Exhibit 10.1

EXECUTION VERSION

TENTH AMENDMENT TO CREDIT AGREEMENT

This TENTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of October 15, 2021, is entered into by and among INTERCONTINENTAL EXCHANGE, INC., a Delaware corporation (the “Borrower”), the Lenders (as hereinafter defined) party hereto, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent.

RECITALS

A.     The Borrower, the several lenders from time to time party thereto (the “Lenders”), and the Administrative Agent are party to the Credit Agreement, dated as of April 3, 2014 (as amended by the First Amendment to Credit Agreement, dated as of May 15, 2015, the Second Amendment to Credit Agreement, dated as of November 9, 2015, the Third Amendment to Credit Agreement, dated as of November 13, 2015, the Fourth Amendment to Credit Agreement, dated as of August 18, 2017, the Fifth Amendment to Credit Agreement, dated as of August 18, 2017, the Sixth Amendment to Credit Agreement, dated as of August 9, 2018, the Seventh Amendment to Credit Agreement, dated as of August 14, 2020, the Eighth Amendment to Credit Agreement, dated as of August 21, 2020, and the Ninth Amendment to Credit Agreement, dated as of March 8, 2021, the “Credit Agreement”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement as amended by this Amendment.

B.     The Borrower has requested that the Lenders amend the Credit Agreement and the Lenders are willing to consent to such amendments to the Credit Agreement on the terms and subject to conditions set forth herein.

STATEMENT OF AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

AMENDMENTS TO CREDIT AGREEMENT

1.1     Effective upon the Tenth Amendment Effective Date (as hereinafter defined), the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the conformed copy of the Credit Agreement attached hereto as Exhibit A.

1.2     Effective upon the Tenth Amendment Effective Date, Exhibit C (Form of Compliance Certificate) to the Credit Agreement is hereby deleted in its entirety and replaced with the new Exhibit C to the Credit Agreement attached hereto as Exhibit B.

1.3     Effective upon the Tenth Amendment Effective Date, Schedule 1.1(a) of the Credit Agreement is hereby amended by replacing the Commitments of the Lenders set forth thereon with the Commitments of the Lenders set forth on Exhibit C attached to this Amendment.

ARTICLE II

CONDITIONS OF EFFECTIVENESS

2.1     The amendments set forth in ARTICLE I shall become effective as of the date (the “Tenth Amendment Effective Date”) when, and only when, each of the following conditions precedent shall have been satisfied:

(a)     The Administrative Agent shall have received an executed counterpart of this Amendment from each of the Borrower and each of the Lenders.

(b)     The Borrower shall have paid to Wells Fargo Securities, LLC, BofA Securities, Inc., JPMorgan Chase Bank, N.A., the Administrative Agent and the Lenders any fees required under the Engagement Letter (as defined below) to be paid to each of them, in the amounts due and payable on the Tenth Amendment Effective Date as required by the terms thereof. The “Engagement Letter” means that certain letter from Wells Fargo Bank, National Association, Wells Fargo Securities, LLC, Bank of America, N.A., BofA Securities, Inc. and JPMorgan Chase Bank, N.A., to the Borrower, dated September 15, 2021, relating to certain fees payable by the Borrower in respect of the transactions contemplated by this Amendment.

(c)     The Borrower shall have delivered to the Administrative Agent a certificate, signed by a Responsible Officer of the Borrower, certifying as to the matters set forth in ARTICLE III hereof.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

The Borrower hereby represents and warrants, on and as of the Tenth Amendment Effective Date, that (i) the representations and warranties contained in the Credit Agreement (except the representation set forth in Section 4.8 thereof shall be made as of the Tenth Amendment Effective Date and with respect to clauses (i) and (ii) of the definition of “Material Adverse Effect” only) and the other Credit Documents qualified as to materiality are true and correct and those not so qualified are true and correct in all material respects, both immediately before and immediately after giving effect to this Amendment (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date (other than the representation set forth in Section 4.8 thereof), in which case such representation or warranty is true and correct (if qualified as to materiality) or true and correct in all material respects (if not so qualified), in each case only on and as of such specific date), (ii) this Amendment has been duly authorized, executed and delivered by the Borrower and constitutes the legal, valid and binding obligation of the Borrower enforceable against it in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, by general equitable principles or by principles

 

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of good faith and fair dealing (regardless of whether enforcement is sought in equity or at law) and (iii) no Default or Event of Default shall have occurred and be continuing on the Tenth Amendment Effective Date, both immediately before and immediately after giving effect to this Amendment and the amendments contemplated hereby.

ARTICLE IV

ACKNOWLEDGEMENT AND CONFIRMATION

Each party to this Amendment hereby confirms and agrees that, after giving effect to this Amendment and the amendments contemplated hereby, and except as expressly modified hereby, the Credit Agreement and the other Credit Documents to which it is a party remain in full force and effect and enforceable against such party in accordance with their respective terms and shall not be discharged, diminished, limited or otherwise affected in any respect.

ARTICLE V

MISCELLANEOUS

5.1     Governing Law. This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of New York (including Sections 5-1401 and 5-1402 of the New York General Obligations Law, but excluding all other choice of law and conflicts of law rules).

5.2     Credit Document. As used in the Credit Agreement, “hereinafter,” “hereto,” “hereof,” and words of similar import shall, unless the context otherwise requires, mean the Credit Agreement after amendment by this Amendment. Any reference to the Credit Agreement or any of the other Credit Documents herein or in any such documents shall refer to the Credit Agreement and the other Credit Documents as amended hereby. This Amendment is limited to the matters expressly set forth herein, and shall not constitute or be deemed to constitute an amendment, modification or waiver of any provision of the Credit Agreement except as expressly set forth herein. This Amendment shall constitute a Credit Document under the terms of the Credit Agreement.

5.3     Expenses. The Borrower shall pay all reasonable and documented out-of-pocket fees and expenses of counsel to the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment.

5.4     Severability. To the extent any provision of this Amendment is prohibited by or invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in any such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of this Amendment in any jurisdiction.

5.5     Successors and Assigns. This Amendment shall be binding upon, inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto.

 

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5.6     Construction. The headings of the various sections and subsections of this Amendment have been inserted for convenience only and shall not in any way affect the meaning or construction of any of the provisions hereof.

5.7     Counterparts; Integration. This Amendment may be executed and delivered via facsimile or electronic mail with the same force and effect as if an original were executed and may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures hereto were upon the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Amendment shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Administrative Agent of a manually signed letter which has been converted into electronic form (such as scanned into “.pdf” format), or an electronically signed letter converted into another format, for transmission, delivery and/or retention. This Amendment constitutes the entire contract among the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers as of the date first above written.

 

 

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TENTH AMENDMENT TO CREDIT AGREEMENT

 

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Exhibit A

Composite Blacklined Conformed Copy of Credit Agreement

Reflecting Tenth Amendment to the Credit Agreement

[see attached]

CUSIP Number: Deal # 45856GAC8

Revolving Loans (Dollar Revolving Loans) CUSIP # 45856GAD6

Revolving Loans (Multicurrency Revolving Loans) CUSIP # 45856GAE4

Conformed Copy – Conformed through the NinthTenth Amendment

 

 

 

CREDIT AGREEMENT

among

INTERCONTINENTAL EXCHANGE, INC.

as Borrower,

THE LENDERS NAMED HEREIN,

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Primary Administrative Agent, Issuing Lender and a Swingline Lender

BANK OF AMERICA, N.A.,

as a Co-Syndication Agent, Backup Administrative Agent and a Swingline Lender

BANK OF CHINA, NEW YORK BRANCH,

JPMORGAN CHASE BANK, N.A.,

as a Co-Syndication Agent and a Swingline Lender

BANK OF CHINA, NEW YORK BRANCH, and

MUFG BANK, LTD.,

as Co-Syndication Agents

and

CITIBANK, N.A.,

CREDIT SUISSE AG, NEW YORK BRANCH,

BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH,

BANK OF MONTREAL,

FIFTH THIRD BANK, NATIONAL ASSOCIATION,

MIZUHO BANK, LTD., and

PNC BANK, NATIONAL ASSOCIATION,

as Co-Documentation Agents

$3,775,000,000 Senior Credit Facilities

WELLS FARGO SECURITIES, LLC,

BOFA SECURITIES, INC.,

BANK OF CHINA, NEW YORK BRANCH,

JPMORGAN CHASE BANK, N.A.,

BANK OF CHINA, NEW YORK BRANCH, and

MUFG BANK, LTD.,

as Joint Bookrunners and Joint Lead Arrangers

CITIGROUP GLOBAL MARKETS INCCITIBANK, N.A.,

CREDIT SUISSE LOAN FUNDING LLC,

BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH,

BMO CAPITAL MARKETS CORP.,

FIFTH THIRD BANK, NATIONAL ASSOCIATION,

MIZUHO BANK, LTD., and

PNC CAPITAL MARKETS, LLC,

as Joint Lead Arrangers

Dated as of April 3, 2014

TABLE OF CONTENTS

 

				Page
ARTICLEARTICLE I
DEFINITIONS
1.1		Defined Terms			1
1.2		Accounting Terms			3851
1.3		Other Terms; Construction			3952
1.4		Currency Equivalents Generally			4053
1.5		Redenomination of Certain Foreign Currencies			4154
1.6		Interest Rates			4254
1.7		Divisions			4255
ARTICLEARTICLE II
AMOUNT AND TERMS OF THE LOANS
2.1		Commitments			4256
2.2		Borrowings			4357
2.3		Disbursements; Funding Reliance; Domicile of Loans			4862
2.4		Evidence of Debt; Notes			4963
2.5		Termination and Reduction of Commitments			5064
2.6		Mandatory Payments and Prepayments			5164
2.7		Voluntary Prepayments			5265
2.8		Interest			5266
2.9		Fees			5468
2.10		Interest Periods			5670
2.11		Conversions and Continuations			5771
2.12		Method of Payments; Computations; Apportionment of Payments			5873
2.13		Recovery of Payments			6075
2.14		Pro Rata Treatment			6076
2.15		Increased Costs; Change in Circumstances; Illegality			6177
2.16		Taxes			6585
2.17		Compensation			6990
2.18		Replacement of Lenders; Mitigation of Costs			7090
2.19		Letters of Credit			7192
2.20		Increase in Commitments			79100
2.21		Defaulting Lenders			80101
2.22		Cash Collateral			84104
2.23		Pre-Funding of Ellie Mae Acquisition Date Borrowings		105

 

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ARTICLEARTICLE III
CONDITIONS OF BORROWING
3.1		[Reserved]			86107
3.2		Conditions of All Borrowings			86107
3.3		Conditions of Borrowing for Ellie Mae Acquisition			107
ARTICLEARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1		Corporate Organization and Power			89109
4.2		Authorization; Enforceability			89110
4.3		No Violation			89110
4.4		Governmental and Third-Party Authorization; Permits			89110
4.5		Litigation			90110
4.6		Full Disclosure			90111
4.7		Margin Regulations			90111
4.8		No Material Adverse Effect			90111
4.9		Financial Matters			90111
4.10		Compliance with Laws			91111
4.11		Investment Company Act			91112
4.12		OFAC; Anti-Terrorism Laws			91112
4.13		Solvency			112
ARTICLEARTICLE V
AFFIRMATIVE COVENANTS
5.1		Financial Statements			92113
5.2		Other Business and Financial Information			94114
5.3		Existence; Franchises; Maintenance of Properties			95116
5.4		Use of Proceeds			95116
5.5		Compliance with Laws			95116
5.6		Payment of Taxes			95116
5.7		Insurance			96116
5.8		Maintenance of Books and Records; Inspection			96116
5.9		Subsidiary Guarantors			96117
5.10		Anti-Corruption Laws, OFAC, PATRIOT Act Compliance			97118
ARTICLEARTICLE VI
FINANCIAL COVENANT
6.1		Maximum Total Leverage Ratio		98119

 

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ARTICLEARTICLE VII
NEGATIVE COVENANTS
7.1		Merger; Consolidation			99121
7.2		Subsidiary Indebtedness			100121
7.3		Liens			102123
7.4		Asset Dispositions			104125
7.5		Dividend Payments			126
ARTICLEARTICLE VIII
EVENTS OF DEFAULT
8.1		Events of Default			105126
8.2		Remedies: Termination of Commitments, Acceleration, etc			107128
8.3		Remedies: Setoff			107129
ARTICLEARTICLE IX
THE ADMINISTRATIVE AGENT
9.1		Appointment and Authority			108130
9.2		Rights as a Lender			109130
9.3		Exculpatory Provisions			109130
9.4		Reliance by Administrative Agent			110132
9.5		Delegation of Duties			110132
9.6		Resignation of Administrative Agent			111132
9.7		Non-Reliance on AdministrativeAny Agent and Other Lenders			111133
9.8		No Other Duties, Etcetc			112134
9.9		Administrative Agent May File Proofs of Claim			112134
9.10		Guaranty Matters; Ineligible Assignees Letter Agreement			113135
9.11		Swingline Lender			113135
9.12		Replacement of Impaired Agent			113135
9.13		Backup Administrative Agent			113136
9.14		Erroneous Payments			137
ARTICLEARTICLE X
MISCELLANEOUS
10.1		Expenses; Indemnity; Damage Waiver			115139
10.2		Governing Law; Submission to Jurisdiction; Waiver of Venue; Service of Process			117141
10.3		Waiver of Jury Trial			117142
10.4		Notices; Effectiveness; Electronic Communication			118142
10.5		Amendments, Waivers, etc			119143
10.6		Successors and Assigns			121145

 

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10.7		No Waiver			126150
10.8		Survival			126151
10.9		Severability			126151
10.10		Construction			126151
10.11		No Fiduciary Duty			127151
10.12		Confidentiality			127152
10.13		Counterparts; Integration; Effectiveness; Electronic Execution			128153
10.14		Disclosure of Information			128154
10.15		USA Patriot Act Notice			128154
10.16		[Reserved]			129154
10.17		Judgment Currency			129154
10.18		[Reserved]			129155
10.19		Not a Grandfathered Obligation			129155
10.20		Acknowledgement and Consent to Bail-In of Affected Financial Institutions			129155
10.21		Acknowledgement Regarding Any Supported QFCs			130155
10.22		Certain ERISA Matters			131156

 

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EXHIBITS

 

Exhibit A-1		Form of Dollar Revolving Note
Exhibit A-2		Form of Multicurrency Revolving Note
Exhibit A-3		Form of Dollar Swingline Note
Exhibit A-4		Form of Multicurrency Swingline Note
Exhibit B-1		Form of Notice of Borrowing
Exhibit B-2		Form of Notice of Swingline Borrowing
Exhibit B-3		Form of Notice of Conversion/Continuation
Exhibit B-4		Form of Letter of Credit Notice
Exhibit C		Form of Compliance Certificate
Exhibit D		Form of Assignment and Assumption
Exhibit E		Forms of U.S. Tax Compliance Certificate
Exhibit F		Form of Solvency Certificate

SCHEDULES

 

Schedule 1.1(a)		Commitments and Notice Addresses
Schedule 1.1(b)		Existing Letters of Credit
Schedule 7.3		Liens

 

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CREDIT AGREEMENT

THIS CREDIT AGREEMENT, dated as of the 3rd day of April, 2014, is made among INTERCONTINENTAL EXCHANGE, INC., a Delaware corporation (the “Borrower”), the Lenders (as hereinafter defined), WELLS FARGO BANK, NATIONAL ASSOCIATION, as Primary Administrative Agent (as hereinafter defined) for the Lenders, and BANK OF AMERICA, N.A., as a Co-Syndication Agent (as hereinafter defined) and Backup Administrative Agent (as hereinafter defined) for the Lenders.

BACKGROUND STATEMENT

The Borrower has requested that the Lenders make available a revolving credit facility to the Borrower in the aggregate principal amount of $3,775,000,000. The Borrower will use the proceeds of these facilities as provided in Section 5.4. The Lenders are willing to make available to the Borrower the credit facilities described herein subject to and on the terms and conditions set forth in this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual provisions, covenants and agreements herein contained, the parties hereto hereby agree as follows:

ARTICLE VIARTICLE I 

DEFINITIONS

6.1    Defined Terms . For purposes of this Agreement, in addition to the terms defined elsewhere herein, the following terms have the meanings set forth below (such meanings to be equally applicable to the singular and plural forms thereof):

“Account Designation Letter” means a letter from the Borrower to the Administrative Agent, duly completed and signed by an Authorized Officer of the Borrower and in form and substance reasonably satisfactory to the Administrative Agent, listing any one or more accounts to which the Borrower may from time to time request the Administrative Agent to forward the proceeds of any Loans made hereunder.

“Acquisition” means any transaction or series of related transactions, consummated on or after the date hereof, by which the Borrower directly, or indirectly through one or more Subsidiaries, (i) acquires any division or line of business of any Person, or all or substantially all of the assets, of any Person, whether through purchase of assets, merger or otherwise, or (ii) acquires Capital Stock of any Person having at least a majority of Total Voting Power of the then outstanding Capital Stock of such Person.

“ Acquisition Election” has the meaning given to such term in Section  6.1.

“Additional Commitment” has the meaning set forth in Section 2.20(c).

“Additional Lender” has the meaning set forth in Section 2.20(a).

“ Adjusted Base Rate” means, at any time with respect to any Base Rate Loan, a rate per annum equal to the Base Rate as in effect at such time plus the Applicable Percentage for Base Rate Loans as in effect at such time.

“Adjusted Eurocurrency Rate” means, as to any Loan denominated in any applicable Currency not bearing interest based on an RFR (which, as of the Tenth Amendment Effective Date, shall mean Dollars and each of the Currencies identified in the definition of “Foreign Currency”, other than Sterling) for any Interest Period, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) determined by the Administrative Agent pursuant to the following formula:

 

Adjusted Eurocurrency Rate =		Eurocurrency Rate for such Currency for such Interest Period
		1.00-Eurocurrency Reserve Percentage

“Adjusted LIBOR Market Index Rate” means, for any date, with respect to any LIBOR Market Index Rate Loan, a rate per annum equal to the LIBOR Market Index Rate as in effect at such time plus the Applicable Percentage for LIBOREurocurrency Rate Loans as in effect at such time.

“Adjusted LIBOR Rate” means, at any time with respect to any LIBOR Loan, a rate per annum equal to the LIBOR Rate (as set forth in clause (i) of the definition thereof) as in effect at such time plus the Applicable Percentage for LIBOR Loans as in effect at such time.

“Administrative Agent” means, (a) during a Wells Fargo Availability Period, the Primary Administrative Agent and (b) during a Wells Fargo Unavailability Period, the Backup Administrative Agent; provided, that (x) it is understood that matters concerning the funding of Multicurrency Revolving Loans denominated in a Foreign Currency and Multicurrency Swingline Loans and the disbursement of the proceeds thereof will be administered by the Multicurrency Agent, and references herein to the “Administrative Agent” in such a context shall be deemed to refer to the “Multicurrency Agent” and (y) any reference to the “Administrative Agent” in Section 1.6 and Section 2.12(e) shall at all times be deemed to refer to the Primary Administrative Agent and the Backup Administrative Agent.

“Administrative Questionnaire” means an administrative questionnaire in the form supplied by the Administrative Agent.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. Notwithstanding the foregoing, no Agent nor any Lender shall be deemed an “Affiliate” of the Borrower or any Subsidiary of the Borrower.

 

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“Agents” means, collectively, the Multicurrency Agent, the Primary Administrative Agent and the Backup Administrative Agent.

“Aggregate Dollar Revolving Credit Exposure” means, at any time, the sum of (i) the aggregate principal amount of Dollar Revolving Loans outstanding at such time, (ii) the aggregate principal amount of Dollar Swingline Loans outstanding at such time, and (iii) the aggregate Dollar Letter of Credit Exposure of all Dollar Revolving Lenders at such time and (iv) the aggregate amount of the Pre-Closing Funded Amount funded on account of Dollar Revolving Loans that is held in the Pre-Closing Funding Account at such time.

“Aggregate Multicurrency Revolving Credit Exposure” means, at any time, the sum of (i) the Dollar Amount of the Multicurrency Revolving Loans outstanding at such time, (ii) the Dollar Amount of the Multicurrency Swingline Loans outstanding at such time, and (iii) the aggregate Multicurrency Letter of Credit Exposure of all Multicurrency Revolving Lenders at such time and (iv) the aggregate amount of the Pre-Closing Funded Amount funded on account of Multicurrency Revolving Loans that is held in the Pre-Closing Funding Account at such time.

“Agreement” means this Credit Agreement.

“ Announcements” has the meaning assigned thereto in Section   1.6.

“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act of 2010, and all other laws, rules, and regulations of any jurisdiction applicable to the Borrower and its Affiliates concerning or relating to bribery or corruption.

“Applicable Percentage” means:

(a) (x) with respect to any Loans or Commitments held by any Eighth Amendment Non-Consenting Lender, at any time, or (y) with respect to any Loans or Commitments held by any Eighth Amendment Consenting Lender, at any time from and after the Closing Date and prior to the Eighth Amendment Effective Date, the applicable percentage (i) to be added to the Base Rate for purposes of determining the Adjusted Base Rate, (ii) to be added to the LIBOR Rate and the LIBOR Market Index Rate for purposes of, respectively, determining the Adjusted LIBOR Rate and Adjusted LIBOR Market Index Rate and (iii) to be used in calculating the commitment fee payable pursuant to  Section 2.9(a)(ii) the applicable percentages per annum, in each case as

 

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determined under the following matrix with reference to the Debt Rating (as defined and as determined as set forth below):

 

Tier		Debt Rating		Applicable LIBOR MarginEurocurrency Rate Loans and Transitioned RFR Loans				Initial RFR Loans				Applicable Base Rate Margin				Applicable Commitment Fee Rate
I		AA-A+/Aa3A1 or higher			0.875	%			0.9076	%			0.000	%			0.080	%
II		A+/A1A2			1.000	%			1.0326	%			0.000	%			0.100	%
III		A-/A2A3			1.125	%			1.1576	%			0.125	%			0.125	%
IV		A-BBB+/A3Baa1			1.250	%			1.2826	%			0.250	%			0.150	%
V		BBB+/Baa1Baa2 or lower			1.500	%			1.5326	%			0.500	%			0.200	%

(b) with respect to any Loans or Commitments held by any Eighth Amendment Consenting Lender, at any time from and after the Eighth Amendment Effective Date, the applicable percentage (i) to be added to the Base Rate for purposes of determining the Adjusted Base Rate, (ii) to be added to the LIBOR Rate and the LIBOR Market Index Rate for purposes of, respectively, determining the Adjusted LIBOR Rate and Adjusted LIBOR Market Index Rate and (iii) to be used in calculating the commitment fee payable pursuant to  Section 2.9(a)(ii), in each case as determined under the following matrix with reference to the Debt Rating (as defined and as determined as set forth below):

 

Tier		Debt Rating		Applicable LIBOR Margin				Applicable Base Rate Margin				Applicable Commitment Fee Rate
I		A/A2 or higher			1.125	%			0.125	%			0.175	%
II		A-/A3			1.250	%			0.250	%			0.200	%
III		BBB+/Baa1			1.375	%			0.375	%			0.250	%
IV		BBB/Baa2			1.625	%			0.625	%			0.300	%
V		BBB-/Baa3 or lower			1.875	%			0.875	%			0.350	%

“Debt Rating” means, as of any date of determination, the rating as determined by S&P and Moody’s of the Borrower’s non-credit-enhanced, senior unsecured long-term debt. For purposes of determining the applicable pricing tier, (i) if the respective Debt Ratings issued by the foregoing rating agencies differ by one pricing tier, then the pricing tier for the higher of such Debt Ratings shall apply (with pricing tier I being the highest and pricing tier V being the lowest); (ii) if there is a split in Debt Ratings of more than one pricing tier, then the pricing tier that is one level lower than the pricing tier of the higher Debt Rating shall apply; (iii) if the Borrower has only one Debt Rating, the pricing tier corresponding to that Debt Rating shall apply; and (iv) if the Borrower does not have any Debt Rating, pricing tier V shall apply. Initially, the Applicable Percentage shall be determined based upon the Debt Rating specified in the certificate delivered on the Closing Date. Thereafter, each change in the Applicable Percentage resulting from a publicly announced change in the Debt Rating shall be effective during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.

 

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“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act of 2010, and all other laws, rules, and regulations of any jurisdiction applicable to the Borrower and its Affiliates concerning or relating to bribery or corruption.

“Approved Fund” means any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) a Person (or an Affiliate of a Person) that administers or manages a Lender.

“Arrangers” mean Wells Fargo Securities, LLC, BofA Securities, Inc. (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), JPMorgan Chase Bank, N.A., Bank of China, New York Branch, JPMorgan Chase Bank, N.A., MUFG Bank, Ltd., Citigroup Global Markets Inc.Citibank, N.A., Credit Suisse Loan Funding LLC, Banco Bilbao Vizcaya Argentaria, S.A., BMO Capital Markets Corp., Fifth Third Bank, National Association, Mizuho Bank, Ltd. and PNC Capital Markets, LLC and their respective successors.

“Assignment and Assumption” means an Assignment and Assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.6(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit D or any other form approved by the Administrative Agent.

“Authorized Officer” means, with respect to any action specified herein to be taken by or on behalf of the Borrower, any officer of the Borrower duly authorized by resolution of its board of directors or other governing body to take such action on its behalf, and whose signature and incumbency shall have been certified to the Administrative Agent by the secretary or an assistant secretary of the Borrower.

“ Available Tenor” means, as of any date of determination and with respect to any then-current Benchmark for any Currency, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Interest Period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section  2.15(h)(iv).

“Backup Administrative Agent” means BofA, in its capacity as Backup Administrative Agent, and its successors and permitted assigns in such capacity.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the

 

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European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

“Bankruptcy Code” means 11 U.S.C. §§ 101 et seq., and any successor statute.

“Bankruptcy Event” means the occurrence of an event specified in Section 8.1(f) or 8.1(g).

“Base Rate” means the highest of (ia) the per annum interest rate publicly announced from time to time by Wells Fargo in Charlotte, North Carolina, to be its prime rate (which may not necessarily be its lowest or best lending rate), as adjusted to conform to changes as of the opening of business on the date of any such change in such prime rate, (iib) the Federal Funds Rate plus 0.5% per annum, as adjusted to conform to changes as of the opening of business on the date of any such change in the Federal Funds Rate, and (iii) subject to the implementation of a Benchmark Replacement in accordance with Section 2.15(h), the LIBOR Rate for an interest period of one month plus 1.00%,c)(i ) prior to the USD LIBOR Transition Date, the Adjusted Eurocurrency Rate for Dollars for a one-month term in effect on such day plus 1.00% and (ii) on and after the USD LIBOR Transition Date, Daily Simple RFR for Dollars in effect on such day plus 1.00% as adjusted simultaneously to conform to changes as of the opening of business on the date of any such change of such LIBOR Rate. the corresponding change or changes in the Adjusted Eurocurrency Rate for Dollars or Daily Simple RFR for Dollars, as the case may be (provided that clause (c) shall not be applicable during any period in which the Adjusted Eurocurrency Rate or Daily Simple RFR, as applicable, is unavailable or unascertainable).

“Base Rate Loan” means, at any time, any Dollar Revolving Loan or any Multicurrency Revolving Loan denominated in Dollars that bears interest at such time at the applicable Adjusted Base Rate.

“Benchmark” means, initially, with respect to any given Currency, the applicable benchmark rate for LIBOR Loans or LIBOR Market Index Rate Loans denominated in such currency; provided, however, that if(a) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, the Adjusted Eurocurrency Rate for Dollars; provided that if (i)  the USD LIBOR Transition Date has occurred or (ii) a Benchmark Transition Event or an Early Opt-in, a Term RFR Transition Event or an Other Benchmark Rate Election, as applicable, hashave occurred with respect to such benchmark  ratethe then-current Benchmark for Dollars, then “Benchmark” means, with respect to such currency shall mean theObligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has become  effectivereplaced such prior benchmark rate pursuant to Section 2.15(h).(i ), (b) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Sterling, the Daily Simple RFR applicable for Sterling; provided that if a Benchmark Transition Event or a Term RFR Transition Event, as applicable, has occurred with respect to such Daily Simple RFR or the then-current

 

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Benchmark for Sterling, then “Benchmark ” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section   2.15(h)(i) and (c) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Euros, Yen or Canadian Dollars, the Adjusted Eurocurrency Rate applicable for such Currency; provided that if a Benchmark Transition Event has occurred with respect to such Adjusted Eurocurrency Rate or the then-current Benchmark for such Currency, then “Benchmark ” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section   2.15(h)(i).

“ Benchmark Replacement” means,

(a)     with respect to any Benchmark Transition Event for the then-current Benchmark, the sum of: (ai) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for such Benchmark giving due consideration to (iA) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body with respect to such Currency or (iiB) any evolving or then-prevailing market convention for determining a benchmark rate of interest as a replacement tofor such Benchmark for syndicated credit facilities denominated in the Currency applicable toCurrency at such Benchmarktime and (bii) the applicablerelated Benchmark Replacement Adjustment for such Benchmark Replacement; provided, however, that, if anysuch Benchmark Replacement as so determined would be less than zerothe Floor, such Benchmark Replacement will be deemed to be zerothe Floor for the purposes of this Agreement. and the other Credit Documents;

(b)     with respect to the USD LIBOR Transition Date, for any Available Tenor of the Adjusted Eurocurrency Rate for Dollars, the first alternative set forth in the order below that can be determined by the Administrative Agent for the USD LIBOR Transition Date:

(1)     Term RFR for Dollars;

(2)     Daily Simple RFR for Dollars; or

(3)     the sum of: (A) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the Adjusted Eurocurrency Rate for Dollars giving due consideration to (i)  any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the Adjusted Eurocurrency Rate for Dollars for syndicated credit facilities denominated in Dollars at such time and (B) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Credit Documents;

 

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(c)     with respect to any Term RFR Transition Event for any Currency, the Term RFR for such Currency; or

(d) with respect to any Other Benchmark Rate Election, the sum of: (A) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the Adjusted Eurocurrency Rate for Dollars giving due consideration to any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for Dollar-denominated syndicated credit facilities at such time and (B) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Credit Documents;

provided that, in the case of clause (b)(1), if the Administrative Agent decides that Term RFR for Dollars is not administratively feasible for the Administrative Agent, then Term RFR for Dollars will be deemed unable to be determined for purposes of this definition.

“Benchmark Replacement Adjustment” means, for purposes of:

(a)     clauses (a) and (b)(3) of the definition of “Benchmark Replacement Adjustment” means, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement for eachany applicable Interest PeriodAvailable Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (ia) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (iib) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities at such time denominated in the applicable Currency applicable to such Benchmark.; and

(b)    clause (d) of the definition of “Benchmark Replacement”, with respect to any replacement of the Adjusted Eurocurrency Rate for Dollars with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the Adjusted Eurocurrency Rate for Dollars with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate” (if applicable), the definition of “Business Day,” the definition of “Interest Period,” or any similar or analogous definition (or the addition of a concept of “interest period”), the definition of “Eurocurrency Banking Day”, the definition of “LIBOR Market Index

 

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Rate”, the definition of “RFR Business Day”, timing and frequency of determining rates and making payments of interest and other, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods and other technical, administrative or operational matters) that the Administrative Agent, in consultation with the Borrower, decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent reasonably determines that no market practice for the administration of thesuch Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Credit Documents).

“Benchmark Replacement Date” means the earlierearliest to occur of the following events with respect to anythe then-current Benchmark for any Currency:

(1a)    in the case of clause (1a) or (2b) of the definition of “Benchmark Transition Event,”, the later of (ai) the date of the public statement or publication of information referenced therein and (bii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark; or (or such component thereof);

(2b)    in the case of clause (3c) of the definition of “Benchmark Transition Event,”, the first date of the publicon which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication of information referenced therein.in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date;

(c)     in the case of a Term RFR Transition Event for such Currency, the Term RFR Transition Date applicable thereto; or

(d)    in the case of an Other Benchmark Rate Election, the sixth (6th) Business Day after the date notice of such Other Benchmark Rate Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Other Benchmark Rate Election is provided to the Lenders, written notice of objection to such Other Benchmark Rate Election from Lenders comprising the Required Lenders.

For the avoidance of doubt, (A) if the Reference Time for the applicable Benchmark refers to a specific time of day and the event giving rise to the Benchmark Replacement Date for any Benchmark occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such Benchmark and for such determination and (B) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

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“Benchmark Transition Event” means, with respect to the then-current Benchmark for any Currency (other than Adjusted Eurocurrency Rate for Dollars), the occurrence of one or more of the following events with respect to any then-currentsuch Benchmark with respect to any given Currency:

(1a)    a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely;, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

(2b)    a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark, the U.S. (or the published component used in the calculation thereof), the FRB, the Federal Reserve SystemBank of New York, the central bank for the Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or any other Relevant Governmental Bodysuch component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely;, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

(3c)    a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark is(or such component thereof) are no longer, or as of a specified future date will no longer be, representative.

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Start Date” means, with respect to any Benchmark,(a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90^th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) andor (b) in the case of an Early Opt-inOther Benchmark Rate Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.applicable Benchmark Replacement Date.

 

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“Benchmark Unavailability Period” means, with respect to any then-current Benchmark, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to such Benchmark and solely to the extent that such Benchmark has not been replaced with a Benchmark Replacement(a) the Adjusted Eurocurrency Rate for Dollars, the period (xif any) ( i) beginning at the time that suchthe USD LIBOR Transition Date has occurred pursuant to clause (a) of that definition if, at such time, no Benchmark Replacement has replaced the Adjusted Eurocurrency Rate for Dollars for all purposes hereunder and under any Credit Document in accordance with Section   2.15(h)(i) and (ii) ending at the time that a Benchmark Replacement has replaced the Adjusted Eurocurrency Rate for Dollars for all purposes hereunder and under any Credit Document in accordance with Section   2.15(h)(i) and (b) any then-current Benchmark for any Currency other than the Adjusted Eurocurrency Rate for Dollars, the period (if any) ( i) beginning at the time that a Benchmark Replacement Date with respect to such Benchmark pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Credit Document in accordance with Section  2.15(h)(i ) and (yii) ending at the time that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Credit Document in accordance with Section  2.15(h)(i ).

“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

“BofA” means Bank of America, N.A.

“BofA Fee Letter” means the letter from BofA to the Borrower, dated October 29, 2015, relating to certain fees payable by the Borrower in respect of the transactions contemplated by this Agreement.

“Borrower” has the meaning given to such term in the introductory paragraph hereof.

“Borrowing” means the incurrence by the Borrower (including as a result of conversions and continuations of outstanding Loans pursuant to Section 2.11) on a single date of a group of Loans of a single Class, Currency and Type (including a Swingline Loan made by any Swingline Lender) and, in the case of LIBOREurocurrency Rate Loans or Term RFR Loans, as to which a single Interest Period is in effect.

“Borrowing Date” means, with respect to any Borrowing, the date upon which such Borrowing is made.

“ Business Day” means (i) any day other than a Saturday or Sunday, a legal holiday or a day on which commercial banks in Charlotte, North Carolina or New York, New York are 

 

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authorized or required by law to be closed, (ii) in respect of any notice or determination in connection with, and payments of principal and interest on, LIBOR Loans denominated in Dollars or a LIBOR Market Index Rate Loan, any such day that is also a day on which trading in Dollar deposits is conducted by banks in London, England in the London interbank Eurodollar market, (iii) in respect of any notice or determination in connection with, and payments of principal and interest on, Loans denominated in Euros, any such day that is also a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer payment system (TARGET) (or, if such clearing system ceases to be operative, such other clearing system (if any) reasonably determined by the Administrative Agent to be a suitable replacement) is open for settlement of payment in Euros, and (iv) in respect of any notice or determination in connection with, and payments of principal and interest on, Loans denominated in any Currency other than Dollars or Euros, any such day that is also a day on which banks are open for foreign exchange business in the principal financial center of the country of such Currency.

“Business Day” means any day that is not a Saturday, Sunday or other day on which the Federal Reserve Bank of New York is closed.

“Capital Lease” means, with respect to any Person, anya lease of property (whether real, personal or mixed) by such Person as lessee that is or is required to be, in accordance with GAAP, recorded as a capital lease on such Person’s balance sheetfinance lease (but for the avoidance of doubt shall not include any lease that in accordance with GAAP would be recorded as an operating lease).

“Capital Lease Obligations” means, with respect to any Person, the obligations of such Person to pay rent or other amounts under any Capital Lease of such Person, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“Capital Stock” means (i) with respect to any Person that is a corporation, any and all shares, interests or equivalents in capital stock (whether voting or nonvoting, and whether common or preferred) of such corporation, and (ii) with respect to any Person that is not a corporation, any and all partnership, membership, limited liability company or other equity interests of such Person; and in each case under clauses (i) and (ii), any and all warrants, rights or options to purchase any of the foregoing or any securities convertible into or exchangeable for any of the foregoing.

“Cash Collateral Account” has the meaning given to such term in Section 2.19(i).

“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Issuing Lender and the Lenders, as collateral for the Letter of Credit Exposure or obligations of Lenders to fund participations in respect thereof, cash or deposit account balances in the applicable Currency or, if the Administrative Agent and the Issuing Lender shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Issuing Lender. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 

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“Cash Equivalents” means (i) for purposes of Section 2.19(i) only, (A) securities issued or unconditionally guaranteed or insured by the United States of America or any agency or instrumentality thereof, backed by the full faith and credit of the United States of America and maturing within one year from the date of acquisition, (B) commercial paper issued by any Person organized under the laws of the United States of America, maturing within 180 days from the date of acquisition and, at the time of acquisition, having a rating of at least A-1 or the equivalent thereof by Standard & Poor’s Ratings Services or at least P-1 or the equivalent thereof by Moody’s Investors Service, Inc., (C) time deposits and certificates of deposit maturing within 180 days from the date of issuance and issued by a bank or trust company organized under the laws of the United States of America or any state thereof (y) that has combined capital and surplus of at least $500,000,000 or (z) that has (or is a subsidiary of a bank holding company that has) a long-term unsecured debt rating of at least A or the equivalent thereof by Standard & Poor’s Ratings Services or at least A2 or the equivalent thereof by Moody’s Investors Service, Inc., (D) repurchase obligations with a term not exceeding 30 days with respect to underlying securities of the types described in clause (i)(A) above entered into with any bank or trust company meeting the qualifications specified in clause (i)(C) above, and (E) money market funds at least ninety-five percent (95%) of the assets of which are continuously invested in securities of the foregoing types; and (ii) for all other purposes, as defined in accordance with GAAP.

“ CDOR Rate” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (iii) the making or issuance of any request, guideline, rule or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, implemented or issued.

“Change of Control” means an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of 35% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis.

“Class” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are Dollar Revolving Loans, Multicurrency Revolving

 

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Loans, Dollar Swingline Loans or Multicurrency Swingline Loans; when used in reference to any Lender, refers to whether such Lender is a Dollar Revolving Lender or a Multicurrency Revolving Lender; and, when used in reference to any Commitment, refers to whether such Commitment is a Dollar Revolving Commitment or a Multicurrency Revolving Commitment.

“Clearing House Subsidiary” means any Subsidiary of the Borrower the principal business of which is the provision of or conducting of clearing, depository or settlement operations.

“Closing Date” means April 3, 2014.

“Co-Documentation Agents” means the Lenders identified as such on the cover page hereof.

“Code” means the Internal Revenue Code of 1986, and any successor statute, and all rules and regulations from time to time promulgated thereunder.

“Commitments” means, collectively, the Dollar Revolving Commitments and the Multicurrency Revolving Commitments.

“Compliance Certificate” means a fully completed and duly executed certificate in the form of Exhibit C, together with a Covenant Compliance Worksheet.

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Consolidated EBITDA” means, for any Reference Period, the aggregate of (i) Consolidated Net Income for such period, plus (ii) the sum, without duplication, of (A) interest expense and, to the extent not reflected in such interest expense, non-cash interest payments (including the capitalization of interest), premium payments (including payments with respect to any make-whole premiums), debt discount, fees, charges, commissions and related costs and expense incurred in connection with borrowed money, (B) federal, state, local and other income taxes, (C) depreciation and amortization expense, (D) fees and integration, restructuring and severance expenses and charges incurred during such period in connection with any Acquisition or asset disposition consummated no more than six months prior to the beginning of such Reference Period not to exceed fiveten percent of Consolidated EBITDA for such Reference Period (calculated without giving effect to this clause (D)), (E) any costs, fees and expenses (other than of the character of those described in the preceding clause (D)) incurred in connection with any actual or proposed Acquisition, merger, joint venture, issuance of Capital Stock, issuance or prepayment of Indebtedness, disposition or investment not prohibited by this Agreement, in each case whether or not consummated, (F) noncash charges (including stock based compensation and any impairment charge or write-off or write-down of goodwill or other intangible assets), (FG) extraordinaryunusual and non-recurring losses and (GH) all losses during such period resulting from any asset disposition outside the ordinary course of business, all to the extent deducted in the calculation of Consolidated Net Income for such Reference Period and all calculated in accordance with GAAP, minus (iii) the sum, without duplication, of (A) extraordinaryunusual and non-recurring gains or income, (B) all gains during such period

 

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resulting from any asset disposition outside the ordinary course of business, (C) any cash disbursements during such period that relate to noncash charges included in Consolidated EBITDA pursuant to clause (ii)(EF) of this definition during such Reference Period or the twelve months preceding such Reference Period and (D) any noncash gains for such period that represent the reversal of any accrual, or the reversal of any cash reserves, that relates to charges included in Consolidated EBITDA pursuant to clause (ii)(D) or (ii)(EF) of this definition during such Reference Period or the twelve months preceding such Reference Period, all to the extent included in the calculation of Consolidated Net Income for such period and all calculated in accordance with GAAP.

“Consolidated Net Income” means, for any Reference Period, net income (or loss) for the Borrower and its Subsidiaries for such Reference Period, determined on a consolidated basis in accordance with GAAP (after deduction for minority interests); provided that, in making such determination, there shall be excluded (i) the net income (or loss) of any other Person that is not a Subsidiary of the Borrower (or is accounted for by the Borrower by the equity method of accounting) except to the extent of actual payment of cash dividends or distributions by such Person to the Borrower or any Subsidiary thereof during such period, (ii) the net income of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such net income is not at the time permitted by operation of the terms of its charter, certificate of incorporation or formation or other constituent document or any agreement or instrument (other than a Credit Document) or any judgment, decree, order, statute, rule or government regulation applicable to such Subsidiary (provided that there shall not be excluded from Consolidated Net Income such part of net income that is used or designated as being available to satisfy regulatory capital or liquidity requirements imposed on any Subsidiary of the Borrower by any Governmental Authority or pursuant to any decree, order, statute, rule or government regulation) and (iii) without duplication of other deductions or exclusions, any payments made during such Reference Period by any Subsidiaries of the Borrower of profit sharing entitlements, rebates, incentives, partnership distributions or similar entitlements.

“Consolidated Net Worth” means, as of any date of determination, the consolidated stockholders’ equity of the Borrower and its Subsidiaries, determined in accordance with GAAP.

“Consolidated Total Funded Debt” means, as of any date of determination, the aggregate principal amount of all Indebtedness of the Borrower and its Subsidiaries as of such date, determined on a consolidated basis in accordance with GAAP.

“Control” means, with respect to any Person, the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlled” and “Controlling” have correlative meanings.

“Co-Syndication Agents” means the Lenders identified as such on the cover page hereof.

“Covenant Compliance Worksheet” means a fully completed worksheet in the form of Attachment A to Exhibit C.

 

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“Credit Documents” means this Agreement, the Notes, the Letters of Credit, the Fee Letters, each Subsidiary Guaranty, the Ineligible Assignees Letter Agreement, each Compliance Certificate, each Notice of Borrowing, each Notice of Swingline Borrowing and each Letter of Credit Notice now or hereafter executed and delivered to the Administrative Agent or any Lender by or on behalf of the Borrower or any Guarantor with respect to this Agreement.

“Credit Parties” means the Borrower and the Guarantors.

“ Currencies” means Dollars and each Foreign Currency, and “Currency” means Dollars or any Foreign Currencyof such Currencies.

“Daily Simple RFR” means, for any day (an “RFR Rate Day”), a rate per annum equal to, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, (a) Dollars, on and after the USD LIBOR Transition Date, the greater of (i)  Spread Adjusted SOFR for the day (such day, an “RFR Determination Day”) that is five (5) RFR Business Days prior to (A) if such RFR Rate Day is an RFR Business Day, such RFR Rate Day or (B) if such RFR Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Rate Day, in each case, utilizing the SOFR component of such Spread Adjusted SOFR that is published by the SOFR Administrator on the SOFR Administrator’s Website, and (ii) the Floor and (b) Sterling, the greater of (i)  SONIA for the day (such day, an “RFR Determination Day”) that is five (5) RFR Business Days prior to (A) if such RFR Rate Day is an RFR Business Day, such RFR Rate Day or (B) if such RFR Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Rate Day, in each case, as such SONIA is published by the SONIA Administrator on the SONIA Administrator’s Website, and (ii) the Floor. If by 5:00 pm (local time for the applicable RFR) on the second (2nd) RFR Business Day immediately following any RFR Determination Day, the RFR in respect of such RFR Determination Day has not been published on the applicable RFR Administrator’s Website and a Benchmark Replacement Date with respect to the applicable Daily Simple RFR has not occurred, then the RFR for such RFR Determination Day will be the RFR as published in respect of the first preceding RFR Business Day for which such RFR was published on the RFR Administrator’s Website; provided that any RFR determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple RFR for no more than three (3) consecutive RFR Rate Days. Any change in Daily Simple RFR due to a change in the applicable RFR shall be effective from and including the effective date of such change in the RFR without notice to the Borrower.

“ Daily Simple RFR Loan” means a Loan that bears interest at a rate based on Daily Simple RFR other than pursuant to clause (c) of the definition of “Base Rate”.

“Debt Rating” shall have the meaning given to such term in the definition of Applicable Percentage.

“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

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“Default” means any event or condition that, with the passage of time or giving of notice, or both, would constitute an Event of Default.

“Defaulting Lender” means, subject to Section 2.21(b), any Lender that (i) has failed to (A) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (B) pay to the Administrative Agent, the Issuing Lender, any Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (ii) has notified the Borrower, the Administrative Agent, the Issuing Lender or any Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (iii) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (iii) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (iv) has, or has a direct or indirect parent company that has, (A) become the subject of a proceeding under any Debtor Relief Law, (B) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (C) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (i) through (iv) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.21(b)) upon delivery of written notice of such determination to the Borrower, the Issuing Lender, each Swingline Lender and each Lender.

“Designated Person” means any Person listed on a Sanctions List.

“Dollar L/C Commitment” means the obligation of the Issuing Lender to issue Dollar Letters of Credit in an aggregate amount agreed to by the Issuing Lender in its sole and absolute discretion. For the avoidance of doubt, unless and until otherwise agreed to by the Issuing Lender in its sole and absolute discretion, the Dollar L/C Commitment shall be zero.

 

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“Dollar Amount” means, at any time, (i) with respect to an amount denominated in Dollars, such amount or (ii) with respect to an amount denominated in a Foreign Currency, an equivalent amount thereof in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate for such Foreign Currency determined in respect of the most recent Revaluation Date for the purchase of Dollars with such Foreign Currency.

“Dollar Letter of Credit” has the meaning given to such term in Section 2.19(a).

“Dollar Letter of Credit Exposure” means, with respect to any Dollar Revolving Lender at any time, such Lender’s ratable share (based on the proportion that its Dollar Revolving Commitment bears to the aggregate Dollar Revolving Commitments at such time, or if the Dollar Revolving Commitments have been terminated, based upon the proportion that its Dollar Revolving Commitment bore to the aggregate Dollar Revolving Commitments immediately prior to such termination thereof, giving effect to any subsequent assignments) of the sum of (i) the aggregate Stated Amount of all Dollar Letters of Credit outstanding at such time and (ii) the aggregate amount of all Dollar Reimbursement Obligations outstanding at such time.

“Dollar Reimbursement Obligation” has the meaning given to such term in Section 2.19(d).

“Dollar Revolving Commitment” means, with respect to any Dollar Revolving Lender at any time, the commitment of such Lender to make Dollar Revolving Loans, Dollar Swingline Loans (if such Lender has agreed to make Dollar Swingline Loans) and participate in Dollar Letters of Credit and Dollar Swingline Loans in an aggregate principal amount at any time outstanding up to the amount set forth opposite such Lender’s name on Schedule 1.1(a) under the caption “Dollar Revolving Commitment” or, if such Lender has entered into one or more Assignment and Assumptions, the amount set forth for such Lender at such time in the Register maintained by the Administrative Agent pursuant to Section 10.6(c) as such Lender’s “Dollar Revolving Commitment,” in either case, as such amount may be reduced at or prior to such time pursuant to the terms hereof or increased from time to time pursuant to Section 2.20.

“Dollar Revolving Credit Exposure” means, with respect to any Dollar Revolving Lender at any time, the sum of (i) the aggregate principal amount of all Dollar Revolving Loans and Dollar Swingline Loans made by such Lender that are outstanding at such time, (ii) such Lender’s Dollar Swingline Exposure (disregarding such Lender’s Dollar Swingline Exposure in respect of any Dollar Swingline Loans made by such Lender) at such time, and (iii) such Lender’s Dollar Letter of Credit Exposure at such time and (iv) the aggregate amount of any portion of the Pre-Closing Funded Amount funded by such Lender on account of Dollar Revolving Loans that is held in the Pre-Closing Funding Account at such time.

“Dollar Revolving Lender” means each Person listed on Schedule 1.1(a) as having a Dollar Revolving Commitment and each other Person that becomes a “Dollar Revolving Lender” hereunder pursuant to Section 2.18(a), 2.20 or 10.6, and their respective successors and assigns.

“Dollar Revolving Loan” means any Revolving Loan made by a Dollar Revolving Lender pursuant to Section 2.1(a) denominated in Dollars.

 

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“Dollar Revolving Note” means, with respect to any Dollar Revolving Lender requesting the same, the promissory note of the Borrower in favor of such Dollar Revolving Lender evidencing the Dollar Revolving Loans made by such Lender pursuant to Section 2.1(a), in substantially the form of Exhibit A-1, together with any amendments, modifications and supplements thereto, substitutions therefor and restatements thereof.

“Dollar Swingline Exposure” means, with respect to any Dollar Revolving Lender at any time, its maximum aggregate liability to both make Refunded Swingline Loans pursuant to Section 2.2(e) to refund, and to purchase participations pursuant to Section 2.2(f) in, Dollar Swingline Loans that are outstanding at such time.

“Dollar Swingline Lender” means any Dollar Revolving Lender to the extent it has agreed in its sole discretion to act as a “Dollar Swingline Lender” hereunder at such time and that has been approved in writing by the Borrower and the Administrative Agent (such approval by the Administrative Agent not to be unreasonably withheld or delayed), and their respective successors and permitted assigns.

“Dollar Swingline Loans” has the meaning set forth in Section 2.1(c).

“Dollar Swingline Note” means, if requested by any Dollar Swingline Lender, the promissory note of the Borrower in favor of such Dollar Swingline Lender evidencing the Dollar Swingline Loans made by such Dollar Swingline Lender pursuant to Section 2.1(c), in substantially the form of Exhibit A-3, together with any amendments, modifications and supplements thereto, substitutions therefor and restatements thereof.

“Dollars” or “$” means dollars of the United States of America.

“Domestic Subsidiary” means a Subsidiary incorporated or otherwise organized or existing under the laws of the United States, any state thereof or the District of Columbia, other than any such Subsidiary (i) of a controlled foreign corporation within the meaning of Section 957 of the Code (a “CFC”) or (ii) that has no material assets other than Capital Stock of one or more Foreign Subsidiaries that are CFCs.

“Early Opt-in ElectionEffective Date” means, with respect to any then-current Benchmark, the occurrence of: Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.

(1)      (i) a determination by the Administrative Agent or (ii) a“Early Opt-in Election” means the occurrence of: (a) a notification by the Required LendersAdministrative Agent to (or the request by the Borrower to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined thatto notify) each of the other parties hereto that at least five currently outstanding Dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in  Section 2.15(h), are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace such Benchmark, contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and

 

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(2)      (ib) the joint election by the Administrative Agent orand the Borrower or (ii) the election by the Required Lenders to declare that an Early Opt-in Election with respect to such Benchmark has occurredto trigger a fallback from the Adjusted Eurocurrency Rate for Dollars and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent and the Borrower.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eighth Amendment” means that certain Eighth Amendment to Credit Agreement, dated as of August 21, 2020, among the Borrower, the Administrative Agent and the Lenders party thereto.

“Eighth Amendment Consenting Lender” means, as of any date of determination, (a) each Lender that was a Lender immediately prior to the Eighth Amendment Effective Date and that has delivered an executed counterpart to the Eighth Amendment or has otherwise provided in writing its consent to the Eighth Amendment and (b) any Person that becomes a Lender on or after the Eighth Amendment Effective Date, whether pursuant to the terms of Section 2.18(a), Section 2.20, Section 10.6 hereof or otherwise.

“Eighth Amendment Effective Date” means August 21, 2020.

“ Electronic Record” has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.

“ Electronic Signature” has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.

“Eighth Amendment Non-Consenting Lender” means, as of any date of determination, each Lender that was a Lender immediately prior the Eighth Amendment Effective Date and is not an Eighth Amendment Consenting Lender.

 

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“Ellie Mae” means Ellie Mae Intermediate Holdings I, Inc., a Delaware corporation.

“Ellie Mae Acquisition” means the proposed Acquisition by the Borrower of all the equity interests of Ellie Mae from the existing equityholder of Ellie Mae pursuant to the Ellie Mae Acquisition Agreement.

“Ellie Mae Acquisition Agreement” means the Stock Purchase Agreement, dated as of August 6, 2020, among the Borrower, Ellie Mae and Ellie Mae Parent, LP (including all schedules and exhibits thereto).

“Ellie Mae Acquisition Date” means the date on which the Ellie Mae Acquisition is consummated.

“Ellie Mae Acquisition Related Conditions” means the conditions set forth in Sections 3.3(a), 3.3(b), 3.3(c), 3.3(d), 3.3(e), 3.3(f), 3.3(g) and 3.3(j).

“Ellie Mae Borrowing” means a Borrowing of Revolving Loans in Dollars the proceeds of which are to be used to (i) finance a portion of the consideration paid by the Borrower to consummate the Ellie Mae Acquisition, (ii) refinance all or a portion of the existing Indebtedness of Ellie Mae and its Subsidiaries, and/or (iii) pay fees, costs, commissions and expenses in connection with the Ellie Mae Transactions.

“Ellie Mae Bridge Arrangers” means Wells Fargo Securities, LLC, Credit Suisse Loan Funding LLC and Goldman Sachs Bank USA.

“Ellie Mae Bridge Facility” means that certain senior unsecured bridge credit facility providing for up to $10,650,000,000 in senior unsecured bridge loans available to the Borrower arranged by the Ellie Mae Bridge Arrangers and used to (i) finance a portion of the consideration paid by the Borrower to consummate the Ellie Mae Acquisition, (ii) refinance all or a portion of the existing Indebtedness of Ellie Mae and its Subsidiaries, and/or (iii) pay fees, costs, commissions and expenses in connection with the Ellie Mae Transactions, all as contemplated in that certain commitment letter, dated as of August 6, 2020, among Wells Fargo, Credit Suisse AG, the Ellie Mae Bridge Arrangers and the Borrower.

“Ellie Mae Transactions” means, collectively, (a) the Ellie Mae Acquisition, (b) the issuance or incurrence of Indebtedness (including the making of Loans) to finance a portion of the consideration paid by the Borrower to consummate the Ellie Mae Acquisition, (c) the issuance of Capital Stock of the Borrower to the equityholder of Ellie Mae as consideration for the Ellie Mae Acquisition, (d) the refinancing all or a portion of the existing Indebtedness of Ellie Mae and its Subsidiaries, (e) the preparation, execution and delivery of the Seventh Amendment of this Agreement, (f) the preparation, execution and delivery of the Eighth Amendment of this Agreement, (g) the preparation, execution and delivery of the definitive documentation relating to the Term Loan Facility, and (h) the payment of fees, costs, commissions and expenses in connection with each of the foregoing.

“EMU Legislation” means the legislative measures of the European UnionCouncil for the introduction of, changeover to or operation of the Euro that apply generally in thea single or unified European Unioncurrency .

 

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“Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, allegations, notices of noncompliance or violation, investigations by a Governmental Authority, or proceedings (including administrative, regulatory and judicial proceedings) relating in any way to any Hazardous Substance, any actual or alleged violation of or liability under any Environmental Law or any permit issued, or any approval given, under any Environmental Law (collectively, “Claims”), including (i) any and all Claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from any Hazardous Substance or arising from alleged injury or threat of injury to human health or the environment.

“Environmental Laws” means any and all federal, state and local laws, statutes, ordinances, rules, regulations, permits, licenses, approvals, rules of common law and orders of courts or Governmental Authorities, relating to the protection of human health, occupational safety with respect to exposure to Hazardous Substances, or the environment, now or hereafter in effect, including requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation of Hazardous Substances.

“ERISA” means the Employee Retirement Income Security Act of 1974, and any successor statute, and all rules and regulations from time to time promulgated thereunder.

“ERISA Affiliate” means any Person (including any trade or business, whether or not incorporated) deemed to be under “common control” with, or a member of the same “controlled group” as, the Borrower or any of its Subsidiaries, within the meaning of Sections 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.

“ERISA Event” means any of the following: (i) a “reportable event” as defined in Section 4043(c) of ERISA with respect to a Plan and, if a Credit Party or an ERISA Affiliate has received notice, a Multiemployer Plan, for which the requirement to give notice has not been waived by the PBGC (provided however, that a failure to meet the minimum funding standard of Section 412 of the Code shall be considered a “reportable event” regardless of the issuance of any waiver), (ii) the application by a Credit Party or an ERISA Affiliate for a funding waiver pursuant to Section 412 of the Code, (iii) the incurrence by a Credit Party or an ERISA Affiliate of any Withdrawal Liability, or the receipt by a Credit Party or an ERISA Affiliate of notice from a Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to terminate or has terminated under Section 4041A of ERISA, (iv) the distribution by a Credit Party or an ERISA Affiliate under Section 4041 of ERISA of a notice of intent to terminate any Plan or the taking of any action to terminate any Plan, (v) the commencement of proceedings by the PBGC under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or (vi) the imposition of any Lien upon any assets of a Credit Party or an ERISA Affiliate as a result of any alleged failure to comply with the Code or ERISA with respect to any Plan.

“ Erroneous Payment” has the meaning assigned thereto in Section  9.14(a).

 

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“ Erroneous Payment Deficiency Assignment” has the meaning assigned thereto in Section  9.14(d).

“ Erroneous Payment Impacted Class” has the meaning assigned thereto in Section  9.14(d).

“ Erroneous Payment Return Deficiency” has the meaning assigned thereto in Section  9.14(d).

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“ EURIBOR” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.

“ EURIBOR Rate” has the meaning assigned thereto in the definition of “Eurocurrency Rate”.

“Euro” or “€” meansmean the single currency of the European Union as constituted by the Treaty on European Union and as referred to in Participating Member States introduced in accordance with the EMU Legislation.

“Eurocurrency Banking Day” means, (i)  for Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, a London Banking Day, (ii) for Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Euros, a TARGET Day and (iii) for Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Yen, any day (other than a Saturday or Sunday) on which banks are open for business in Japan; provided, that for purposes of any applicable notice requirements, in each case, such day is also a Business Day.

“Eurocurrency Rate” means,

(a)     for any Eurocurrency Rate Loan for any Interest Period:

(i )    denominated in Dollars, the greater of (A) the rate of interest per annum determined on the basis of the rate for deposits in Dollars for a period equal to the applicable Interest Period as published by the IBA, or a comparable or successor quoting service approved by the Administrative Agent (in each case, the “USD LIBOR Rate”), at approximately 11:00 a.m. (London time) on the Rate Determination Date; and (B) the Floor;

(ii)     denominated in Euros, the greater of (A) the rate of interest per annum equal to the Euro Interbank Offered Rate (“EURIBOR” ) as administered by the European Money Markets Institute, or a comparable or successor administrator approved by the Administrative Agent (in each case, the “EURIBOR Rate”), at approximately 11:00 a.m. (Brussels time) on the Rate Determination Date and (B) the Floor; and

(iii)      denominated in Yen, the greater of (A) the rate per annum equal to the Tokyo Interbank Offered Rate (“TIBOR” ) as administered by the Ippan Shadan Hojin

 

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JBA TIBOR Administration, or a comparable or successor administrator approved by the Administrative Agent (in each case, the “TIBOR Rate”), at approximately 11:00 a.m. (Tokyo time) on the Rate Determination Date and (B) the Floor; and

(iv)     denominated in Canadian Dollars, an interest rate per annum determined by the Administrative Agent on the basis of an average rate applicable to Canadian Dollar bankers’ acceptances having a maturity comparable to the applicable Interest Period appearing on the “Reuters Screen CDOR Page” (as defined in the International Swap Dealer Association, Inc.’s definitions), or other commercially available source providing quotations of such rate as selected by the Administrative Agent (in each case the “CDOR Rate”), in consultation with the Borrower, from time to time, at approximately 10:00 a.m., Toronto time, on the first day of such Interest Period (or if such day is not a Business Day, then on the immediately preceding Business Day); provided that if, for any reason, such rate does not appear on the Reuters Screen CDOR Page on such day, then the “Eurocurrency Rate” on such day for any Eurocurrency Rate Loan denominated in Canadian Dollars shall be calculated as the rate (rounded upwards to the nearest basis point) quoted by The Toronto-Dominion Bank (or its successors or assigns or such other bank listed in Schedule I to the Bank Act (Canada) as the Administrative Agent may from time to time designate) as its discount rate for the purchase of Canadian Dollar bankers’ acceptances in an amount substantially equal to such Eurocurrency Rate Loan with a term comparable to such Interest Period at approximately 10:00 a.m., Toronto time, on the first day of such Interest Period (or if such day is not a Business Day, then on the immediately preceding Business Day).

(b)     for any rate calculation with respect to a Base Rate Loan on any date, the rate of interest per annum determined on the basis of the rate for deposits in Dollars for a period of approximately one month as published by the IBA, or a comparable or successor quoting service approved by the Administrative Agent, at approximately 11:00 a.m. (London time) two (2) Eurocurrency Banking Days prior to the date of such calculation.

“ Eurocurrency Rate Loan” means any Loan bearing interest at a rate based on the Adjusted Eurocurrency Rate other than pursuant to clause (c) of the definition of “Base Rate”.

“ Eurocurrency Reserve Percentage” means, for any day, the percentage which is in effect for such day as prescribed by the FRB for determining the maximum reserve requirement (including any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City or any other reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans. The Adjusted Eurocurrency Rate for each outstanding Loan shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage.

“Event of Default” has the meaning given to such term in Section 8.1.

“Exchange Act” means the Securities Exchange Act of 1934, and any successor statute, and all rules and regulations from time to time promulgated thereunder.

 

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“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (i) Taxes imposed on or measured by net income, profits, net worth or capital, franchise Taxes, and branch profits or similar Taxes (in each case, however denominated), in each case, (A) imposed by the United States (or any political subdivision or taxing authority thereof or therein) or as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision or taxing authority thereof or therein) or (B) that are Other Connection Taxes, (ii) any withholding Taxes imposed on amounts payable to or for the account of a Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (A) such Lender acquires such interest in such Loan or Commitment (other than pursuant to an assignment requested by the Borrower under Section 2.18) or (B) such Lender changes its Lending Office, except in each case to the extent that pursuant to Section 2.16, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (iii) Taxes attributable to such Recipient’s failure or inability to comply with Section 2.16(g), (iv) any backup withholding Taxes, and (v) any Taxes imposed under FATCA.

“Existing Letters of Credit” means those letters of credit set forth on Schedule 1.1(b) and continued under this Agreement as Dollar Letters of Credit issued by the Issuing Lender pursuant to Section 2.19.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements entered into in respect of any of the foregoing.

“FCA ” has the meaning assigned thereto in Section  1.6.

“Federal Funds Rate” means, for any period, a fluctuating per annum interest rate (rounded upwards, if necessary, to the nearest 1/100 of one percentage point) equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or if such rate is not so published for any day that is a Business Day, the average rate for such day on such transactions charged to the Administrative Agent. Notwithstanding the foregoing, if any determination of any rate described in this definition would result in the Federal Funds Rate being less than zero, then such rate shall be deemed to be zero.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System or any successor thereto.

“Fee Letters” means the Joint Fee Letter, the BofA Fee Letter and the Wells Fargo Fee Letter.

 

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“Fifth Amendment” means that certain Fifth Amendment to Credit Agreement, dated as of August 18, 2017, among the Credit Parties, the Administrative Agent and the Lenders party thereto.

“Fifth Amendment Consenting Lender” means, as of any date of determination, (a) each Lender that was a Lender immediately prior to the Fifth Amendment Effective Date and that has delivered an executed counterpart to the Fifth Amendment or has otherwise provided in writing its consent to the Fifth Amendment and (b) any Person that becomes a Lender on or after the Fifth Amendment Effective Date, or in connection with the Fifth Amendment, whether pursuant to the terms of the Fifth Amendment, Section 2.18(a), Section 2.20, Section 10.6 hereof or otherwise.

“Fifth Amendment Effective Date” means August 18, 2017.

“ Fifth Amendment Non-Consenting Lender” means, as of any date of determination, each Lender that was a Lender immediately prior the Fifth Amendment Effective Date and is not a Fifth Amendment Consenting Lender.

“Final Maturity Date” means the fifth anniversary of the Eighth Amendment Effective Date; provided, however, that, if such date is not a Business Day, then the Final Maturity Date shall be the immediately preceding Business Day.

“Final Termination Date” means the Final Maturity Date or such earlier date of termination of the Commitments pursuant to Section 2.5 or 8.2.

“Financial Officer” means, with respect to any Person, the chief financial officer, vice president-finance, principal accounting officer or treasurer of such Person.

“First Step Down Date” has the meaning given to such term in Section 6.1.

“fiscal quarter” or “FQ” means a fiscal quarter of the Borrower and its Subsidiaries.

“fiscal year” or “FY” means a fiscal year of the Borrower and its Subsidiaries.

“ Floor” means a rate of interest equal to 0%.

“Foreign Currency” means Euro, Sterling, Canadian Dollars or Japanese Yen.

“Foreign Currency Equivalent” means, on any date of determination, with respect to an amount denominated in Dollars, the equivalent amount thereof in the applicable Foreign Currency that would be required to purchase such amount of Dollars on such date of determination, based upon the Spot Rate.as determined by the Administrative Agent or the Issuing Lender (with notice thereof to the Administrative Agent), as the case may be, in its sole discretion by reference to the most recent Spot Rate (as determined in respect of the most recent Revaluation Date) for the purchase of such Foreign Currency with Dollars.

“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction outside of the United States.

 

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“Foreign Subsidiary” means any Subsidiary of the Borrower that is not a Domestic Subsidiary.

“FRB ” means the Board of Governors of the Federal Reserve System of the United States.

“Fronting Exposure” means at any time there is a Defaulting Lender, (i) with respect to any Issuing Lender, such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any reallocation pursuant to Section 2.21(a)(iv) and the posting of any Cash Collateral in accordance with Section 2.21(a)(v)), and (ii) with respect to the Swingline Lenders, such Defaulting Lender’s Swingline Exposure (after giving effect to any reallocation pursuant to Section 2.21(a)(iv) and the prepayment of any Swingline Loans in accordance with Section 2.21(a)(v)).

“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

“GAAP” means generally accepted accounting principles in the United States of America, as set forth in the statements, opinions and pronouncements of the Accounting Principles Board, the American Institute of Certified Public Accountants and the Financial Accounting Standards Board, consistently applied and maintained, as in effect from time to time (subject to the provisions of Section 1.2).

“Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Guarantor” means NYSEany Subsidiary Guarantor and any other Person that guarantees the Obligations.

“Guaranty Fund” means any fund, deposits or pledged (or transferred) assets, including initial, original, variation, settlement, delivery or mark-to-market margin, buyer’s security or seller’s security, in any case whether contingent or actual (or similar arrangement), set up, maintained or established by (i) ICE Clear US, (ii) ICE Clear Europe, (iii) The Clearing Corporation, (iv) ICE Clear Credit, (v) ICE Clear Canada, (vi) ICE Clear Netherlands, (vii) ICE Clear Singapore and (viii) such other Clearing House Subsidiaries, in each case in which its members (or other Persons) make contributions, make deposits, set aside funds, pledge (or transfer) assets, grant security interests in assets or transfer title to margin or other collateral assets or the like to, among other things, enable the satisfaction (whether in whole or in part) of the obligations of the relevant Clearing House Subsidiary or upon the default (or other specified event) of a clearing member or the like.

“Guaranty Obligation” means, with respect to any Person, any direct or indirect liability of such Person with respect to any Indebtedness, liability or other obligation (the “primary

 

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obligation”) of another Person (the “primary obligor”), whether or not contingent, (i) to purchase, repurchase or otherwise acquire such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or provide funds (x) for the payment or discharge of any such primary obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level of income or financial condition of the primary obligor (including keep well agreements, maintenance agreements, comfort letters or similar agreements or arrangements), (iii) to lease or purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor in respect thereof to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss or failure or inability to perform in respect thereof; provided, however, that, with respect to the Borrower and its Subsidiaries, the term Guaranty Obligation shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guaranty Obligation of any guaranteeing Person hereunder shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guaranty Obligation is made and (b) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guaranty Obligation, unless such primary obligation and the maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of such Guaranty Obligation shall be such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by such guaranteeing Person in good faith.

“Hazardous Substance” means any substance or material meeting any one or more of the following criteria: (i) it is or contains a substance designated as a hazardous waste, hazardous substance, hazardous material, pollutant, contaminant or toxic substance under any Environmental Law, (ii) it is toxic, explosive, corrosive, ignitable, infectious, radioactive, mutagenic or otherwise hazardous to human health or the environment and is or becomes regulated by any Governmental Authority, (iii) its presence may require investigation or response under any Environmental Law, (iv) it constitutes a nuisance, trespass or health or safety hazard to Persons or neighboring properties, or (v) it is or contains, without limiting the foregoing, asbestos, polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived substances or wastes, crude oil, nuclear fuel, natural gas or synthetic gas.

“Hedge Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided, however, that, with respect to any Clearing House Subsidiary, the term Hedge Agreement shall not include any such transaction with respect to which such entity is a party solely in its capacity as a central counterparty.

“HoldingsIBA” has the meaning given to such  termassigned thereto in Section  3.3(g)1.6.

“ICE Clear Canada” means ICE Clear Canada, Inc., a Manitoba corporation and an indirect Wholly-Owned Subsidiary of the Borrower.

 

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“ICE Clear Credit” means ICE Clear Credit, LLC, a Delaware limited liability company (formerly ICE Trust U.S. LLC) and a Subsidiary of the Borrower.

“ICE Clear Europe” means ICE Clear Europe Limited, a private limited company incorporated under the laws of England and Wales and an indirect Wholly-Owned Subsidiary of the Borrower.

“ICE Clear US” means ICE Clear U.S., Inc., a New York corporation and an indirect Wholly-Owned Subsidiary of the Borrower (formerly known as New York Clearing Corporation).

“ICE Clear Netherlands” means ICE Clear Netherlands B.V., a private company established in Amsterdam, The Netherlands and an indirect Wholly-Owned Subsidiary of the Borrower.

“ICE Clear Singapore” means ICE Clear Singapore Pte. Ltd., a company incorporated in the Republic of Singapore and an indirect Wholly-Owned Subsidiary of the Borrower.

“ICE Clear US” means ICE Clear U.S., Inc., a New York corporation and an indirect Wholly-Owned Subsidiary of the Borrower (formerly known as New York Clearing Corporation).

“Increasing Lender” has the meaning set forth in Section 2.20(a).

“Indebtedness” means, with respect to any Person (without duplication), (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by notes, bonds, debentures or similar instruments, or upon which interest payments are customarily made, (iii) the aggregate amount (but only to the extent drawn and not reimbursed) of all surety bonds, letters of credit and bankers’ acceptances issued or created for the account of such Person, (iv) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person, (v) all Capital Lease Obligations of such Person, (vi) all Guaranty Obligations of such Person with respect to Indebtedness of another Person and (vii) all indebtedness of the types referred to in clauses (i) through (vi) above (A) of any partnership or unincorporated joint venture in which such Person is a general partner or joint venturer to the extent such Person is liable therefor or (B) secured by any Lien on any property or asset owned or held by such Person regardless of whether or not the indebtedness secured thereby shall have been incurred or assumed by such Person or is nonrecourse to the credit of such Person, the amount thereof being equal to the lesser of (x) the amount secured by such Lien and (y) the fair market value of the property or assets subject to such Lien as determined in good faith by such Person; provided, however, that, with respect to any Clearing House Subsidiary, the term Indebtedness shall not include any transaction with respect to which such entity is a party solely in its capacity as a central counterparty and, with respect to any Regulated Subsidiary that acts as a swap execution facility, multilateral trading facility, systematic internalizer or organized trading facility and which offers a settlement service for transactions done on such facility or on the facility of another such Regulated Subsidiary, the term Indebtedness shall not include any transaction with respect to which such entity is a party solely in the capacity of offering such a settlement service.

 

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“Indemnified Taxes” means (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Credit Document and (ii) to the extent not otherwise described in clause (i) above, Other Taxes.

“Ineligible Assignees” means those certain Persons set forth in the Ineligible Assignees Letter Agreement and all Affiliates thereof.

“Ineligible Assignees Letter Agreement” means that certain letter agreement, dated as of the Closing Date, between the Borrower and the Primary Administrative Agent, as such letter agreement may be amended or modified from time to time with the consent of the Borrower and, in accordance with Section 9.10(b), the Administrative Agent.

“ Initial RFR Loan” means an RFR Loan that would have borne interest based upon a Daily Simple RFR or a Term RFR on the Tenth Amendment Effective Date. Loans denominated in Sterling are Initial RFR Loans.

“Interest Period” has the meaning given to such term in Section 2.10.

“IRS” means the United States Internal Revenue Service.

“Issuing Lender” means Wells Fargo (in each case, through itself or through one of its designated Affiliates or branch offices) in its capacity as issuer of the Letters of Credit, and its successors in such capacity.

“Joint Fee Letter” means the letter from Wells Fargo, Wells Fargo Securities, LLC, BofA and Merrill Lynch, Pierce, Fenner & Smith Incorporated, to the Borrower, dated October 29, 2015, relating to certain fees payable by the Borrower in respect of the transactions contemplated by this Agreement.

“Lender Parties” has the meaning given to such term in Section 10.11.

“Lenders” means, collectively, the Revolving Lenders and, unless the context requires otherwise, the Swingline Lenders.

“Lending Office” means, with respect to any Lender, the office of such Lender designated as such in such Lender’s Administrative Questionnaire or in connection with an Assignment and Assumption, or such other office as may be otherwise designated in writing from time to time by such Lender to the Borrower and the Administrative Agent. A Lender may designate separate Lending Offices as provided in the foregoing sentence for the purposes of making or maintaining different Types and Classes of Loans, and, with respect to LIBOREurocurrency Rate Loans or Term RFR Loans, such office may be a domestic or foreign branch or Affiliate of such Lender.

“Letter of Credit Exposure” means, with respect to any Lender at any time, such Lender’s Dollar Letter of Credit Exposure or Multicurrency Letter of Credit Exposure, or both, as the context requires.

 

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“Letter of Credit Maturity Date” means the fifth Business Day prior to the Final Maturity Date.

“Letter of Credit Notice” has the meaning given to such term in Section 2.19(b).

“Letters of Credit” means any or all of the Dollar Letters of Credit and Multicurrency Letters of Credit.

“Leverage Increase PeriodLetters of Credit” has the meaning given to such term in Section 6.12.19(a).

“LIBOR Loan” means, at any time, any Loan that bears interest at such time at the applicable Adjusted LIBOR Rate.

“LIBOR Market Index Rate” means, for any date, means, subject to the implementation of a Benchmark Replacement in accordance with Section 2.15(h), the rate for one month deposits in the applicable Currency as published by ICE Benchmark Administration Limited, a United Kingdom company (or a comparable or successor quoting service which is approved by the Administrative Agent, in consultation with the Borrower) as of 11:00 a.m. London time, on such day, or if such day is not a London Banking Day, then the immediately preceding London Banking Day. If, for any reason, such rate is not so published, then the LIBOR Market Index Rate shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which U.S. Dollar deposits would be offered by first class banks (as determined in consultation with the Borrower) in the London interbank market to the Administrative Agent at approximately 11:00 a.m., London time, on such date of determination for delivery on the date in question for a one month term. Notwithstanding the foregoing, if any determination of any rate described in this definition would result in the LIBOR Market Index Rate being less than zero, then such rate shall be deemed to be zero.

“LIBOR Market Index Rate Loan” means any Swingline Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Market Index Rate.

“LIBOR Rate” means, subject to the implementation of a Benchmark Replacement in accordance with Section 2.15(h):

(i)     with respect to each LIBOR Loan denominated in any Currency (other than Canadian Dollars) comprising part of the same Borrowing for any Interest Period, an interest rate per annum obtained by dividing (A) (y) the London Interbank Offered Rate as published by ICE Benchmark Administration Limited, a United Kingdom company (or a comparable or successor quoting service which is approved by the Administrative Agent, in consultation with the Borrower) for deposits denominated in such Currency or (z) if such rate is not so published, the rate of interest determined by the Administrative Agent to be the rate or the arithmetic mean of rates at which deposits in such Currency in immediately available funds are offered to first-tier banks (as determined in consultation with the Borrower) in the London interbank Eurodollar market, in each case under (y) and (z) above at approximately 11:00 a.m., London time, two Business Days prior to the first day of such Interest Period for a period substantially equal to such Interest Period, by (B) the amount equal to 1.00 minus the Reserve Requirement (expressed as a decimal) for such Interest Period; and

 

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(ii)     with respect to each LIBOR Loan denominated in Canadian Dollars comprising part of the same Borrowing for any Interest Period, an interest rate per annum determined by the Administrative Agent on the basis of an average rate applicable to Canadian Dollar bankers’ acceptances having a maturity comparable to the applicable Interest Period appearing on the “Reuters Screen CDOR Page” (as defined in the International Swap Dealer Association, Inc.’s definitions), or other commercially available source providing quotations of such rate as selected by the Administrative Agent, in consultation with the Borrower, from time to time, at approximately 10:00 a.m., Toronto time, on the first day of such Interest Period (or if such day is not a Business Day, then on the immediately preceding Business Day); provided that if, for any reason, such rate does not appear on the Reuters Screen CDOR Page on such day, then the “LIBOR Rate” on such day for any LIBOR Loan denominated in Canadian Dollars shall be calculated as the rate (rounded upwards to the nearest basis point) quoted by The Toronto-Dominion Bank (or its successors or assigns or such other bank listed in Schedule I to the Bank Act (Canada) as the Administrative Agent may from time to time designate) as its discount rate for the purchase of Canadian Dollar bankers’ acceptances in an amount substantially equal to such LIBOR Loan with a term comparable to such Interest Period at approximately 10:00 a.m., Toronto time, on the first day of such Interest Period (or if such day is not a Business Day, then on the immediately preceding Business Day); and

(iii)     for any interest rate calculation with respect to a Base Rate Loan, the rate of interest per annum determined on the basis of the London Interbank Offered Rate for U.S. Dollar deposits for delivery on the date in question for a one month term beginning on that date as published by ICE Benchmark Administration Limited, a United Kingdom company (or other commercially available source providing quotations of such rate as selected by the Administrative Agent, in consultation with the Borrower, from time to time) at approximately 11:00 a.m., London time, on such date of determination, or, if such date is not a Business Day, then the immediately preceding Business Day. If, for any reason, such rate is not so published, then the “LIBOR Rate” for such Base Rate Loan shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which U.S. Dollar deposits would be offered by first class banks (as determined in consultation with the Borrower) in the London interbank market to the Administrative Agent at approximately 11:00 a.m., London time, on such date of determination for delivery on the date in question for a one month term.

Notwithstanding the foregoing, (x) if any determination of any rate described in this definition would result in the LIBOR Rate being less than zero, then such rate shall be deemed to be zero and (y) unless otherwise specified in any amendment to this Agreement entered into in accordance with Section 2.15(h), in the event that a Benchmark Replacement with respect to the LIBOR Rate is implemented, then all references herein to LIBOR Rate shall be deemed references to such Benchmark Replacement.

Each of the Administrative Agent and the Lenders acknowledges and agrees that (1) as of the date hereof, ICE Benchmark Administration Ltd. is a subsidiary of the Borrower, and (2) neither the Administrative Agent nor any Lender, solely in their respective capacities as such under this Agreement, shall have any direct claim under this Agreement against the Borrower on account of any action taken by ICE Benchmark Administration Ltd. in its capacity as a provider of any quotations or rates referred to this definition.

 

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“Lien” means any mortgage, pledge, hypothecation, assignment, security interest, lien (statutory or otherwise), charge or other encumbrance of any nature, whether voluntary or involuntary, including the interest of any vendor or lessor under any conditional sale agreement, title retention agreement, Capital Lease or any other lease or arrangement having substantially the same effect as any of the foregoing; provided that, with respect to the assets of any Clearing House Subsidiary, no rights of setoff, deduction, netting, equity of redemption or offset of any member (or similar Person) of such Clearing House Subsidiary shall constitute a Lien hereunder.

“Loans” means any or all of the Revolving Loans and the Swingline Loans.

“Local Time” means (i) in the case of Multicurrency Revolving Loans or Multicurrency Swingline Loans, in each case denominated in a Foreign Currency, London time, and (ii) in all other cases, Charlotte, North Carolina time.

“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank market.

“Margin Stock” has the meaning given to such term in Regulation U.

“Material Adverse Effect” means a material adverse effect upon (i) the business, assets, financial condition or results of operations of the Borrower and its Subsidiaries, taken as a whole, (ii) the ability of the Borrower or any Guarantor to perform their respective obligations under this Agreement or any of the other Credit Documents or (iii) the legality, validity or enforceability of this Agreement or any of the other Credit Documents or the rights and remedies of the Administrative Agent and the Lenders hereunder and thereunder.

“Material Subsidiary” means, at any time, any Subsidiary of the Borrower that is a “significant subsidiary” as defined in Rule 1-102(w) of Regulation S-X under the Securities Act.

“Maturity Date” means (a) with respect to each Eighth Amendment Consenting Lender, the Final Maturity Date, and (b) with respect to each Eighth Amendment Non-Consenting Lender, the Original Maturity Date. the fifth anniversary of the Tenth Amendment Effective Date; provided, however, that, if such date is not a Business Day, then the Maturity Date shall be the immediately preceding Business Day.

“Moody’s” means Moody’s Investor Service.

“Multicurrency Agent” means (a) during a Wells Fargo Availability Period, Wells Fargo Bank, National Association, London Branch,(or any of its designated branch offices or affiliates), (b) during a Wells Fargo Unavailability Period, the Backup Administrative Agent, and (c) and any other financial institution designated by the Primary Administrative Agent or the Backup Administrative Agent, as applicable (and reasonably acceptable to the Borrower), to act as its sub-agent and correspondent hereunder in respect of the disbursement and payment of Multicurrency Revolving Loans denominated in a Foreign Currency and Multicurrency Swingline Loans.

 

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“Multicurrency L/C Commitment” means the obligation of the Issuing Lender to issue Multicurrency Letters of Credit in an aggregate Dollar Amount equal to $75,000,000 or such greater amount agreed to by the Issuing Lender in its sole and absolute discretion.

“Multicurrency Letter of Credit” has the meaning given to such term in Section 2.19(a).

“Multicurrency Letter of Credit Exposure” means, with respect to any Multicurrency Revolving Lender at any time, such Lender’s ratable share (based on the proportion that its Multicurrency Revolving Commitment bears to the aggregate Multicurrency Revolving Commitments at such time, or if the Multicurrency Revolving Commitments have been terminated, based upon the proportion that its Multicurrency Revolving Commitment bore to the aggregate Multicurrency Revolving Commitments immediately prior to such termination thereof, giving effect to any subsequent assignments) of the sum of (i) the aggregate Stated Amount of all Multicurrency Letters of Credit outstanding at such time and (ii) the aggregate amount of all Multicurrency Reimbursement Obligations outstanding at such time.

“Multicurrency Reimbursement Obligation” has the meaning given to such term in Section 2.19(d).

“Multicurrency Revolving Commitment” means, with respect to any Multicurrency Revolving Lender at any time, the commitment of such Lender to make Multicurrency Revolving Loans, Multicurrency Swingline Loans and participate in Multicurrency Letters of Credit and Multicurrency Swingline Loans in an aggregate principal amount at any time outstanding up to the amount set forth opposite such Lender’s name on Schedule 1.1(a) under the caption “Multicurrency Revolving Commitment” or, if such Lender has entered into one or more Assignment and Assumptions, the amount set forth for such Lender at such time in the Register maintained by the Administrative Agent pursuant to Section 10.6(c) as such Lender’s “Multicurrency Revolving Commitment,” in either case, as such amount may be reduced at or prior to such time pursuant to the terms hereof or increased from time to time pursuant to Section 2.20.

“Multicurrency Revolving Credit Exposure” means, with respect to any Multicurrency Revolving Lender at any time, the sum of (i) the aggregate principal Dollar Amount of all Multicurrency Revolving Loans and Multicurrency Swingline Loans made by such Lender that are outstanding at such time, (ii) the Dollar Amount of such Lender’s Multicurrency Swingline Exposure at such time (disregarding such Lender’s Multicurrency Swingline Exposure in respect of any Multicurrency Swingline Loans made by such Lender), and (iii) such Lender’s Multicurrency Letter of Credit Exposure at such time and (iv) the aggregate amount of any portion of the Pre-Closing Funded Amount funded by such Lender on account of Multicurrency Revolving Loans that is held in the Pre-Closing Funding Account at such time.

“Multicurrency Revolving Lender” means each Person listed on Schedule 1.1(a) as having a Multicurrency Revolving Commitment and each other Person that becomes a “Multicurrency Revolving Lender” hereunder pursuant to Section 2.18(a), 2.20 or 10.6, and their respective successors and assigns.

 

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