Exhibit 10.1

EXECUTION VERSION

 

 

 

AMENDMENT NO. 8

and

LOAN MODIFICATION AGREEMENT

dated as of May 24, 2021

relating to the

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

dated as of June 4, 2014,

among

TRANSDIGM INC.,

TRANSDIGM GROUP INCORPORATED,

THE SUBSIDIARIES OF TRANSDIGM INC. FROM TIME TO TIME PARTY THERETO,

THE LENDERS PARTY THERETO

and

CREDIT SUISSE AG,

as Administrative Agent and Collateral Agent

 

 

CREDIT SUISSE LOAN FUNDING LLC

CAPITAL ONE, NATIONAL ASSOCIATION

and

WELLS FARGO SECURITIES, LLC

as Lead Arrangers and Bookrunners

 

 

 

[CS&M Ref. No. 5865-797]

AMENDMENT NO. 8 AND LOAN MODIFICATION AGREEMENT dated as of May 24, 2021 (this “Agreement”), to the SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 4, 2014 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”; and as amended hereby, the “Amended Credit Agreement”), among TRANSDIGM INC., a Delaware corporation (the “Borrower”), TRANSDIGM GROUP INCORPORATED, a Delaware corporation (“Holdings”), each subsidiary of the Borrower from time to time party thereto, the lenders party thereto and CREDIT SUISSE AG, as administrative agent and collateral agent for the Lenders (in such capacities, the “Agent”).

A.    The Borrower has requested that the Credit Agreement be amended to provide for the extension of the maturity of, and the modification of certain of the terms with respect to, the Extended Revolving Credit Commitments and Extended Revolving Loans.

B.    On the Amendment No. 8 Effective Date, certain of the terms of the Extended Revolving Credit Commitments and Extended Revolving Loans of each existing Revolving Credit Lender that consents to this Agreement by executing and delivering to the Agent (or its counsel) at or prior to 11:59 p.m., New York City time, on May 20, 2021 (the “Delivery Time”), a signature page to this Agreement (each, a “Continuing Revolving Credit Lender”) will be modified as set forth herein. Each Revolving Credit Lender that does not so execute and deliver a signature page to this Agreement at or prior to the Delivery Time (each such Revolving Credit Lender, a “Departing Revolving Credit Lender”) will be subject to the mandatory assignment provisions of Section 2.25(d) of the Credit Agreement upon the effectiveness of this Agreement on the Amendment No. 8 Effective Date and will, in accordance with the terms thereof, be deemed to have assigned all of its interest, rights and obligations with respect to its Extended Revolving Credit Commitment and outstanding Revolving Credit Exposure to the Persons set forth on Schedule I(a) under the caption “Additional Revolving Credit Lenders” (the “Additional Revolving Credit Lenders”) as further set forth herein.

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Defined Terms. Capitalized terms used but not defined herein (including in the recitals hereto) shall have the meanings given to them in the Amended Credit Agreement. The rules of interpretation set forth in Section 1.03 of the Amended Credit Agreement are hereby incorporated by reference herein, mutatis mutandis. As used herein, the term “2021 Revolving Facility Transactions” means, collectively, (a) the execution, delivery and performance by each Loan Party of this Agreement, (b) the modification of the terms of the existing Revolving Credit Commitments on the Amendment No. 8 Effective Date provided for by this Agreement, and (c) the payment of fees and expenses incurred in connection with the foregoing (the “Transaction Costs”).

SECTION 2. Assignment of Revolving Credit Commitments and Revolving Credit Exposure. (a) On the Amendment No. 8 Effective Date, in accordance with the terms of Section 2.25(d)

of the Credit Agreement, each Departing Revolving Credit Lender shall be deemed to irrevocably sell and assign to each Additional Revolving Credit Lender, and each Additional Revolving Credit Lender shall purchase and assume from such Departing Revolving Credit Lender, such interests in such Departing Revolving Credit Lender’s rights and obligations in its capacity as an Extended Revolving Credit Lender under the Credit Agreement and the other Loan Documents (including such Departing Revolving Credit Lender’s Extended Revolving Credit Commitments and the outstanding Revolving Credit Exposure, if any, owing to it and all other rights and obligations that would constitute part of the “Assigned Interest” (as defined in Exhibit B to the Credit Agreement) in respect of its Extended Revolving Credit Commitments and Revolving Credit Exposure so assigned) in each case as shall be necessary in order that, after giving effect to all such sales and assignments and purchases and assumptions, the Extended Revolving Credit Commitment of each Continuing Revolving Credit Lender and each Additional Revolving Credit Lender will equal the amount set forth opposite its name on Schedule I(b) and the Revolving Credit Exposure will be held ratably in accordance with such Extended Revolving Credit Commitments. Each of the Additional Revolving Credit Lenders shall be deemed to have purchased such interests from each Departing Revolving Credit Lender ratably in accordance with their respective obligations to purchase and assume Extended Revolving Credit Commitments pursuant to this Section 2(a) as set forth on Schedule I(a) hereto. Each such assignment and purchase shall be made for a purchase price equal to the principal amount of the outstanding Extended Revolving Loans, if any, so purchased, and if no Extended Revolving Loans shall be outstanding, shall be zero. Each such sale and assignment and purchase and assumption shall be subject to the terms and conditions set forth in Sections 1, 2 and 3 of Annex I to Exhibit B to the Credit Agreement, and such terms and conditions are hereby incorporated by reference herein, mutatis mutandis.

(b) On the Amendment No. 8 Effective Date, (i) each Additional Revolving Credit Lender shall pay to the Agent, for the account of the applicable Departing Revolving Credit Lenders, the purchase price, if any, for the interests to be purchased by it pursuant to paragraph (a) above by wire transfer of immediately available funds not later than 2:00 p.m., New York City time, and (ii) the Borrower shall pay to the Agent, for the account of each Departing Revolving Credit Lender, by wire transfer of immediately available funds, an amount equal to all accrued and unpaid interest and Fees and any other amounts accrued for the account of such Departing Revolving Credit Lender under the Credit Agreement with respect to the interests assigned by it in accordance with paragraph (a) above to but excluding the Amendment No. 8 Effective Date. The Agent shall pay to each Departing Revolving Credit Lender the amounts so received by the Agent from the Additional Revolving Credit Lenders and the Borrower for the account of such Departing Revolving Credit Lender.

(c) Each of the parties hereto hereby consents to the assignments and assumptions provided for in paragraph (a) above and, notwithstanding anything to the contrary in Section 9.04 of the Credit Agreement or otherwise, to the manner in which such assignments are effected, and hereby agrees that this Agreement shall constitute an Assignment and Assumption with respect to each such assignment and assumption.

(d) On the Amendment No. 8 Effective Date, immediately after giving effect to the transactions contemplated by this Section 2, the Extended Revolving Credit Commitments of each Revolving Credit Lender (including each Continuing Revolving Credit Lender and each

 

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Additional Revolving Credit Lender) shall be as set forth on Schedule I(b) and each of the Departing Revolving Credit Lenders shall cease to be a party to the Credit Agreement as a Revolving Credit Lender, but shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03 of the Amended Credit Agreement. For the avoidance of doubt, all Revolving Loans and Letters of Credit outstanding as of the Amendment No. 8 Effective Date shall remain outstanding, with only the terms applicable thereto being modified as set forth herein.

(e) Notwithstanding anything to the contrary contained herein, for all purposes of this Agreement, including this Section 2, to the extent that any existing Revolving Credit Lender shall have elected to extend less than all of its Extended Revolving Credit Commitments pursuant hereto, such Revolving Credit Lender shall be deemed to be a Continuing Revolving Credit Lender with respect to the portion of its Extended Revolving Credit Commitments that it shall have elected to so extend in the amounts set forth opposite such Revolving Credit Lender’s name on Schedule I(b) and a Departing Revolving Credit Lender with respect to the remainder of its Extended Revolving Credit Commitments not so extended pursuant hereto.

SECTION 3. Amendments to Credit Agreement. Effective as of the Amendment No. 8 Effective Date, the Credit Agreement is hereby amended by deleting the stricken text (indicated textually in the same manner as the following example: stricken text) and adding the underlined text (indicated textually in the same manner as the following example: underlined text) as set forth on Exhibit A attached hereto.

SECTION 4. Conditions Precedent to Effectiveness. The effectiveness of this Agreement shall be subject to the satisfaction or waiver by each Continuing Revolving Credit Lender and Additional Revolving Credit Lender of the following conditions precedent (the date on which such conditions precedent are so satisfied or waived, the “Amendment No. 8 Effective Date”):

(a) the Agent shall have received counterparts of this Agreement that, when taken together, bear the signatures of (i) the Borrower, Holdings and the Subsidiaries of the Borrower party to the Credit Agreement on the date hereof, (ii) the Agent, (iii) the Continuing Revolving Credit Lenders and (iv) the Additional Revolving Credit Lenders;

(b) on and as of the Amendment No. 8 Effective Date, each of the conditions set forth in Section 4.01(b) and Section 4.01(c) of the Credit Agreement shall be satisfied; provided that, for purposes of the condition set forth in Section 4.01(b), the words “Second Restatement Date” set forth in Section 3.13(a) of the Credit Agreement shall be deemed to be “Amendment No. 8 Effective Date” in each place they appear therein, the words “Second Restatement Transactions” in Section 3.13(a) of the Credit Agreement shall be deemed to be “2021 Revolving Facility Transactions” and the parenthetical in Section 3.13(a) of the Credit Agreement shall be disregarded;

(c) the Agent shall have received a certificate dated as of the Amendment No. 8 Effective Date and executed by a Financial Officer of the Borrower with respect to the conditions set forth in paragraph (b) above;

(d) the Agent shall have received legal opinions, board resolutions and other closing certificates consistent with those delivered on the Amendment No. 7 Effective Date;

 

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(e) the Agent shall have received, at least three Business Days prior to the Amendment No. 8 Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, that has been reasonably requested by the Agent or any Revolving Credit Lender at least five Business Days prior to the Amendment No. 8 Effective Date; and

(f) the Agent shall have received payment of all fees and reimbursement of all expenses separately agreed in writing by the Borrower and the arranger of the extension of the Revolving Credit Commitments or required by Section 9.03 of the Credit Agreement or by any other Loan Document to be reimbursed by the Borrower on the Amendment No. 8 Effective Date in connection with this Agreement and the transactions contemplated hereby to the extent invoiced at least one Business Day prior to the Amendment No. 8 Effective Date.

The Agent shall notify the Borrower and the Lenders of the Amendment No. 8 Effective Date, and such notice shall be conclusive and binding.

SECTION 5. Representations and Warranties. To induce the other parties hereto to enter into this Agreement, Holdings and the Borrower represent and warrant to each of the Continuing Revolving Credit Lenders, the Additional Revolving Credit Lenders and the Agent that (a) this Agreement has been duly authorized, executed and delivered by Holdings, the Borrower and the Subsidiaries of the Borrower party hereto, and this Agreement constitutes a legal, valid and binding obligation of Holdings, the Borrower and the Subsidiaries of the Borrower party hereto, subject to applicable bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally and to general principles of equity; (b) after giving effect to this Agreement, the representations and warranties set forth in Article III of the Credit Agreement and in each other Loan Document are true and correct in all material respects on and as of the Amendment No. 8 Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date; provided that, (i) in each case, such materiality qualifier shall not be applicable to any representation and warranty that already is qualified or modified by materiality in the text thereof and (ii) for purposes of the representation in Section 3.13(a) of the Credit Agreement, the words “Second Restatement Date” in each place set forth therein shall be deemed to be “Amendment No. 8 Effective Date”, the words “Second Restatement Transactions” shall be deemed to be “2021 Revolving Facility Transactions” and the parenthetical in Section 3.13(a) of the Credit Agreement shall be disregarded; and (c) as of the Amendment No. 8 Effective Date, after giving effect to this Agreement, no Default or Event of Default has occurred and is continuing or would reasonably be expected to result from the 2021 Revolving Facility Transactions.

SECTION 6. Certain Post-Effectiveness Collateral Obligations. The Borrower shall deliver to the Agent each of the documents, and take each of the actions, specified in Schedule II hereto.

SECTION 7. Certain Agreements. (a) The Borrower agrees, for the benefit of the Revolving Credit Lenders only, that, until the first date (the “Additional Conditions End Date”) the Borrower shall have delivered the financial statements required by Section 5.01(a) or (b) and the corresponding Compliance Certificate required by Section 5.01(c) demonstrating that the

 

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Consolidated Net Leverage Ratio shall have been less than 7.00 to 1.00 at the end of any fiscal quarter ending after the Amendment No. 8 Effective Date, without the consent of the Required Revolving Lenders, the Revolving Credit Lenders shall not be required to fund a Revolving Loan or Swingline Loan under the Revolving Credit Commitments if, at the time of the making of such Loan, either of the following shall be true:

(i) There shall then be outstanding Indebtedness of Foreign Restricted Subsidiaries and Permitted Subsidiary Preferred Stock under clause (14) of the definition of “Permitted Indebtedness” in Section 1.01 of the Amended Credit Agreement in an aggregate principal amount and liquidation preference, respectively, in excess of the greater of (i) $225,000,000 and (ii) 10% of the Consolidated EBITDA of the Borrower for the most recently ended period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b) of the Amended Credit Agreement; or

(ii) The Borrower shall have made any Restricted Payment after the Amendment No. 8 Effective Date pursuant to paragraph (7) of Section 6.02 of the Amended Credit Agreement at a time when, after giving pro forma effect to such Restricted Payment, the aggregate Unrestricted Cash of all Loan Parties and their Restricted Subsidiaries, as the same would be reflected on a consolidated balance sheet in accordance with GAAP as of the date of such Restricted Payment, would be less than $400,000,000.

(b) In connection with any request for a Revolving Credit Borrowing or Swingline Loan under the Revolving Credit Commitments made prior to the Additional Conditions End Date, the Borrower will certify in writing to the Agent that such Borrowing or Loan is then being requested in compliance with this Section 7.

SECTION 8. Effect of Agreement. Except as expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders or the Agent under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. This Agreement shall not constitute a novation, payment, reborrowing or termination of the Obligations under the Credit Agreement and the other Loan Documents as in effect prior to the Amendment No. 8 Effective Date; such Obligations are in all respects continuing with only the terms being modified as provided in this Agreement and the liens and security interests in favor of the Agent for the benefit of the Secured Parties securing payment of such Obligations are in all respects continuing and in full force and effect with respect to all Obligations. This Agreement shall apply and be effective only with respect to the provisions of the Credit Agreement specifically referred to herein. After the Amendment No. 8 Effective Date, any reference to the Credit Agreement in any Loan Document, and the terms “this Agreement”, “herein”, “hereunder”, “hereto”, “hereof” and words of similar import in the Credit Agreement, shall, unless the context otherwise requires, mean the Credit Agreement as modified hereby. This Agreement shall constitute a “Loan Document” and a “Loan Modification Agreement”, in each case for all purposes of the Amended Credit Agreement and the other Loan Documents.

 

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SECTION 9. Acknowledgement and Consent. Each Loan Party hereby acknowledges that it has read this Agreement and consents to the terms hereof and further hereby affirms, confirms and agrees that (a) notwithstanding the effectiveness of this Agreement, the obligations of such Loan Party under each of the Loan Documents to which it is a party shall not be impaired and each of the Loan Documents to which such Loan Party is a party is, and shall continue to be, in full force and effect and is hereby confirmed and ratified in all respects, in each case, as amended hereby; (b) its Guarantee of the Obligations, and the pledge of and/or grant of a security interest in its assets as Collateral to secure the Obligations, all as and to the extent provided in the Collateral Documents as originally executed, shall continue in full force and effect in respect of, and to secure, the Obligations (including Obligations incurred under or with respect to the Revolving Credit Commitments as modified hereby); and (c) all the representations and warranties made by or relating to it contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the Amendment No. 8 Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representation and warranty that already is qualified or modified by materiality in the text thereof.

SECTION 10. Lead Arrangers and Bookrunners. The lead arrangers and bookrunners listed on the cover page hereof shall not have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.

SECTION 11. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Any signature to this Agreement may be delivered by facsimile, electronic mail (including pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law. The foregoing also applies to any amendment, extension or renewal of this Agreement. Each of the parties hereto represents and warrants to the other parties hereto that it has the organizational capacity and authority to execute this Agreement through electronic means and there are no restrictions for doing so in such party’s constitutive documents.

SECTION 12. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. The provisions of Sections 9.09 and 9.10 of the Credit Agreement shall apply to this Agreement to the same extent as if fully set forth herein.

SECTION 13. Headings. Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

 

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SECTION 14. New Lenders. Each Additional Revolving Credit Lender that was not a Lender prior to the date hereof acknowledges and agrees that, upon its execution of this Agreement, such Additional Revolving Credit Lender shall become a “Lender” under, and for all purposes of, the Amended Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of a Lender thereunder.

[Remainder of page intentionally left blank]

 

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

 

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

 

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

To execute this Agreement as a Continuing Revolving Credit Lender and/or an Additional Revolving Credit Lender:

Name of Institution: MORGAN STANLEY SENIOR FUNDING, INC.

 

		by		/s/ Michael King
				Name: Michael King
				Title:   Authorized Signatory

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

To execute this Agreement as a Continuing Revolving Credit Lender and/or an Additional Revolving Credit Lender:

Name of Institution: CITIGROUP GLOBAL MARKETS INC.

 

		by		/s/ Brian Reed
				Name: Brian Reed
				Title:   Vice President

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

To execute this Agreement as a Continuing Revolving Credit Lender and/or an Additional Revolving Credit Lender:

 

		GOLDMAN SACHS BANK USA
		by		/s/ Ryan Durkin
				Name: Ryan Durkin
				Title:   Authorized Signatory

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

To execute this Agreement as a Continuing Revolving Credit Lender and/or an Additional Revolving Credit Lender:

Name of Institution: JPMORGAN CHASE BANK, N.A.

 

		by		/s/ Brendan Korb
				Name: Brendan Korb
				Title:   Vice President

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

To execute this Agreement as a Continuing Revolving Credit Lender and/or an Additional Revolving Credit Lender:

Name of Institution: ROYAL BANK OF CANADA

 

		by		/s/ Richard C. Smith
				Name: Richard C. Smith
				Title:   Authorized Signatory

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

To execute this Agreement as a Continuing Revolving Credit Lender and/or an Additional Revolving Credit Lender:

Name of Institution: BARCLAYS BANK PLC

 

		by		/s/ Craig Malloy
				Name: Craig Malloy
				Title:   Director

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

To execute this Agreement as a Continuing Revolving Credit Lender and/or an Additional Revolving Credit Lender:

Name of Institution: HSBC BANK USA, N.A.

 

		by		/s/ Andrew M. Horn
				Name: Andrew M. Horn
				Title:   Director

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

To execute this Agreement as a Continuing Revolving Credit Lender and/or an Additional Revolving Credit Lender:

Name of Institution: Capital One, N.A.

 

		by		/s/ Sean C. Horridge
				Name: Sean C. Horridge
				Title:   Managing Director
				For any institution requiring a second signature line:
		by
				Name:
				Title:

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

To execute this Agreement as a Continuing Revolving Credit Lender and/or an Additional Revolving Credit Lender:

Name of Institution: WELLS FARGO BANK, N.A.

 

		by		/s/ Andrew Spreyer
				Name: Andrew Spreyer
				Title:   Director
				For any institution requiring a second signature line:
		by
				Name:
				Title:

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

To execute this Agreement as a Continuing Revolving Credit Lender and/or an Additional Revolving Credit Lender:

 

		PNC Bank, N.A.
		by		/s/ Spencer Dieken
				Name: Spencer Dieken
				Title:   Senior Vice President

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

To execute this Agreement as a Continuing Revolving Credit Lender and/or an Additional Revolving Credit Lender:

Name of Institution: Fifth Third Bank, National Association

 

		by		/s/ Rachel Hermanson
				Name: Rachel Hermanson
				Title:   Vice President

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

To execute this Agreement as a Continuing Revolving Credit Lender and/or an Additional Revolving Credit Lender:

Name of Institution: KKR Corporate Lending LLC

 

		by		/s/ John Knox
				Name: John Knox
				Title:   CFO

 

[Signature Page to Amendment No. 8 and Loan Modification Agreement]

SCHEDULE I(a)

Additional Revolving Credit Lenders

 

Additional Revolving Credit Lender		Amount of Extended Dollar Revolving Credit Commitments to be Assumed				Amount of Extended Multicurrency Revolving Credit Commitments to be Assumed
Capital One, N.A.		$	32,250,000			$	7,750,000
Wells Fargo Bank, N.A.		$	32,250,000			$	7,750,000
Morgan Stanley Senior Funding, Inc.		$	22,376,100			$	7,623,900
TOTAL		$	86,876,100			$	23,123,900

SCHEDULE I(b)

Revolving Credit Commitments

 

Lender		Extended Dollar Revolving Credit Commitment				Extended Multicurrency Revolving Credit Commitment
Credit Suisse AG, Cayman Islands Branch		$	68,000,000			$	17,000,000
Morgan Stanley Senior Funding, Inc.		$	64,000,000			$	16,000,000
Citigroup Global Markets Inc.		$	60,000,000			$	15,000,000
Goldman Sachs Bank USA		$	60,000,000			$	15,000,000
JPMorgan Chase Bank, N.A.		$	60,000,000			$	15,000,000
Royal Bank of Canada		$	60,000,000			$	15,000,000
Barclays Bank PLC		$	56,000,000			$	14,000,000
HSBC Bank USA, N.A.		$	44,000,000			$	11,000,000
Capital One, N.A.		$	32,250,000			$	7,750,000
Wells Fargo Bank, N.A.		$	32,250,000			$	7,750,000
PNC Bank, N.A.		$	28,000,000			$	7,000,000
Fifth Third Bank, National Association		$	24,000,000			$	6,000,000
KKR Corporate Lending LLC		$	20,000,000			$	5,000,000
TOTAL		$	608,500,000			$	151,500,000

SCHEDULE II

Post Amendment No. 8 Effective Date Obligations

Within 90 days after the Amendment No. 8 Effective Date (or such later date that the Agent in its reasonable discretion may permit), with respect to the below described Mortgaged Property, the Agent shall have received (i) an amendment to the existing Mortgage in form and substance reasonably satisfactory to the Agent, (ii) evidence that a counterpart of such amendment to the existing Mortgage has been recorded (or delivered to the appropriate Title Insurance Company subject to arrangements reasonably satisfactory to the Agent for recording promptly thereafter in the place necessary to create a valid and enforceable first priority Lien in favor of the Agent for the benefit of itself and the Secured Parties), (iii) a “date-down” and modification endorsement to the existing Title Insurance Policy (or a new Title Insurance Policy if such endorsements are not available in a jurisdiction where an existing Mortgage has been recorded), which shall amend the description therein of the insured existing Mortgage to include the amendment of the existing Mortgage, and otherwise be in form and substance reasonably satisfactory to the Agent, (iv) a favorable opinion of counsel in the state in which such parcel of real property is located with respect to the enforceability of said amendment of the existing Mortgage and such other opinions as Agent shall reasonably request, all in form and substance and from counsel reasonably satisfactory to the Agent and (v) such other information, documentation, and certifications (including evidence of flood insurance as may be required by applicable law) as may be reasonably required by the Agent, in each case with respect to the following Mortgaged Property:

1230 Old Norris Road, Liberty, SC 29657

For the avoidance of doubt, delivery of the foregoing information, documentation and certifications shall satisfy any comparable obligations under any prior Loan Document to the extent such information, documentation and certifications also relate to the Obligations with respect to which such comparable obligations are owed.

EXHIBIT A

 

 

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of June 4, 2014

Among

THE FINANCIAL INSTITUTIONS PARTY HERETO,

as the Lenders,

and

CREDIT SUISSE AG,

as Administrative Agent and Collateral Agent,

and

TRANSDIGM INC.

and

TRANSDIGM GROUP INCORPORATED

and

The subsidiaries of TransDigm Inc. from time to time party hereto

CREDIT SUISSE SECURITIES (USA) LLC

and

MORGAN STANLEY SENIOR FUNDING, INC.,

as Joint Lead Arrangers

CREDIT SUISSE SECURITIES (USA) LLC,

MORGAN STANLEY SENIOR FUNDING, INC.,

UBS SECURITIES LLC,

CITIGROUP GLOBAL MARKETS INC.,

BARCLAYS BANK PLC,

RBC CAPITAL MARKETS

and

HSBC SECURITIES (USA) INC.,

as Joint Bookrunners

MORGAN STANLEY SENIOR FUNDING, INC.

as Syndication Agent

and

PNC CAPITAL MARKETS LLC,

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK.

and

MCS CAPITAL MARKETS

as Co-Managers

 

 

 

[CS&M Ref No. 5865-797]

TABLE OF CONTENTS

 

				Page
ARTICLE I
Definitions
SECTION 1.01.		Defined Terms			2
SECTION 1.02.		Classification of Loans and Borrowings			69
SECTION 1.03.		Terms Generally			6769
SECTION 1.04.		Effectuation of Transactions			70
SECTION 1.05.		Accounting Terms; GAAP			70
SECTION 1.06.		Designated Senior Debt			6870
SECTION 1.07.		Pro Forma Calculations			6870
SECTION 1.08.		Exchange Rates			71
ARTICLE II
The Credits
SECTION 2.01.		Commitments			71
SECTION 2.02.		Loans and Borrowings			72
SECTION 2.03.		Requests for Borrowing			74
SECTION 2.04.		Funding of Borrowings			75
SECTION 2.05.		Type; Interest Elections			75
SECTION 2.06.		Termination and Reduction of Commitments			77
SECTION 2.07.		Repayment of Loans; Evidence of Debt			78
SECTION 2.08.		Repayment of Term Borrowings			79
SECTION 2.09.		Optional Prepayment of Loans			83
SECTION 2.10.		Mandatory Prepayment of Loans			85
SECTION 2.11.		Fees			87
SECTION 2.12.		Interest			88
SECTION 2.13.		Alternate Rate of Interest			8789
SECTION 2.14.		Increased Costs			9294
SECTION 2.15.		Break Funding Payments			96
SECTION 2.16.		Taxes			9496
SECTION 2.17.		Payments Generally; Allocation of Proceeds; Sharing of Set-offs			98100
SECTION 2.18.		Mitigation Obligations; Replacement of Lenders			102
SECTION 2.19.		Illegality			103
SECTION 2.20.		[Intentionally Omitted.]Effect of Benchmark Transition Event After Amendment No. 8 Effective Date			103
SECTION 2.21.		[Intentionally Omitted.]			101112
SECTION 2.22.		Swingline Loans			101113
SECTION 2.23.		Letters of Credit			104115
SECTION 2.24.		Increase in Commitments			109120
SECTION 2.25.		Loan Modification Offers			111123

 

i

SECTION 2.26.		Refinancing Facilities			113124
SECTION 2.27.		[Intentionally Omitted]			115126
SECTION 2.28.		Defaulting Lenders			115126
ARTICLE III
Representations and Warranties
SECTION 3.01.		Organization; Powers			117128
SECTION 3.02.		Authorization; Enforceability			117128
SECTION 3.03.		Governmental Approvals; No Conflicts			117128
SECTION 3.04.		Financial Condition; No Material Adverse Change			117129
SECTION 3.05.		Properties			118129
SECTION 3.06.		Litigation and Environmental Matters			119130
SECTION 3.07.		Compliance with Laws and Agreements; Licenses and Permits			119130
SECTION 3.08.		Investment Company Status			119131
SECTION 3.09.		Taxes			119131
SECTION 3.10.		ERISA			120131
SECTION 3.11.		Disclosure			120131
SECTION 3.12.		Material Agreements			120132
SECTION 3.13.		Solvency			120132
SECTION 3.14.		Insurance			121132
SECTION 3.15.		Capitalization and Subsidiaries			121132
SECTION 3.16.		Security Interest in Collateral			121133
SECTION 3.17.		Labor Disputes			122133
SECTION 3.18.		Federal Reserve Regulations			122133
SECTION 3.19.		Senior Debt			122134
SECTION 3.20.		USA PATRIOT Act and Other Regulations			122134
ARTICLE IV
Conditions
SECTION 4.01.		All Credit Events			123134
SECTION 4.02.		Second Restatement Date			124135
ARTICLE V
Affirmative Covenants
SECTION 5.01.		Financial Statements and Other Information			125137
SECTION 5.02.		Notices of Material Events			128139
SECTION 5.03.		Existence; Conduct of Business			128140
SECTION 5.04.		Payment of Taxes			129140
SECTION 5.05.		Maintenance of Properties			129140
SECTION 5.06.		Books and Records; Inspection Rights			129140
SECTION 5.07.		Maintenance of Ratings			129141

 

ii

SECTION 5.08.		Compliance with Laws			129141
SECTION 5.09.		Use of Proceeds			129141
SECTION 5.10.		Insurance			130141
SECTION 5.11.		Additional Collateral; Further Assurances			130142
SECTION 5.12.		Certain Post-Closing Collateral Obligations			132143
ARTICLE VI
Negative Covenants
SECTION 6.01.		Limitation on Incurrence of Additional Indebtedness			133144
SECTION 6.02.		Limitation on Restricted Payments			133144
SECTION 6.03.		Limitation on Asset Sales			137148
SECTION 6.04.		Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries			137149
SECTION 6.05.		Limitation on Preferred Stock of Restricted Subsidiaries			139150
SECTION 6.06.		Limitation on Liens			139151
SECTION 6.07.		Merger, Consolidation or Sale of All or Substantially All Assets			139151
SECTION 6.08.		Limitation on Transactions with Affiliates			140152
SECTION 6.09.		[Intentionally Omitted]			141153
SECTION 6.10.		Business of Borrower and Restricted Subsidiaries			142153
SECTION 6.11.		Limitations on Amendments to Subordination Provisions and Other Amendments			142153
SECTION 6.12.		Business of Holdings			142154
SECTION 6.13.		Impairment of Security Interest			142154
SECTION 6.14.		Financial Covenant			143154
SECTION 6.15.		Sale and Lease-Back Transactions			143154
SECTION 6.16.		Limitations on Investments			143154
ARTICLE VII
Events of Default
ARTICLE VIII
The Agent
ARTICLE IX
Miscellaneous
SECTION 9.01.		Notices			151162
SECTION 9.02.		Waivers; Amendments			153165
SECTION 9.03.		Expenses; Indemnity; Damage Waiver			156168
SECTION 9.04.		Successors and Assigns			158170
SECTION 9.05.		Survival			163175
SECTION 9.06.		Integration; Effectiveness			164175

 

iii

SECTION 9.07.		Severability			164175
SECTION 9.08.		Right of Setoff			164175
SECTION 9.09.		Governing Law; Jurisdiction; Consent to Service of Process			164176
SECTION 9.10.		WAIVER OF JURY TRIAL			165177
SECTION 9.11.		Headings			166177
SECTION 9.12.		Confidentiality			166177
SECTION 9.13.		Several Obligations; Nonreliance; Violation of Law			166178
SECTION 9.14.		USA PATRIOT Act			167178
SECTION 9.15.		Disclosure			167178
SECTION 9.16.		Appointment for Perfection			167178
SECTION 9.17.		Interest Rate Limitation			167178
SECTION 9.18.		Effect of Restatement			167179
SECTION 9.19.		Conversion of Currencies			168179
SECTION 9.20.		Absence of Fiduciary Relationship			168179
SECTION 9.21.		Acknowledgement and Consent to Bail-In of EEA Financial Institutions			169180
SECTION 9.22.		Acknowledgement Regarding Any Supported QFCs			170181

 

SCHEDULES:
Commitment Schedule
Schedule 1.01(a)		—		Immaterial Subsidiaries
Schedule 1.01(b)		—		Mortgaged Properties
Schedule 1.01(c)		—		Existing Letters of Credit
Schedule 1.01(d)		—		Existing Indebtedness
Schedule 1.01(e)		—		Existing Liens
Schedule 1.01(f)		—		Existing Investments
Schedule 3.05(a)		—		Properties
Schedule 3.05(f)		—		Intellectual Property
Schedule 3.15		—		Capitalization and Subsidiaries
Schedule 3.16		—		Mortgage Filing Offices
Schedule 3.17		—		Labor Disputes
Schedule 9.01		—		Borrower’s Website for Electronic Delivery

 

EXHIBITS:
Exhibit A—		Form of Administrative Questionnaire
Exhibit B—		Form of Assignment and Assumption
Exhibit C—		Form of Compliance Certificate
Exhibit D—		Joinder Agreement
Exhibit E—		Form of Borrowing Request
Exhibit F—		Form of Promissory Notes
Exhibit G—		Mandatory Cost

 

 

iv

SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 4, 2014 (this “Agreement”), among TRANSDIGM INC., a Delaware corporation (the “Borrower”), TRANSDIGM GROUP INCORPORATED, a Delaware corporation (“Holdings”), each subsidiary of the Borrower from time to time party hereto, the Lenders (as defined in Article I) and CREDIT SUISSE AG, as administrative agent and collateral agent for the Lenders hereunder (in such capacities, the “Agent”).

Pursuant to the Amendment and Restatement Agreement dated as of the Restatement Date (such term and each other capitalized term used but not defined in this introductory statement having the meaning given it in Article I) (the “First Amendment and Restatement Agreement”), among the Borrower, Holdings, each subsidiary of the Borrower party thereto, the lenders party thereto and the Agent, (a) that certain Credit Agreement dated as of December 6, 2010, as amended by Amendment No. 1 dated as of March 25, 2011 and Amendment No. 2 dated as of October 9, 2012 (the “2010 Credit Agreement”) and (b) that certain Credit Agreement dated as of February 14, 2011, as amended by Amendment No. 1 and Incremental Term Loan Assumption Agreement dated as of February 15, 2012 and Amendment No. 2 and Incremental Term Loan Assumption Agreement dated as of October 9, 2012 (the “2011 Credit Agreement” and, together with the 2010 Credit Agreement, the “Existing Credit Agreements”), in each case, among the Borrower, Holdings, certain subsidiaries of the Borrower party thereto, certain lenders, the Agent and the other parties thereto, were amended and restated in their entirety and replaced by a single agreement in the form of the First Restated Credit Agreement.

On the Restatement Date, certain lenders party to the First Restated Credit Agreement agreed to extend credit in the form of (a) Tranche B Term Loans (as defined in the First Restated Credit Agreement) in an aggregate principal amount of $500,000,000 and Tranche C Term Loans in an aggregate principal amount of $1,700,000,000, the proceeds of which were used to finance the Existing Bank Debt Refinancing and to pay the Transaction Costs and (b) Revolving Loans, Swingline Loans and Letters of Credit (in each case, as defined in the First Restated Credit Agreement) in an aggregate principal amount at any time outstanding not in excess of $310,000,000.

On the First Amendment Effective Date (a) the Borrower, Holdings, the Agent and certain lenders party thereto entered into the First Amendment, pursuant to which certain terms of the First Restated Credit Agreement were amended as set forth therein and (b) the Borrower, Holdings, the subsidiaries of the Borrower party thereto, the lenders party thereto and the Agent entered into an Incremental Term Loan Assumption Agreement, pursuant to which the lenders party thereto made Incremental Term Loans to the Borrower in the form of additional Tranche C Term Loans in an aggregate principal amount of $900,000,000.

Pursuant to the Amendment and Restatement Agreement dated as of the date hereof (the “Second Amendment and Restatement Agreement”), among the Borrower, Holdings, each subsidiary of the Borrower party thereto, the lenders party thereto and the Agent, and upon satisfaction of the conditions set forth therein, the First Restated Credit Agreement shall be amended and restated in its entirety in the form of this Agreement.

The proceeds of the Tranche D Term Loans are to be used solely to (i) finance a portion of the Specified Dividend, (ii) repurchase or otherwise redeem the Senior Subordinated Notes described in clause (i) of the definition thereof (the “Subordinated Notes Refinancing”) and (iii) pay fees and expenses incurred in connection with the Second Restatement Transactions. The proceeds of the Revolving Loans, Swingline Loans and Letters of Credit are to be used solely for general corporate purposes.

The Lenders are willing to extend such credit to the Borrower, and the Issuing Bank is willing to issue Letters of Credit for the account of the Borrower, in each case on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:

ARTICLE I

Definitions

SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

“2010 Credit Agreement” has the meaning assigned to such term in the introductory statement to this Agreement.

“2011 Credit Agreement” has the meaning assigned to such term in the introductory statement to this Agreement.

“2013 Senior Subordinated Notes” means the Borrower’s 7.50% Senior Subordinated Notes due 2021 in an initial aggregate principal amount of $500,000,000.

“2014 Senior Subordinated Notes” means (i) the Borrower’s 6.00% Senior Subordinated Notes due 2022 in an initial aggregate principal amount of $1,150,000,000 and (ii) the Borrower’s 6.50% Senior Subordinated Notes due 2024 in an initial aggregate principal amount of $1,200,000,000.

“2015 Effective Date” has the meaning assigned to such term in Incremental Assumption Agreement No. 1.

“2015 Senior Subordinated Notes” means the Borrower’s 6.50% Senior Subordinated Notes due 2025 in an initial aggregate principal amount of $450,000,000.

“2016 Effective Date” has the meaning assigned to such term in Amendment No. 1.

“2016 Senior Subordinated Notes” means the Borrower’s 6.375% Senior Subordinated Notes due 2026 in an initial aggregate principal amount of $950,000,000.

“2017 Specified Restricted Payments” means Restricted Payments in an amount not to exceed $1,260,179,000 in the aggregate by the Borrower to Holdings, the proceeds of which Restricted Payments are used by Holdings to pay a special dividend or other distribution to holders of its Capital Stock or to repurchase shares of its Common Stock.

 

2

“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

“Accepting Lenders” has the meaning assigned to such term in Section 2.25(a).

“Adjusted LIBO Rate” means, for any Interest Period, a rate per annum equal to (a) with respect to any Eurocurrency Borrowing denominated in Euro, the EURIBO Rate in effect for such Interest Period plus Mandatory Cost and (b) with respect to any other Eurocurrency Borrowing, the LIBO Rate in effect for such Interest Period multiplied by Statutory Reserves; provided, however, that if such Eurocurrency Borrowing is denominated in Pounds, then the “Adjusted LIBO Rate” shall be the LIBO Rate in effect for such Interest Period plus Mandatory Cost; provided, further, that the Adjusted LIBO Rate with respect to (i) any Loans (other than Other Term Loans, (to the extent expressly provided in the related Incremental Term Loan Assumption Agreement), Tranche E Term Loans, Tranche F Term Loans and Tranche G Term Loans) shall be deemed to be not less than 0.75% per annum and (ii) Tranche E Term Loans, Tranche F Term Loans and Tranche G Term Loans shall be deemed to be not less than 0.00% per annum.

“Administrative Questionnaire” means an Administrative Questionnaire in the form of Exhibit A, or such other form as may be supplied from time to time by the Agent.

“Affected Class” has the meaning assigned to such term in Section 2.25(a).

“Affiliate” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative of the foregoing. Notwithstanding the foregoing, no Person (other than the Borrower or any Subsidiary of the Borrower) in whom a Securitization Entity makes an Investment in connection with a Securitization Transaction shall be deemed to be an Affiliate of the Borrower or any of its Subsidiaries solely by reason of such Investment.

“Affiliate Transaction” has the meaning assigned to such term in Section 6.08.

“Agent” has the meaning assigned to such term in the preamble to this Agreement.

“Agent Fees” has the meaning assigned to such term in Section 2.11(b).

“Aggregate Dollar Revolving Credit Exposure” means the aggregate amount of the Lenders’ Dollar Revolving Credit Exposures.

 

3

“Aggregate Multicurrency Revolving Credit Exposure” means the aggregate amount of the Lenders’ Multicurrency Revolving Credit Exposures.

“Aggregate Revolving Credit Exposure” means the aggregate amount of the Lenders’ Revolving Credit Exposures.

“Agreement” has the meaning assigned to such term in the preamble hereto.

“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) (i) 1.751.00% per annum, with respect to any Loans (other than Other Term Loans, (to the extent expressly provided in the related Incremental Term Loan Assumption Agreement), Tranche E Term Loans, Tranche F Term Loans and Tranche G Term Loans), and (ii) 1.00% per annum, with respect to Tranche E Term Loans, Tranche F Term Loans and Tranche G Term Loans, (b) the Prime Rate in effect on such day, (c) the Federal Funds Effective Rate in effect on such day plus ¹⁄₂ of 1% and (d) the Adjusted LIBO Rate for the applicable Loan on such day (or if such day is not a Business Day, the immediately preceding Business Day) for a deposit in Dollars with a maturity of three months plus 1%; provided that, solely for purposes of the foregoing, the Adjusted LIBO Rate for any day shall be calculated using the LIBO Rate based on the rate per annum determined by the Agent on such day at approximately 11:00 a.m. (London time) by reference to the ICE Benchmark Administration Interest Settlement Rates for deposits in Dollars (as set forth by any service selected by the Agent that has been nominated by the ICE Benchmark Administration Limited (or any Person which takes over the administration of that rate) as an authorized information vendor for the purpose of displaying such rates) for a period equal to three months. If the Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate or the Adjusted LIBO Rate for any reason, including the inability or failure of the Agent to obtain sufficient quotations in accordance with the terms of the definition of Federal Funds Effective Rate, the Alternate Base Rate shall be determined without regard to clause (c) or (d), as applicable, of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.

“Alternative Currency” means, with respect to (a) Multicurrency Revolving Loans, Multicurrency Letters of Credit and Incremental Revolving Loans, Pounds, Euro or any other currency reasonably acceptable to the Agent, each Multicurrency Revolving Credit Lender or Incremental Revolving Credit Lender, as applicable, and, with respect to any Multicurrency Letter of Credit, the Issuing Bank; provided that, with respect to Multicurrency Revolving Loans, Pounds shall not constitute an Alternative Currency until the earlier of (i) September 30, 2021 (or such later date as the Administrative Agent and the Borrower shall agree in their sole discretion) and (ii) the date that each Multicurrency Revolving Credit Lender that is unable to make SONIA Rate Loans as of the Amendment No. 8 Effective Date shall have provided notice to the Agent and the Borrower that it is then able to make SONIA Rate Loans (and each such Lender agrees to so promptly notify the Agent and the Borrower) and (b) any Swingline Loans, any currency reasonably acceptable to the Agent and the applicable Swingline Lender.

 

4

“Alternative Currency Equivalent” means, on any date of determination, with respect to any amount denominated in Dollars in relation to any specified Alternative Currency, the equivalent in such specified Alternative Currency of such amount in Dollars, determined by the Agent pursuant to Section 1.08 using the applicable Exchange Rate then in effect.

“Alternative Currency Swingline Loan” means a Swingline Loan denominated in an Alternative Currency.

“Amendment No. 1” means Amendment No. 1 dated as of June 9, 2016, relating to this Agreement.

“Amendment No. 2” means Amendment No. 2 dated as of March 6, 2017, relating to this Agreement.

“Amendment No. 2 Effective Date” has the meaning assigned to such term in Amendment No. 2.

“Amendment No. 3” means Amendment No. 3 and Incremental Term Loan Assumption Agreement dated as of August 22, 2017, relating to this Agreement.

“Amendment No. 3 Effective Date” has the meaning assigned to such term in Amendment No. 3.

“Amendment No. 4” means Amendment No. 4 and Refinancing Facility Agreement dated as of November 30, 2017, relating to this Agreement.

“Amendment No. 4 Effective Date” has the meaning assigned to such term in Amendment No. 4.

“Amendment No. 5” means Amendment No. 5, Incremental Assumption Agreement and Refinancing Facility Agreement dated as of May 30, 2018, relating to this Agreement.

“Amendment No. 5 Effective Date” has the meaning assigned to such term in Amendment No. 5.

“Amendment No. 6” means Amendment No. 6 and Incremental Revolving Credit Assumption Agreement dated as of March 14, 2019, relating to this Agreement.

“Amendment No. 6 Effective Date” has the meaning assigned to such term in Amendment No. 6.

“Amendment No. 7” means Amendment No. 7 and Refinancing Facility Agreement dated as of February 6, 2020, relating to this Agreement.

“Amendment No. 7 Effective Date” has the meaning assigned to such term in Amendment No. 7.

 

5

“Amendment No. 8” means Amendment No. 8 and Loan Modification Agreement dated as of May 24, 2021, relating to this Agreement.

“Amendment No. 8 Effective Date” has the meaning assigned to such term in Amendment No. 8.

“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.

“Applicable Rate” means, for any day:

(a)    with respect to Revolving Loans, (i) for Eurocurrency Loans and SONIA Rate Loans, 3.002.50% per annum, and (ii) for ABR Loans (including with respect to any Swingline Loan denominated in Dollars), 2.001.50% per annum;

(b)    with respect to Tranche E Term Loans, Tranche F Term Loans and Tranche G Term Loans, (i) for Eurocurrency Loans, 2.25% per annum, and (ii) for ABR Loans, 1.25% per annum; and

(c)    with respect to the Commitment Fees, (i) if the Consolidated Leverage Ratio is equal to or greater than 4.00 to 1.00, 0.50% per annum, and (ii) if the Consolidated Leverage Ratio is less than 4.00 to 1.00, 0.375% per annum.

Each change in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio of the Borrower shall be effective with respect to all Commitments outstanding on and after the date of delivery to the Agent of the financial statements and certificates required by Section 5.01(a) or (b) and Section 5.01(c), respectively, indicating such change, and until the date immediately preceding the next date of delivery of such financial statements and certificates indicating another such change. Notwithstanding the foregoing, (x) at any time during which the Borrower has failed to deliver the financial statements and certificates required by Section 5.01(a) or (b) and Section 5.01(c), respectively, or (y) at any time after the occurrence and during the continuance of an Event of Default, the Consolidated Leverage Ratio shall be deemed to be greater than 4.00 to 1.00 for the purposes of determining the Applicable Rate. In the event that any financial statement or certificate delivered pursuant to Section 5.01(a) or (b) and Section 5.01(c), respectively, is shown to be inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher Applicable Rate for any period (an “Applicable Period”) than the Applicable Rate applied for such Applicable Period, then (i) the Borrower shall immediately deliver to the Agent a corrected certificate required by Section 5.01(c) for such Applicable Period, (ii) the Applicable Rate for such Applicable Period shall be determined by reference to the Consolidated Leverage Ratio set forth in the corrected certificate and (iii) the Borrower shall immediately pay to the Agent the accrued additional Commitment Fees owing as a result of such increased Applicable Rate for such Applicable Period, which payment shall be applied by the Agent to the affected Obligations.

“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.

 

6

“Asset Sale” means any direct or indirect sale, issuance, conveyance, transfer, lease (other than operating leases entered into in the ordinary course of business), assignment or other transfer for value (including by way of merger, amalgamation, casualty, condemnation or otherwise) by the Borrower or any of its Restricted Subsidiaries (including any Sale and Lease-Back Transaction) to any Person other than the Borrower or any Restricted Subsidiary of:

(1) any Equity Interests of any Restricted Subsidiary of the Borrower, or

(2) any other property or assets of the Borrower or any Restricted Subsidiary of the Borrower; provided, however, that Asset Sales or other dispositions shall not include:

(a) a transaction or series of related transactions for which the Borrower or its Restricted Subsidiaries receive aggregate consideration of less than $5,000,000;

(b) the sale or discount, in each case without recourse, of accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;

(c) the sale, lease, transfer, conveyance, disposal or replacement of inventory and obsolete or unused or no longer useful equipment in the ordinary course of business;

(d) the sale, lease, conveyance, disposition or other transfer by the Borrower or any Restricted Subsidiary of assets or property in connection with any Permitted Investment or in connection with any Restricted Payment permitted pursuant to Section 6.02;

(e) dispositions of cash or Cash Equivalents;

(f) the sale, lease, conveyance, disposition or other transfer of any Equity Interests of an Unrestricted Subsidiary;

(g) the creation of a Lien permitted under Section 6.06 (but not the sale or other disposition of the property subject to such Lien other than pursuant to the enforcement by the holder of such Lien in such property); and

(h) sales of accounts receivable and related assets (including contract rights) of the type specified in the definition of “Securitization Transaction” to a Securitization Entity for the fair market value thereof, including cash in an amount at least equal to 75% of the fair market value thereof as determined in accordance with GAAP (for the purposes of this clause (h), Purchase Money Notes shall be deemed to be cash).

 

7

“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 9.04), and accepted by the Agent, in the form of Exhibit B or any other form approved by the Agent.

“Attributable Debt” in respect of a Sale and Lease-Back Transaction means, as at the time of determination, the present value (discounted at the interest rate then borne by the Loans, compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale and Lease-Back Transaction (including any period for which such lease has been extended); provided, however, that if such Sale and Lease-Back Transaction results in a Capitalized Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of “Capitalized Lease Obligation”.

“Available Liquidity” means, on any date, an amount equal to the sum of (a) the aggregate Unrestricted Cash of all Loan Parties and their Restricted Subsidiaries on such date, as the same would be reflected on a consolidated balance sheet prepared in accordance with GAAP as of such date, and (b) only if each of the conditions set forth in clauses (b) and (c) of Section 4.01 would be satisfied in connection with a Borrowing as of such date, the amount by which the aggregate Revolving Credit Commitments exceeds the aggregate Revolving Credit Exposures as of such date provided that if the condition set forth in clause (d) of Section 4.01 would not be satisfied in connection with a Borrowing as of such date, the amount described in clause (b) of this definition shall be limited to the amount of a Borrowing of Revolving Credit Loans that could actually be made on such date without satisfaction of such condition.

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

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

“Board of Directors” means (a) with respect to a corporation, the board of directors of the corporation, (b) with respect to a partnership, the board of directors of the general partner of the partnership and (c) with respect to any other Person, the board or committee of such Person serving a similar function.

“Board Resolution” means, with respect to any Person, a duly adopted resolution of the Board of Directors of such Person or any committee thereof.

“Borrower” has the meaning assigned to such term in the preamble to this Agreement.

“Borrowing” means (a) any Loans of the same Class, Type and currency made, converted or continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect or (b) a Swingline Loan; provided that until the Non-Extended

 

8

Revolving Credit Maturity Date, (i) Non-Extended Multicurrency Revolving Loans and Extended Multicurrency Revolving Loans will be deemed to constitute a single Class and (ii) Non-Extended Dollar Revolving Loans and Extended Dollar Revolving Loans will be deemed to constitute a single Class, in each case for purposes of determining Borrowing Minimums and Borrowing Multiples and the Pro Rata Percentages of each Lender.

“Borrowing Minimum” means $1,000,000, €1,000,000, £1,000,000 or, in the case of any other Alternative Currency, such amount as may be reasonably specified by the Agent.

“Borrowing Multiple” means $1,000,000, €1,000,000, £1,000,000 or, in the case of any other Alternative Currency, such amount as may be reasonably specified by the Agent.

“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03 and substantially in the form attached hereto as Exhibit E, or such other form approved by the Agent.

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided that, (a) when used in connection with a Eurocurrency Loan, the term “Business Day” shall also exclude (i) when used in connection with any Loan denominated in a currency other than Euro, any day on which banks are not open for dealings in the currency of such Loan in the London interbank market and, (ii) when used in connection with any Loan denominated in Euro, any day that is not a TARGET Day and (iii) when used in connection with any SONIA Rate Loan, any day on which banks are closed for general business in London, (b) when used in connection with any Calculation Date or determining any date on which any amount is to be paid or made available in an Alternative Currency other than Euro, the term “Business Day” shall also exclude any day on which banks are not open for general business in the principal financial center in the country of such Alternative Currency and (c) solely for purposes of the definition of “Daily Simple SONIA”, the determination of whether any day is a Business Day shall be made without regard to whether commercial banks in New York City are authorized or required by law to close on such day.

“Calculation Date” means (a) the date on which any Multicurrency Revolving Loan is made, (b) the date of issuance, extension or renewal of any Multicurrency Letter of Credit, (c) the date on which any Alternative Currency Swingline Loan is made, (d) the last Business Day of each quarter and (e) such additional dates on which the Exchange Rate is calculated as the Agent shall specify.

“Capital Expenditures” means, for any period, the aggregate of (a) all expenditures (whether paid in cash or accrued as liabilities) by the Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment reflected in the consolidated balance sheet of the Borrower and the Restricted Subsidiaries and (b) the value of

 

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all assets under Capitalized Lease Obligations incurred by the Borrower and its Restricted Subsidiaries during such period; provided that the term “Capital Expenditures” shall not include:

(i) expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced,

(ii) the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time,

(iii) the purchase of plant, property or equipment to the extent financed with the proceeds of Asset Sales that are not applied to prepay Term Loans or term loans under any Specified Secured Indebtedness, and that are reinvested, in accordance with Section 2.10,

(iv) expenditures that constitute Consolidated Lease Expense,

(v) expenditures that are accounted for as capital expenditures by the Borrower or any Restricted Subsidiary and that actually are paid for by a Person other than the Borrower or any Restricted Subsidiary and for which neither the Borrower nor any Restricted Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such Person or any other Person (whether before, during or after such period),

(vi) the book value of any asset owned by the Borrower or any Restricted Subsidiary prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided that (x) any expenditure necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period in which such expenditure actually is made and (y) such book value shall have been included in Capital Expenditures when such asset was originally acquired, or

(vii) expenditures that constitute acquisitions of Persons or business units permitted hereunder.

“Capital Stock” means:

(1) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock, of such Person and

(2) with respect to any Person that is not a corporation, any and all partnership or other equity interests of such Person.

 

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“Capitalized Lease Obligation” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance with GAAP.

“Cash Equivalents” means:

(1) marketable direct obligations issued by or unconditionally guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States of America, in each case maturing within one year from the date of acquisition thereof;

(2) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the three highest ratings obtainable from either S&P or Moody’s;

(3) commercial paper maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s;

(4) certificates of deposit or bankers’ acceptances maturing within one year from the date of acquisition thereof issued by any bank organized under the laws of the United States of America or any state thereof or the District of Columbia or any U.S. branch of a foreign bank or by a bank organized under the laws of any foreign country recognized by the United States of America, in each case having at the date of acquisition thereof combined capital and surplus of not less than $250,000,000 (or the foreign currency equivalent thereof);

(5) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) above entered into with any bank meeting the qualifications specified in clause (4) above; and

(6) investments in money market funds which invest substantially all their assets in securities of the types described in clauses (1) through (5) above.

“Change of Control” means the occurrence of one or more of the following events:

(1) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Borrower or Holdings to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”);

 

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(2) the approval by the holders of Capital Stock of the Borrower of any plan or proposal for the liquidation or dissolution of the Borrower (whether or not otherwise in compliance with the provisions of this Agreement);

(3) any Person or Group shall become the beneficial owner, directly or indirectly, of shares representing more than 35% of the total ordinary voting power represented by the issued and outstanding Capital Stock of Holdings;

(4) Holdings shall beneficially own and control less than 100% on a fully diluted basis of the economic interest and voting power represented by the issued and outstanding Equity Interests of the Borrower; or

(5) any “change of control” (or similar event, however denominated) shall occur under the Senior Subordinated Notes Indentures.

“Change in Law” means (a) the adoption of any law, rule or regulation after the Closing Date, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender or Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of such Lender or by such Lender’s or Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date (other than any such request, guideline or directive to comply with any law, rule or regulation that was in effect on the Closing Date).

“Class” (a) when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Non-Extended Dollar Revolving Loans, Extended Dollar Revolving Loans, Non-Extended Multicurrency Revolving Loans, Extended Multicurrency Revolving Loans, Tranche C Term Loans, Tranche D Term Loans, Tranche E Term Loans, Tranche F Term Loans, Tranche G Term Loans, Other Revolving Loans, Other Term Loans or Swingline Loans, and (b) when used in reference to any Commitment, refers to whether such Commitment is a Non-Extended Dollar Revolving Credit Commitment, an Extended Dollar Revolving Credit Commitment, a Non-Extended Multicurrency Revolving Credit Commitment, an Extended Multicurrency Revolving Credit Commitment, a Tranche C Term Loan Commitment, a Tranche D Term Loan Commitment, a Tranche E Commitment, a Tranche F Term Loan Commitment, a Tranche G Term Loan Commitment, an Incremental Revolving Credit Commitment, an Incremental Term Loan Commitment, an L/C Commitment or a Swingline Commitment.

“Closing Date” means December 6, 2010.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Collateral” means any and all property of a Person subject to a Lien under the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that may at any time be or become subject to a Lien in favor of Agent, on behalf of itself and for the ratable benefit of the Secured Parties as security for payment of the Obligations; provided, however, that Collateral shall not at any time include any Margin Stock or leased real property or any assets transferred to a Securitization Entity in connection with a Securitization Transaction.

 

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“Collateral Documents” means, collectively, the Guarantee and Collateral Agreement, the Mortgages, the Control Agreements, the Intellectual Property Security Agreements and any other documents granting a Lien upon the Collateral in favor of the Agent for the ratable benefit of the Secured Parties as security for payment of the Obligations.

“Commitment” means (a) with respect to any Lender, such Lender’s Dollar Revolving Credit Commitment, Multicurrency Revolving Credit Commitment, Tranche C Term Loan Commitment, Tranche D Term Loan Commitment, Tranche E Term Loan Commitment, Tranche F Term Loan Commitment, Tranche G Term Loan Commitment and Swingline Commitment as set forth in the Commitment Schedule or in the most recent Assignment and Assumption executed by such Lender, as applicable, as such commitment may be (i) reduced from time to time pursuant to Section 2.06, (ii) increased from time to time pursuant to Section 2.24 and (iii) reduced or increased from time to time pursuant to Section 2.27 or pursuant to assignments by or to such Lender pursuant to Section 9.04 and (b) as to all Lenders, the aggregate commitment of all Lenders to make Loans.

“Commitment Fee” has the meaning assigned to such term in Section 2.11(a).

“Commitment Schedule” means the Schedule attached hereto identified as such.

“Common Stock” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common stock, whether outstanding on the Closing Date or issued after the Closing Date, and includes, without limitation, all series and classes of such common stock.

“Consolidated EBITDA” means, with respect to any Person, for any period, the sum (without duplication) of such Person’s:

(1) Consolidated Net Income; and

(2) to the extent Consolidated Net Income has been reduced thereby:

(a) (i) all income Taxes and foreign withholding Taxes, (ii) all Taxes based on capital and commercial activity (or similar Taxes) and (iii) any Taxes that result from (x) the exercise by any holder of warrants, options or other rights to acquire Qualified Capital Stock (other than Qualified Capital Stock that is Preferred Stock) or (y) Dividend Equivalent Payments, in each case, of such Person and its Restricted Subsidiaries paid or accrued in accordance with GAAP for such period;

(b) consolidated interest expense;

(c) Consolidated Non-cash Charges less any non-cash items increasing Consolidated Net Income for such period (other than normal accruals in the ordinary course of business), all as determined on a consolidated basis for such Person and its Restricted Subsidiaries in accordance with GAAP;

 

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(d) any extraordinary, unusual or nonrecurring gain, loss or charge (including fees, expenses and charges (or any amortization thereof) associated with any acquisition, merger or consolidation, in each case, whether or not completed), any severance, relocation, consolidation, closing, integration, facilities opening, business optimization, transition or restructuring costs, charges or expenses (including any costs or expenses associated with any expatriate), any signing, retention or completion bonuses, and any costs associated with or incurred in connection with special termination benefits, curtailment settlements or other similar actions with respect to pension and postretirement employee benefit plans;

(e) any expenses or charges related to any Permitted Investment, offering of Equity Interests, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted hereunder including a refinancing thereof (whether or not successful) and any amendment or modification to the terms of any such transactions, including such fees, expenses or charges related to the Transactions, the Second Restatement Transactions and the 2016 Transactions (as defined in Amendment No. 1);

(f) any write offs, write downs or other non-cash charges, excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period and the write off or write down of current assets;

(g) the amount of any expense related to, or loss attributable to, minority interests or investments;

(h) any expenses related to, or attributed to, non-service related pensions;

(i) the amount of any earn out payments or deferred purchase price in conjunction with acquisitions;

(j) any costs or expenses incurred by the Borrower or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or stockholders agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Borrower or net cash proceeds of issuance of Qualified Capital Stock of the Borrower (other than Qualified Capital Stock that is Preferred Stock);

(k) any Dividend Equivalent Payments;

(l) any costs or expenses incurred in connection with the start-up or extension of long-term arrangements with customers; and

 

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(m) the amount of net cost savings projected by the Borrower in good faith to be realized as the result of actions to be taken within 24 months of the initiation of any operational change or within 24 months of the consummation of any applicable acquisition or cessation of operations (in each case, calculated on a pro forma basis as though such cost savings had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that the aggregate amount of other cost savings added pursuant to this clause (m) shall not exceed 25.0% of Consolidated EBITDA for any Four-Quarter Period (calculated after giving effect to any adjustment pursuant to this clause (m)) (which adjustments may be incremental to any other pro forma adjustments made pursuant to the terms hereof); and

(3) decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any gains that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period (other than such cash charges that have been added back to Consolidated Net Income in calculating Consolidated EBITDA in accordance with this definition).

“Consolidated Lease Expense” means for any period, all rental expenses of the Borrower and its Restricted Subsidiaries during such period under operating leases for real or personal property (including in connection with Sale and Lease-Back Transactions permitted hereunder), excluding real estate Taxes, insurance costs and common area maintenance charges and net of sublease income, other than (a) obligations under vehicle leases entered into in the ordinary course of business, (b) all such rental expenses associated with assets acquired pursuant to an acquisition of a Person or business unit to the extent such rental expenses relate to operating leases in effect at the time of (and immediately prior to) such acquisition and related to periods prior to such acquisition and (c) all Capitalized Lease Obligations, all as determined on a consolidated basis in accordance with GAAP.

“Consolidated Leverage Ratio”, as of any date of determination, means the ratio of (a) Consolidated Total Indebtedness of the Borrower as of such date to (b) the Consolidated EBITDA of the Borrower for the period of the most recently ended four full consecutive fiscal quarters for which internal financial statements are available on or immediately preceding such date. In any period of four consecutive fiscal quarters in which any Permitted Acquisition or Asset Sale occurs, the Consolidated Leverage Ratio shall be determined on a pro forma basis in accordance with Section 1.07.

“Consolidated Net Income” means, for any period, the aggregate net income (or loss) of the Borrower and its Restricted Subsidiaries for such period on a consolidated basis, determined in accordance with GAAP and without any deduction in respect of Preferred Stock dividends; provided that there shall be excluded therefrom to the extent otherwise included, without duplication:

(1) gains and losses from Asset Sales (without regard to the $5,000,000 limitation set forth in the definition thereof) and the related tax effects according to GAAP;

 

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(2) gains and losses due solely to (x) fluctuations in currency values and the related tax effects according to GAAP or (y) the early extinguishment of Indebtedness;

(3) all extraordinary, unusual or non-recurring charges, gains and losses (including, without limitation, all restructuring costs, facilities relocation costs, acquisition integration costs and fees, including cash severance payments made in connection with acquisitions, and any expense or charge related to the repurchase of Equity Interests), and the related tax effects according to GAAP;

(4) the net income (or loss) from disposed or discontinued operations or any net gains or losses on disposal of disposed or discontinued operations, and the related tax effects according to GAAP;

(5) any impairment charge or asset write-off (other than the write-off or write-down of current assets), in each case pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP;

(6) the net income (or loss) of any Person acquired in a pooling of interests transaction accrued prior to the date it becomes a Restricted Subsidiary of the Borrower or is merged or consolidated with or into the Borrower or any Restricted Subsidiary of the Borrower;

(7) the net income (but not loss) of any Restricted Subsidiary of the Borrower (other than a Guarantor) to the extent that the declaration of dividends or similar distributions by that Restricted Subsidiary of the Borrower of that income is not at the date of determination wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided that Consolidated Net Income of the Borrower will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) to the Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein;

(8) the net loss of any Person, other than a Restricted Subsidiary of the Borrower;

(9) the net income of any Person, other than a Restricted Subsidiary of the Borrower, except to the extent of cash dividends or distributions paid to the Borrower or a Restricted Subsidiary of the Borrower by such Person;

(10) in the case of a successor to the referent Person by consolidation or merger or as a transferee of the referent Person’s assets, any earnings of the successor corporation prior to such consolidation, merger or transfer of assets;

(11) any non-cash compensation charges and deferred compensation charges, including any arising from existing stock options resulting from any merger or recapitalization transaction; provided, however, that Consolidated Net Income for any

 

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period shall be reduced by any cash payments made during such period by such Person in connection with any such deferred compensation, whether or not such reduction is in accordance with GAAP; and

(12) inventory and backlog purchase accounting adjustments and amortization and impairment charges resulting from other purchase accounting adjustments with respect to acquisition transactions.

“Consolidated Net Leverage Ratio”, as of any date of determination, means the ratio of (a) Consolidated Total Indebtedness of the Borrower minus the Unrestricted Cash as of such date to (b) the Consolidated EBITDA (or, solely for purposes of determining the Consolidated Net Leverage Ratio under Section 6.14, the Financial Covenant Consolidated EBITDA) of the Borrower for the period of the most recently ended four full consecutive fiscal quarters for which internal financial statements are available on or immediately preceding such date. In any period of four consecutive fiscal quarters in which any Permitted Acquisition or Asset Sale occurs, the Consolidated Net Leverage Ratio shall be determined on a pro forma basis in accordance with Section 1.07.

“Consolidated Non-cash Charges” means, with respect to any Person, for any period, the aggregate depreciation, amortization and other non-cash charges, impairments and expenses of such Person and its Restricted Subsidiaries reducing Consolidated Net Income of such Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charges that require an accrual of or a reserve for cash payments for any future period other than accruals or reserves associated with mandatory repurchases of equity securities). For clarification purposes, purchase accounting adjustments with respect to inventory and backlog will be included in Consolidated Non-cash Charges.

“Consolidated Secured Debt” means, as at any date of determination, the Consolidated Total Indebtedness of the Borrower and the Restricted Subsidiaries that is secured by Liens on assets or property of Holdings, the Borrower and the Restricted Subsidiaries as of such date.

“Consolidated Secured Net Debt Ratio”, as of any date of determination, means the ratio of (a) Consolidated Secured Debt as of such date minus Unrestricted Cash as of such date to (b) the Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of the most recently ended four full consecutive fiscal quarters for which internal financial statements are available on or immediately preceding such date. In any period of four consecutive fiscal quarters in which any Permitted Acquisition or Asset Sale occurs, the Consolidated Secured Net Debt Ratio shall be determined on a pro forma basis in accordance with Section 1.07.

“Consolidated Total Indebtedness” means, as at any date of determination, an amount equal to the sum of (a) the aggregate principal amount of all outstanding Indebtedness of the Borrower and the Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, obligations in respect of Capitalized Lease Obligations, Attributable Debt in respect of Sale and Lease-Back Transactions and debt obligations evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (and excluding (i)

 

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any undrawn letters of credit issued in the ordinary course of business and (ii) Indebtedness of Securitization Entities incurred under clause (18) of the definition of the term “Permitted Indebtedness”), (b) the aggregate amount of all outstanding Disqualified Capital Stock of the Borrower and all Disqualified Capital Stock and Preferred Stock of the Restricted Subsidiaries (excluding items eliminated in consolidation), with the amount of such Disqualified Capital Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and Maximum Fixed Repurchase Prices, (c) guarantees and other contingent obligations of the Borrower and the Restricted Subsidiaries (excluding items eliminated in consolidation and only to the extent related to Indebtedness that would constitute “Consolidated Total Indebtedness” under clause (a) or (b)), with the amount of such guarantees or other contingent obligations deemed to be an amount equal to the maximum stated amount of the guarantee or contingent obligation or, if none, the stated or determinable amount of the primary Indebtedness in respect of which such guarantee or contingent obligation is made or, if there is no stated or determinable amount of the primary Indebtedness, the maximum reasonably anticipated liability in respect thereof (assuming the Borrower or such Restricted Subsidiary, as applicable, is required to perform thereunder) as determined by the Borrower in good faith and (d) Indebtedness that would constitute “Consolidated Total Indebtedness” under clause (a) or (b) which are secured by any Lien on any property or asset of the Borrower or any of the Restricted Subsidiaries (excluding items eliminated in consolidation), with the amount of such obligation being deemed to be the lesser of the fair market value of such property or asset and the amount of the obligation so secured, in each case determined on a consolidated basis in accordance with GAAP. For purposes of this definition, the “Maximum Fixed Repurchase Price” of any Disqualified Capital Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock or Preferred Stock as if such Disqualified Capital Stock or Preferred Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be determined pursuant to this Agreement, and if such price is based upon, or measured by, the fair market value of such Disqualified Capital Stock or Preferred Stock, such fair market value shall be determined reasonably and in good faith by the Borrower.

“Consolidated Working Capital” means, at any date, the excess of (a) the sum of all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries at such date over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries on such date, including deferred revenue but excluding, without duplication, (i) the current portion of any Funded Debt, (ii) the current portion of interest and (iii) the current portion of current and deferred income Taxes.

“Control Agreement” has the meaning assigned to such term in the Guarantee and Collateral Agreement.

“Credit Event” has the meaning assigned to such term in Section 4.01.

 

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“Currency Agreement” means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Borrower or any Restricted Subsidiary of the Borrower against fluctuations in currency values.

“Daily Rate”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate or the Foreign Base Rate.

“Daily Simple SONIA” shall mean, for any day, an interest rate per annum equal to SONIA for the day that is five Business Days prior to (a) if such day is a Business Day, such day or (b) if such day is not a Business Day, the Business Day immediately preceding such day, in each case plus 3.26 basis points (0.0326%); provided that if such rate as determined above is less than zero, such rate shall be deemed to be zero. If by 5:00 pm (London time) on the second Business Day immediately following any day “i”, the SONIA in respect of such day “i” has not been published on the SONIA Administrator’s Website and a Benchmark Replacement Date (as defined in Section 2.20(j) with respect to the Daily Simple SONIA has not occurred, then the SONIA for such day “i” will be the SONIA as published in respect of the first preceding Business Day for which such SONIA was published on the SONIA Administrator’s Website; provided that any SONIA determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple SONIA for no more than three consecutive Business Days. Any change in Daily Simple SONIA due to a change in SONIA shall be effective from and including the effective date of such change in SONIA without notice to the Borrower.

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

“Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion of its Loans within three Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the 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 writing) has not been satisfied or (ii) pay to the Agent, any Issuing Bank, 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 three Business Days of the date when due, (b) has notified the Agent, any Issuing Bank, any Swingline Lender or any Loan Party in writing that it does not intend to satisfy any such obligations or has made a public statement with respect to any such obligations hereunder or generally with respect to all agreements in which it commits to extend credit (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), (c) has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, custodian, administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a direct or indirect

 

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parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, custodian administrator, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (d) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action (as defined in Section 9.21); provided that (i) if a Lender would be a “Defaulting Lender” solely by reason of events relating to a direct or indirect parent company of such Lender or solely because a Governmental Authority has been appointed as receiver, conservator, trustee or custodian for such Lender, such Lender shall not be a “Defaulting Lender” unless such Lender fails to confirm in writing, upon request by the Agent or the Borrower, that it will continue to comply with its obligations to make Loans required to be made by it hereunder and (ii) a Lender shall not be a “Defaulting Lender” solely by virtue of the ownership or acquisition of any equity interest in such 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.

“Delayed Draw Term Commitment Termination Date” has the meaning assigned to such term in Amendment No. 1.

“Delayed Draw Funding Date” has the meaning assigned to such term in Amendment No. 1.

“Delayed Draw Tranche F Term Loans” means the Tranche F Term Loans made to the Borrower on the Delayed Draw Funding Date pursuant to Section 4(a)(ii) of Amendment No. 1.

“Derivative Transaction” means (a) an interest-rate derivative transaction, including an interest-rate swap, basis swap, forward rate agreement, interest rate option (including a cap, collar, and floor), and any other instrument linked to interest rates that gives rise to similar credit risks (including when-issued securities and forward deposits accepted), (b) an exchange-rate derivative transaction, including a cross-currency interest-rate swap, a forward foreign-exchange contract, a currency option, and any other instrument linked to exchange rates that gives rise to similar credit risks, (c) an equity derivative transaction, including an equity-linked swap, an equity-linked option, a forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and (d) a commodity (including precious metal) derivative transaction, including a commodity-linked swap, a commodity-linked option, a forward commodity-linked contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or its subsidiaries shall be a Derivative Transaction.

“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by the Borrower or any Restricted Subsidiary in connection with an Asset Sale that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower setting forth the basis of such valuation.

 

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“Disqualified Capital Stock” means with respect to any Person, any Capital Stock, which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder) or upon the happening of any event:

(a) matures or is mandatorily redeemable (other than redeemable only for Capital Stock of such Person which is not itself Disqualified Capital Stock) pursuant to a sinking fund obligation or otherwise;

(b) is convertible or exchangeable at the option of the holder for Indebtedness or Disqualified Capital Stock; or

(c) is mandatorily redeemable or must be purchased upon the occurrence of certain events or otherwise, in whole or in part;

in each case on or prior to the date that is 91 days after the Latest Maturity Date; provided, however, that any Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof the right to require such Person to purchase or redeem such Capital Stock upon the occurrence of an “asset sale”, “casualty event”, “fundamental change” or “change of control” occurring prior to the Latest Maturity Date shall not constitute Disqualified Capital Stock if:

(1) the “asset sale”, “casualty event”, “fundamental change” or “change of control” provisions applicable to such Capital Stock are not more favorable to the holders of such Capital Stock than the terms applicable to the Senior Subordinated Notes as in effect on the Second Restatement Date; and

(2) any such requirement only becomes operative after compliance with the terms applicable under this Agreement, including the prepayment of Term Loans pursuant hereto.

The amount of any Disqualified Capital Stock that does not have a fixed redemption, repayment or repurchase price will be calculated in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were redeemed, repaid or repurchased on any date on which the amount of such Disqualified Stock is to be determined pursuant to this Agreement; provided, however, that if such Disqualified Capital Stock could not be required to be redeemed, repaid or repurchased at the time of such determination, the redemption, repayment or repurchase price will be the book value of such Disqualified Capital Stock as reflected in the most recent internal financial statements of such Person.

“Dividend Equivalent Payment” means a payment in cash or Cash Equivalents to any director, officer or employee of Holdings or any of its Subsidiaries that is a holder of unexercised warrants, options or other rights to acquire Qualified Capital Stock (other than Qualified Capital Stock that is Preferred Stock) of Holdings, which payment represents a dividend or distribution by Holdings that such holder would have received had such holder’s warrants, options or other rights to acquire been exercised on the date of such dividend or distribution.

 

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“Dollar Equivalent” means, on any date of determination, with respect to any amount denominated in a currency other than Dollars, the equivalent in Dollars of such amount, determined by the Agent pursuant to Section 1.08 using the Exchange Rate with respect to such currency at the time in effect.

“Dollar L/C Disbursement” means a payment or disbursement made by the Issuing Bank pursuant to a Dollar Letter of Credit.

“Dollar L/C Exposure” means at any time the sum of (a) the aggregate undrawn and unexpired amount of all outstanding Dollar Letters of Credit at such time and (b) the aggregate principal amount of all Dollar L/C Disbursements that have not yet been reimbursed at such time. The Dollar L/C Exposure of any Dollar Revolving Credit Lender at any time shall equal its applicable Pro Rata Percentage of the aggregate Dollar L/C Exposure at such time.

“Dollar Letter of Credit” means a Letter of Credit issued under the Dollar Revolving Credit Commitments.

“Dollar Revolving Borrowing” means a Borrowing comprised of Dollar Revolving Loans.

“Dollar Revolving Credit Commitment” means a Non-Extended Dollar Revolving Credit Commitment or an Extended Dollar Revolving Credit Commitment, or both, as the context may require.

“Dollar Revolving Credit Exposure” means, with respect to any Revolving Credit Lender at any time, the sum of (a) the aggregate principal amount at such time of all outstanding Dollar Revolving Loans of such Lender and (b) the aggregate amount at such time of its Dollar L/C Exposure.

“Dollar Revolving Credit Lender” means a Non-Extended Dollar Revolving Credit Lender or an Extended Dollar Revolving Credit Lender, or both, as the context may require.

“Dollar Revolving Loans” means the Non-Extended Dollar Revolving Loans and the Extended Dollar Revolving Loans.

“Dollar Swingline Loan” means a Swingline Loan denominated in Dollars.

“Dollars” or “$” refers to lawful money of the United States of America.

“Domestic Restricted Subsidiary” means any direct or indirect Restricted Subsidiary of the Borrower that is incorporated or organized under the laws of the United States of America, any State thereof or the District of Columbia.

 

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“Domestic Subsidiary” means, with respect to any Person, any Restricted Subsidiary of such Person other than (a) a Foreign Subsidiary or (b) any Domestic Subsidiary of a Foreign Subsidiary, but, in each case, including any subsidiary that guarantees or otherwise provides direct credit support for any Indebtedness of the Borrower.

“Eligible Assignee” means (i) a Lender, (ii) a commercial bank, insurance company, or company engaged in making commercial loans or a commercial finance company, which Person, together with its Affiliates, has a combined capital and surplus in excess of $100,000,000, (iii) any Affiliate of a Lender under common control with such Lender, (iv) an Approved Fund of a Lender or (v) any other entity (but not any natural person) that is an “accredited investor” (as defined in Regulation D under the Securities Act of 1933, as amended) that extends credit or invests in bank loans as one of its businesses; provided that in any event, “Eligible Assignee” shall not include (w) any natural person, (x) Holdings or the Borrower or any Affiliate (which for this purpose shall not include the Agent or any of its branches or Affiliates engaged in the business of making commercial loans) thereof (it being understood that that the Borrower shall be permitted to repurchase Term Loans pursuant to Section 2.09(e)(i)), (y) any Defaulting Lender or (z) any “creditor”, as defined in Regulation T, or “foreign branch of a broker-dealer”, within the meaning of Regulation X.

“Engagement Letter” means that certain engagement letter dated February 7, 2013, among Holdings, Credit Suisse Securities (USA) LLC and UBS Securities LLC.

“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to climate change and/or greenhouse gas emissions, the environment, preservation or reclamation of natural resources, the management, disposal, release or threatened release of any Hazardous Material or to health and safety matters.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.

“ERISA” means the Employee Retirement Income Security Act of 1974 and the regulations promulgated thereunder, as amended from time to time.

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

 

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“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) a failure by any Plan to meet the minimum funding standards within the meaning of Section 412 of the Code or Section 302 of ERISA, in each case, whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice of an intent to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is insolvent or in reorganization, within the meaning of Title IV of ERISA.

“EURIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in Euro for any Interest Period, the rate per annum equal to the Banking Federation of the European Union EURIBO Rate (“BFEA EURIBOR”), as published by Reuters (or another commercially available source providing quotations of BFEA EURIBOR as designated by the Agent from time to time) at approximately 11:00 a.m., London time, two TARGET Days prior to the commencement of such Interest Period, for deposits in Euro (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.

“Euro” or “€” means the single lawful currency of the participating states of the European Union as constituted by the Treaty on European Union and as referred to in the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states.

“Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

“Event of Default” has the meaning assigned to such term in Article VII.

“Excess Cash Flow” means, for any fiscal year of the Borrower, an amount equal to the excess of:

(a) the sum, without duplication, of:

(i) Consolidated Net Income for such period,

(ii) an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income,

 

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(iii) decreases in Consolidated Working Capital and long-term account receivables for such period (other than any such decreases arising from acquisitions by the Borrower and its Restricted Subsidiaries completed during such period), and

(iv) an amount equal to the aggregate net non-cash loss on the sale, lease, transfer or other disposition of assets by the Borrower and its Restricted Subsidiaries during such period (other than sales in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; over

(b) the sum, without duplication, of:

(i) an amount equal to the amount of all non-cash gains or credits included in arriving at such Consolidated Net Income and cash charges included in clauses (1) through (12) of the definition of Consolidated Net Income,

(ii) without duplication of amounts deducted pursuant to clause (xi) below in prior periods, the amount of Capital Expenditures made in cash during such period, except to the extent that such Capital Expenditures were financed with the proceeds of Indebtedness of the Borrower or its Restricted Subsidiaries or of the issuance or sale of Equity Interests of Holdings,

(iii) the aggregate amount of all principal payments of Indebtedness of the Borrower and its Restricted Subsidiaries (including (x) the principal component of payments in respect of Capitalized Lease Obligations and (y) all scheduled payments of Loans pursuant to Section 2.08 but excluding any mandatory prepayment of Loans pursuant to Section 2.10, any prepayment of Loans pursuant to Section 2.09(e) and any Voluntary Prepayments) made during such period (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder), except to the extent financed with the proceeds of other Indebtedness of the Borrower or its Restricted Subsidiaries,

(iv) an amount equal to the aggregate net non-cash gain on the sale, lease, transfer or other disposition of assets by the Borrower and its Restricted Subsidiaries during such period (other than sales in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income,

(v) increases in Consolidated Working Capital and long-term account receivables for such period (other than any such increases arising from acquisitions of a Person or business unit by the Borrower and its Restricted Subsidiaries during such period),

(vi) cash payments by the Borrower and its Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and its Restricted Subsidiaries other than Indebtedness,

 

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(vii) without duplication of amounts deducted pursuant to clause (xi) below in prior periods, the amount of Investments and acquisitions made during such period to the extent permitted under Section 6.16, to the extent that such Investments and acquisitions were financed with internally generated cash flow of the Borrower and its Restricted Subsidiaries,

(viii) payments made in respect of the minority Equity Interests of third parties in any non-wholly owned Restricted Subsidiary in such period, including pursuant to dividends declared or paid on Equity Interests held by third parties in respect of such non-wholly-owned Restricted Subsidiary,

(ix) the aggregate amount of expenditures actually made by the Borrower and the Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period,

(x) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and the Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness,

(xi) without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to acquisitions or Capital Expenditures to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period; provided that to the extent the aggregate amount of internally generated cash actually utilized to finance such acquisitions or Capital Expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters,

(xii) the amount of cash Taxes paid in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period and the amount of any Taxes paid for the benefit of Holdings pursuant to any tax sharing agreement,

(xiii) earnout payments and deferred purchase price payments made in cash during such fiscal year to the extent added back to Consolidated EBITDA, and

(xiv) solely with respect to the calculation of Excess Cash Flow for the fiscal year ending September 30, 2017, the aggregate amount of Restricted Payments made in cash by the Borrower to Holdings during such fiscal year in accordance with Section 6.02.

 

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“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

“Exchange Rate” means, on any day, with respect to any Alternative Currency (for purposes of determining the Dollar Equivalent) or Dollars (for purposes of determining the Alternative Currency Equivalent), the rate at which such currency may be exchanged into Dollars or the applicable Alternative Currency, as the case may be, as set forth at approximately 11:00 a.m., New York City time, on such date on the applicable Bloomberg Key Cross Currency Rates Page. In the event that any such rate does not appear on any Bloomberg Key Cross Currency Rates Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Agent and the Borrower, or, in the absence of such agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 a.m., local time, on such date for the purchase of Dollars or the applicable Alternative Currency, as the case may be, for delivery two Business Days later; provided, however, that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Agent, after consultation with the Borrower, may use any other reasonable method it deems appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.

“Excluded Taxes” means, with respect to the Agent, any Lender, the Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of the Borrower or any other Loan Party hereunder, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, imposed as a result of such recipient being organized under the laws of, or having its principal office or, in the case of any Lender, applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof), (b) any Taxes attributable to such recipient’s failure to comply with Section 2.16(f), (c) except in the case of an assignee pursuant to a request by the Borrower under Section 2.18(b), any U.S. Federal withholding Tax that is imposed on amounts payable to such recipient at the time such recipient becomes a party to this Agreement (or designates a new lending office), except to the extent that such recipient (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower or any other Loan Party with respect to such withholding Tax pursuant to Section 2.16(a) and (d) any U.S. Federal withholding Taxes imposed by FATCA.

“Existing Bank Debt Refinancing” means the repayment in full of all amounts due or outstanding under, and the termination of, the 2011 Credit Agreement.

“Existing Credit Agreements” has the meaning assigned to such term in the introductory statement to this Agreement.

“Existing Letters of Credit” means the letters of credit outstanding as of the Second Restatement Date that are issued under the First Restated Credit Agreement and set forth on Schedule 1.01(c).

“Existing Loan Documents” means the Existing Credit Agreements and the other “Loan Documents” (as defined therein).

 

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“Existing Mortgages” means each of the mortgages, deeds of trust or other agreements in effect immediately prior to the Second Restatement Date made pursuant to the Existing Loan Documents by any Loan Party in favor of the Agent.

“Extended Dollar Revolving Credit Commitment” means, with respect to each Lender, the commitment of such Lender to make Extended Dollar Revolving Loans hereunder (and to acquire participations in Dollar Letters of Credit as provided for herein) as set forth in the Commitment Schedule or in the most recent Assignment and Assumption executed by such Lender, as applicable, as the same may be (i) reduced or increased from time to time pursuant to Section 2.06 or 2.24 and (ii) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The aggregate amount of the Extended Dollar Revolving Credit Commitments on the Amendment No. 68 Effective Date is $608,500,000.00.

“Extended Dollar Revolving Credit Lender” means a Lender with an Extended Dollar Revolving Credit Commitment or outstanding Dollar Revolving Credit Exposure in respect of its Extended Dollar Revolving Credit Commitment.

“Extended Dollar Revolving Loans” means the revolving loans made in respect of the Extended Dollar Revolving Credit Commitments by the Extended Dollar Revolving Credit Lenders to the Borrower pursuant to clause (a)(ii) of Section 2.01.

“Extended Multicurrency Revolving Credit Commitment” means, with respect to each Lender, the commitment of such Lender to make Extended Multicurrency Revolving Loans hereunder (and to acquire participations in Swingline Loans and Multicurrency Letters of Credit as provided for herein) as set forth in the Commitment Schedule or in the most recent Assignment and Assumption executed by such Lender, as applicable, as the same may be (i) reduced or increased from time to time pursuant to Section 2.06 or 2.24 and (ii) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The aggregate amount of the Extended Multicurrency Revolving Credit Commitments on the Amendment No. 68 Effective Date is $151,500,000.00.

“Extended Multicurrency Revolving Credit Lender” means a Lender with an Extended Multicurrency Revolving Credit Commitment or outstanding Multicurrency Revolving Credit Exposure in respect of its Extended Multicurrency Revolving Credit Commitment.

“Extended Multicurrency Revolving Loans” means the revolving loans made in respect of the Extended Multicurrency Revolving Credit Commitments by the Extended Multicurrency Revolving Credit Lenders to the Borrower pursuant to clause (a)(iii) of Section 2.01.

“Extended Revolving Credit Commitments” means the Extended Dollar Revolving Credit Commitments and the Extended Multicurrency Revolving Credit Commitments.

“Extended Revolving Credit Lenders” means the Extended Dollar Revolving Credit Lenders and the Extended Multicurrency Revolving Credit Lenders.

 

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“Extended Revolving Credit Maturity Date” means December 28May 24, 20222026, provided that if on any date prior to December 28May 24, 20222026 (any such date, a “Reference Date”), (i) any of (xa) the Borrower’s 5.50Tranche E Term Loans, the Tranche F Term Loans, the Tranche G Term Loans, the Borrower’s 8.00% Senior Secured Notes due 2025, the Borrower’s 6.25% Senior Secured Notes due 2026, the Borrower’s 6.50% Senior Subordinated Notes due 20202025, (y) the 2014 Senior Subordinated NotesBorrower’s 6.375% Senior Subordinated Notes due 2026 or TransDigm UK Holdings plc’s 6.875% Senior Subordinated Notes due 2026 (each, a “Specified Indebtedness”), or (zb) any Indebtedness (“Refinanced Indebtedness”) incurred to refinance or otherwise extend the maturity date of the Borrower’s 5.50% Senior Subordinated Notes due 2020, the 2014 Senior Subordinated Notesany Specified Indebtedness or other Refinanced Indebtedness, is outstanding and scheduled to mature or similarly become due on or prior to the date that is sixty91 days after the Reference Date, and (ii) the outstanding amount of any such Specified Indebtedness or Refinanced Indebtedness exceeds $50,000,000 on the Reference Date, then the Extended Revolving Credit Maturity Date shall instead be the Reference Date; provided, further, that, in each case, (x) with respect to any such Indebtedness, the Extended Revolving Credit Maturity Date shall not be the Reference Date if, on such Reference Date, the Borrower shall have irrevocably deposited with the trustee for the holders thereof or otherwise pursuant to customary escrow arrangements permitted hereunder, funds in an amount sufficient, and to be used, to repay or redeem in full such Indebtedness, together with all accrued and unpaid interest, premiums and fees in respect thereof and (y) if any such day is not a Business Day, the Extended Revolving Credit Maturity Date shall be the Business Day immediately preceding such day.

“fair market value” means, with respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. Fair market value shall be determined by the Board of Directors of the Borrower acting reasonably and in good faith.

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

“February 2018 Refinancing Facility Agreement” means the Refinancing Facility Agreement dated as of February 22, 2018, relating to this Agreement.

“February 2018 Refinancing Facility Effective Date” has the meaning assigned to such term in the February 2018 Refinancing Facility Agreement.

“Federal Funds Effective Rate” means, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding 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 of the quotations for such day for such transactions received by the Agent from three Federal funds brokers of recognized standing selected by it.

 

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“Fees” means the Commitment Fees, the Agent Fees, the L/C Participation Fees and the Issuing Bank Fees.

“Financial Covenant Consolidated EBITDA” means, with respect to any Person, for any period, the sum (without duplication) of such Person’s:

(1) Consolidated Net Income; and

(2) to the extent Consolidated Net Income has been reduced thereby:

(a) (i) all income Taxes and foreign withholding Taxes, (ii) all Taxes based on capital and commercial activity (or similar Taxes) and (iii) any Taxes that result from (x) the exercise by any holder of warrants, options or other rights to acquire Qualified Capital Stock (other than Qualified Capital Stock that is Preferred Stock) or (y) Dividend Equivalent Payments, in each case, of such Person and its Restricted Subsidiaries paid or accrued in accordance with GAAP for such period;

(b) consolidated interest expense;

(c) Consolidated Non-cash Charges less any non-cash items increasing Consolidated Net Income for such period (other than normal accruals in the ordinary course of business), all as determined on a consolidated basis for such Person and its Restricted Subsidiaries in accordance with GAAP;

(d) any extraordinary, unusual or nonrecurring gain, loss or charge (including fees, expenses and charges (or any amortization thereof) associated with any acquisition, merger or consolidation, in each case, whether or not completed), any severance, relocation, consolidation, closing, integration, facilities opening, business optimization, transition or restructuring costs, charges or expenses (including any costs or expenses associated with any expatriate), any signing, retention or completion bonuses, and any costs associated with or incurred in connection with special termination benefits, curtailment settlements or other similar actions with respect to pension and postretirement employee benefit plans;

(e) any expenses or charges related to any Permitted Investment, offering of Equity Interests, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted hereunder including a refinancing thereof (whether or not successful) and any amendment or modification to the terms of any such transactions, including such fees, expenses or charges related to the Transactions, the Second Restatement Transactions and the 2016 Transactions (as defined in Amendment No. 1);

 

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(f) any write offs, write downs or other non-cash charges, excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period and the write off or write down of current assets;

(g) the amount of any expense related to, or loss attributable to, minority interests or investments;

(h) the amount of any earn out payments or deferred purchase price in conjunction with acquisitions;

(i) any costs or expenses incurred by the Borrower or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or stockholders agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Borrower or net cash proceeds of issuance of Qualified Capital Stock of the Borrower (other than Qualified Capital Stock that is Preferred Stock);

(j) any Dividend Equivalent Payments;

(k) a charge in any one period not to exceed $10,000,000 resulting from repurchases of inventory from distributors during such period;

(l) any costs or expenses incurred in connection with the start-up or extension of long-term arrangements with customers;

(m) any costs or expenses incurred by the Borrower or a Restricted Subsidiary pursuant to or in connection with any incentive bonus plan or any similar compensation plan or arrangement; and

(n) the amount of net cost savings projected by the Borrower in good faith to be realized as the result of actions to be taken within 24 months of the initiation of any operational change or within 24 months of the consummation of any applicable acquisition or cessation of operations (in each case, calculated on a pro forma basis as though such cost savings had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; and

(3) decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any gains that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period (other than such cash charges that have been added back to Consolidated Net Income in calculating Financial Covenant Consolidated EBITDA in accordance with this definition).

“Financial Covenant Event of Default” has the meaning assigned to such term in Article VII.

 

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“Financial Officer” means the chief financial officer, treasurer or controller of the Borrower.

“First Amendment” means Amendment No. 1 dated as of July 1, 2013, to the First Restated Credit Agreement.

“First Amendment and Restatement Agreement” has the meaning assigned to such term in the introductory statement to this Agreement.

“First Amendment Effective Date” has the meaning assigned to such term in the First Amendment.

“First Restated Credit Agreement” means the Amended and Restated Credit Agreement dated as of the Restatement Date, among the Borrower, Holdings, the subsidiaries of the Borrower party thereto, the lenders party thereto and the Agent.

“Foreign Base Rate” means, with respect to any Alternative Currency, the rate of interest per annum determined by the Agent to be the rate of interest (in the absence of a Eurocurrency rate) charged by it to borrowers of similar credit quality as the Borrower for short-term loans in such Alternative Currency. Notwithstanding anything to the contrary contained herein, Loans may be made or maintained as Foreign Base Rate Loans only to the extent specified in Section 2.13, 2.19 or 2.22(d).

“Foreign Lender” means a Lender or Issuing Bank that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.

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

“Foreign Subsidiary” means, with respect to any Person, any Restricted Subsidiary of such Person that is not organized or existing under the laws of the United States of America, any state thereof, the District of Columbia, or any territory thereof.

“Funded Debt” means all Indebtedness of the Borrower and its Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans.

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States of America, (a) except as otherwise expressly provided in this Agreement, as in effect as of the Restatement Date, (b) with respect to all financial statements and reports required to be delivered under the Loan Documents, as in effect from time to time, and (c) solely with respect to computations of the financial covenant

 

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contained in Section 6.14 and the computation of the Consolidated Leverage Ratio, Consolidated Net Leverage Ratio and Consolidated Secured Net Debt Ratio as in effect from time to time but subject to the proviso in Section 1.05.

“Governmental Authority” means the government of the United States of America, any other nation or 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).

“Granting Lender” has the meaning assigned to such term in Section 9.04(e).

“Ground Transportation Assets” means assets related to the AmSafe ground transportation business including the Equity Interests of and property or assets held by (including any Equity Interests held by) AmSafe Commercial Products, Inc., AmSafe Commercial Products (Kunshan) Co. Ltd., Kunshan AmSafe Commercial Products, Co. Ltd. and the AmSafe Commercial Products division of AmSafe Bridport Ltd. and each of their successors.

“guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations, and, when used as a verb, shall have a corresponding meaning.

“Guarantee” means the guarantee of the Obligations by Holdings and the Domestic Restricted Subsidiaries of the Borrower in accordance with the terms of the Loan Documents.

“Guarantee and Collateral Agreement” means the Guarantee and Collateral Agreement dated as of June 23, 2006, as amended and restated as of December 6, 2010, as of February 14, 2011 and as of the Restatement Date, as further amended as of the First Amendment Effective Date, as of July 19, 2013 and as of the Second Restatement Date, and as further modified by the Joinder Agreements dated as of June 5, 2013, June 26, 2013 and December 19, 2013, among the Loan Parties and Credit Suisse AG, as collateral agent for the benefit of the Agent and the other Secured Parties, and as administrative agent hereunder.

“Guarantor” means each of Holdings and the Subsidiary Guarantors.

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

“Hedge Agreement” means any agreement with respect to any Derivative Transaction.

 

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“Hedging Agreement” means any agreement with respect to the hedging of price risk associated with the purchase of commodities used in the business of the Borrower and its Restricted Subsidiaries, so long as any such agreement has been entered into in the ordinary course of business and not for purposes of speculation.

“Hedging Obligations” means, with respect to any Person, the obligations of such Person under currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements and other agreements or arrangements, in each case designed to protect such Person against fluctuations in currency exchange, interest rates or commodity prices.

“Historical Financial Statements” has the meaning assigned to such term in Section 3.04(a).

“Holdings” has the meaning assigned to such term in the preamble to this Agreement.

“Immaterial Subsidiary” means, at any date of determination, any Restricted Subsidiary designated as such in writing by the Borrower that (i) contributed 5.0% or less of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four fiscal quarters most recently ended more than forty-five (45) days prior to the date of determination and (ii) had consolidated assets representing 5.0% or less of Total Assets on the last day of the most recent fiscal quarter ended more than forty-five (45) days prior to the date of determination. The Immaterial Subsidiaries as of the Restatement Date are listed on Schedule 1.01(a).

“Incremental Assumption Agreement No. 1” means the Incremental Assumption and Refinancing Facility Agreement dated as of May 14, 2015, relating to this Agreement.

“Incremental Revolving Credit Assumption Agreement” means an Incremental Revolving Credit Assumption Agreement in form and substance reasonably satisfactory to the Agent, among the Borrower, the Agent and one or more Incremental Revolving Credit Lenders.

“Incremental Revolving Credit Commitment” means the commitment of any Lender, established pursuant to Section 2.24, to make Incremental Revolving Loans to the Borrower.

“Incremental Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate principal amount at such time of all outstanding Incremental Revolving Loans of such Lender.

“Incremental Revolving Credit Lender” means a Lender with an Incremental Revolving Credit Commitment or an outstanding Incremental Revolving Credit Loan.

“Incremental Revolving Credit Maturity Date” means the final maturity date of any Incremental Revolving Loan, as set forth in the applicable Incremental Revolving Credit Assumption Agreement.

 

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“Incremental Revolving Loans” means Revolving Loans made by one or more Lenders to the Borrower pursuant to Section 2.01(b). Incremental Revolving Loans may be made in the form of additional Revolving Loans or, to the extent permitted by Section 2.24 and provided for in the relevant Incremental Revolving Credit Assumption Agreement, Other Revolving Loans.

“Incremental Term Lender” means a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.

“Incremental Term Loan Assumption Agreement” means an Incremental Term Loan Assumption Agreement in form and substance reasonably satisfactory to the Agent, among the Borrower, the Agent and one or more Incremental Term Lenders.

“Incremental Term Loan Commitment” means the commitment of any Lender, established pursuant to Section 2.24, to make Incremental Term Loans to the Borrower.

“Incremental Term Loan Maturity Date” means the final maturity date of any Incremental Term Loan, as set forth in the applicable Incremental Term Loan Assumption Agreement.

“Incremental Term Loan Repayment Date” means the dates scheduled for the repayment of principal of any Incremental Term Loan, as set forth in the applicable Incremental Term Loan Assumption Agreement.

“Incremental Term Loans” means Term Loans made by one or more Lenders to the Borrower pursuant to Section 2.01(c). Incremental Term Loans may be made in the form of additional Term Loans or, to the extent permitted by Section 2.24 and provided for in the relevant Incremental Term Loan Assumption Agreement, Other Term Loans.

“incur” has the meaning set forth in Section 6.01.

“Indebtedness” means with respect to any Person, without duplication:

(1) all obligations of such Person for borrowed money;

(2) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;

(3) all Capitalized Lease Obligations of such Person;

(4) all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business);

(5) all obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction;

 

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(6) guarantees and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clauses (8) and (9) below;

(7) all obligations of any other Person of the type referred to in clauses (1) through (6) which are secured by any Lien on any property or asset of such Person, the amount of such obligation being deemed to be the lesser of the fair market value of such property or asset and the amount of the obligation so secured;

(8) all obligations under interest swap agreements and other Hedge Agreements of such Person;

(9) all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any; and

(10) all obligations in respect of Securitization Transactions.

Notwithstanding the foregoing, in connection with the purchase by the Borrower or any Restricted Subsidiary of any business, the term “Indebtedness” will exclude post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided, however, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 60 days thereafter. For clarification purposes, the liability of the Borrower or any Restricted Subsidiary to make periodic payments to licensors in consideration for the license of patents and technical information under license agreements in existence on the Second Restatement Date and any amount payable in respect of a settlement of disputes with respect to such payments thereunder shall not constitute Indebtedness.

For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Capital Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Agreement, and if such price is based upon, or measured by, the fair market value of such Disqualified Capital Stock, such fair market value shall be determined reasonably and in good faith by the Board of Directors of the issuer of such Disqualified Capital Stock. For the purposes of calculating the amount of Indebtedness of a Securitization Entity outstanding as of any date, the face or notional amount of any interest in receivables and related assets that is outstanding as of such date shall be deemed to be Indebtedness in a principal amount equal to such amount, but any such interests held by Affiliates of such Securitization Entity, including any Purchase Money Note, shall be excluded for purposes of such calculation.

“Indemnified Taxes” means Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document.

“Information” has the meaning set forth in Section 3.11(a).

 

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“Intellectual Property” has the meaning assigned to such term in the Guarantee and Collateral Agreement.

“Intellectual Property Security Agreements” means each intellectual property security agreement executed and delivered by the applicable Loan Parties granting a security interest in the Intellectual Property of such Loan Parties to the Agent.

“Interest Election Request” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.05.

“Interest Payment Date” means (a) with respect to any ABR Loan (including a Dollar Swingline Loan), the last Business Day of each March, June, September and December and the Maturity Date and (b, (b) with respect to any SONIA Rate Loan made on any date, each date that is on the numerically corresponding day in each succeeding calendar month on which all or any portion of such Loan is outstanding; provided that, (i) if any such date would be a day other than a Business Day, such date shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such date shall be the next preceding Business Day and (ii) the Interest Payment Date with respect to any Borrowing that occurs on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in any applicable calendar month) shall be the last Business Day of each such succeeding calendar month, and (c) with respect to any Eurocurrency Loan (including any Alternative Currency Swingline Loan), the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period (or if such day is not a Business Day, the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case, the next preceding Business Day).

“Interest Period” means with respect to any Eurocurrency Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months (or, to the extent agreed to by each relevant Lender, twelve months or a period of less than one month) thereafter, as the Borrower may elect; provided, that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (iii) only Interest Periods of one month shall be available for Alternative Currency Swingline Loans. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

 

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“Interest Swap Obligations” means the obligations of any Person pursuant to any arrangement with any other Person, whereby, directly or indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for periodic payments made by such other Person calculated by applying a fixed or a floating rate of interest on the same notional amount and shall include, without limitation, interest rate swaps, caps, floors, collars and similar agreements.

“Investments” means, with respect to any Person, any direct or indirect loan or other extension of credit (including, without limitation, a guarantee) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition by such Person of any Equity Interests, bonds, notes, debentures or other securities or evidences of Indebtedness issued by, any Person. “Investment” shall exclude extensions of trade credit by the Borrower and its Restricted Subsidiaries in accordance with normal trade practices of the Borrower or such Restricted Subsidiary, as the case may be. Except as otherwise provided herein, the amount of an Investment shall be (i) the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, minus (ii) the amount of dividends or distributions received in connection with such Investment and any return of capital or repayment of principal received in respect of such Investment that, in each case, is received in cash or Cash Equivalents.

“Issuing Bank” means, as the context may require, (a) PNC Bank, National Association, acting through any of its Affiliates, in its capacity as the issuer of Letters of Credit hereunder, and (b) any other Lender that may become an Issuing Bank pursuant to Section 2.23(i) or 2.23(k), with respect to Letters of Credit issued by such Lender. The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

“Issuing Bank Fees” has the meaning assigned to such term in Section 2.11(c).

“Joinder Agreement” has the meaning assigned to such term in Section 5.11.

“Joint Lead Arrangers” means (a) Credit Suisse Securities (USA) LLC, UBS Securities LLC, Morgan Stanley Senior Funding, Inc., Citigroup Global Markets Inc., Barclays Bank PLC and RBC Capital Markets¹, as joint lead arrangers for the First Restated Credit Agreement and (b) Credit Suisse Securities (USA) LLC and Morgan Stanley Senior Funding, Inc., as joint lead arrangers for this Agreement.

“Latest Maturity Date” means, at any time, the latest Maturity Date applicable to any Loan or Commitment hereunder at such time. Unless the context shall otherwise require, when used in reference to the incurrence of any Indebtedness or the issuance of any Equity Interests, the Latest Maturity Date shall mean the Latest Maturity Date applicable to any Loan or Commitment hereunder as of the date such Indebtedness is incurred or such Equity Interests are issued.

 

 

1	RBC Capital Markets is a brand name for the capital markets business of Royal Bank of Canada and its affiliates.

 

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“L/C Commitment” means the commitment of the Issuing Bank to issue Letters of Credit pursuant to Section 2.23.

“L/C Disbursements” means the Dollar L/C Disbursements and the Multicurrency L/C Disbursements.

“L/C Exposures” means the Dollar L/C Exposures and the Multicurrency L/C Exposures.

“L/C Participation Fee” has the meaning assigned to such term in Section 2.11(c).

“Lender Presentation” means the Presentation to Public Lenders dated May 13, 2014, relating to the Borrower and the Second Restatement Transactions.

“Lenders” means the Persons listed on the Commitment Schedule and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, an Incremental Term Loan Assumption Agreement, an Incremental Revolving Credit Assumption Agreement or a Refinancing Facility Agreement, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context clearly indicates otherwise, the term “Lenders” shall include the Swingline Lender.

“Letter of Credit” means any letter of credit or bank guarantee issued or deemed issued pursuant to Section 2.23.

“LIBO Rate” means, with respect to any Interest Period, the rate per annum determined by the Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the commencement of such Interest Period by reference to the ICE Benchmark Administration Interest Settlement Rates for deposits in the applicable currency (as published by Reuters or any other service selected by the Agent that has been nominated by the ICE Benchmark Administration Limited as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period.

“Lien” means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest).

“Limited Condition Acquisition” means any Permitted Acquisition that the Borrower or one or more of its Subsidiaries has contractually committed to consummate, the terms of which do not condition the Borrower’s or its Subsidiary’s, as applicable, obligations to close such Permitted Acquisition on the availability of third-party financing.

“Loan Documents” means this Agreement, the First Amendment and Restatement Agreement, the Second Amendment and Restatement Agreement, any Incremental Revolving Credit Assumption Agreement, any Incremental Term Loan Assumption Agreement, any Refinancing Facility Agreement, any promissory notes issued pursuant to this Agreement and the

 

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Collateral Documents. Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto.

“Loan Modification Agreement” means a Loan Modification Agreement in form and substance reasonably satisfactory to the Agent and the Borrower, among the Borrower, the other Loan Parties, one or more Accepting Lenders and the Agent.

“Loan Modification Offer” has the meaning assigned to such term in Section 2.25(a).

“Loan Parties” means Holdings, the Borrower, each Domestic Subsidiary (other than (i) subject to compliance with Section 5.11, any Domestic Subsidiary that is an Immaterial Subsidiary and (ii) any Unrestricted Subsidiary), and any other Person who becomes a party to this Agreement as a Loan Party pursuant to a Joinder Agreement or becomes a party to the Guarantee and Collateral Agreement as a guarantor and/or grantor thereunder, and their respective successors and assigns.

“Loans” means the Revolving Loans, the Term Loans, the Swingline Loans and the loans made to the Borrower pursuant to any Refinancing Facility Agreement.

“Mandatory Cost” means the percentage rate per annum calculated by the Agent in accordance with Exhibit G.

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

“Material Acquisition” means any acquisition or series of related acquisitions by the Borrower or its Restricted Subsidiaries of assets comprising all or substantially all of an operating unit of a business or all or substantially all of the Capital Stock of a Person, including, for the avoidance of doubt, any Permitted Acquisition, for aggregate consideration in excess of $300,000,000.

“Material Adverse Effect” means a material adverse effect on (a) the business, assets, liabilities, results of operations or condition (financial or otherwise) of the Borrower and the Subsidiaries taken as a whole, (b) the ability of the Borrower and the other Loan Parties (taken as a whole) to perform their obligations under the Loan Documents or (c) the rights of, or remedies available to, the Agent or the Lenders under, the Loan Documents.

“Material Indebtedness” means Indebtedness (other than the Loans) for borrowed money (including notes, bonds and other similar instruments) of any one or more of Holdings, the Borrower and its Subsidiaries in an aggregate principal amount exceeding $50,000,000. For purposes hereof, the “principal amount” of the obligations of Holdings, the Borrower or any Subsidiary in respect of any Securitization Transaction at any time shall be the aggregate principal or stated amount of the Indebtedness or other securities referred to in the last paragraph of the definition of the term “Indebtedness”.

 

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“Maturity Date” means the Term Loan Maturity Date, the Revolving Credit Maturity Date, the Incremental Term Loan Maturity Date or the Incremental Revolving Credit Maturity Date, as applicable.

“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.

“Mortgaged Properties” means, initially, the owned real properties of the Loan Parties specified on Schedule 1.01(b), and shall include each other parcel of real property and improvements thereto with respect to which a Mortgage is granted pursuant to Section 5.11.

“Mortgages” means any mortgage, deed of trust or other agreement which conveys or evidences a Lien in favor of the Agent, for the benefit of the Agent and the ratable benefit of the Secured Parties, on real property of a Loan Party, including any amendment, modification or supplement thereto (including Existing Mortgages, as amended, modified and supplemented after the Second Restatement Date).

“Multicurrency L/C Disbursement” means a payment or disbursement made by the Issuing Bank pursuant to a Multicurrency Letter of Credit.

“Multicurrency L/C Exposure” means, at any time, the sum of (a) the aggregate undrawn and unexpired amount of all outstanding Multicurrency Letters of Credit at such time denominated in Dollars, plus the Dollar Equivalent of the aggregate undrawn and unexpired amount of all outstanding Multicurrency Letters of Credit denominated in Alternative Currencies and (b) the aggregate principal amount of all Multicurrency L/C Disbursements denominated in Dollars, plus the Dollar Equivalent of the aggregate principal amount of all Multicurrency L/C Disbursements denominated in Alternative Currencies, in each case that have not yet been reimbursed at such time. The Multicurrency L/C Exposure of any Multicurrency Revolving Credit Lender at any time shall equal its applicable Pro Rata Percentage of the aggregate Multicurrency L/C Exposure at such time.

“Multicurrency Letter of Credit” means a Letter of Credit issued under the Multicurrency Revolving Credit Commitments.

“Multicurrency Revolving Credit Commitment” means a Non-Extended Multicurrency Revolving Credit Commitment or an Extended Multicurrency Revolving Credit Commitment, or both, as the context may require.

“Multicurrency Revolving Credit Exposure” means, with respect to any Revolving Credit Lender at any time, the sum of (a) the aggregate principal amount at such time of all outstanding Multicurrency Revolving Loans of such Lender denominated in Dollars, plus the Dollar Equivalent of the aggregate principal amount at such time of all outstanding Multicurrency Revolving Loans of such Lender denominated in Alternative Currency, (b) the aggregate amount at such time of its Multicurrency L/C Exposure and (c) the aggregate amount at the time of its Swingline Exposure.

 

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“Multicurrency Revolving Credit Lender” means a Non-Extended Multicurrency Revolving Credit Lender or an Extended Multicurrency Revolving Credit Lender, or both, as the context may require.

“Multicurrency Revolving Loans” means the Non-Extended Multicurrency Revolving Loans and the Extended Multicurrency Revolving Loans.

“Multiemployer Plan” means a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA.

“Net Cash Proceeds” means:

(a) with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents including payments in respect of deferred payment obligations when received in the form of cash or Cash Equivalents (other than the portion of any such deferred payment constituting interest) received by the Borrower or any of its Restricted Subsidiaries from such Asset Sale net of:

(1) reasonable out-of-pocket expenses and fees relating to such Asset Sale or collecting the proceeds thereof (including, without limitation, legal, accounting and investment banking fees and sales commissions and title and recording tax expenses);

(2) all Federal, state, provincial, foreign and local Taxes required to be accrued as a liability under GAAP, as a consequence of such Asset Sale;

(3) appropriate amounts to be provided by the Borrower or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by the Borrower or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve and not applied to any such liabilities, such amounts shall constitute Net Cash Proceeds);

(4) all distributions and other payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Sale to the extent not available for distribution to or for the account of the Borrower as a result thereof; and

(5) all payments made on any Indebtedness which is secured by any assets subject to such Asset Sale, in accordance with the terms of any Lien upon or other security agreement of any kind with respect to such assets, or which must by its terms, or in order to obtain a necessary consent to such Asset Sale, or by applicable law, be repaid out of the proceeds from such Asset Sale (in each case, other than Specified Secured Indebtedness); and

 

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(b) with respect to any issuance or incurrence of Indebtedness, the cash proceeds thereof, net of all Taxes and customary fees, commissions, costs and other expenses incurred in connection therewith.

“Non-Accepting Lender” has the meaning assigned to such term in Section 2.25(d).

“Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(e).

“Non-Extended Dollar Revolving Credit Commitment” means, with respect to each Lender, the commitment of such Lender to make Non-Extended Dollar Revolving Loans hereunder (and to acquire participations in Dollar Letters of Credit as provided for herein) as set forth in the Commitment Schedule or in the most recent Assignment and Assumption executed by such Lender, as applicable, as the same may be (i) reduced or increased from time to time pursuant to Section 2.06 or 2.24 and (ii) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The aggregate amount of the Non-Extended Dollar Revolving Credit Commitments on the on the Amendment No. 5 Effective Date is $0.00.

“Non-Extended Dollar Revolving Credit Lender” means a Lender with a Non-Extended Dollar Revolving Credit Commitment or outstanding Dollar Revolving Credit Exposure in respect of its Non-Extended Dollar Revolving Credit Commitment.

“Non-Extended Dollar Revolving Loans” means the revolving loans made in respect of the Non-Extended Dollar Revolving Credit Commitments by the Non-Extended Dollar Revolving Credit Lenders to the Borrower pursuant to clause (a)(ii) of Section 2.01.

“Non-Extended Multicurrency Revolving Credit Commitment” means, with respect to each Lender, the commitment of such Lender to make Non-Extended Multicurrency Revolving Loans hereunder (and to acquire participations in Swingline Loans and Multicurrency Letters of Credit as provided for herein) as set forth in the Commitment Schedule or in the most recent Assignment and Assumption executed by such Lender, as applicable, as the same may be (i) reduced or increased from time to time pursuant to Section 2.06 or 2.24 and (ii) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The aggregate amount of the Non-Extended Multicurrency Revolving Credit Commitments on the Amendment No. 5 Effective Date is $0.00.

“Non-Extended Multicurrency Revolving Credit Lender” means a Lender with a Non-Extended Multicurrency Revolving Credit Commitment or outstanding Multicurrency Revolving Credit Exposure in respect of its Non-Extended Multicurrency Revolving Credit Commitment.

“Non-Extended Multicurrency Revolving Loans” means the revolving loans made in respect of the Non-Extended Multicurrency Revolving Credit Commitments by the Non-Extended Multicurrency Revolving Credit Lenders to the Borrower pursuant to clause (a)(iii) of Section 2.01.

 

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“Non-Extended Revolving Credit Commitments” means the Non-Extended Dollar Revolving Credit Commitments and the Non-Extended Multicurrency Revolving Credit Commitments.

“Non-Extended Revolving Credit Lenders” means the Non-Extended Dollar Revolving Credit Lenders and the Non-Extended Multicurrency Revolving Credit Lenders.

“Non-Extended Revolving Credit Maturity Date” means February 28, 2020.

“obligations” means, for purposes of the definition of the term “Indebtedness”, all obligations for principal, premium, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

“Obligations” means all obligations defined as “Obligations” in the Guarantee and Collateral Agreement.

“Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Borrower.

“Officers’ Certificate” means a certificate signed on behalf of the Borrower by two Officers of the Borrower, one of whom must be the principal executive officer, the principal financial officer, the president, any vice president, the treasurer or the principal accounting officer of the Borrower.

“Other Information” has the meaning assigned to such term in Section 3.11(b).

“Other Revolving Loans” has the meaning assigned to such term in Section 2.24(a).

“Other Taxes” means any and all present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.

“Other Term Loans” has the meaning assigned to such term in Section 2.24(a).

“Participant” has the meaning assigned to such term in Section 9.04(c).

“Participant Register” has the meaning assigned to such term in Section 9.04(c).

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

“Perfection Certificate” means a certificate in the form of Exhibit B to the Guarantee and Collateral Agreement or any other form approved by the Agent.

 

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“Permitted Acquisition” has the meaning assigned to such term in clause (18) of the definition of the term “Permitted Investments”.

“Permitted Amendments” has the meaning assigned to such term in Section 2.25(c).

“Permitted Business” means any business (including stock or assets) that derives a majority of its revenues from the business engaged in by the Borrower and its Restricted Subsidiaries on the Second Restatement Date and/or activities that are reasonably similar, ancillary, complementary or related to, or a reasonable extension, development or expansion of, the businesses in which the Borrower and its Restricted Subsidiaries are engaged on the Second Restatement Date.

“Permitted Indebtedness” means, without duplication, each of the following:

(1) the Indebtedness under the Senior Subordinated Notes Documents (other than any Additional Notes (as defined in the Senior Subordinated Notes Indentures)); provided that the aggregate principal amount under the Senior Subordinated Notes Documents shall not exceed $4,800,000,000 at any time outstanding, along with Refinancing Indebtedness in respect thereof; provided, further, that solely during the 45-day period following the Second Restatement Date, additional Subordinated Notes described in clause (i) of the definition thereof in an aggregate principal amount not to exceed $390,747,000 shall be permitted under this clause (1) pending the repurchase or other redemption thereof during such period;

(2) Indebtedness created hereunder and under the other Loan Documents; provided that the amount of Indebtedness permitted to be incurred under the Loan Documents in accordance with this clause (2) shall be in addition to any Indebtedness permitted to be incurred pursuant to a credit facility in reliance on, and in accordance with, clauses (1), (7), (12), (13), (14) and (15) below;

(3) other indebtedness of the Borrower and its Restricted Subsidiaries outstanding on the Restatement Date as set forth on Schedule 1.01(d), reduced by the amount of any scheduled amortization payments or mandatory prepayments when actually paid or permanent reductions thereon, and Refinancing Indebtedness in respect thereof;

(4) Interest Swap Obligations of the Borrower or any of its Restricted Subsidiaries covering Indebtedness of the Borrower or any of its Restricted Subsidiaries; provided that any Indebtedness to which any such Interest Swap Obligations correspond is otherwise permitted to be incurred under this Agreement; provided further, that such Interest Swap Obligations are entered into, in the judgment of the Borrower, to protect the Borrower or any of its Restricted Subsidiaries from fluctuation in interest rates on its outstanding Indebtedness;

(5) Indebtedness of the Borrower or any Restricted Subsidiary under Hedging Agreements and Currency Agreements;

 

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(6) the incurrence by the Borrower or any of its Restricted Subsidiaries of intercompany Indebtedness between or among any such Persons; provided, however, that: (a) if the Borrower or any other Guarantor is the obligor on such Indebtedness and the payee is a Restricted Subsidiary that is not a Guarantor, such Indebtedness is expressly subordinated on terms reasonably satisfactory to the Agent to the prior payment in full in cash of all Obligations and (b) (1) any subsequent issuance or transfer of Capital Stock that results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary thereof and (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary thereof (other than by way of granting a Lien permitted under this Agreement or in connection with the exercise of remedies by a secured creditor) shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);

(7) Indebtedness (including Capitalized Lease Obligations) incurred by the Borrower or any of its Restricted Subsidiaries to finance the purchase, lease or improvement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any person owning such assets), and Refinancing Indebtedness in respect thereof, in an aggregate principal amount outstanding not to exceed the greater of (a) $250,000,000, and (b) 10.0% of the Consolidated EBITDA of the Borrower for the most recently ended period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b);

(8) guarantees by the Borrower and its Restricted Subsidiaries of each other’s Indebtedness; provided that such Indebtedness is permitted to be incurred under this Agreement; provided further, that no Restricted Subsidiary may guarantee the Indebtedness of a Loan Party under this clause (8) unless such Restricted Subsidiary is also a Loan Party;

(9) Indebtedness arising from agreements of the Borrower or a Restricted Subsidiary of the Borrower providing for indemnification, adjustment of purchase price, earn out or other similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Restricted Subsidiary of the Borrower, other than guarantees of Indebtedness, incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition; provided that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Borrower and its Restricted Subsidiaries in connection with such disposition;

(10) obligations in respect of performance and surety bonds and completion guarantees provided by the Borrower or any Restricted Subsidiary of the Borrower in the ordinary course of business;

(11) Indebtedness of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into a Restricted Subsidiary in a transaction permitted hereunder) after the Restatement Date,

 

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or Indebtedness of any Person that is assumed by any Restricted Subsidiary in connection with an acquisition of assets by such Restricted Subsidiary in a Permitted Acquisition, and Refinancing Indebtedness in respect thereof; provided that (i) such Indebtedness (other than any such Refinancing Indebtedness) exists at the time such Person becomes a Restricted Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Restricted Subsidiary (or such merger or consolidation) or such assets being acquired, (ii) immediately before and after such Person becomes a Restricted Subsidiary (or is so merged or consolidated) or such assets are acquired, no Default or Event of Default shall have occurred and be continuing, (iii) the aggregate principal amount of Indebtedness permitted by this clause (11) shall not exceed the greater of (a) $150,000,000, and (b) 6.0% of the Consolidated EBITDA of the Borrower for the most recently ended period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b) at any time outstanding and (iv) neither the Borrower nor any Restricted Subsidiary (other than such Person or the Restricted Subsidiary with which such Person is merged or consolidated or that so assumes such Person’s Indebtedness) shall guarantee or otherwise become liable for the payment of such Indebtedness;

(12) senior secured Indebtedness (which may have the same lien priority as, or a junior lien priority to, the Obligations) and senior unsecured Indebtedness, and Refinancing Indebtedness in respect thereof; provided that (i) at the time of such incurrence and after giving effect thereto and to the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing, (ii) the final maturity of such Indebtedness at the time of incurrence thereof shall be no earlier than the latest final maturity of the Term Loans (except in the case of customary bridge loans which automatically convert into Indebtedness satisfying the requirements of this paragraph (12)), (iii) the Weighted Average Life to Maturity of such Indebtedness at the time of incurrence thereof shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans (except in the case of customary bridge loans which automatically convert into Indebtedness satisfying the requirements of this paragraph (12)), (iv) such Indebtedness shall not constitute an obligation (including pursuant to a guarantee) of any Subsidiary that is not (or, in the case of after-acquired Subsidiaries, is not required to become) a Loan Party hereunder and (v) the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings, the Borrower or any Subsidiary other than any asset constituting Collateral; provided further that, except in connection with any Refinancing Indebtedness, (x) at the time of the incurrence of any senior secured Indebtedness having the same lien priority as the Obligations and after giving effect thereto and to the use of the proceeds thereof, the Consolidated Secured Net Debt Ratio would not exceed 5.00 to 1.00, and (y) at the time of the incurrence of any senior secured Indebtedness having a lien priority junior to the Obligations or any senior unsecured Indebtedness and after giving effect thereto and to the use of the proceeds thereof, the Consolidated Net Leverage Ratio would not exceed 7.25 to 1.00; provided further that Indebtedness in the form of letters of credit issued pursuant to a bilateral letter of credit facility in an aggregate face amount of up to the greater of (a) $35,000,000, and (b) 1.5% of the Consolidated EBITDA of the Borrower for the most recently ended period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b) at any time outstanding may be incurred

 

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under this clause (12) regardless of whether the conditions set forth in clauses (ii) and (iii) of this clause (12) are satisfied with respect thereto;(13) additional Indebtedness of the Borrower and the Guarantors (which amount may, but need not, be incurred in whole or in part under a credit facility) in an aggregate principal amount that does not exceed the greater of (a) $250,000,000 and (b) 10.0% of the Consolidated EBITDA of the Borrower for the most recently ended period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b) at any one time outstanding;

(14) additional Indebtedness of the Foreign Restricted Subsidiaries in an aggregate principal amount which (when combined with the liquidation value of all series of outstanding Permitted Subsidiary Preferred Stock) does not exceed the greater of (a) $450,000,000, and (b) 18.0% of the Consolidated EBITDA of the Borrower for the most recently ended period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b) at any one time outstanding (which amount may, but need not, be incurred in whole or in part under a credit facility);

(15) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five business days of incurrence;

(16) Indebtedness of the Borrower or any of its Restricted Subsidiaries represented by letters of credit for the account of the Borrower or such Restricted Subsidiary, as the case may be, issued in the ordinary course of business of the Borrower or such Restricted Subsidiary, including, without limitation, in order to provide security for workers’ compensation claims or payment obligations in connection with self-insurance or similar requirements in the ordinary course of business and other Indebtedness with respect to workers’ compensation claims, self-insurance obligations, performance, surety and similar bonds and completion guarantees provided by the Borrower or any Restricted Subsidiary of the Borrower in the ordinary course of business;

(17) Permitted Subordinated Indebtedness and Refinancing Indebtedness in respect thereof; provided that at the time thereof and after giving effect thereto and to the use of proceeds thereof (i) the Consolidated Net Leverage Ratio would not exceed 7.25 to 1.00 and (ii) no Default or Event of Default shall have occurred and be continuing; and

(18) the incurrence by a Securitization Entity of Indebtedness in an aggregate principal amount that does not exceed the greater of (a) $500,000,000, and (b) 20.0% of the Consolidated EBITDA of the Borrower for the most recently ended period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b) at any time outstanding in a Securitization Transaction that is non–recourse to the Borrower or any other Subsidiary of the Borrower (except for Standard Securitization Undertakings) and, for the avoidance of doubt, excluding any Purchase Money Notes.

 

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For purposes of determining compliance with Section 6.01, (x) in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (18) above, the Borrower shall, in its sole discretion, divide and classify such item of Indebtedness when such Indebtedness is incurred in any manner that complies with such covenant and (y) with respect to any Indebtedness incurred to finance a Limited Condition Acquisition, the determination of compliance with any provision requiring the calculation of the Consolidated Secured Net Debt Ratio or the Consolidated Net Leverage Ratio or that no Default or Event of Default shall have occurred and be continuing shall be made solely as of the date on which the definitive documentation with respect to such Limited Condition Acquisition is entered into. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for purposes of Section 6.01.

“Permitted Investments” means:

(1)    (a) Investments by the Borrower or any Restricted Subsidiary of the Borrower in any Restricted Subsidiary, (b) Investments in the Borrower by any Restricted Subsidiary of the Borrower and (c) Investments by the Borrower or any Restricted Subsidiary of the Borrower in any Unrestricted Subsidiary of the Borrower not to exceed the greater of (x) $250,000,000 and (y) 10.0% of the Consolidated EBITDA of the Borrower for the most recently ended period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b) in the aggregate for all such Investments in Unrestricted Subsidiaries;

(2) investments in cash and Cash Equivalents;

(3) loans and advances (including payroll, travel and similar advances) to employees and officers of the Borrower and its Restricted Subsidiaries for bona fide business purposes incurred in the ordinary course of business or consistent with past practice or to fund such person’s purchase of Equity Interests of Holdings pursuant to compensatory plans approved by the Board of Directors in good faith;

(4) Currency Agreements, Hedging Agreements and Interest Swap Obligations constituting Permitted Indebtedness;

(5) Investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors or customers;

(6) Investments made by the Borrower or its Restricted Subsidiaries as a result of consideration received in connection with an Asset Sale made in compliance with Section 6.03;

 

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(7) other Investments existing on the Restatement Date and set forth on Schedule 1.01(f);

(8) accounts receivable created or acquired, and extensions of trade credit, in the ordinary course of business;

(9) guarantees by the Borrower or a Restricted Subsidiary of the Borrower permitted to be incurred under this Agreement;

(10) additional Investments in an aggregate amount, taken together with all other Investments made pursuant to this clause (10) that are at that time outstanding, not to exceed the greater of (A) $500,000,000 and (B) 25.0% of the Borrower’s Total Assets;

(11) Investments by the Borrower or any Restricted Subsidiary of the Borrower in joint ventures to the extent such Investments, when taken together with all other Investments made pursuant to this clause (11) (including the fair market value of any assets transferred to any such joint venture), do not exceed the greater of (x) $1,000,000,000, and (y) 40.0% of the Consolidated EBITDA of the Borrower for the most recently ended period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b), so long as at the time of such Investment and after giving pro forma effect thereto and to any financing therefor, (A) no Default or Event of Default has occurred and is continuing and (B) the Consolidated Net Leverage Ratio would not exceed 7.00 to 1.00;

(12) Investments the payment for which consists exclusively of Qualified Capital Stock of Holdings, or are funded with the proceeds of a substantially concurrent issuance of Qualified Capital Stock of Holdings;

(13) any Investment in any Person to the extent it consists of prepaid expenses, negotiable instruments held for collection and lease, utility and workers’ compensation, performance and other similar deposits made in the ordinary course of business;

(14) purchases of inventory and other property to be sold or used in the ordinary course of business;

(15) Investments consisting of licensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other Persons;

(16) Investments of any Person existing at the time such Person becomes a Restricted Subsidiary pursuant to a transaction expressly permitted hereunder so long as such Investments were not made in contemplation of such Person becoming a Restricted Subsidiary;

(17) Investments consisting of promissory notes and other non-cash consideration received in connection with Asset Sales permitted under Section 6.03;

(18) acquisitions by the Borrower and the Restricted Subsidiaries of all or substantially all the assets of a Person or division, product line or line of business of such

 

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Person, or at least 90% of the Equity Interests of a Person (referred to herein as the “Acquired Entity”); provided that (i) the Acquired Entity shall be in a Permitted Business; (ii) both before and after giving pro forma effect to such acquisition and the incurrence of any Indebtedness in connection therewith, (A) no Default or Event of Default shall have occurred and be continuing (in the case of a Limited Condition Acquisition, determined solely as of the date on which the definitive documentation with respect to such Limited Condition Acquisition is entered into); (B) the Consolidated Net Leverage Ratio (in the case of a Limited Condition Acquisition, determined solely as of the date on which the definitive documentation with respect to such Limited Condition Acquisition is entered into) would not exceed 7.25 to 1.00; and (C) the Available Liquidity shall be no less than $100,000,000 (in the case of a Limited Condition Acquisition, determined solely as of the date on which the definitive documentation with respect to such Limited Condition Acquisition is entered into), and, for each acquisition with consideration in excess of $25,000,000, the Borrower shall have delivered a certificate of a Financial Officer, certifying as to the foregoing clauses (A), (B) and (C) and setting forth reasonably detailed calculations in support thereof, in form and substance reasonably satisfactory to the Agent; and (iii) unless such Acquired Entity is not organized or existing under the laws of the United States of America, any state thereof, the District of Columbia, or any territory thereof, the Borrower shall comply, and shall cause the Acquired Entity to comply, with the applicable provisions of Section 5.11 and the Loan Documents (any acquisition of an Acquired Entity meeting all the criteria of this clause (18) being referred to herein as a “Permitted Acquisition”);

(19) any Investment by the Borrower or a Subsidiary of the Borrower in a Securitization Entity or any Investment by a Securitization Entity in any other Person in connection with a Securitization Transaction; provided that any Investment in a Securitization Entity is in the form of a Purchase Money Note or an equity interest; and

(20) other Investments so long as at the time thereof and after giving effect thereto (and to any financing therefor) (A) no Default or Event of Default has occurred and is continuing, (B) the Consolidated Net Leverage Ratio would not exceed 5.75 to 1.00; (C) no Revolving Loans or Swingline Loans would be outstanding and (D) the aggregate Unrestricted Cash of all Loan Parties and their Restricted Subsidiaries at such time, as the same would be reported on a consolidated balance sheet prepared in accordance with GAAP as of such date, would not be less than $200,000,000.

“Permitted Liens” means, with respect to any Person:

(a) Liens created under the Loan Documents securing the Obligations (including any such Obligations comprising Specified Secured Indebtedness);

(b) pledges or deposits by such Person under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits to secure bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested Taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;

 

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(c) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens and other similar Liens, in each case, for sums not yet overdue for a period of more than thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;

(d) Liens for Taxes, assessments or other governmental charges or claims not yet overdue for a period of more than thirty (30) days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;

(e) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;

(f) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties, in each case, which were not incurred in connection with Indebtedness and which do not in the aggregate materially impair their use in the operation of the business of such Person;

(g) Liens existing on the Restatement Date and set forth on Schedule 1.01(e); provided that (i) such Liens shall secure only those obligations which they secure on the Restatement Date and any Refinancings of such obligations permitted under Section 6.01 and (ii) such Liens may not extend to any other property of the Borrower or any Restricted Subsidiary;

(h) Liens on property or shares of stock of a Person at the time such Person becomes a Restricted Subsidiary; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Restricted Subsidiary; provided further, that such Liens may not extend to any other property owned by the Borrower or any Restricted Subsidiary and shall secure only obligations which such Liens secure immediately prior to the time such Person becomes a Restricted Subsidiary;

(i) Liens on property at the time the Borrower or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any Restricted Subsidiary; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided further,

 

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that the Liens may not extend to any other property owned by the Borrower or any Restricted Subsidiary and shall secure only obligations which such Liens secure immediately prior to such acquisition;

(j) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Borrower or another Restricted Subsidiary permitted to be incurred in accordance with Section 6.01;

(k) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(l) leases and subleases granted to others in the ordinary course of business which do not materially adversely affect the ordinary conduct of the business of the Borrower or any of the Restricted Subsidiaries and do not secure any Indebtedness;

(m) Liens arising from financing statement filings under the UCC or similar state laws regarding operating leases entered into by the Borrower and its Restricted Subsidiaries in the ordinary course of business;

(n) Liens in favor of the Borrower or any Subsidiary Guarantor;

(o) Liens on inventory or equipment of the Borrower or any Restricted Subsidiary granted in the ordinary course of business to the Borrower’s client at which such inventory or equipment is located;

(p) Securitization Transactions permitted by clause (18) of the definition of the term “Permitted Indebtedness”, and Liens on accounts receivable, interests therein, related assets of the type described in the definition of “Securitization Transaction” and the proceeds of all of the foregoing existing or deemed to exist in connection with any such Securitization Transaction;

(q) Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (a), (g), (h), (i), (p) and (r) of this definition; provided that (x) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (a), (g), (h), (i), (p) and (r) of this definition at the time the original Lien became a Permitted Lien pursuant this Agreement, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement and (z) such refinancing, refunding, extension, renewal or replacement is Refinancing Indebtedness permitted under the definition of “Permitted Indebtedness”;

 

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(r) Liens securing Indebtedness permitted to be incurred pursuant to clauses (7), (12) and (14) of the definition of “Permitted Indebtedness”; provided that (A) Liens securing Indebtedness permitted to be incurred pursuant to such clause (7) do not at any time encumber any property other than the property financed by such Indebtedness and the proceeds and the products thereof, (B) Liens securing Specified Secured Indebtedness do not encumber any asset other than any asset constituting Collateral and (C) Liens securing Indebtedness permitted to be incurred pursuant to such clause (14) extend only to the assets of Foreign Subsidiaries;

(s) deposits in the ordinary course of business to secure liability to insurance carriers;

(t) Liens securing judgments for the payment of money not constituting an Event of Default under paragraph (h) of Article VII, so long as such Liens are adequately bonded and any appropriate legal proceedings that may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;

(u) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

(v) Liens (i) of a collection bank arising under Section 4-210 of the UCC on items in the course of collection, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business and (iii) in favor of banking institutions arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;

(w) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;

(x) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

(y) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 6.01; provided that such Liens do not extend to any assets other than those assets that are the subject of such repurchase agreement;

(z) other Liens securing obligations incurred in the ordinary course of business which obligations do not exceed the greater of (x) $50,000,000 and (y) 2.0% of the

 

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Consolidated EBITDA of the Borrower for the most recently ended period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b) at any one time outstanding; and

(aa) Liens securing Hedging Obligations, so long as the related Indebtedness is, and is permitted to be pursuant to Section 6.06, secured by a Lien on the same property securing such Hedging Obligations.

“Permitted Subordinated Indebtedness” means unsecured Indebtedness of the Borrower for borrowed money (a) the terms of which do not provide for any scheduled repayment, mandatory redemption, repurchase, defeasance or sinking fund obligations prior to the date that is six months after the latest final maturity of the Term Loans in effect at the time of incurrence of such Indebtedness (other than (i) customary offers to repurchase upon a change of control, fundamental change, asset sale or casualty event, (ii) mandatory prepayments with the proceeds of, and exchanges for, Refinancing Indebtedness and (iii) customary acceleration rights after an event of default), (b) that do not constitute an obligation (including pursuant to a guarantee) of any Subsidiary that is not (or, in the case of after-acquired Subsidiaries, is not required to become) a Loan Party hereunder, (c) that has terms and conditions (other than economic terms, including redemption premiums), taken as a whole, that are not materially less favorable or materially more restrictive to the Borrower than the terms and conditions prevailing in the marketplace at the time for high-yield subordinated debt securities issued in a public offering (except to the extent otherwise approved by the Agent), as determined in good faith by the Borrower and evidenced by a certificate of an Officer of the Borrower, and (d) is subordinated to the Obligations on terms and conditions reasonably satisfactory to the Agent.

“Permitted Subsidiary Preferred Stock” means any series of Preferred Stock of a Foreign Restricted Subsidiary that constitutes Qualified Capital Stock, the liquidation value of all series of which, when combined with the aggregate amount of outstanding Indebtedness of the Foreign Restricted Subsidiaries incurred pursuant to clause (15) of the definition of Permitted Indebtedness, does not exceed the greater of (a) $15,000,000 and (b) 0.5% of the Consolidated EBITDA of the Borrower for the most recently ended period of four fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b).

“Person” means an individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.

“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA sponsored, maintained or contributed to by the Borrower or any ERISA Affiliate.

“Pounds” or “£” means the lawful currency of the United Kingdom.

“Preferred Stock” of any Person means any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or redemptions or upon liquidation.

 

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“Prime Rate” means the rate of interest per annum determined from time to time by Credit Suisse as its prime rate in effect at its principal office in New York City and notified to the Borrower.

“Pro Rata Percentage” means, with respect to any Dollar Revolving Credit Lender or Multicurrency Revolving Credit Lender at any time, the percentage of the aggregate amount of Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments, respectively, as in effect at such time represented by such Revolving Credit Lender’s Dollar Revolving Credit Commitment or Multicurrency Revolving Credit Commitment, respectively. In the event that the Dollar Revolving Credit Commitments or the Multicurrency Revolving Credit Commitments shall have expired or have terminated, the Pro Rata Percentages with respect thereto shall be determined on the basis of the Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments, as applicable, most recently in effect, giving effect to any subsequent assignments. The Pro Rata Percentages shall be adjusted appropriately, as determined by the Agent, in accordance with Section 2.28(c), to disregard the Revolving Credit Commitments of Defaulting Lenders. For the avoidance of doubt, the Pro Rata Percentage of each Revolving Credit Lender shall be determined as set forth above, by reference to the percentage of all Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments represented by such Lender’s Dollar Revolving Credit Commitment or Multicurrency Revolving Credit Commitment, respectively, without regard to whether such Commitment or any other Revolving Credit Commitment is a Non-Extended Revolving Credit Commitment or an Extended Revolving Credit Commitment.

“Productive Assets” means assets (including Equity Interests) that are used or usable by the Borrower and its Restricted Subsidiaries in Permitted Businesses.

“Projections” means any projections and any forward-looking statements of the Borrower and the Subsidiaries furnished to the Lenders or the Agent by or on behalf of Holdings, the Borrower or any of the Subsidiaries prior to the Second Restatement Date.

“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

“Purchase Money Note” means a promissory note of a Securitization Entity evidencing a line of credit, which may be irrevocable, from the Borrower or any Subsidiary of the Borrower in connection with a Securitization Transaction to a Securitization Entity, which note shall be repaid from cash available to the Securitization Entity, other than amounts required to be established as reserves pursuant to agreements, amounts paid to investors in respect of interest, principal and amounts paid in connection with the purchase of newly generated receivables and other obligations typically payable to investors by Securitization Entities in Securitization Transactions and the assets related thereto, which promissory note may be subordinated to the extent typical in Securitization Transactions.

“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock.

 

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“Refinance” means, in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in exchange or replacement for, such security or Indebtedness in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings.

“Refinancing Commitment” means a Refinancing Revolving Commitment or a Refinancing Term Loan Commitment.

“Refinancing Facility Agreement” means a Refinancing Facility Agreement, in form and substance reasonably satisfactory to the Agent, among Holdings, the Borrower, each Subsidiary of the Borrower party to this Agreement, the Agent and one or more Refinancing Lenders, establishing Refinancing Commitments and effecting such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.26.

“Refinancing Indebtedness” means, in respect of any Indebtedness (the “Original Indebtedness”), any Indebtedness that Refinances, modifies, replaces, restates, refunds, defers, extends, substitutes, supplements, reissues or resells such Original Indebtedness (or any Refinancing Indebtedness in respect thereof), including any additional Indebtedness incurred to pay interest or premiums required by the instruments governing such Original Indebtedness as in effect at the time of issuance of such Refinancing Indebtedness (“Required Premiums”) and fees in connection with such Refinancing Indebtedness; provided that any such event shall not:

(1) directly or indirectly result in an increase in the aggregate principal amount of the Original Indebtedness, except to the extent such increase is a result of a simultaneous incurrence of additional Indebtedness:

(a) to pay Required Premiums and related fees, or

(b) otherwise permitted to be incurred under this Agreement,

(2) create Indebtedness:

(a) with a Weighted Average Life to Maturity at the time such Indebtedness is incurred that is less than the Weighted Average Life to Maturity at such time of the Original Indebtedness,

(b) that constitutes an obligation (including pursuant to a guarantee) of any Subsidiary that shall not have been (or, in the case of after-acquired Subsidiaries, shall not have been required to become) an obligor in respect of such Original Indebtedness, and

(c) that is secured by any Lien on any asset other than the assets that secured such Original Indebtedness, and

(3) if such event is in respect of Original Indebtedness that was subordinated to the Obligations, create Indebtedness that is subordinated to the Obligations on terms less favorable in any material respect to the Lenders.

 

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“Refinancing Lenders” means, collectively, the Refinancing Revolving Lenders and the Refinancing Term Lenders.

“Refinancing Loans” means, collectively, the Refinancing Revolving Loans and the Refinancing Term Loans.

“Refinancing Revolving Commitments” has the meaning assigned to such term in Section 2.26(a).

“Refinancing Revolving Lender” has the meaning assigned to such term in Section 2.26(a).

“Refinancing Revolving Loans” has the meaning assigned to such term in Section 2.26(a).

“Refinancing Term Lender” has the meaning assigned to such term in Section 2.26(a).

“Refinancing Term Loan Commitments” has the meaning assigned to such term in Section 2.26(a).

“Refinancing Term Loans” has the meaning assigned to such term in Section 2.26(a).

“Register” has the meaning assigned to such term in Section 9.04.

“Regulation T” means Regulation T of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof, and any successor provision thereto.

“Regulation U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof, and any successor provision thereto.

“Regulation X” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof, and any successor provision thereto.

“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, trustees, employees, agents and advisors of such Person and such Person’s Affiliates.

“Required Class Lenders” means at any time, with respect to any Class, Lenders have Loans (excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused Commitments representing more than 50% of the sum of all Loans outstanding (excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused Commitments of such Class at such time; provided that the Loans, L/C Exposure, Swingline Exposure and unused Commitments of any Defaulting Lender shall be disregarded in the determination of the Required Class Lenders at any time.

 

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“Required Lenders” means at any time, Lenders having Loans (excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments and Term Loan Commitments representing more than 50% of the sum of all Loans outstanding (excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments and Term Loan Commitments at such time; provided that the Loans, L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments and Term Loan Commitments of any Defaulting Lender shall be disregarded in the determination of the Required Lenders at any time.

“Required Revolving Lenders” means at any time, Lenders having Revolving Loans (excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments representing more than 50% of the sum of all Revolving Loans outstanding (excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments at such time; provided that the Loans, L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments of any Defaulting Lender shall be disregarded in the determination of the Required Revolving Lenders at any time.

“Requirement of Law” means, as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“Responsible Officer” of any Person means the chief executive officer, the president, any vice president, the chief operating officer or any Financial Officer of such Person and any other officer or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement, and, as to any document delivered on the Second Restatement Date (but subject to the express requirements set forth in Section 4.02), shall include any secretary or assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

“Restatement Date” means February 28, 2013, which was the date of effectiveness of the First Amended and Restated Credit Agreement.

“Restricted Payments” has the meaning assigned to such term in Section 6.02.

“Restricted Subsidiary” of any Person means any Subsidiary of such Person which at the time of determination is not an Unrestricted Subsidiary.

“Revolving Credit Borrowing” means a Borrowing comprised of Dollar Revolving Loans, Multicurrency Revolving Loans or Incremental Revolving Loans.

 

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“Revolving Credit Commitments” means the Dollar Revolving Credit Commitments and the Multicurrency Revolving Credit Commitments.

“Revolving Credit Exposures” means, with respect to any Revolving Credit Lender at any time, such Lender’s Dollar Revolving Credit Exposure and Multicurrency Revolving Credit Exposure.

“Revolving Credit Lenders” means the Dollar Revolving Credit Lenders and the Multicurrency Revolving Credit Lenders.

“Revolving Credit Maturity Date” means the Non-Extended Revolving Credit Maturity Date or the Extended Revolving Credit Maturity Date, as applicable.

“Revolving Loans” means the Dollar Revolving Loans and the Multicurrency Revolving Loans. Unless the context shall otherwise require, the term “Revolving Loans” shall include Incremental Revolving Loans.

“S&P” means Standard & Poor’s Ratings Services, and any successor to its rating agency business.

“Sale and Lease-Back Transaction” means any direct or indirect arrangement with any Person or to which any such Person is a party providing for the leasing to the Borrower or a Restricted Subsidiary of any property, whether owned by the Borrower or any Restricted Subsidiary at the Restatement Date or later acquired, which has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to such Person or to any other Person from whom funds have been or are to be advanced by such Person on the security of such property.

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of its functions.

“Second Amendment and Restatement Agreement” has the meaning assigned to such term in the introductory statement to this Agreement.

“Second Restatement Date” means June 4, 2014, which was the “Second Restatement Date” under and as defined in the Second Amendment and Restatement Agreement.

“Second Restatement Transactions” means, collectively, (a) the execution, delivery and performance of the Second Amendment and Restatement Agreement and this Agreement, the Borrowing of the Tranche D Term Loans hereunder and the use of the proceeds thereof in accordance with the terms hereof, (b) the issuance of the 2014 Senior Subordinated Notes, (c) the payment of the Specified Dividend, (d) the consummation of the Subordinated Notes Refinancing and (e) the payment of fees and expenses incurred in connection with the foregoing.

“Secured Parties” has the meaning assigned to such term in the Guarantee and Collateral Agreement.

 

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“Securities Act” means the Securities Act of 1933, as amended.

“Securitization Entity” means a Wholly Owned Subsidiary of the Borrower (or another Person in which the Borrower or any Subsidiary of the Borrower makes an Investment and to which the Borrower or any Subsidiary of the Borrower transfers accounts receivable and related assets) which engages in no activities other than in connection with the financing of accounts receivable and which is designated by the Board of Directors of the Borrower (as provided below) as a Securitization Entity (i) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (A) is guaranteed by the Borrower or any Restricted Subsidiary of the Borrower (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings); (B) is recourse to or obligates the Borrower or any Restricted Subsidiary of the Borrower in any way other than pursuant to Standard Securitization Undertakings; or (C) subjects any property or asset of the Borrower or any Restricted Subsidiary of the Borrower, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings; (ii) with which neither the Borrower nor any Restricted Subsidiary of the Borrower has any material contract, agreement, arrangement or understanding other than on terms, taken as a whole, no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Borrower, other than fees payable in the ordinary course of business in connection with servicing receivables of such entity, standard Securitization Undertakings and other terms, including Purchase Money Notes, typical in Securitization Transactions; and (iii) to which neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligations to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.

Any such designation by the Board of Directors of the Borrower shall be evidenced to the Agent (for distribution to the Lenders) by filing with the Agent a certified copy of the Board Resolution of the Borrower giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing conditions.

“Securitization Transaction” means any transaction or series of transactions that may be entered into by the Borrower or any of its Restricted Subsidiaries pursuant to which the Borrower or any of its Subsidiaries may sell, convey or otherwise transfer to (i) a Securitization Entity (in the case of a transfer by the Borrower or any of its Restricted Subsidiaries) and (ii) any other Person (in the case of a transfer by a Securitization Entity), or may grant a security interest in any accounts receivable (whether now existing or arising or acquired in the future) of the Borrower or any of its Restricted Subsidiaries, and any assets related thereto including all collateral securing such accounts receivable, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable and proceeds of such accounts receivable and other assets (including contract rights), in each case which are customarily transferred or in respect of which security interests are customarily granted in connection with assets securitization transactions involving accounts receivable.

“Senior Subordinated Notes” means (i) the Borrower’s 7.75% Senior Subordinated Notes due 2018, (ii) the Borrower’s 5.50% Senior Subordinated Notes due 2020, (iii) the 2013 Senior Subordinated Notes, (iv) the 2014 Senior Subordinated Notes, (v) the 2015 Senior Subordinated Notes, and (vi) the 2016 Senior Subordinated Notes.

 

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“Senior Subordinated Notes Documents” means the Senior Subordinated Notes Indentures and all other instruments, agreements and other documents evidencing the Senior Subordinated Notes or providing for any guarantee or other right in respect thereof.

“Senior Subordinated Notes Indentures” means (i) the Indenture dated as of December 14, 2010, among the Borrower, as issuer, Holdings, certain of its subsidiaries, as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee, pursuant to which the Borrower’s 7.75% Senior Subordinated Notes due 2018 were issued, (ii) the Indenture dated as of October 15, 2012, among the Borrower, as issuer, Holdings, certain of its subsidiaries, as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee, pursuant to which the Borrower’s 5.50% Senior Subordinated Notes due 2020 were issued, (iii) the Indenture dated as of July 1, 2013, among the Borrower, as issuer, Holdings, certain of its subsidiaries, as guarantors, and The Bank of New York Mellon Trust Company, N.A., as trustee, pursuant to which the 2013 Senior Subordinated Notes were issued, (iv) the Indenture dated as of the Second Restatement Date, among the Borrower, as issuer, Holdings, certain of its subsidiaries, as guarantors, and the Bank of New York Mellon Trust Company, N.A., as trustee, pursuant to which the 2014 Senior Subordinated Notes described in clause (i) of the definition thereof were issued, (v) the Indenture dated as of the Second Restatement Date, among the Borrower, as issuer, Holdings, certain of its subsidiaries, as guarantors, and the Bank of New York Mellon Trust Company, N.A., as trustee, pursuant to which the 2014 Senior Subordinated Notes described in clause (ii) of the definition thereof were issued, (vi) the Indenture dated as of May 14, 2015, among the Borrower, as issuer, Holdings, certain of its subsidiaries, as guarantors, and the Bank of New York Mellon Trust Company, N.A., as trustee, pursuant to which the 2015 Senior Subordinated Notes were issued, and (vii) the Indenture dated as of June 9, 2016, among the Borrower, as issuer, Holdings, certain of its subsidiaries, as guarantors, and the Bank of New York Mellon Trust Company, N.A., as trustee, pursuant to which the 2016 Senior Subordinated Notes were issued.

“Significant Subsidiary”, with respect to any Person, means any Restricted Subsidiary of such Person that satisfies the criteria for a “significant subsidiary” set forth in Rule 1-02(w) of Regulation S-X under the Securities Act.

“Solvency Certificate” means a Solvency Certificate of the chief financial officer of Holdings substantially in the form of Exhibit H.

“SONIA” means, with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website on the immediately succeeding Business Day.

“SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).

 

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“SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.

“SONIA Rate” when used in reference to any Loan or Borrowing, refers to where such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to Daily Simple SONIA.

“SPC” has the meaning assigned to such term in Section 9.04(e).

“Specified Assets” means (a) the Ground Transportation Assets, (b) the real property of AvtechTyee, Inc. in Seattle, Washington and the real property of Schneller LLC in Pinellas Park, Florida and (c) in connection with any Permitted Acquisition, a portion of the assets so acquired that may be identified in an Officers’ Certificate delivered to the Agent at the time of such Permitted Acquisition or promptly thereafter as “Specified Assets”; provided that the Borrower will not so identify any such assets unless, at the time thereof, the Borrower intends to dispose of such assets reasonably promptly following such Permitted Acquisition.

“Specified Dividend” means the Restricted Payment in an amount not to exceed $1,700,000,000 by the Borrower to Holdings, funded solely by the Net Cash Proceeds of the Tranche D Term Loans and the 2014 Senior Subordinated Notes and unrestricted available cash.

“Specified Representations” means each of the representations and warranties set forth in Sections 3.01, 3.02, 3.03(a) and (b), 3.08, 3.13 (provided that such representation shall be deemed to refer to the date on which the applicable Borrowing is to be made and the consummation of the transactions to occur on such date), 3.16, 3.18 and 3.20.

“Specified Secured Indebtedness” means senior secured Indebtedness incurred pursuant to clause (12) of the definition of the term “Permitted Indebtedness”.

“Standard Securitization Undertakings” means representations, warranties, covenants, indemnities (including in the form of repurchase obligations) and performance undertakings entered into by the Borrower or any Subsidiary of the Borrower which are reasonably customary, as determined in good faith by the Board of Directors of the Borrower, in a Securitization Transaction relating to accounts receivable.

“Statutory Reserves” means a fraction (expressed as a decimal) the numerator of which is the number one and the denominator of which is the number one minus the stated maximum rate (stated as a decimal) of all reserves, if any, required to be maintained against “Eurocurrency liabilities” as specified in Regulation D (including any marginal, emergency, special or supplemental reserves).

“Subordinated Indebtedness” means (a) with respect to the Borrower, any Indebtedness of the Borrower that is by its terms subordinated in right of payment to the Obligations, and (b) with respect to any Guarantor, any Indebtedness of such Guarantor that is by its terms subordinated in right of payment to the Guarantee of such Guarantor.

 

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“Subordinated Notes Refinancing” has the meaning assigned to such term in the introductory statement to this Agreement.

“subsidiary” with respect to any Person, means:

(i) any corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of directors under ordinary circumstances shall at the time be owned, directly or indirectly by such Person; or

(ii) any other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, owned by such Person.

“Subsidiary” means, unless the context otherwise requires, a subsidiary of the Borrower.

“Subsidiary Guarantor” means each Restricted Subsidiary of the Borrower that is a Loan Party and that executes this Agreement on the Second Restatement Date and is a party to the Guarantee and Collateral Agreement as a guarantor on the Second Restatement Date and each other Restricted Subsidiary of the Borrower that thereafter guarantees the Obligations pursuant to the terms of this Agreement and the Guarantee and Collateral Agreement; provided that upon the release and discharge of such Restricted Subsidiary from its Guarantee in accordance with this Agreement and the Guarantee and Collateral Agreement, such Restricted Subsidiary shall cease to be a Subsidiary Guarantor.

“Swingline Commitment” means the commitment of the Swingline Lender to make loans pursuant to Section 2.22, as the same may be reduced from time to time pursuant to Section 2.06 or Section 2.22.

“Swingline Exposure” means, at any time, the sum of the aggregate principal amount at such time of all outstanding Dollar Swingline Loans, plus the Dollar Equivalent of the aggregate principal amount at such time of all outstanding Alternative Currency Swingline Loans. The Swingline Exposure of any Multicurrency Revolving Credit Lender at any time shall equal its Pro Rata Percentage of the aggregate Swingline Exposure at such time.

“Swingline Lender” means any Revolving Credit Lender that may become the Swingline Lender pursuant to Section 2.22(g), in its capacity as lender of Swingline Loans hereunder.

“Swingline Loan” means any loan made by the Swingline Lender pursuant to Section 2.22.

“TARGET Day” means any day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer payment system, which utilizes a single shared platform and which was launched on November 19, 2007, is open for the settlement of payments in Euro.

“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, similar charges or withholdings (including backup withholding) imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

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“Term Borrowing” means a Borrowing comprised of Term Loans or Incremental Term Loans.

“Term Lenders” means those Lenders that have a Term Loan Commitment or an outstanding Term Loan.

“Term Loan Commitment” means (a) with respect to each Lender, such Lender’s Tranche C Term Loan Commitment, Tranche D Term Loan Commitment, Tranche E Term Loan Commitment, Tranche F Term Loan Commitment and Tranche G Term Loan Commitment and (b) any Incremental Term Loan Commitment.

“Term Loan Maturity Date” means the Tranche C Maturity Date, the Tranche D Maturity Date, the Tranche E Maturity Date, the Tranche F Maturity Date or the Tranche G Maturity Date, as applicable.

“Term Loans” means, collectively, the Tranche C Term Loans, the Tranche D Term Loans, Tranche E Term Loans, Tranche F Term Loans and Tranche G Term Loans. Unless the context shall otherwise require, the term “Term Loans” shall include Incremental Term Loans.

“Title Insurance Company” means the title insurance company providing the Title Insurance Policies.

“Title Insurance Policies” means the lender’s title insurance policies issued to Agent with respect to the Mortgaged Properties.

“Total Assets” means, as of any date, the total consolidated assets of the Borrower and its Restricted Subsidiaries, as set forth on the Borrower’s most recently available internal consolidated balance sheet as of such date.

“Total Dollar Revolving Credit Commitment” means, at any time, the aggregate amount of Dollar Revolving Credit Commitments, as in effect at such time. The Total Dollar Revolving Credit Commitment as of the Amendment No. 5 Effective Date is $500,616,709.19.

“Total Multicurrency Revolving Credit Commitment” means, at any time, the aggregate amount of Multicurrency Revolving Credit Commitments, as in effect at such time. The Total Multicurrency Revolving Credit Commitment as of the Amendment No. 5 Effective Date is $99,383,290.82.

“Tranche C Maturity Date” means February 28, 2020.

“Tranche C Term Lenders” means those Lenders that have a Tranche C Term Loan Commitment or an outstanding Tranche C Term Loan.

“Tranche C Term Loan Commitment” means, with respect to each Lender, the commitment of such Lender to make a Tranche C Term Loans hereunder as set forth in the Commitment Schedule or in the most recent Assignment and Assumption executed by such Lender, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.06

 

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and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The Tranche C Term Loan Commitments were terminated in full upon the making of the Tranche C Term Loans on the Restatement Date or the First Amendment Effective Date, as applicable.

“Tranche C Term Loans” means the Term Loans made pursuant to clause (a)(ii) of Section 2.01.

“Tranche D Maturity Date” means June 4, 2021.

“Tranche D Term Lenders” means those Lenders that have a Tranche D Term Loan Commitment or an outstanding Tranche D Term Loan.

“Tranche D Term Loan Commitment” means, with respect to each Lender, the commitment of such Lender to make Tranche D Term Loans hereunder as set forth in the Commitment Schedule or in the most recent Assignment and Assumption executed by such Lender, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial aggregate amount of the Term Lenders’ Tranche D Term Loan Commitments on the Second Restatement Date is $825,000,000.

“Tranche D Term Loans” means the Term Loans made pursuant to clause (a)(i) of Section 2.01.

“Tranche E Maturity Date” means May 30, 2025.

“Tranche E Term Lenders” means those Lenders that have a Tranche E Term Loan Commitment or an outstanding Tranche E Term Loan.

“Tranche E Term Loan Commitments” means the Tranche E Refinancing Term Loan Commitments in an aggregate principal amount of $2,215,561,231.85 established pursuant to (and as defined in) Amendment No. 7.

“Tranche E Term Loans” means the Term Loans made by the Lenders to the Borrower pursuant to Section 2(a) of Amendment No. 7.

“Tranche F Maturity Date” means December 9, 2025.

“Tranche F Term Lenders” means those Lenders that have a Tranche F Term Loan Commitment or an outstanding Tranche F Term Loan.

“Tranche F Term Loan Commitments” means the Tranche F Refinancing Term Loan Commitments in an aggregate principal amount of $3,515,130,079.55 established pursuant to (and as defined in) Amendment No. 7.

“Tranche F Term Loans” means the Term Loans made by the Lenders to the Borrower pursuant to Section 2(b) of Amendment No. 7.

 

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“Tranche G Maturity Date” means August 22, 2024.

“Tranche G Term Lenders” means those Lenders that have a Tranche G Term Loan Commitment or an outstanding Tranche G Term Loan.

“Tranche G Term Loan Commitments” means the Tranche G Refinancing Term Loan Commitments in an aggregate principal amount of $1,773,706,900.00 established pursuant to (and as defined in) Amendment No. 7.

“Tranche G Term Loans” means the Term Loans made by the Lenders to the Borrower pursuant to Section 2(c) of Amendment No. 7.

“Transaction Costs” means the fees, costs and expenses payable by Holdings, the Borrower and the Restricted Subsidiaries in connection with the Transactions and, if applicable, the Second Restatement Transactions.

“Transactions” means, collectively, (a) the execution, delivery and performance by each Loan Party of the Loan Documents to which it is to be a party, the making of the Borrowings hereunder, and the use of proceeds thereof in accordance with the terms hereof, (b) the Existing Bank Debt Refinancing and (c) the payment of the Transaction Costs.

“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate Base Rate or the Foreign BaseSONIA Rate.

“UCC” means the Uniform Commercial Code as in effect from time to time in the state of New York or any other state, the laws of which are required to be applied in connection with the issue of perfection of security interests.

“Unliquidated Obligations” means, at any time, any Obligations (or portion thereof) that are contingent in nature or unliquidated at such time, including any such Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under a letter of credit issued by it; (ii) any other obligation (including any guarantee) that is contingent in nature at such time; or (iii) an obligation to provide collateral to secure any of the foregoing types of obligations, but excluding unripened or contingent obligations related to indemnification under Section 9.03 for which no written demand has been made.

“Unrestricted Cash” means unrestricted cash and Cash Equivalents owned by Holdings, the Borrower and its Restricted Subsidiaries and not controlled by or subject to any Lien or other preferential arrangement in favor of any creditor (other than Liens created by or pursuant to this Agreement and the Loan Documents, which may be shared ratably with the holders of any Specified Secured Indebtedness).

“Unrestricted Subsidiary” of any Person means:

(1) any Subsidiary of such Person that at the time of determination shall be or continue to be designated an Unrestricted Subsidiary by the Board of Directors of such Person in the manner provided below; and

 

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(2) any Subsidiary of an Unrestricted Subsidiary.

The Board of Directors of the Borrower may designate any newly acquired or newly formed Subsidiary to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property of, the Borrower or any other Subsidiary of the Borrower that is not a Subsidiary of the Subsidiary to be so designated or another Unrestricted Subsidiary; provided that:

(a) the Borrower certifies to the Agent that such designation complies with the covenants set forth in Sections 6.02 and 6.16; and

(b) each Subsidiary to be so designated and each of its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Borrower or any of its Restricted Subsidiaries.

The Board of Directors of the Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if immediately before and immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing. Any such designation by the Board of Directors of the Borrower shall be evidenced by a Board Resolution giving effect to such designation and an Officers’ Certificate delivered to the Agent certifying (and setting forth reasonably detailed calculations demonstrating) that such designation complied with the foregoing provisions.

Actions taken by an Unrestricted Subsidiary will not be deemed to have been taken, directly or indirectly, by the Borrower or any Restricted Subsidiary.

Notwithstanding the foregoing, as of the Restatement Date, all of the Subsidiaries of the Borrower will be Restricted Subsidiaries.

“USA PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended from time to time.

“Voluntary Prepayment” means (a) a prepayment of principal of Term Loans pursuant to Section 2.09(a) in any fiscal year of the Borrower to the extent that such prepayment reduces the scheduled installments of principal due in respect of Term Loans as set forth in Section 2.08 in any subsequent fiscal year and (b) a repurchase of Term Loans pursuant to Section 2.09(e) in any fiscal year of the Borrower (it being understood that the amount of such repurchase shall be the aggregate purchase price paid for the Term Loans so repurchased (and not the aggregate principal amount thereof)), in each case, to the extent that such prepayment or repurchase did not occur in connection with a Refinancing of such Term Loans.

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

(1) the then outstanding aggregate principal amount of such Indebtedness; into

 

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(2) the sum of the total of the products obtained by multiplying;

(a) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at final maturity, in respect thereof; by

(b) the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment.

“Wholly-Owned Subsidiary” of any Person means any Subsidiary of such Person of which all the outstanding voting securities (other than in the case of a Restricted Subsidiary that is incorporated in a jurisdiction other than a State in the United States of America or the District of Columbia, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) are owned by such Person or any Wholly-Owned Subsidiary of such Person.

“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

“Withholding Agent” means any Loan Party or the Agent.

SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Dollar Revolving Loan”) or by Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency Dollar Revolving Loan”). Borrowings may also be classified and referred to by Class (e.g., a “Dollar Revolving Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a “Eurocurrency Dollar Revolving Borrowing”).

SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. Unless otherwise specifically indicated, the term “consolidated” with respect to any Person refers to such Person consolidated with its Restricted Subsidiaries, and excludes from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

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SECTION 1.04. Effectuation of Transactions. Each of the representations and warranties of the Loan Parties contained in this Agreement (and all corresponding definitions) are made after giving effect to the Transactions, unless the context otherwise requires.

SECTION 1.05. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP or, if not defined in GAAP (as determined by the Borrower in good faith) as determined by the Borrower in good faith, as in effect from time to time; provided that, to the extent set forth in the definition of “GAAP”, if the Borrower notifies the Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Second Restatement Date in GAAP or in the application thereof on the operation of such provision (or if the Agent notifies the Borrower that the Required Lenders request an amendment to any provision thereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided further, nowithstandingnotwithstanding the foregoing or anything else to the contrary in this Agreement, all leases of the Borrower and its Subsidiaries that were treated as “operating leases” prior to the adoption of ASC 842 shall continue to be accounted for as such for all purposes under the Loan Documents.

SECTION 1.06. Designated Senior Debt. The Loans and other Obligations under the Loan Documents constitute “Senior Debt” and “Designated Senior Debt”, and this Agreement and the other Loan Documents collectively constitute the “Credit Facility”, for the purposes of the Senior Subordinated Notes Documents.

SECTION 1.07. Pro Forma Calculations. With respect to any period of four consecutive fiscal quarters during which any Permitted Acquisition or Asset Sale occurs (and for purposes of determining whether an acquisition is a Permitted Acquisition or whether the Borrower may take any actions requiring compliance with a specified ratio), the Consolidated Leverage Ratio, Consolidated Net Leverage Ratio and Consolidated Secured Net Debt Ratio shall be calculated with respect to such period on a pro forma basis after giving effect to such Permitted Acquisition or Asset Sale (and any related repayment or incurrence of Indebtedness) (including, without duplication, (a) all pro forma adjustments permitted or required by Article 11 of Regulation S-X under the Securities Act of 1933, as amended, and (b) pro forma adjustments for cost savings and other operating efficiencies (net of continuing associated expenses) to the extent the actions underlying such cost savings and operating efficiencies have been or are reasonably expected to be implemented and such cost savings and operating efficiencies are factually supportable, are expected to have a continuing impact and have been realized or are reasonably expected to be realized within 12 months following such Permitted Acquisition or Asset Sale; provided that all such adjustments shall be set forth in a reasonably detailed certificate of a Financial Officer of the Borrower), using, for purposes of making such calculations, the historical financial statements of the Borrower and the Subsidiaries which shall be reformulated as if such Permitted Acquisition or Asset Sale, and any other Permitted Acquisitions and Asset Sales that have been consummated during the period, had been consummated on the first day of such period.

 

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SECTION 1.08. Exchange Rates. On each Calculation Date, the Agent shall (a) determine the Exchange Rate as of such Calculation Date and (b) give notice thereof to the Borrower and to any Lender that shall have requested a copy of such notice (it being understood that a Lender shall not have the right to independently request a determination of the Exchange Rates), in each case, with respect to each applicable Alternative Currency. The Exchange Rates so determined shall become effective on such Calculation Date and shall remain effective until the next succeeding Calculation Date, and shall for all purposes of this Agreement (other than Section 2.22(f) or any other provision expressly requiring the use of a current Exchange Rate) be the Exchange Rates employed in converting any amounts between Dollars and Alternative Currencies.

ARTICLE II

The Credits

SECTION 2.01. Commitments. (a) Subject to the terms and conditions set forth herein, each Lender agrees, severally and not jointly, (i) to make a Tranche D Term Loan, in Dollars, to the Borrower on the Second Restatement Date, in a principal amount not to exceed its Tranche D Term Loan Commitment, (ii) to make Dollar Revolving Loans to the Borrower, in Dollars, at any time and from time to time on or after the Second Restatement Date, and until the earlier of the Revolving Credit Maturity Date with respect to the Dollar Revolving Credit Commitment of such Lender and the termination of the Dollar Revolving Credit Commitment of such Lender in accordance with the terms hereof, in an aggregate principal amount at any time outstanding that will not result in such Revolving Credit Lender’s Dollar Revolving Credit Exposure exceeding such Lender’s Dollar Revolving Credit Commitment and (iii) to make Multicurrency Revolving Loans to the Borrower, in Dollars or any Alternative Currency, at any time and from time to time on or after the Second Restatement Date, and until the earlier of the Revolving Credit Maturity Date with respect to the Multicurrency Revolving Credit Commitment of such Lender and the termination of the Multicurrency Revolving Credit Commitment of such Lender in accordance with the terms hereof, in an aggregate principal amount at any time outstanding that would not result in such Revolving Credit Lender’s Multicurrency Revolving Credit Exposure exceeding such Lender’s Multicurrency Revolving Credit Commitment. Within the limits set forth in the preceding sentence and subject to the terms, conditions and limitations set forth herein, the Borrower may borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in respect of Term Loans may not be reborrowed.

(b)    Each Lender having an Incremental Revolving Credit Commitment hereby agrees, severally and not jointly, on the terms and subject to the conditions set forth herein and in the applicable Incremental Revolving Credit Assumption Agreement, to make Incremental Revolving Loans to the Borrower, in an aggregate principal amount at any time outstanding that will not result in such Lender’s Incremental Revolving Credit Exposure exceeding such Lender’s Incremental Revolving Credit Commitment. Within the limits set forth in the preceding sentence and subject to the terms, conditions and limitations set forth herein, the Borrower may borrow, pay or prepay and reborrow Incremental Revolving Loans.

 

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(c)    Each Lender having an Incremental Term Loan Commitment hereby agrees, severally and not jointly, on the terms and subject to the conditions set forth herein and in the applicable Incremental Term Loan Assumption Agreement, to make Incremental Term Loans to the Borrower, in an aggregate principal amount not to exceed its Incremental Term Loan Commitment. Amounts paid or prepaid in respect of Incremental Term Loans may not be reborrowed.

SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than Swingline Loans) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in accordance with their applicable Commitments; provided that until the Non-Extended Revolving Credit Maturity Date, (x) each Borrowing of Dollar Revolving Loans shall consist of Dollar Revolving Loans (including both Non-Extended Revolving Loans and Extended Revolving Loans) made by all Dollar Revolving Credit Lenders (including both Non-Extended Dollar Revolving Credit Lenders and Extended Dollar Revolving Credit Lenders) ratably in accordance with their respective Dollar Revolving Credit Commitments (and, thereafter, each Borrowing of Dollar Revolving Loans shall consist of Extended Dollar Revolving Loans made by the Extended Dollar Revolving Credit Lenders in accordance with their respective Extended Dollar Revolving Credit Commitments) and (y) each Borrowing of Multicurrency Revolving Loans shall consist of Multicurrency Revolving Loans (including both Non-Extended Multicurrency Revolving Loans and Extended Multicurrency Revolving Loans) made by all Multicurrency Revolving Credit Lenders (including both Non-Extended Revolving Credit Lenders and Extended Revolving Credit Lenders), ratably in accordance with their respective Multicurrency Revolving Credit Commitments (and, thereafter, each Borrowing of Multicurrency Revolving Loans shall consist of Extended Multicurrency Revolving Loans made by the Extended Multicurrency Revolving Credit Lenders ratably in accordance with their respective Extended Multicurrency Revolving Credit Commitments). The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required. Except for Swingline Loans and Loans deemed made pursuant to Section 2.02(e), the Loans comprising any Borrowing shall be in an aggregate principal amount that is (i) (A) in the case of a Revolving Borrowing, an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum (except with respect to any Incremental Revolving Credit Borrowing, to the extent otherwise provided in the related Incremental Revolving Credit Assumption Agreement) or (B) in the case of a Term Loan Borrowing, an integral multiple of $1,000,000 and not less than (x) $5,000,000 in the case of a Eurocurrency Borrowing or (y) $1,000,000, in the case of an ABR Borrowing (except, in each case, with respect to any Incremental Term Borrowing, to the extent otherwise provided in the related Incremental Term Loan Assumption Agreement) or (ii) in the case of any Borrowing, equal to the remaining available balance of the applicable Commitments; provided that an ABR Borrowing may be maintained in a lesser amount equal to the difference between the aggregate principal amount of all other Borrowings and the total amount of Loans at such time outstanding.

 

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(b)    Subject to Section 2.02(e), 2.13 and 2.19, (i) each Borrowing denominated in Dollars shall be comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may request in accordance herewith and, (ii) each Borrowing denominated in an Alternative Currency (other than Pounds) shall be comprised entirely of Eurocurrency Loans and (iii) each Borrowing denominated in Pounds shall be comprised entirely of SONIA Rate Loans. Each Lender at its option may make any Eurocurrency Loan or SONIA Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement, (ii) in exercising such option, such Lender shall use reasonable efforts to minimize any increase in the Eurocurrency Rate or increased costs to the Borrower resulting therefrom (which obligation of such Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it otherwise determines would be disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.14 shall apply) and (iii) such branch or Affiliate of such Lender would not be included in clause (z) of the first proviso to the definition of the term “Eligible Assignee” set forth in Section 1.01.

(c)    Borrowings of more than one Type may be outstanding at the same time; provided that there shall not at any time be more than a total of ten different Interest Periods in effect for Eurocurrency Borrowings at any time outstanding.

(d)    Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the applicable Revolving Credit Maturity Date or the applicable Term Loan Maturity Date, as the case may be.

(e)    If the Issuing Bank shall not have received from the Borrower the payment required to be made by Section 2.23(e) within the time specified in such Section, the Issuing Bank will promptly notify the Agent of the L/C Disbursement and the Agent will promptly notify each applicable Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage thereof. Each Revolving Credit Lender of the applicable Class shall pay by wire transfer of immediately available funds in Dollars or the applicable Alternative Currency, as applicable, to the Agent not later than 2:00 p.m., New York City time, on such date (or, if such Revolving Credit Lender shall have received such notice later than 12:00 (noon), New York City time, on any day, not later than 10:00 a.m., New York City time, on the immediately following Business Day), an amount equal to such Lender’s Pro Rata Percentage of such L/C Disbursement (it being understood that such amount shall be deemed to constitute an ABR Revolving Loan (in the case of a Dollar L/C Disbursement) or a Eurocurrency Revolving Loan with an Interest Period of one month (in the case of a Multicurrency L/C Disbursement), as the case may be, of such Lender and such payment shall be deemed to have reduced the L/C Exposure), and the Agent will promptly pay to the Issuing Bank amounts so received by it from the Revolving Credit Lenders. The Agent will promptly pay to the Issuing Bank any amounts received by it from the Borrower pursuant to Section 2.23(e) prior to the time that any Revolving Credit Lender makes any payment pursuant to this paragraph (e); any such amounts received by the Agent thereafter will be promptly remitted by the Agent to the Revolving Credit Lenders that shall have made such payments and to the Issuing Bank, as their interests may appear. If any Revolving

 

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Credit Lender shall not have made its Pro Rata Percentage of such L/C Disbursement available to the Agent as provided above, such Lender and the Borrower severally agree to pay interest on such amount, for each day from and including the date such amount is required to be paid in accordance with this paragraph to but excluding the date such amount is paid, to the Agent for the account of the Issuing Bank at (i) in the case of the Borrower, a rate per annum equal to the interest rate applicable to Revolving Loans pursuant to Section 2.12(a), and (ii) in the case of such Lender, (x) for amounts denominated in Dollars, for the first such day, the Federal Funds Effective Rate, and for each day thereafter, the Alternate Base Rate and (y) for amounts denominated in an Alternative Currency, for the first such day, a rate determined by the Agent to represent its cost of overnight or short-term funds in such Alternative Currency (which determination shall be conclusive absent manifest error), and for each day thereafter, at the Foreignhigher of such rate and the Alternate Base Rate applicable to such Alternative Currency.

SECTION 2.03. Requests for Borrowing. (a) In order to request a Borrowing (other than a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(e), as to which this Section 2.03 shall not apply), the Borrower shall notify the Agent of such request either in writing by delivery of a Borrowing Request (by hand or facsimile) signed by the Borrower or by telephone (to be confirmed promptly by hand delivery or facsimile of written notice) not later than (x) 11:00 a.m., New York City time, (A) in the case of a Eurocurrency Borrowing denominated in Dollars, three (3) Business Days before a proposed Borrowing (or such later time as shall be acceptable to the Agent) and (B) in the case of a Eurocurrency Borrowing denominated in an Alternative Currency, not later than 11:00 a.m., New York City time or a SONIA Rate Loan, four Business Days before a proposed Borrowing (or such later time as shall be acceptable to the Agent) and (y) 11:00 a.m., New York City time, on the date of a proposed Borrowing (or such later time as shall be acceptable to the Agent), in the case of an ABR Borrowing. Each such telephonic and written Borrowing Request shall be irrevocable and shall specify the following information in compliance with Section 2.01:

(i) the aggregate amount of the requested Borrowing;

(ii) the date of the Borrowing, which shall be a Business Day;

(iii) whether the Borrowing then being requested is to be a Tranche C Term Borrowing, a Tranche D Term Borrowing, a Tranche E Term Borrowing, a Tranche F Term Borrowing, a Tranche G Term Borrowing, an Incremental Term Borrowing, a Dollar Revolving Borrowing, a Multicurrency Revolving Borrowing or an Incremental Revolving Credit Borrowing, and whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;

(iv) in the case of a Eurocurrency Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”;

(v) in the case of a Multicurrency Revolving Borrowing, the currency in which such Borrowing is to be denominated; and

 

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(vi) the location and number of the Borrower’s account to which funds are to be disbursed;

provided, however, that notwithstanding any contrary specification in any Borrowing Request, each requested Borrowing shall comply with the requirements set forth in Section 2.02 and Section 2.04.

(b)    If no election as to the Type of Borrowing is specified, then the requested Borrowing, if denominated in Dollars, shall be an ABR Borrowing and if denominated in any other currency, shall be a Eurocurrency Borrowing with an Interest Period of one month. If no Interest Period is specified with respect to any Eurocurrency Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. If no currency is specified then the requested Borrowing shall be denominated in Dollars. Promptly following receipt of the Borrowing Request in accordance with this Section, the Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

SECTION 2.04. Funding of Borrowings. (a) Except with respect to Swingline Loans and Loans made pursuant to Section 2.02(e), each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by (i) 12:00 (noon), New York City time, in the case of Loans denominated in Dollars or (ii) 9:00 a.m., New York City time, in the case of Loans denominated in an Alternative Currency, in each case to the account of the Agent most recently designated by it for such purpose by notice to the Lenders.

(b)    Unless the Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Agent such Lender’s share of such Borrowing, the Agent may assume that such Lender has made such share available on the date of such Borrowing in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the Borrowing available to the Agent, then the applicable Lender and the Borrower severally agree to pay to the Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Agent, at (i) in the case of such Lender, the greater of the rate determined by the Agent to represent its cost of overnight or short-term funds for the applicable currency and the applicable DailyAlternate Base Rate (which determination shall be conclusive absent manifest error) or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans, in the case of Loans denominated in Dollars, or the rate applicable to such Loan, in the case of Loans denominated in an Alternative Currency. If such Lender pays such amount to the Agent, then such amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitments or to prejudice any rights which the Agent or the Borrower or any Loan Party may have against any Lender as a result of any default by such Lender hereunder.

SECTION 2.05. Type; Interest Elections. (a) Loans shall initially be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing,

 

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shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert all or any portion of any Borrowing (subject to the minimum amounts for Borrowings of the applicable Type specified in Section 2.02(c)) to a different Type or to continue such Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.

(b)    To make an election pursuant to this Section, the Borrower shall notify the Agent of such election by telephone (i) in the case of an election to convert to or continue as a Eurocurrency Borrowing, not later than 11:00 a.m., New York City time, (x) three (3) Business Days before the date of the proposed conversion or continuation, in the case of any Borrowing denominated in Dollars or (y) four (4) Business Days before the date of the proposed conversion or continuation, in the case of any Borrowing denominated in an Alternative Currency or (ii) in the case of an election to convert to or continue as an ABR Borrowing, not later than 10:00 a.m., New York City time, on the date of the proposed conversion or continuation (or such later time as shall be acceptable to the Agent). Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or facsimile to the Agent of a written Interest Election Request in a form approved by the Agent and signed by the Borrower.

(c)    Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:

(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing; and

(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.

If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

(d)    Promptly following receipt of an Interest Election Request, the Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

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(e)    If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period (i) any such Borrowing denominated in Dollars shall be converted to an ABR Borrowing and (ii) any such Borrowing denominated in an Alternative Currency shall be continued as a Eurocurrency Borrowing with an Interest Period of one month. Notwithstanding any contrary provision hereof, if an Event of Default of the type set forth in clauses (a) or (b) of Article VII (without giving effect to any grace period set forth therein) has occurred and is continuing and the Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing, (x) (A) no outstanding Borrowing denominated in Dollars may be converted to or continued as a Eurocurrency Borrowing and (B) unless repaid, each Eurocurrency Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the end of the then current Interest Period applicable thereto and (y) no Interest Period in excess of one month may be selected for any Borrowing denominated in an Alternative Currency.

SECTION 2.06. Termination and Reduction of Commitments. (a) The Non-Extended Revolving Credit Commitments shall automatically terminate on the Non-Extended Revolving Credit Maturity Date. The Extended Revolving Credit Commitments (other than Incremental Revolving Credit Commitments, which shall automatically terminate as provided in the relevant Incremental Assumption Agreement) and the Swingline Commitment shall automatically terminate on the Extended Revolving Credit Maturity Date. The L/C Commitment shall automatically terminate on the earlier to occur of (i) the termination of the Extended Revolving Credit Commitments and (ii) the date that is 30 days prior to the Extended Revolving Credit Maturity Date.

(b)    Upon at least three Business Days’ prior irrevocable written or fax notice (or telephonic notice promptly confirmed by written notice) to the Agent, the Borrower may, without premium or penalty, at any time in whole permanently terminate, or from time to time in part permanently reduce, the Term Loan Commitments or the Revolving Credit Commitments, in each case, of any Class (it being agreed that for purposes of this clause (b), the Initial Tranche F Term Loan Commitments (as defined in Amendment No. 1) and the Delayed Draw Term F Term Loan Commitments (as defined in Amendment No. 1) shall constitute separate Classes; provided, however, that (i) each partial reduction of the Term Loan Commitments or the Revolving Credit Commitments of any Class shall be in an integral multiple of $1,000,000 and in a minimum amount of $1,000,000, (ii) the Total Dollar Revolving Credit Commitment shall not be reduced to an amount that is less than the Aggregate Dollar Revolving Credit Exposure at the time, (iii) the Total Multicurrency Revolving Credit Commitment shall not be reduced to an amount that is less than the Aggregate Multicurrency Revolving Credit Exposure at the time, and (iv) the Borrower may condition a notice of termination of all of the Commitments upon the effectiveness of a replacement financing (or other transaction); provided further that (x) until the Non-Extended Dollar Revolving Credit Commitments shall have been terminated in full or expired, any reduction in the Dollar Revolving Credit Commitments shall be made ratably between the Non-Extended Dollar Revolving Credit Commitments and the Extended Dollar Revolving Credit Commitments and (y) until the Non-Extended Multicurrency Revolving Credit Commitments shall have been terminated in full or expired, any reduction in the Multicurrency Revolving Credit Commitments shall be made ratably between the Non-Extended Multicurrency Revolving Credit Commitments and the Extended Multicurrency Revolving Credit

 

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Commitments; provided, however, that prior to the Non-Extended Revolving Credit Maturity Date, the Borrower may terminate in full (but not in part) the Non-Extended Dollar Revolving Credit Commitments without any concurrent termination of the Extended Dollar Revolving Credit Commitments and the Borrower may terminate in full (but not in part) the Non-Extended Multicurrency Revolving Credit Commitments without any concurrent termination of the Extended Multicurrency Revolving Credit Commitments.

(c)    Each reduction in the Term Loan Commitments or the Revolving Credit Commitments of any Class hereunder shall be made ratably among the Lenders in accordance with their respective applicable Commitments. The Borrower shall pay to the Agent for the account of the applicable Lenders, on the date of termination or reduction of the Commitments of any Class, all accrued and unpaid Commitment Fees relating to such Class to but excluding the date of such termination or reduction.

SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay to each Lender, through the Agent, (i) the principal amount of each Term Loan of such Lender as provided in Section 2.08 and (ii) the then unpaid principal amount of each Revolving Loan of such Lender on the Revolving Credit Maturity Date with respect to the Revolving Credit Commitments of such Lender. The Borrower hereby promises to pay to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the Revolving Credit Maturity Date with respect to the Revolving Credit Commitments of such Lender.

(b)    Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(c)    The Agent shall maintain accounts (including the Register maintained pursuant to Section 9.04(b)(iv)) in which it shall record (i) the amount of each Loan made hereunder, the Class, Type and currency thereof and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(d)    The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.

(e)    Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender and its registered assigns and in substantially the form of Exhibit F hereto. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the payee named therein and its registered assigns.

 

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SECTION 2.08. Repayment of Term Borrowings. (a) (i) The Borrower shall pay to the Agent, for the account of the Tranche C Term Lenders, on the dates set forth below, or if any such date is not a Business Day, on the next preceding Business Day, a principal amount of the Tranche C Term Loans (as adjusted from time to time pursuant to Sections 2.08(c), 2.09(c), 2.10(h) and 2.24(d)) equal to the amount set forth below for such date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment:

 

DATE		SCHEDULED TRANCHE C TERM LOAN REPAYMENTS
June 30, 2016 September 30, 2016 December 31, 2016		$ $ $	3,190,411.13 3,190,411.13 3,190,411.13
March 31, 2017 June 30, 2017 September 30, 2017 December 31, 2017		$ $ $ $	3,190,411.13 3,190,411.13 3,190,411.13 3,190,411.13
March 31, 2018 June 30, 2018 September 30, 2018 December 31, 2018		$ $ $ $	3,190,411.13 3,190,411.13 3,190,411.13 3,190,411.13
March 31, 2019 June 30, 2019 September 30, 2019 December 31, 2019		$ $ $ $	3,190,411.13 3,190,411.13 3,190,411.13 3,190,411.13
Tranche C Maturity Date			Remainder

(ii) The Borrower shall pay to the Agent, for the account of the Tranche D Term Lenders, on the dates set forth below, or if any such date is not a Business Day, on the next preceding Business Day, a principal amount of the Tranche D Term Loans (as adjusted from time to time pursuant to Sections 2.08(c), 2.09(c), 2.10(h) and 2.24(d)) equal to the percentage set forth below for such date of the aggregate principal amount of the Tranche D Term Loans outstanding on the Second Restatement Date, together in each

 

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case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment:

 

DATE		SCHEDULED TRANCHE D TERM LOAN REPAYMENTS
September 30, 2014 December 31, 2014			0.25 0.25	%  %
March 31, 2015 June 30, 2015 September 30, 2015 December 31, 2015			0.25 0.25 0.25 0.25	%  %  %  %
March 31, 2016 June 30, 2016 September 30, 2016 December 31, 2016			0.25 0.25 0.25 0.25	%  %  %  %
March 31, 2017 June 30, 2017 September 30, 2017 December 31, 2017			0.25 0.25 0.25 0.25	%  %  %  %
March 31, 2018 June 30, 2018 September 30, 2018 December 31, 2018			0.25 0.25 0.25 0.25	%  %  %  %
March 31, 2019 June 30, 2019 September 30, 2019 December 31, 2019			0.25 0.25 0.25 0.25	%  %  %  %
March 31, 2020 June 30, 2020 September 30, 2020 December 31, 2020			0.25 0.25 0.25 0.25	%  %  %  %
March 31, 2021			0.25	%
Tranche D Maturity Date			Remainder

(iii) The Borrower shall pay to the Agent, for the account of the Tranche E Term Lenders, on the dates set forth below, or if any such date is not a Business Day, on the next preceding Business Day, a principal amount of the Tranche E Term Loans (as adjusted from time to time pursuant to Sections 2.08(c), 2.09(c), 2.10(h) and 2.24(d)) equal to the amount set forth below for such date, together in each case with accrued and

 

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unpaid interest on the principal amount to be paid to but excluding the date of such payment:

 

DATE		SCHEDULED TRANCHE E TERM LOAN REPAYMENTS
March 31, 2020 June 30, 2020 September 30, 2020 December 31, 2020		$ $ $ $	5,538,903.08 5,538,903.08 5,538,903.08 5,538,903.08
March 31, 2021 June 30, 2021 September 30, 2021 December 31, 2021		$ $ $ $	5,538,903.08 5,538,903.08 5,538,903.08 5,538,903.08
March 31, 2022 June 30, 2022 September 30, 2022 December 31, 2022		$ $ $ $	5,538,903.08 5,538,903.08 5,538,903.08 5,538,903.08
March 31, 2023 June 30, 2023 September 30, 2023 December 31, 2023		$ $ $ $	5,538,903.08 5,538,903.08 5,538,903.08 5,538,903.08
March 31, 2024 June 30, 2024 September 30, 2024 December 31, 2024		$ $ $ $	5,538,903.08 5,538,903.08 5,538,903.08 5,538,903.08
March 31, 2025		$	5,538,903.08
Tranche E Maturity Date			Remainder

(iv) The Borrower shall pay to the Agent, for the account of the Tranche F Term Lenders, on the dates set forth below, or if any such date is not a Business Day, on the next preceding Business Day, a principal amount of the Tranche F Term Loans (as adjusted from time to time pursuant to Sections 2.08(c), 2.09(c), 2.10(h) and 2.24(d)) equal to the amount set forth below for such date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment:

 

DATE		SCHEDULED TRANCHE F TERM LOAN REPAYMENTS
March 31, 2020 June 30, 2020 September 30, 2020 December 31, 2020		$ $ $ $	8,787,825.20 8,787,825.20 8,787,825.20 8,787,825.20
March 31, 2021 June 30, 2021 September 30, 2021 December 31, 2021		$ $ $ $	8,787,825.20 8,787,825.20 8,787,825.20 8,787,825.20
March 31, 2022 June 30, 2022 September 30, 2022 December 31, 2022		$ $ $ $	8,787,825.20 8,787,825.20 8,787,825.20 8,787,825.20

 

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DATE		SCHEDULED TRANCHE F TERM LOAN REPAYMENTS
March 31, 2023 June 30, 2023 September 30, 2023 December 31, 2023		$ $ $ $	8,787,825.20 8,787,825.20 8,787,825.20 8,787,825.20
March 31, 2024 June 30, 2024 September 30, 2024 December 31, 2024		$ $ $ $	8,787,825.20 8,787,825.20 8,787,825.20 8,787,825.20
March 31, 2025 June 30, 2025 September 30, 2025		$ $ $	8,787,825.20 8,787,825.20 8,787,825.20
Tranche F Maturity Date			Remainder

(v) The Borrower shall pay to the Agent, for the account of the Tranche G Term Lenders, on the dates set forth below, or if any such date is not a Business Day, on the next preceding Business Day, a principal amount of the Tranche G Term Loans (as adjusted from time to time pursuant to Sections 2.08(c), 2.09(c), 2.10(h) and 2.24(d)) equal to the amount set forth below for such date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment:

 

DATE		SCHEDULED TRANCHE G TERM LOAN REPAYMENTS
March 31, 2020 June 30, 2020 September 30, 2020 December 31, 2020		$ $ $ $	4,434,267.25 4,434,267.25 4,434,267.25 4,434,267.25
March 31, 2021 June 30, 2021 September 30, 2021 December 31, 2021		$ $ $ $	4,434,267.25 4,434,267.25 4,434,267.25 4,434,267.25
March 31, 2022 June 30, 2022 September 30, 2022 December 31, 2022		$ $ $ $	4,434,267.25 4,434,267.25 4,434,267.25 4,434,267.25
March 31, 2023 June 30, 2023 September 30, 2023 December 31, 2023		$ $ $ $	4,434,267.25 4,434,267.25 4,434,267.25 4,434,267.25
March 31, 2024 June 30, 2024		$ $	4,434,267.25 4,434,267.25
Tranche G Maturity Date			Remainder

 

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(b)    The Borrower shall pay to the Agent, for the account of the Incremental Term Lenders, on each Incremental Term Loan Repayment Date, a principal amount of the Other Term Loans (as adjusted from time to time pursuant to Sections 2.08(c), 2.09(c), 2.10(h) and 2.24(d)) equal to the amount set forth for such date in the applicable Incremental Term Loan Assumption Agreement, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment. To the extent not previously paid, all Incremental Term Loans shall be due and payable on the applicable Incremental Term Loan Maturity Date and all Incremental Revolving Loans shall be due and payable on the applicable Incremental Revolving Credit Maturity Date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of payment.

(c)    In the event and on each occasion that any Term Loan Commitment (other than any Incremental Term Loan Commitment) shall be reduced or shall expire or terminate other than as a result of the making of a Term Loan, the principal amount payable on the Term Loan Maturity Date shall be reduced pro rata by an aggregate amount equal to the amount of such reduction, expiration or termination.

(d)    All repayments pursuant to this Section 2.08 shall be subject to Section 2.15, but shall otherwise be without premium or penalty.

SECTION 2.09. Optional Prepayment of Loans. (a) Upon prior notice in accordance with paragraph (b) of this Section, the Borrower shall have the right at any time and from time to time to prepay any Borrowing of any Class in whole or in part without premium or penalty (but subject to Section 2.15 and Section 2.09(d)); provided that each partial prepayment shall be in an amount that is an integral multiple of $100,000, €100,000 or £100,000 and not less than $500,000, €500,000 or £500,000 (or, with respect to any other Alternative Currency, such minimum and multiple amounts as are reasonably specified by the Agent), as applicable.

(b)    The Borrower shall notify the Agent by telephone (confirmed by facsimile) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Borrowing, not later than 11:00 a.m., New York City time, three (3) Business Days before the date of prepayment or, (ii) in the case of prepayment of an ABR Borrowing, not later than 10:00 a.m., New York City time, on the day of prepayment, and (iii) in the case of a prepayment of a SONIA Rate Borrowing, given before 11:00 a.m., New York City time, four Business Days before such prepayment. Each such notice shall be irrevocable (except that any such notice may be conditioned upon the effectiveness of a new financing or other transaction) and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and the Class(es) and Type(s) of Loans to be prepaid. Promptly following receipt of any such notice relating to a Borrowing, the Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid

 

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Borrowing. Prepayments shall be accompanied by accrued interest as required by Section 2.12; provided, however, that in the case of a prepayment of an ABR Revolving Loan or a Swingline Loan that is not made in connection with a termination of the Revolving Credit Commitments, the accrued and unpaid interest on the principal amount prepaid shall be payable on the next scheduled Interest Payment Date with respect to such ABR Revolving Loan or Swingline Loan.

(c)    Optional prepayments of Term Loans pursuant to Section 2.09(a) shall be applied against the remaining installments of principal in respect of the Class of Term Loans scheduled to be paid as directed by the Borrower.

(d)    If, (x) prior to the date that is six months after the February 2018 Refinancing Facility Effective Date, in the case of the Tranche G Term Loans or (y) prior to the date that is six months after the Amendment No. 7 Effective Date, in the case of the Tranche E Term Loans, the Tranche F Term Loans or the Tranche G Term Loans, (i) all or any portion of such Term Loans is prepaid substantially concurrently with the proceeds of, or such Term Loans are converted into, any new or replacement tranche of term loan Indebtedness (including any Incremental Term Loans incurred pursuant to Section 2.22) that has an effective interest rate or weighted average yield (to be determined in the reasonable discretion of the Agent consistent with generally accepted financial practices, after giving effect to margins, “LIBOR floors”, upfront or similar fees or original issue discount shared with all lenders or holders thereof, but excluding the effect of any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all lenders or holders thereof) less than the effective interest rate or weighted average yield (to be determined in the reasonable discretion of the Agent consistent with generally accepted financial practices, on the same basis as above) of such Term Loans being prepaid or converted, or (ii) a Non-Consenting Lender must assign its Term Loans of such Class pursuant to Section 9.02(e) or otherwise as a result of its failure to consent to an amendment that is passed and reduces the effective interest rate or weighted average yield (taking into account any “LIBOR floor”) then in effect with respect to such Term Loans, then in each case the aggregate principal amount so prepaid, converted, assigned or repaid will be subject to a fee payable by the Borrower equal to 1% of the principal amount thereof.

(e)    Notwithstanding anything to the contrary contained in this Section 2.09, so long as no Default has occurred and is continuing or would result therefrom, the Borrower may repurchase outstanding Term Loans on the following basis:

(i) the Borrower may make one or more offers (each, an “Offer”) to repurchase all or any portion of the Term Loans (the “Offer Loans”); provided that (A) the Borrower delivers to the Agent (for distribution to such Lenders) a notice of the aggregate principal amount of the Offer Loans that will be subject to such Offer no later than 12:00 (noon), New York City time, at least five Business Days (or such shorter period as may be agreed to by the Agent) in advance of the proposed consummation date of such Offer indicating (1) the last date on which such Offer may be accepted, (2) the maximum principal amount of the Offer Loans the Borrower is willing to repurchase in the Offer, (3) the Class of such Offer Loans, (4) the range of discounts to par at which the Borrower is willing to repurchase the Offer Loans and (5) the instructions, consistent with this Section 2.09(e) with respect to the Offer, that a Term Lender must follow in

 

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order to have its Offer Loans repurchased; (B) the maximum dollar amount of each Offer shall be no less than $10,000,000 or whole multiples of $1,000,000 in excess thereof; (C) the Borrower shall hold such Offer open for a minimum period of three Business Days; (D) a Term Lender who elects to participate in the Offer may choose to tender all or part of such Term Lender’s Offer Loans; (E) the proceeds of Revolving Loans may not be used to fund any repurchase under this Section 2.09(e); (F) the Offer shall be made to the Term Lenders holding the Offer Loans on a pro rata basis in accordance with the respective principal amount of the Offer Loans then due and owing to the applicable Term Lenders; and (G) the Offer shall be conducted pursuant to such procedures as the Agent may reasonably establish; and

(ii) following a repurchase pursuant to this Section 2.09(e) by the Borrower, (A) the Offer Loans so repurchased shall, without further action by any Person, be deemed cancelled for all purposes and no longer outstanding for all purposes of this Agreement and all the other Loan Documents and (B) the Borrower will promptly advise the Agent of the total amount of Offer Loans that were repurchased from each Lender who elected to participate in the Offer.

SECTION 2.10. Mandatory Prepayment of Loans. (a) In the event of any termination of all the Revolving Credit Commitments of a Class, the Borrower shall, on the date of such termination, repay or prepay all its outstanding Revolving Credit Borrowings of such Class and (solely in the case of a termination of all Multicurrency Revolving Credit Commitments) all outstanding Swingline Loans, and replace all (or make other arrangements, including providing cash collateral or a supporting letter of credit, acceptable to the Issuing Bank in its sole discretion, with respect thereto) outstanding Letters of Credit issued thereunder; provided that for purposes of the repayment of any Revolving Credit Borrowings pursuant to this paragraph in connection with the termination of all of the Non-Extended Dollar Revolving Credit Commitments or Non-Extended Multicurrency Revolving Credit Commitments, the Loans outstanding under the applicable Non-Extended Revolving Credit Commitments and the Loans outstanding under the applicable Extended Revolving Credit Commitments shall be deemed to comprise separate Borrowings. If as a result of any partial reduction of the Dollar Revolving Credit Commitments or the Multicurrency Revolving Credit Commitments, the Aggregate Dollar Revolving Credit Exposure or the Aggregate Multicurrency Revolving Credit Exposure, as applicable, would exceed the Total Dollar Revolving Credit Commitment or the Total Multicurrency Revolving Credit Commitment, as applicable, after giving effect thereto, then the Borrower shall, on the date of such reduction, repay or prepay Revolving Credit Borrowings in respect of the Dollar Revolving Credit Commitments or the Multicurrency Revolving Credit Commitments, as applicable (or, if applicable, Swingline Loans (or a combination thereof)) and/or replace outstanding (or make such other arrangement with respect to) Letters of Credit issued thereunder in an amount sufficient to eliminate such excess.

(b)    Upon the consummation of an Asset Sale, the Borrower shall apply an amount equal to 100% of the Net Cash Proceeds relating to such Asset Sale within 545 days (or such lesser number of days that may be applicable to the Net Cash Proceeds of such Asset Sale under any agreement governing Specified Secured Indebtedness) of receipt thereof either (i) to prepay Term Loans in accordance with Section 2.10(g) (provided that, if at the time of such prepayment, any portion of such Net Cash Proceeds is also required to be used to prepay, or to

 

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make an offer to prepay, any Specified Secured Indebtedness, then the Borrower shall only be required to prepay the Term Loans under this Section 2.10(b) with such Net Cash Proceeds equally and ratably with such Specified Secured Indebtedness); or (ii) to reinvest in Productive Assets (provided that this requirement shall be deemed satisfied if the Borrower or such Restricted Subsidiary by the end of such 545-day period has entered into a binding agreement under which it is contractually committed to reinvest in Productive Assets and such investment is consummated within 120 days from the date on which such binding agreement is entered into), or (iii) a combination of prepayment and investment permitted by the foregoing clauses (i) and (ii).

(c)    If as a result of any fluctuation of Exchange Rates, on any Calculation Date, the Aggregate Multicurrency Revolving Credit Exposure would exceed the Total Multicurrency Revolving Credit Commitment, then the Borrower shall, within three Business Days following such Calculation Date, repay or prepay Multicurrency Revolving Credit Borrowings or Swingline Loans (or a combination thereof) and/or replace outstanding (or make such other arrangement with respect to) Multicurrency Letters of Credit such that the Aggregate Multicurrency Revolving Credit Exposure does not exceed the Total Multicurrency Revolving Credit Commitment.

(d)    No later than the earlier of (i) ninety (90) days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on September 30, 2014, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 5.01(a), the Borrower shall prepay outstanding Term Loans in accordance with Section 2.10(g) in an aggregate principal amount equal to 50% of Excess Cash Flow for the fiscal year then ended, minus Voluntary Prepayments made during such fiscal year; provided (x) that the amount of such prepayment shall be reduced to 25% of such Excess Cash Flow if the Consolidated Leverage Ratio at the end of such fiscal year shall be equal to or less than 5.00 to 1.00, but greater than 4.50 to 1.00, and (y) such prepayment shall not be required if the Consolidated Leverage Ratio at the end of such fiscal year shall be equal to or less than 4.50 to 1.00.

(e)    In the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or incurrence of Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan Party (other than Permitted Indebtedness), the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.10(g).

(f)    With respect to mandatory prepayments of outstanding Term Loans under this Agreement made pursuant to this Section 2.10, each Term Lender may elect, by written notice to the Agent at the time and in the manner specified by the Agent, to decline all (but not less than all) of its pro rata share of such Term Loan prepayment, in which case the amounts so rejected may be retained by the Borrower.

(g)    The Borrower shall deliver to the Agent, at the time of each prepayment required under this Section 2.10, (i) a certificate signed by a Financial Officer of the Borrower

 

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setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three (3) days’ prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest as required by Section 2.12. All prepayments of Borrowings under this Section 2.10 shall be subject to Section 2.15, but shall otherwise be without premium or penalty.

(h)    Mandatory prepayments of outstanding Term Loans under this Agreement shall be allocated ratably among the Tranche C Term Loans, the Tranche D Term Loans, Tranche E Term Loans, Tranche F Term Loans, the Tranche G Term Loans and the Other Term Loans, if any, and shall be applied against the remaining scheduled installments of principal due in respect of the Tranche C Term Loans, the Tranche D Term Loans, the Tranche E Term Loans, the Tranche F Term Loans, the Tranche G Term Loans and the Other Term Loans as directed by the Borrower; provided that, if at the time of any prepayment pursuant to this Section 2.10 there shall be Term Borrowings of different Types or Eurodollar Term Borrowings with different Interest Periods, and if some but not all Term Lenders shall have accepted such mandatory prepayment, then the aggregate amount of such mandatory prepayment shall be allocated ratably to each outstanding Term Borrowing of the accepting Term Lenders. If no Term Lenders exercise the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 2.10(f), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurodollar Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.15.

SECTION 2.11. Fees. (a) The Borrower agrees to pay to each Lender, through the Agent, on the last Business Day of March, June, September and December in each year and on each date on which any Commitment of such Lender shall expire or be terminated as provided herein, a commitment fee (a “Commitment Fee”) equal to the Applicable Rate per annum in effect from time to time on the daily unused amount of the Revolving Credit Commitments of such Lender (other than the Swingline Commitment) during the preceding quarter (or other period commencing with the Closing Date or ending with the applicable Revolving Credit Maturity Date or the date on which the Revolving Credit Commitments of such Lender shall expire or be terminated, as applicable). All Commitment Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days. The Commitment Fee due to each Lender shall commence to accrue on the Closing Date and shall cease to accrue on the date on which the Commitment of such Lender shall expire or be terminated as provided herein. For purposes of calculating Commitment Fees only, no portion of the Revolving Credit Commitments shall be deemed utilized as a result of outstanding Swingline Loans.

(b)    The Borrower agrees to pay to the Agent, for its own account, the agency fees set forth in the Engagement Letter, as amended, restated, supplemented or otherwise modified from time to time, or such agency fees as may otherwise be separately agreed upon by the Borrower and the Agent payable in the amounts and at the times specified therein or as so otherwise agreed upon (the “Agent Fees”).

 

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(c)    The Borrower agrees to pay (i) to each Dollar Revolving Credit and Multicurrency Revolving Credit Lender through the Agent, on the last Business Day of March, June, September and December of each year and on the date on which the applicable Revolving Credit Commitment of such Lender shall be terminated as provided herein, a fee (an “L/C Participation Fee”) calculated on such Lender’s Pro Rata Percentage of the daily aggregate Dollar L/C Exposure or Multicurrency L/C Exposure, respectively (excluding the portion thereof attributable to unreimbursed L/C Disbursements) during the preceding quarter (or shorter period commencing with the Closing Date or ending with the applicable Revolving Credit Maturity Date or the date on which all Letters of Credit issued under the applicable Class have been canceled or have expired and the Revolving Credit Commitments of all Lenders of the applicable Class shall have been terminated) at a rate per annum equal to the Applicable Rate from time to time used to determine the interest rate on Revolving Credit Borrowings of the applicable Class comprised of Eurocurrency Loans pursuant to Section 2.12, and (ii) to the Issuing Bank, with respect to each Letter of Credit, a fronting fee at a rate to be agreed upon by the Borrower and the Issuing Bank (which shall equal 0.25% per annum when the Issuing Bank is Credit Suisse AG) on the aggregate outstanding face amount of such Letter of Credit, and the standard issuance and drawing fees specified from time to time by the Issuing Bank (the “Issuing Bank Fees”). All L/C Participation Fees and Issuing Bank Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days.

(d)    The Borrower agrees to pay to the Agent, for the account of each Tranche F Term Lender, a ticking fee (a “Delayed Draw Ticking Fee”) equal to the sum of (i) the Applicable Rate with respect to Eurocurrency Tranche F Term Loans and (ii) 0.75% per annum on the daily amount of the outstanding Delayed Draw Tranche F Term Loan Commitment of such Tranche F Term Lender during the period from and including the date that is 31 days after the 2016 Effective Date through and including the earliest of (x) the Delayed Draw Funding Date, (y) the Delayed Draw Term Commitment Termination Date and (z) the date on which the Tranche F Term Loan Commitment of such Lender shall otherwise expire or be terminated in full. The Delayed Draw Ticking Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days. The Delayed Draw Ticking Fees shall be payable quarterly in arrears and on the earlier to occur of the Delayed Draw Funding Date and the date on which the Delayed Draw Tranche F Term Loan Commitments shall otherwise expire or be terminated as provided herein.

(e)    All Fees shall be paid on the dates due, in immediately available funds, to the Agent for distribution, if and as appropriate, among the Lenders, except that the Issuing Bank Fees shall be paid directly to the Issuing Bank. Once paid, none of the Fees shall be refundable under any circumstances absent manifest error in the calculation of such fees.

SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing, including each Dollar Swingline Loan, shall bear interest at the Alternate Base Rate plus the Applicable Rate.

(b)    (i) The Loans comprising each Eurocurrency Borrowing, including each Alternative Currency Swingline Loans, shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.

 

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(ii) Each Foreign BaseThe Loans comprising each SONIA Rate LoanBorrowing shall bear interest (computed on the basis of the actual number of days elapsed over a year of 365 days) at a rate per annum equal to the rate set forth in the definition of the term “Foreign Base Rate” plussum of (i) Daily Simple SONIA and (ii) the Applicable Rate for ABR Revolvingsuch Loans in effect from time to time.

(c)    Notwithstanding the foregoing, upon the occurrence and during the continuance of an Event of Default referred to in paragraphs (a), (b), (f) and (g) of Article VII, at the written request of the Required Lenders, any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder shall bear interest, payable on demand, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section. Payment or acceptance of the increased rates of interest provided for in this Section 2.12(c) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Agent or any Lender.

(d)    Accrued interest on each Loan shall be payable to the applicable Lenders, through the Agent, in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment (except in the case of a prepayment of an ABR Revolving Loan or a Swingline Loan that is not made in connection with a termination of the Revolving Credit Commitments) and (iii) in the event of any conversion of any Eurocurrency Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(e)    All interest hereunder shall be computed on the basis of a year of 360 days, except that (i) interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate and (ii) interest with respect to Eurocurrency Loans denominated in Pounds shall, in each case, be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Foreign Base Rate, Adjusted LIBO Rate, LIBO Rate, SONIA Rate or EURIBO Rate shall be determined by the Agent, and such determination shall be conclusive absent manifest error.

SECTION 2.13. Alternate Rate of Interest.

(a)    If prior to the commencement of any Interest Period for a Eurocurrency Borrowing or the making of a SONIA Rate Borrowing:

(1)    the Agent determines (which determination shall be conclusive absent manifest error) that deposits in the applicable currency in the principal amount of the Loans comprising such Borrowing are not generally available in the applicable interbank market;

 

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(2)    the Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the LIBO Rate, the SONIA Rate or the EURIBO Rate, as applicable, for such Interest Period or Borrowing; or

(3)    the Agent is advised by the Required Lenders (or, with respect to any Eurocurrency Multicurrency Revolving Borrowing, the Required Class Lenders calculated as though the Non-Extended Revolving Credit Lenders and the Extended Revolving Credit Lenders are one Class) that the Adjusted LIBO Rate, the LIBO Rate, the EURIBO Rate or the EURIBOSONIA Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;

then the Agent shall promptly give notice thereof to the Borrower and the Lenders by telephone or facsimile as promptly as practicable thereafter and, until the Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, any request by the Borrower formay not request a Eurocurrency Borrowing in the applicable currency or a SONIA Rate Borrowing, as the case may be, pursuant to Section 2.03 or 2.05 shall be deemed to be a request for a Daily Rate Borrowing in such currency.

(b)    Effect of Benchmark Transition Event:

(1)    Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, but subject to Section 2.20, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Agent and the Borrower may amend this Agreement to replace the LIBO Rate or the EURIBO Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Agent has posted such proposed amendment to all Lenders and the Borrower so long as the Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. Any such amendment with respect to an Early Opt-in Election will become effective with respect to any Class of Loans on the date that Lenders comprising the Required Lenders of such Class have delivered to the Agent written notice that such Required Lenders accept such amendment. No replacement of the LIBO Rate or the EURIBO Rate with a Benchmark Replacement pursuant to this Section 2.13(b) will occur prior to the applicable Benchmark Transition Start Date.

(2)    Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Agent, in consultation with the Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement, other than the Borrower.

 

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(3)    Notices; Standards for Decisions and Determinations. The Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Agent or Lenders pursuant to this Section 2.13(b) including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.13(b).

(4)    Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurocurrency Borrowing of, conversion to or continuation of Eurocurrency Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During any Benchmark Unavailability Period, the component of ABR based upon the LIBO Rate or the EURIBO Rate will not be used in any determination of ABR.

(5)    Certain Defined Terms. As used in this Section 2.13(b):

“Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement 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 rate of interest as a replacement to the LIBO Rate or the EURIBO Rate for syndicated credit facilities denominated in the applicable currency and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.

“Benchmark Replacement Adjustment” means, with respect to any replacement of the LIBO Rate or the EURIBO Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period, 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 Agent and the Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBO Rate or the EURIBO Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such

 

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spread adjustment, for the replacement of the LIBO Rate or the EURIBO Rate with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable currency at such time.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the 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 Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement).

“Benchmark Replacement Date” means the earlier to occur of the following events with respect to the LIBO Rate or the EURIBO Rate:

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the LIBO Rate or the EURIBO Rate permanently or indefinitely ceases to provide the LIBO Rate or the EURIBO Rate; or

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the LIBO Rate or the EURIBO Rate:

(1) a public statement or publication of information by or on behalf of the administrator of the LIBO Rate or the EURIBO Rate announcing that such administrator has ceased or will cease to provide the LIBO Rate or the EURIBO Rate, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBO Rate or the EURIBO Rate;

(2) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Rate or the EURIBO Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the LIBO Rate or the EURIBO Rate, a resolution authority with jurisdiction over the administrator for the LIBO Rate or the EURIBO Rate or a court or an entity with similar insolvency or resolution authority over the

 

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administrator for the LIBO Rate or the EURIBO Rate, which states that the administrator of the LIBO Rate or the EURIBO Rate has ceased or will cease to provide the LIBO Rate or the EURIBO Rate permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBO Rate or the EURIBO Rate; or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Rate or the EURIBO Rate announcing that the LIBO Rate or the EURIBO Rate is no longer representative.

“Benchmark Transition Start Date” means (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 90th 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) and (b) in the case of an Early Opt-in Election, the date specified by the Agent or the Required Lenders, as applicable, by notice to the Borrower, the Agent (in the case of such notice by the Required Lenders) and the Lenders.

“Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the LIBO Rate or the EURIBO Rate and solely to the extent that the LIBO Rate or the EURIBO Rate has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the LIBO Rate or the EURIBO Rate for all purposes hereunder in accordance with Section 2.13(b) and (y) ending at the time that a Benchmark Replacement has replaced the LIBO Rate or the EURIBO Rate for all purposes hereunder pursuant to the Section 2.13(b).

“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 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”.

“Early Opt-in Election” means the occurrence of:

(1) (i) a determination by the Agent or (ii) a notification by the Required Lenders to the Agent (with a copy to the Borrower) that the Required Lenders have determined that syndicated credit facilities denominated in the applicable currency being executed at such time, or that include language similar to that contained in this Section 2.13(b), are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the LIBO Rate or the EURIBO Rate, and

 

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(2) (i) the election by the Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the 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 Agent.

“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.

“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.

“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.

“Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

SECTION 2.14. Increased Costs. (a) If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or the Issuing Bank (except any such reserve requirement reflected in the Adjusted LIBO Rate);

(ii) impose on any Lender or the Issuing Bank or the applicable interbank market any other condition (other than Taxes) affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter of Credit or participation therein; or

(iii) subject any Lender, the Issuing Bank or the Agent to any Taxes (other than Indemnified Taxes, Other Taxes and Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves other liabilities or capital attributable thereto;

and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Bank or the Agent of making, continuing, converting to or maintaining any Eurocurrency Loan

 

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or increase the cost to any Lender, the Issuing Bank or the Agent of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or the Agent hereunder (whether of principal, interest or otherwise), then, following delivery of the certificate contemplated by paragraph (c) of this Section, the Borrower will pay to such Lender, the Issuing Bank or the Agent, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or the Agent for such additional costs incurred or reduction suffered.

(b)    If any Lender or the Issuing Bank determines that any Change in Law affecting such Lender or Issuing Bank or any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law other than due to Taxes, which shall be dealt with exclusively pursuant to Section 2.16 (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy), then from time to time following delivery of the certificate contemplated by paragraph (c) of this Section the Borrower will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.

(c)    A certificate of a Lender or the Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or its holding company as specified in paragraph (a) or (b) of this Section and setting forth in reasonable detail the manner in which such amount or amounts was determined shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.

(d)    Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or the Issuing Bank notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

(e)    For the avoidance of doubt, this Section 2.14 shall apply to all requests, rules, guidelines or directives concerning capital adequacy or liquidity issued in connection with

 

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the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives concerning capital adequacy or liquidity promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) of the United States or foreign financial regulatory authorities, regardless of the date adopted, issued, promulgated or implemented.

SECTION 2.15. Break Funding Payments. In the event of (a) the payment of any principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurocurrency Loan or the conversion of the Interest Period with respect to any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurocurrency Loan on the date specified in any notice delivered pursuant hereto, or (d) the assignment of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.18, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurocurrency Loan, such loss, cost or expense to any Lender shall not include loss of profit or margin and shall be deemed to be the amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in the applicable currency of a comparable amount and period from other banks in the eurocurrency market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section and the basis therefor and setting forth in reasonable detail the manner in which such amount or amounts was determined shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.

SECTION 2.16. Taxes. (a) Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction for any Taxes, except as required by applicable law; provided that if an applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such tax is an Indemnified Tax or an Other Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after making all such required deductions or withholdings (including such deductions or withholdings applicable to additional sums payable under this Section), the Agent, Lender or the Issuing Bank (as applicable) receives an amount equal to the sum it would have received had no such deductions or withholdings been made. If at any time a Loan Party is required by applicable law to make any deduction or withholding from any sum payable hereunder, such Loan Party shall promptly notify the relevant Lender, Agent or the Issuing Bank upon becoming aware of the same. In

 

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addition, each Lender, Agent or the Issuing Bank shall promptly notify a Loan Party upon becoming aware of any circumstances as a result of which a Loan Party is or would be required to make any deduction or withholding from any sum payable hereunder.

(b)    In addition, the Loan Parties shall pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Agent timely reimburse it for, any Other Taxes.

(c)    Each Loan Party shall indemnify the Agent and each Lender or the Issuing Bank, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Agent, such Lender or the Issuing Bank, as applicable, on or with respect to any payment by or on account of any obligation of such Loan Party hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties, interest and reasonable expenses (other than those incurred as a result of the gross negligence or willful misconduct of such Agent, Lender or Issuing Bank) arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or the Issuing Bank, or by the Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest error.

(d)    Each Lender shall severally indemnify the Agent, within ten (10) days after written demand therefor, for the full amount of (i) any Excluded Taxes attributable to such Lender, (ii) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), and (iii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register, in each case, that are payable or paid by the Agent on or with respect to any payment by or on account of any obligation of the Loan Parties hereunder or under any other Loan Document and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to a Lender by the Agent shall be conclusive absent manifest error.

(e)    As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan Party to a Governmental Authority, such Loan Party shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent.

(f)    (i)    Any Lender or Issuing Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments under any Loan Document shall deliver to the Borrower and the Agent, at the time or times prescribed by applicable law or as reasonably requested by the Borrower or the Agent, such properly completed and executed documentation prescribed by applicable law or as reasonably requested by the Borrower or the Agent as will permit such payments to be made without withholding or at a reduced rate.

 

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(ii) Without limiting the generality of the foregoing, any Lender or Issuing Bank shall, if it is legally eligible to do so, deliver to the Borrower and the Agent, on or prior to the date on which such Lender or Issuing Bank becomes a party hereto, two duly signed, properly completed copies of whichever of the following is applicable:

(A)    in the case of a Lender or Issuing Bank that is not a Foreign Lender, IRS Form W-9;

(B)    in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (1) with respect to payments of interest under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (2) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(C)    in the case of a Foreign Lender for whom payments under any Loan Document constitute income that is effectively connected with such Lender’s conduct of a trade or business in the United States, IRS Form W-8ECI;

(D)    in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, and (2) a certificate (a “U.S. Tax Certificate”) to the effect that such Lender is not (a) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, (c) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (d) conducting a trade or business in the United States with which the relevant interest payments are effectively connected;

(E)    in the case of a Foreign Lender that is not the beneficial owner of payments made under any Loan Document (including a partnership or a Participant) (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C), (D), (F) and (G) of this paragraph (f)(ii) that would be required of each such beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender; provided, however, that if the Lender is a partnership and one or more of its partners are claiming the exemption for portfolio interest under Section 881(c) of the Code, such Lender may provide a U.S. Tax Certificate on behalf of such partners;

 

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(F)    if a payment made to a Lender or Issuing Bank under any Loan Document would be subject to any withholding Taxes as a result of such Lender’s or Issuing Bank’s failure to comply with the requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), at the time or times prescribed by law and at such time or times reasonably requested by the Withholding Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Withholding Agent as may be necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that such Lender or Issuing Bank has or has not complied with such Lender’s or Issuing Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment, it being understood that, solely for purposes of this clause (F), “FATCA” shall include any amendments made to FATCA after the Second Restatement Date; or

(G)    any other form prescribed by law as a basis for claiming exemption from, or a reduction of, U.S. Federal withholding Tax together with such supplementary documentation necessary to enable the Borrower or the Agent to determine the amount of Tax (if any) required by law to be withheld.

(iii) Thereafter and from time to time, each Foreign Lender shall (A) promptly submit to the Borrower and the Agent such additional duly completed and signed copies of one or more of forms or certificates described in Section 2.16(f)(ii)(A), (B), (C), (D), (E), (F) or (G) above (or such successor forms or certificates as shall be adopted from time to time by the relevant United States taxing authorities) as may then be available under then current United States Laws and regulations to avoid, or such evidence as is reasonably satisfactory to the Borrower and the Agent of any available exemption from, or reduction of, United States withholding Taxes in respect of all payments to be made to such Foreign Lender by the Borrower or other Loan Party pursuant to this Agreement, or any other Loan Document, in each case, (1) on or before the date that any such form, certificate or other evidence expires or becomes obsolete, (2) after the occurrence of any event requiring a change in the most recent form, certificate or evidence previously delivered by it to the Borrower and (3) from time to time thereafter if reasonably requested by the Borrower or the Agent, and (B) promptly notify the Borrower and the Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction.

(g)    If the Agent, a Lender or the Issuing Bank determines, in good faith in its sole discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which such Loan Party has paid additional amounts pursuant to this Section 2.16, it shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.16 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Agent, such Lender or the Issuing Bank

 

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(including any Taxes imposed with respect to such refund) as is determined by the Agent, such Lender, or the Issuing Bank in good faith in its sole discretion, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such Loan Party, upon the request of the Agent, such Lender or the Issuing Bank, agrees to repay as soon as reasonably practicable the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Agent, such Lender or the Issuing Bank in the event the Agent, such Lender or the Issuing Bank is required to repay such refund to such Governmental Authority. This Section shall not be construed to require the Agent, any Lender or the Issuing Bank to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to such Loan Party or any other Person. Notwithstanding anything to the contrary in this paragraph (g), in no event will the Agent, any Lender or the Issuing Bank be required to pay any amount to any Loan Party pursuant to this paragraph (g) the payment of which would place the Agent, such Lender or the Issuing Bank, as applicable, in a less favorable net after-Tax position than it would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.

(h)    If the Borrower determines in good faith that a reasonable basis exists for contesting any Indemnified Taxes or Other Taxes for which additional amounts have been paid under this Section 2.16, the relevant Lender, the Agent or the Issuing Bank shall reasonably cooperate with the Borrower in challenging such Indemnified Taxes or Other Taxes, at the Borrower’s expense, if reasonably requested by the Borrower in writing.

(i)    For purposes of this Section 2.16, the term “applicable law” includes FATCA.

SECTION 2.17. Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder and under any other Loan Document (whether of principal, interest or fees, or of amounts payable under Section 2.14, 2.15 or 2.16, or otherwise) (i) with respect to payments of amounts denominated in Dollars, prior to 12:00 (noon), New York City time, and (ii) with respect to payments of amounts denominated in an Alternative Currency, prior to 9:00 a.m., New York City time, in each case on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments (other than (i) Issuing Bank Fees, which shall be paid directly to the Issuing Bank, and (ii) principal of and interest on Swingline Loans, which shall be paid directly to the Swingline Lender except as otherwise provided in Section 2.22(f)) shall be made to the Agent to the applicable account designated to the Borrower by the Agent, except that payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The Agent shall distribute any such payments received by it, except as otherwise provided, for the account of any other Person to the appropriate recipient promptly following receipt thereof. Except as otherwise expressly provided herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments

 

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hereunder in respect of any Loan denominated in an Alternative Currency shall be made in such Alternative Currency, and all payments hereunder in respect of any Loan denominated in Dollars shall be made in Dollars. Unless otherwise agreed by the Borrower and each applicable Lender with respect to such payment, all other payments hereunder shall be made in Dollars. Any payment required to be made by the Agent hereunder shall be deemed to have been made by the time required if the Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Agent to make such payment.

(b)    [Intentionally Omitted.]

(c)    If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or any of its L/C Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon and L/C Disbursements than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and L/C Disbursements of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and L/C Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or L/C Disbursements to any assignee or participant, other than to Holdings, the Borrower or any subsidiary thereof (as to which the provisions of this paragraph shall apply, except as otherwise contemplated by Section 2.09(e)). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

(d)    Unless the Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Agent for the account of the Lenders that the Borrower will not make such payment, the Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation.

(e)    If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.04(a), 2.17(c) or 9.03(c), then the Agent may, in its discretion

 

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(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

(f)    Except as otherwise provided herein, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans, each payment of the Commitment Fees or the L/C Participation Fees, each reduction of the Term Loan Commitments or the Revolving Credit Commitments and each conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated pro rata among the Lenders in accordance with their respective applicable Commitments (or, if such Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Loans or participations in L/C Disbursements, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Agent may, in its discretion, round each Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount.

SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If any Lender or the Issuing Bank requests compensation under Section 2.14, or if the Borrower is required to indemnify or pay any additional amount to any Lender or the Issuing Bank or any Governmental Authority for the account of any Lender or the Issuing Bank pursuant to Section 2.16, then such Lender or the Issuing Bank shall use reasonable efforts to designate a different lending office for funding or booking its Loans or issuing Letters of Credit hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender or the Issuing Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16, as applicable, in the future and (ii) would not subject such Lender or the Issuing Bank to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the Issuing Bank in any material respect. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the Issuing Bank in connection with any such designation or assignment.

(b)    In the event (i) any Lender or the Issuing Bank requests compensation under Section 2.14, (ii) the Borrower is required to indemnify or pay any additional amount to any Lender or the Issuing Bank or any Governmental Authority for the account of any Lender or the Issuing Bank pursuant to Section 2.16 or (iii) any Lender becomes a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender or the Issuing Bank and the Agent, replace such Lender or the Issuing Bank by requiring such Lender or the Issuing Bank to assign and delegate (and such Lender or the Issuing Bank shall be obligated to assign and delegate), without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement of the applicable Class to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) such Lender or the Issuing Bank shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Disbursements of the applicable Class, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (ii) in the case of any such assignment resulting from a claim for compensation under Section 2.14 or

 

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payments required to be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation or payments. A Lender or the Issuing Bank shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or the Issuing Bank or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

SECTION 2.19. Illegality. If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted after the Closing Date that it is unlawful, for such Lender or its applicable lending office to make or maintain any Eurocurrency Loans, then, on notice thereof by such Lender to the Borrower through the Agent, any obligations of such Lender to make or continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency Borrowings shall be suspended until such Lender notifies the Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall upon demand from such Lender (with a copy to the Agent), either convert all Eurocurrency Loans of such Lender to Daily RateABR Loans (at the Dollar Equivalent for the date of conversion, as determined by the Agent, for Eurocurrency Loans denominated in an Alternative Currency), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different lending office if such designation will avoid the need for such notice and will not, in the determination of such Lender, otherwise be disadvantageous to it.

SECTION 2.20. [Intentionally Omitted.]Effect of Benchmark Transition Event After Amendment No. 8 Effective Date. (a) As of the Amendment No. 8 Effective Date, the provisions of this Section 2.20 apply to govern the effect of a Benchmark Transition Event (such term, and related terms, as defined below in this Section 2.20) as it relates solely to (i) the Revolving Credit Commitments and the extensions of credit thereunder and (ii) any other Commitments or Loans first established or made after the Amendment No. 8 Effective Date and notwithstanding anything contained herein to the contrary, this Section 2.20 shall not apply to any Term Loans outstanding on the Amendment No. 8 Effective Date; provided that, at such time as all Term Loans outstanding on the Amendment No. 8 Effective Date shall have been repaid in full, the provisions of Section 2.13(b) shall cease to be of any force and effect.

(b)    The interest rate on Eurocurrency Loans is determined by reference to the LIBO Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. On March 5, 2021, the IBA stated that as a result of its not having access to input data necessary to calculate LIBOR settings on a representative basis beyond the intended

 

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cessation dates set forth in the table below, it would have to cease publication of all 35 LIBOR settings immediately after such dates:

 

LIBOR Currency		LIBOR Settings		Date
USD		1-week, 2-month		December 31, 2021
USD		All other settings (i.e., Overnight/Spot Next, 1-month, 3-month, 6-month and 12-month)		June 30, 2023
GBP, EUR, CHF, JPY		All settings		December 31, 2021

The IBA did not identify any successor administrator in its announcement. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. Upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, this Section 2.20 provides a mechanism for determining an alternative rate of interest. The Agent will promptly notify the Borrower, pursuant to this Section 2.20, of any change to the reference rate upon which the interest rate on Eurocurrency Loans is based. However, the Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to this Section 2.20, whether upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to this Section 2.20, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.

The Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (i) the continuation, administration of, submission of, calculation of or any other matter related to Daily Simple SONIA, the LIBO Rate or the EURIBO Rate, any component definition thereof or rate referenced in the definition thereof or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including without limitation whether the composition or characteristics of any such alternative, comparable or successor rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, Daily Simple SONIA, the LIBO Rate or the EURIBO Rate or any other Benchmark prior to its discontinuance or unavailability, or (ii) the effect, implementation or composition of any Benchmark Replacement Conforming Changes. The Agent and its Affiliates and/or other related entities may engage in transactions that affect the calculation of any Daily Simple SONIA, LIBO Rate or EURIBO Rate, any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower.

 

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(c)    Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current USD Benchmark, then, (x) if a Benchmark Replacement is determined in accordance with clause (a) or (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such USD Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (c) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m., New York City time, on the fifth Business Day after the date notice of such Benchmark Replacement is provided by the Agent to the Lenders and the Borrower pursuant to the clauses below without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document, so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Class Lenders of each affected Class.

(d)    In connection with the implementation of a Benchmark Replacement with respect to the then-current USD Benchmark, the Agent in consultation with the Borrower will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

(e)    The Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a USD Benchmark pursuant to this Section 2.20 and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Agent, the Borrower or the Lenders pursuant to this Section 2.20, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.20.

 

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