to, the incurrence of  such First Lien Incremental Facility, (v) the maturity date and  weighted average life to maturity of any such First Lien  Incremental Term Facility shall be no earlier than the maturity  date and weighted average life to maturity, respectively, of the  First Lien Term Loan Facility, (vi) the interest rates and, subject  to clause (v) above, amortization schedule applicable to any First  Lien Incremental Term Facility shall be determined by the  Company and the lenders thereunder; provided that, prior to the  first anniversary of the Closing Date, the all-in yield (whether in  the form of interest rate margins, original issue discount, upfront  fees or LIBOR/ABR floors) applicable to any First Lien  Incremental Term Facility will not be more than 0.50% higher  than the corresponding all-in yield (giving effect to interest rate  margins, original issue discount, upfront fees and LIBOR/ABR  floors) for the existing First Lien Term Facility, unless the interest  rate margins with respect to the existing First Lien Term Facility  are increased by an amount equal to the difference between the  all-in yield with respect to the Incremental Term Facility and the  corresponding all-in yield on the existing First Term Loan Facility  minus 0.50%, (vii) any Incremental Revolving Facility shall be  on the same terms as are applicable to the Revolving Facility  (including the maturity date in respect thereof) and (viii) any First  Lien Incremental Term Facility shall be on terms and pursuant to  documentation to be determined, provided that, to the extent such  terms and documentation are not consistent with, the First Lien  Term Loan Facility (except to the extent permitted by clause (v)  or (vi) above), they shall be reasonably satisfactory to the First  Lien Administrative Agent. The proceeds of the First Lien  Incremental Facilities shall be used for general corporate  purposes of the Company and its subsidiaries.  3. CERTAIN PAYMENT PROVISIONS  Fees and Interest Rates: As set forth on Annex I.  Optional Prepayments and  





 






B-5  Commitment Reductions: First Lien Loans may be prepaid and Revolving Commitments  may be reduced, in whole or in part without premium or penalty,  in minimum amounts to be consistent with the Existing Credit  Agreement, at the option of the Company at any time upon one  day’s (or, in the case of a prepayment of (i) Eurodollar Loans (as  defined in Annex I hereto) denominated in U.S. dollars, three  days’ and (ii) Eurodollar Loans denominated in Canadian Dollars,  Euros, Hong Kong Dollars, Mexican Pesos, Sterling, Swiss Francs  or Yen, four days’) prior notice, subject to reimbursement of the  First Lien Lenders’ redeployment costs in the case of a  prepayment of Eurodollar Loans prior to the last day of the  relevant interest period. Optional prepayments of the First Lien  Term Loans shall be applied as directed by the Company.  Any (a) voluntary prepayment of the First Lien Term Loans using  proceeds of indebtedness incurred by the Borrowers from a  substantially concurrent incurrence of indebtedness for which the  interest rate payable thereon on the date of such prepayment is  lower than the Eurodollar Rate on the date of such prepayment plus  the Applicable Margin with respect to the First Lien Term Loans  on the date of such prepayment and (b) repricing of the First Lien  Term Loans pursuant to an amendment to the First Lien Facilities  Documentation (as defined below) resulting in the interest rate  payable thereon on the date of such amendment being lower than  the Eurodollar Rate on the date immediately prior to such  amendment plus the Applicable Margin with respect to the First  Lien Term Loans on the date immediately prior to such amendment  shall be accompanied by a prepayment fee equal to 1.00% of the  aggregate principal amount of such prepayment (or, in the case of  clause (b) above, of the aggregate amount of Term Loans  outstanding immediately prior to such amendment) if made on or  prior to the date that is six months after the Closing Date; provided  that, in no event shall such fee be payable in connection with any  prepayment or repayment in connection with an initial public  offering, change of control, acquisition or other investment  otherwise prohibited by the First Lien Facilities Documentation (as  defined below); provided further that, such fee shall not be payable  in connection with a repricing occurring as a result of amendments  following the consummation of an equity offering on or prior to  June 8, 2021.  Mandatory Prepayments: Mandatory prepayments of First Lien Term Loans shall be  required from:  (a) 100% of the net cash proceeds from any non-ordinary  course sale or other disposition of assets (including as a result of  casualty or condemnation) by the Company and its subsidiaries  (subject to exceptions and reinvestment rights to be consistent with  the Existing Credit Agreement);   





 






B-6  (b) 100% of the net cash proceeds from issuances or  incurrences of debt by the Company and its subsidiaries (other than  indebtedness permitted by the First Lien Facilities  Documentation); and   (c) 50% with step-downs to 25% and 0% based upon the  achievement and maintenance of a Secured Leverage Ratios  equal  to or less than 3.00:1.00 and 2.50:1.00, respectively (such  stepdowns, the “Excess Cash Flow Stepdowns”) of annual Excess  Cash Flow (to be defined in a manner to be consistent with the  Existing Credit Agreement) of the Company and its subsidiaries;  provided that any voluntary prepayments of First Lien Term Loans  during the applicable fiscal year or after year-end and prior to the  time such Excess Cash Flow prepayment is due, other than  prepayments funded with the proceeds of indebtedness, shall be  credited against Excess Cash Flow prepayment obligations for  such fiscal year on a dollar-for-dollar basis without duplication of  any such credit in any prior fiscal year.  All mandatory prepayments of First Lien Term Loans will be  applied first to scheduled installments thereof occurring within the  next 12 months in direct order of maturity and second ratably to  the remaining respective installments thereof. Mandatory  prepayments of the First Lien Term Loans may not be reborrowed.  4. COLLATERAL  Collateral: Subject to exclusions and limitations consistent with the Existing  Credit Agreement and the provisions of numbered paragraph 10  of Exhibit C hereto, the obligations of each of the Company and  the Guarantors in respect of the First Lien Facilities and any swap  agreements and cash management arrangements provided by any  First Lien Lender (or any affiliate of a First Lien Lender) shall be  secured by a perfected first priority security interest in all of its  tangible and intangible assets (including, without limitation,  intellectual property and all of the capital stock of its direct  subsidiaries (limited, in the case of foreign subsidiaries, to 65% of  the capital stock thereof)), except for those assets as to which the  First Lien Administrative Agent shall determine in its sole  discretion that the cost of obtaining a security interest therein is  excessive in relation to the value of the security to be afforded  thereby.  The liens securing the First Lien Facilities will rank senior to the  liens securing any second lien term facility and any permitted  refinancing thereof.  The lien priority, relative rights and other  creditors’ rights issues in respect of the First Lien Facilities and  any second lien term facility shall be governed by an intercreditor  agreement reasonably satisfactory to the First Lien Administrative  Agent (the “Intercreditor Agreement”).  





 






B-7  5. CERTAIN CONDITIONS  Initial Conditions: The availability of the First Lien Facilities on the Closing Date will  be subject only to the conditions precedent set forth in Exhibit C.  On-Going Conditions: After the Closing Date, the making of each Revolving Loan and  the issuance of each Letter of Credit shall be conditioned upon (a)  the accuracy in all material respects (and in all respects if qualified  by materiality) of all representations and warranties in the First  Lien Facilities Documentation for the First Lien Facilities and (b)  there being no default or event of default in existence at the time  of, or after giving effect to, such extension of credit. It is agreed  that the First Lien Facilities Documentation shall include  additional conditions to be agreed by the First Lien Administrative  Agent and the Company with respect to the designation of  Designated Borrowers.  6. DOCUMENTATION  First Lien Facilities  Documentation: The definitive documentation for the First Lien Facilities (the  “First Lien Facilities Documentation”) shall (i) be consistent with  this Exhibit B, (ii) contain only those representations and  warranties, expressly set forth in this Term Sheet and (iii)  otherwise contain terms and provisions which are substantially  similar to the terms and provisions of the Existing Credit  Agreement, together with other terms and provisions to be  mutually agreed upon, subject to the Limited Conditionality  Provision (it being understood and agreed that the only conditions  to the availability of the Revolving Commitments and the funding  of the First Lien Term Loans on the Closing Date are the  conditions set forth in Exhibit C to the Commitment Letter).  Financial Covenants: First Lien Term Facility: None.  Revolving Facility: At any time that any extension of credit under  the Revolving Facility shall remain outstanding (excluding Letters  of Credit) after the Closing Date, limited to a maximum Total  Leverage Ratio (to be defined in a manner consistent with the  Existing Credit Agreement) for the four consecutive fiscal  quarters (each, a “Test Period”) ended on such date not to exceed  6.75:1.00  as of any date of determination with a stepdown to  5.75:1.00 on June 30, 2021, to the extent the Company has issued  equity in one or more offerings from the Signing Date to and  including June 30, 2021 generating gross proceeds in an amount  equal to $135 million, and with additional stepdowns to be  determined.  Representations and Warranties: Existence, qualification and power; authorization; no  contravention; governmental authorization; other consents;  binding effect; financial statements; no material adverse effect; no  





 






B-8  internal control event; litigation; no default; ownership of property;  liens; environmental compliance; insurance; taxes; ERISA  compliance; subsidiaries; equity interests; margin regulations;  investment company act; other regulations; disclosure; compliance  with laws; intellectual property; licenses, etc.; perfection of  security interest; properties; solvency; bank accounts; obligations  as senior debt; use of proceeds; representations as to foreign loan  parties; anti-corruption laws and sanctions; EEA financial  institutions; Beneficial Ownership Regulations.  Affirmative Covenants: Financial statements; certificates; other information; notices;  payment of obligations; preservation of existence, etc.;  maintenance of properties; maintenance of insurance;  compliance with laws, organizational documents and contractual  obligations; books and records; inspection rights; use of  proceeds; additional guarantors and pledgors; approvals and  authorizations; environmental laws; centre of main interest and  establishment; Beneficial Ownership Regulation.  Negative Covenants: Limitations on: indebtedness (including guarantee obligations  which shall permit among other things, Incremental Equivalent  Debt (as defined below)); liens; mergers, consolidations,  liquidations and dissolutions; sales of assets; dividends and other  payments in respect of capital stock; acquisitions, investments,  loans and advances; prepayments and modifications of  subordinated, junior lien and other material debt instruments;  transactions with affiliates; sale-leasebacks; changes in fiscal  year; hedging arrangements; negative pledge clauses (including,  without limitation, negative pledge clauses with respect to real  property) and clauses restricting subsidiary distributions; changes  in lines of business; amendments to certain material agreements  (including the Purchase Agreement, and the other transaction  documents).  Notwithstanding anything herein to the contrary, the limitations on  dividends and other payments in respect of capital stock,  investments, and prepayments and modifications of subordinated,  junior lien and other material debt instruments shall be subject to a  carve out in an amount to be agreed, which shall be comprised of  a minimum fixed amount, plus the aggregate amount of Excess  Cash Flow not otherwise required to be applied to prepay the  Senior Secured Facilities for any fiscal year plus the aggregate  amount of net cash proceeds of equity issuances following the  Closing Date (such amount, the “Cumulative Credit”), in each case  subject to pro forma compliance with a Total Leverage Ratio to be  agreed.  For purposes of this Exhibit B, “Incremental Equivalent Debt”  means indebtedness in an amount not to exceed the then available  Available Incremental Amount consisting of one or more credit or  debt facilities (senior secured pari passu with the First Lien  





 






B-9  Facilities, junior secured or unsecured), the issuance of senior  secured first lien or junior lien notes, subordinated notes or senior  unsecured notes, in each case issued in a public offering, Rule  144A or other private placement or bridge facility in lieu of the  foregoing, or secured or unsecured “mezzanine” debt, in each case  on customary terms and conditions; provided that any Incremental  Equivalent Debt incurred that is (x) secured on a junior lien basis  to the First Lien Facilities will be subject to pro forma compliance  with a maximum Secured Leverage Ratio of 3.50:1.00 or (y)  unsecured will be subject to pro forma compliance with a  maximum Total Leverage Ratio of 4.00:1.00; provided further that  any senior secured pari passu Incremental Equivalent Debt in the  form of term loans shall be subject to the “MFN” provisions  applicable to the First Lien Incremental Facilities.  Events of Default: Nonpayment of principal when due; nonpayment of interest or  fees within 3 business days of when due or other amounts after 5  business days from when due; material inaccuracy of a  representation or warranty when made; violation of a covenant  (subject, in the case of certain affirmative covenants, to a grace  period of 30 days); cross-default to material indebtedness;  bankruptcy events; certain ERISA events; material judgments;  actual or asserted invalidity of any guarantee, security document  or subordination provisions or non-perfection of any security  interest; and a change of control (the definition of which is to be  consistent with the Existing Credit Agreement ).  Voting: Amendments and waivers with respect to the First Lien Facilities  Documentation shall require the approval of First Lien Lenders  holding more than 50% of the aggregate amount of the First Lien  Term Loans and Revolving Commitments (the “Required First  Lien Lenders”), except that (a) the consent of each First Lien  Lender directly affected thereby shall be required with respect to  (i) reductions in the amount or extensions of the scheduled date of  any amortization or final maturity of any First Lien Loan, (ii)  assignments or transfers by the Company of its rights and  obligations under the First Lien Facilities Documentation, (iii)  reductions in the rate of interest or any fee or extensions of any  due date thereof, (iv) increases in the amount or extensions of the  expiry date of any First Lien Lender’s commitment (iv) changes  in the pro rata sharing provisions and (v) actions taken to  subordinate (or have the effect of subordinating) the liens or  obligations in contractual right of payment under the First Lien  Facilities Documentation to other indebtedness (including  guarantees) (any such other indebtedness to which the liens  securing the obligations or such obligations under the First Lien  Facilities Documentation are subordinated, the “Senior  Indebtedness”) unless each adversely affected First Lien Lender  has been offered a bona fide opportunity to fund or otherwise  provide its pro rata share of the Senior Indebtedness and to the  extent such adversely affected First Lien Lender participates in the  





 






B-10  Senior Indebtedness, it receives its pro rata share of the fees and  any other similar benefit (the “First Lien Right of First Refusal”)  and (b) the consent of 100% of the First Lien Lenders shall be  required with respect to (i) reductions of any of the voting  percentages, (ii) releases of all or substantially all the collateral  and (iii) releases of all or substantially all of the Guarantors.  Notwithstanding the foregoing, amendments and waivers of the  financial covenants with respect to the Revolving Facility shall  only require the approval of First Lien Lenders holding more than  50% of the aggregate amount of the Revolving Facility  commitments (other than any Defaulting Lender) without the  consent of any other First Lien Lenders.  The First Lien Facilities Documentation shall contain customary  provisions for replacing non-consenting First Lien Lenders in  connection with amendments and waivers requiring the consent of  all First Lien Lenders or of all Lenders directly affected thereby so  long as the Required First Lien Lenders of the aggregate amount  of the First Lien Term Loans and Revolving Commitments shall  have consented thereto.  Assignments and Participations: The First Lien Lenders shall be permitted to assign all or a portion  of their First Lien Loans and commitments with the consent, not  to be unreasonably withheld or delayed, of (a) the Company,  unless (i) the assignee is a First Lien Lender, an affiliate of a First  Lien Lender or an approved fund or (ii) an event of default has  occurred and is continuing, (b) the First Lien Administrative  Agent, unless a First Lien Term Loan is being assigned to a First  Lien Lender, an affiliate of a First Lien Lender or an approved  fund and (c) any Issuing Lender with significant exposure, unless  a First Lien Term Loan is being assigned. In the case of a partial  assignment (other than to another First Lien Lender, an affiliate of  a First Lien Lender or an approved fund), the minimum  assignment amount shall be $1,000,000 (in the case of the First  Lien Term Facility) and $5,000,000 (in the case of the Revolving  Facility), in each case unless otherwise agreed by the Company  and the First Lien Administrative Agent. The First Lien  Administrative Agent shall receive a processing and recordation  fee of $3,500 in connection with each assignment. The First Lien  Lenders shall also be permitted to sell participations in their First  Lien Loans. Participants shall have the same benefits as the selling  First Lien Lenders with respect to yield protection and increased  cost provisions, subject to customary limitations. Voting rights of  a participant shall be limited to those matters set forth in clause (a)  of the preceding paragraph with respect to which the affirmative  vote of the First Lien Lender from which it purchased its  participation would be required. Pledges of First Lien Loans in  accordance with applicable law shall be permitted without  restriction.  





 






B-11  Yield Protection: The First Lien Facilities Documentation shall contain customary  provisions (a) protecting the First Lien Lenders against increased  costs or loss of yield resulting from changes in reserve, tax, capital  adequacy, liquidity requirements and other requirements of law  (provided that (i) all requests, rules, guidelines, requirements and  directives promulgated by the Bank for International Settlements,  the Basel Committee on Banking Supervision or by United States  or foreign regulatory authorities, in each case pursuant to Basel III,  and (ii) the Dodd-Frank Wall Street Reform and Consumer  Protection Act and all requests, rules, guidelines, requirements and  directives thereunder or issued in connection therewith or in  implementation thereof, shall in each case be deemed to be a change  in law, regardless of the date enacted, adopted, issued or  implemented) and from the imposition of or changes in withholding  or other taxes and (b) indemnifying the First Lien Lenders for  “breakage costs” incurred in connection with, among other things,  any prepayment of a Eurodollar Loan (as defined in Annex I) on a  day other than the last day of an interest period with respect thereto.  Defaulting Lenders: The First Lien Facilities Documentation shall contain provisions  relating to “defaulting” First Lien Lenders (including provisions  relating to reallocation of participations in, or the Company  providing cash collateral to support, Swingline Loans or Letters  of Credit, to the suspension of voting rights and rights to receive  certain fees and to assignment of the Revolving Commitments or  First Lien Loans of such First Lien Lenders).  Bail-in Provisions: The First Lien Facilities Documentation shall contain customary  EU/UK bail-in provisions.  ERISA Fiduciary Status: The First Lien Facilities Documentation shall contain First Lien  Lender representations as to fiduciary status under ERISA.  Delaware Divisions: The First Lien Facilities Documentation shall contain customary  provisions related to divisions and plans of division under  Delaware law.  QFC Stay Regulations: The First Lien Facilities Documentation shall contain customary  provisions related to Qualified Financial Contracts.  Limitation of Liability;  Expenses and Indemnification: The First Lien Administrative Agent, the First Lien Lead  Arranger, the First Lien Lenders and the Issuing Lenders (and  their affiliates and their respective officers, directors, employees,  advisors and agents) shall not have any Liabilities, on any theory  of liability, for any special, indirect, consequential or punitive  damages incurred by the Company or any of its subsidiaries  arising out of, in connection with, or as a result of, the First Lien  Facilities or the First Lien Facilities Documentation.  As used  herein, the term “Liabilities” shall mean any losses, claims  





 






B-12  (including intraparty claims), demands, damages or liabilities of  any kind.  Regardless of whether the Closing Date occurs, the Company  shall pay (a) all reasonable, documented out-of-pocket expenses  of the First Lien Administrative Agent, the First Lien Lenders and  the First Lien Lead Arranger associated with the syndication of  the First Lien Facilities and the preparation, execution, delivery  and administration of the First Lien Facilities Documentation and  any amendment or waiver with respect thereto (including the  reasonable, documented fees, disbursements and other charges of  counsel) and (b) all out-of-pocket expenses of the First Lien  Administrative Agent and the First Lien Lenders (including the  fees, disbursements and other charges of counsel) in connection  with the enforcement of the First Lien Facilities Documentation.  The First Lien Administrative Agent, the First Lien Lead Arranger,  the co-syndication agents and the First Lien Lenders (and their  affiliates and their respective officers, directors, employees,  advisors and agents) will have no liability for, and will be  indemnified and held harmless against, any losses, claims,  damages, liabilities or expenses (including the reasonable fees,  disbursements and other charges of counsel) incurred in respect of  the financing contemplated hereby or the use or the proposed use  of proceeds thereof, except to the extent they are found by a final,  nonappealable judgment of a court of competent jurisdiction to  arise from the gross negligence or willful misconduct of the  relevant indemnified person (or its related parties).  Governing Law: New York, subject to the Governing Law Exceptions.  Forum:  United States District Court for the Southern District of New York  sitting in the Borough of Manhattan (or if such court lacks subject  matter jurisdiction, the Supreme Court of the State of New York  sitting in the  Borough of Manhattan), and any appellate court  from any thereof.  Counsel to the First Lien Administrative  Agent and the Commitment Party: Simpson Thacher & Bartlett LLP.    





 






B-I-1  Annex I to Exhibit B  INTEREST AND CERTAIN FEES  Interest Rate Options: The Company may elect that the First Lien Loans comprising each  borrowing bear interest at a rate per annum equal to (a) the ABR  plus the Applicable Margin or (b) the Eurodollar Rate, plus the  Applicable Margin; provided that all Swingline Loans shall bear  interest at a rate per annum equal to the ABR plus the Applicable  Margin.  As used herein:  “ABR” means the highest of (i) the rate of interest last quoted by  The Wall Street Journal in the U.S. as the prime rate in effect (the  “Prime Rate”), (ii) the NYFRB Rate from time to time plus 0.5%  and (iii) the Eurodollar Rate for a one month interest period plus  1%.  If the ABR as determined pursuant to the foregoing would be  less than 1.75%, such rate shall be deemed to be 1.75%.  “ABR Loans” means First Lien Loans bearing interest based upon  the ABR.  “Applicable Margin” means (a) with respect to First Lien Term  Loans (i) 3.25%, in the case of ABR Loans and (ii) 4.25%, in the  case of Eurodollar Loans;  and (b) with respect to Revolving Loans  (including Swingline Loans), (x) initially (i) 2.25% in the case of  ABR Loans and (ii) 3.25% in the case of Eurodollar Loans and (y)  following the delivery of financial statements for the first full fiscal  quarter following the Closing Date (the “Trigger Date”), a rate per  annum in accordance with the pricing grid set forth below.  Level Total Leverage Ratio Commitment  Fee  Eurodollar  Rate  Standby  Letter of  Credit  Commercial Letter  of Credit  ABR  I Greater than or equal to 4.00x 0.55% 3.25% 3.25% 1.625% 2.25%  II Less than 4.00x but greater than or  equal to 3.25x  0.50% 3.00% 3.00% 1.50% 2.00%  III Less than 3.25x but greater than or  equal to 2.50x  0.45% 2.75% 2.75% 1.375% 1.75%  IV Less than 2.50x but greater than or  equal to 1.75x  0.40% 2.50% 2.50% 1.25% 1.50%  V Less than 1.75x but greater than or  equal to 1.00x  0.35% 2.25% 2.25% 1.125% 1.25%  VI Less than 1.00x 0.30% 2.00% 2.00% 1.00% 1.00%  “Eurodollar Loans” means First Lien Loans bearing interest based  upon the Eurodollar Rate.  





 






B-I-2  “Eurodollar Rate” means, with respect to any Eurodollar Loan for  any applicable currency and for any interest period, the LIBO  Screen Rate at approximately 11:00 a.m., London time, two  business days prior to the commencement of such interest period;  provided that if such rate shall be less than 0.75%, such rate shall  be deemed to be 0.75%; provided further that if the LIBO Screen  Rate shall not be available at such time for such interest period (an  “Impacted Interest Period”) with respect to the applicable currency  then the LIBO Rate shall be the Interpolated Rate; provided that if  any Interpolated Rate shall be less than 0.75%, such rate shall be  deemed to be 0.75%.  “Federal Funds Effective Rate” means, for any day, the rate  calculated by the NYFRB based on such day’s federal funds  transactions by depositary institutions, as determined in such  manner as the NYFRB shall set forth on its public website from  time to time, and published on the next succeeding business day by  the NYFRB as the federal funds effective rate, provided that if the  Federal Funds Effective Rate shall be less than zero, such rate shall  be deemed to zero for the purposes of calculating such rate.  “Interpolated Rate” means, at any time, for any interest period, the  rate per annum (rounded to the same number of decimal places as  the LIBO Screen Rate) determined by the First Lien  Administrative Agent (which determination shall be conclusive  and binding absent manifest error) to be equal to the rate that  results from interpolating on a linear basis between: (a) the LIBO  Screen Rate for the longest period for which the LIBO Screen Rate  is available for the applicable currency) that is shorter than the  Impacted Interest Period; and (b) the LIBO Screen Rate for the  shortest period (for which that LIBO Screen Rate is available for  the applicable currency) that exceeds the Impacted Interest Period,  in each case, at such time.  “LIBO Screen Rate” means, for any day and time, with respect to  any Eurodollar Loan for any applicable currency and for any  interest period, the London interbank offered rate as administered  by ICE Benchmark Administration (or any other Person that takes  over the administration of such rate for the relevant currency for a  period equal in length to such interest period as displayed on pages  LIBOR01 or LIBOR02 of the Reuters screen that displays such  rate (or, in the event such rate does not appear on a Reuters page  or screen, on any successor or substitute page on such screen that  displays such rate, or on the appropriate page of such other  information service that publishes such rate from time to time as  selected by the First Lien Administrative Agent in its reasonable  discretion); provided that if the LIBO Screen Rate as so determined  would be less than 0.75%, such rate shall be deemed to 0.75% for  the purposes of calculating such rate.  





 






B-I-3  “NYFRB Rate” means, for any day, the greater of (a) the Federal  Funds Effective Rate in effect on such day and (b) the Overnight  Bank Funding Rate in effect on such day; provided, that if any of  the aforesaid rates shall be less than zero, such rate shall be deemed  to zero for the purposes of calculating such rate.  “Overnight Bank Funding Rate” means, for any day, the rate  comprised of both overnight federal funds and overnight  Eurodollar Borrowings by U.S.-managed banking offices of  depository institutions, as such composite rate shall be determined  by the NYFRB as set forth on its public website from time to time,  and published on the next succeeding business day by the NYFRB  as an overnight bank funding rate (from and after such date as the  NYFRB shall commence to publish such composite rate).  The First Lien Facilities Documentation will contain the First Lien  Administrative Agent’s version of ARRC’s Recommended  Hardwired Approach Language, including with respect to foreign  currencies.   Interest Payment Dates: In the case of ABR Loans, quarterly in arrears.  In the case of Eurodollar Loans, on the last day of each relevant  interest period and, in the case of any interest period longer than  three months, on each successive date three months after the first  day of such interest period.  Commitment Fees: The Borrowers shall pay a commitment fee calculated at a rate per  annum on the average daily unused portion of the Revolving  Facility, payable quarterly in arrears, which shall initially be equal  to 0.55%, and, following the Trigger Date, a rate per annum in  accordance with the pricing grid set forth above.  Swingline Loans  shall, for purposes of the commitment fee calculations only, not  be deemed to be a utilization of the Revolving Facility.  Letter of Credit Fees: The Company shall pay a fee on the face amount of each standby  Letter of Credit and each commercial Letter of Credit at a per  annum rate which shall initially be equal to 3.25% in the case of  standby letters of credit and 1.625% in the case of commercial  letters of credit and, following the Trigger Date, a rate per annum  in accordance with the pricing grid set forth above. Such fee shall  be shared ratably among the First Lien Lenders participating in the  Revolving Facility and shall be payable quarterly in arrears.   A fronting fee in an amount to be agreed on the face amount of  each Letter of Credit shall be payable quarterly in arrears to the  Issuing Lender for its own account. In addition, customary  administrative, issuance, amendment, payment and negotiation  charges shall be payable to the Issuing Lender for its own account.  





 






B-I-4  Default Rate: At any time when the Company is in default in the payment of any  amount under the First Lien Facilities, after giving effect to any  applicable grace period, such overdue amounts shall bear interest  at 2.00% per annum above the rate otherwise applicable thereto  (or, in the event there is no applicable rate, 2.00% per annum in  excess of the rate otherwise applicable to Revolving Loans  maintained as ABR Loans from time to time).  Rate and Fee Basis: All per annum rates shall be calculated on the basis of a year of  360 days (or 365/366 days, in the case of ABR Loans the interest  rate payable on which is then based on the Prime Rate) for actual  days elapsed.  





 






D-1 EXHIBIT C  Conditions  The availability of the First Lien Facilities shall be subject to the satisfaction of the following  conditions (in each case, subject to the Limited Conditionality Provision).  Capitalized terms used but not  defined herein have the meanings set forth in the Commitment Letter to which this Exhibit C is attached  and in Exhibits A and B thereto.  1. The Company and the Guarantors shall have executed and delivered the First Lien  Facilities Documentation on terms consistent with the Commitment Letter and otherwise reasonably  satisfactory to both the Loan Parties and the Commitment Party, and the Commitment Party shall have  received:  a. customary closing certificates and legal opinions; and  b. a certificate from the chief financial officer of the Company, in form and substance  reasonably acceptable to the Commitment Party, certifying that the Company and its  subsidiaries, on a consolidated basis after giving effect to the Transactions and the other  transactions contemplated hereby, are solvent.  2. On the Closing Date, after giving effect to the Transactions, all obligations with respect to  facilities governed by the Existing Credit Agreement (other than existing letters of credit) shall have been  paid in full, the commitments under the Existing Credit Agreement shall have been terminated and all liens  created in connection therewith shall have been released.   3. The Acquisition shall be consummated pursuant to the Purchase Agreement, substantially  concurrently with the initial funding of the Senior Secured Facilities, and no provision thereof shall have  been amended, modified or waived, and no consent shall have been given thereunder, in any manner  materially adverse to the interests of the Commitment Party or the Lenders without the prior written consent  of the Commitment Party (it being understood that any change to the definition of Material Adverse Effect  (as defined in the Purchase Agreement on the date hereof) or to the representation in Section 4.6 of the  Purchase Agreement shall be deemed materially adverse to the interests of the Commitment Party and the  Lenders).  4. From the date of the Purchase Agreement (as in effect on the date hereof) until the Closing  (as defined in the Purchase Agreement on the date hereof), there shall not have been a Material Adverse  Effect (as defined in the Purchase Agreement on the date hereof).   5. The closing of the Senior Secured Facilities (i) shall have occurred on or before the  Expiration Date and (ii) shall not have occurred prior to the date that is 30 calendar days following the  Signing Date.  6. The Commitment Party shall have received (i) (a) audited consolidated balance sheets and  related statements of income, stockholders’ equity and cash flows of the Company and its subsidiaries, for  the three most recently completed fiscal years ended at least 90 days before the Closing Date and (b)  unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash  flows of the Company and its subsidiaries, for each subsequent fiscal quarter ended at least 45 days before  the Closing Date; provided that filing of the required financial statements on form 10-K and form 10-Q by  the Company will satisfy the foregoing requirements of this clause (i) and (ii) (a) audited consolidated  balance sheets and related statements of income of the Target and its subsidiaries, for the three most recently  





 






D-2  completed fiscal years ended at least 90 days before the Closing Date and (b) unaudited consolidated  balance sheets and related statements of income of the Target and its subsidiaries, for the fiscal quarter  ended December 31, 2020; provided that the Commitment Party acknowledges receipt of the audited  financial statements for the fiscal years ended September 30, 2018, September 30, 2019 and September 30,  2020 required pursuant to clause (ii)(a) above and the unaudited financial statements for the fiscal quarters  ended December 31, 2020 required pursuant to clause (ii)(b).   7. Each of the Purchase Agreement Representations shall be true and correct to the extent  required by the Limited Conditionality Provision.  8. Each of the Specified Representations shall be true and correct in all material respects (or  in all respects, if qualified by materiality), except to the extent expressly made as of an earlier date, in which  case such Specified Representations shall have been true and correct in all material respects (or in all  respects, if qualified by materiality) as of such earlier date; provided that to the extent that any Specified  Representation made by or on behalf of the Target or any of its subsidiaries is qualified by or subject to a  “material adverse effect” or similar term or qualification, the definition thereof will be the definition of  “Material Adverse Effect” as defined in the Purchase Agreement.  9. All fees and expenses (for which an invoice has been presented at least one business day  prior to the Closing Date) due to the Commitment Party and the First Lien Lenders shall have been paid or  shall have been authorized to be deducted from the proceeds of the initial fundings on the Closing Date  under the Senior Secured Facilities.  10. (a) The First Lien Administrative Agent shall have received a completed and fully executed  perfection certificate with respect to the Company and the Guarantors and (b) all documents and instruments  required to create and perfect the First Lien Administrative Agent’s security interest in the collateral shall  have been executed and delivered by the Company and the Guarantors, and, if applicable, be in proper form  for filing (or reasonably satisfactory arrangements shall have been mutually agreed upon for the execution,  delivery and filing of such documents and instruments substantially concurrently with the consummation  of the Acquisition) (it being understood that, to the extent any collateral (including the grant or perfection  of any security interest) referred to in the Term Sheets is not or cannot be provided on the Closing Date  (other than the grant and perfection of security interests (i) in assets with respect to which a lien may be  perfected solely by the filing of a financing statement under the Uniform Commercial Code in jurisdictions  within the United States of America or (ii) in capital stock of the Borrowers, the Target and the Company’s  U.S. subsidiaries (other than the capital stock of the Target and/or any subsidiary thereof that has not been  made available to the Company at least two business days prior to the Closing Date, to the extent the  Company has used commercially reasonable efforts to procure delivery thereof, which may instead be  delivered within five business days after the Closing Date) that constitutes collateral with respect to which  a lien may be perfected by the delivery of a stock certificate) after your use of commercially reasonable  efforts to do so without undue burden or expense, then the provision of such collateral shall not constitute  a condition precedent to the availability of the First Lien Facilities on the Closing Date, but may instead be  provided after the Closing Date pursuant to arrangements to be mutually agreed).  11. (a) The First Lien Administrative Agent and the First Lien Lead Arranger will have  received at least three (3) business days prior to the Closing Date all outstanding documentation and other  information about the Loan Parties required under applicable “know your customer” and anti-money  laundering rules and regulations, including the Patriot Act that has been requested in writing at least 10  business days prior to the Closing Date and (b) if any Borrower qualifies as a “legal entity” customer under  31 C.F.R. § 1010.230 and the First Lien Administrative Agent has provided the Company the name of each  requesting Lender and its electronic delivery requirements at least 10 business days prior to the Closing  Date, the First Lien Administrative Agents and each such Lender requesting a beneficial ownership  





 






D-3  certification (a “Beneficial Ownership Certification”) (which request is made through the First Lien  Administrative Agent) will have received, at least three (3) business days prior to the Closing Date, the  Beneficial Ownership Certification in relation to the applicable Borrower.  12.  Either (A) Amazon and Dorner Manufacturing shall have executed and delivered a waiver  (or similar) agreement (on terms reasonably satisfactory), pursuant to which Amazon shall have waived its  rights in respect of the Amazon ROFO (as defined in the Purchase Agreement), or (B) following receipt of  the Offer Notice (as defined in the Purchase Agreement) from Dorner Manufacturing in accordance with  Section 11 of the Amazon Product Schedule (as defined in the Purchase Agreement), Amazon shall have  declined or otherwise failed to exercise the Amazon ROFO during the 45-day exercise period contemplated  by the Amazon ROFO.