2017 APRIL JOINDER AGREEMENT

Exhibit 4.1

 

Execution Version

 

2017 APRIL JOINDER AGREEMENT

 

2017 APRIL JOINDER AGREEMENT, dated as of April 26, 2017 (this “Agreement”), by and among CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH (“Credit Suisse”), as the initial 2024 New Dollar Term Lender (as defined below), FIRST DATA CORPORATION, a Delaware corporation (the “Borrower”), each Guarantor and Credit Suisse AG, Cayman Islands Branch, as Administrative Agent and as Collateral Agent.

 

RECITALS:

 

WHEREAS, reference is hereby made to the Credit Agreement, dated as of September 24, 2007, as amended and restated as of September 28, 2007, as further amended as of August 10, 2010, March 24, 2011, March 13, 2012 and August 16, 2012, as modified by that certain September 2012 Joinder Agreement dated September 27, 2012, as modified by that certain February 2013 Joinder Agreement dated February 13, 2013, as amended by the 2013 April Repricing Amendment dated April 10, 2013, as amended by the 2013 Second April Repricing Amendment, dated April 15, 2013, as amended by the 2014 January Extension and Repricing Amendment, dated January 30, 2014, as amended by the 2014 July Repricing Amendment, dated July 18, 2014, as amended by the 2015 May Amendment, dated June 2, 2015, as modified by that certain 2015 June Joinder Agreement dated July 10, 2015, as modified by that certain 2015 November Joinder Agreement, dated November 24, 2015, as modified by that certain 2016 March Extension Amendment and Joinder, dated April 13, 2016, as modified by that certain 2016 May Extension Amendment and Joinder dated June 2, 2016, as modified by that certain 2016 October Joinder Agreement dated October 14, 2016, as modified by that certain 2016 November Joinder Agreement, dated December 5, 2016 and as modified by that certain 2017 January Joinder Agreement, dated January 23, 2017 (as may be further amended, restated, supplemented or otherwise modified, refinanced or replaced from time to time, the “Credit Agreement”), among the Borrower, the Lenders party thereto, Credit Suisse AG, Cayman Islands Branch (formerly known as Credit Suisse, Cayman Islands Branch), as Administrative Agent and Collateral Agent and the other parties named therein (capitalized terms used but not defined herein having the meaning provided in the Credit Agreement); and

 

WHEREAS, subject to the terms and conditions of the Credit Agreement, pursuant to Section 2.14 (a) through (e) of the Credit Agreement, the Borrower may establish New Term Loan Commitments by, among other things, entering into one or more Joinder Agreements with one or more New Term Loan Lenders (each New Term Loan Lender holding a New Term Loan denominated in Dollars made pursuant hereto, a “2024 New Dollar Term Lender”, and the New Term Loans denominated in Dollars made pursuant hereto, the “2024 New Dollar Term Loans”);

 

WHEREAS, the Borrower has requested that the initial 2024 New Dollar Term Lender hereunder make 2024 New Dollar Term Loans to the Borrower in an aggregate principal amount of $4,217,000,000.00;

 

WHEREAS, the Borrower has engaged Credit Suisse Securities (USA) LLC, KKR Capital Markets LLC, PNC Bank, National Association, Keybanc Capital Markets Inc.,

 


 

Citizens Bank, N.A., Citigroup Global Markets Inc., Xxxxxxx Xxxxx Lending Partners LLC, Xxxxx Fargo Securities, LLC, Mizuho Bank, Ltd., Barclays Bank PLC, BBVA Securities Inc., Deutsche Bank AG New York Branch, SunTrust Xxxxxxxx Xxxxxxxx, Inc., Regions Capital Markets, a division of Regions Bank, Allied Irish Banks, P.L.C, and Standard Chartered Bank to act as joint lead arrangers and bookrunners in respect of the 2024 New Dollar Term Loans;

 

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

 

The initial 2024 New Dollar Term Lender party hereto hereby agrees to make a 2024 New Dollar Term Loan to the Borrower in the aggregate principal amounts of its New Term Loan Commitments set forth on Schedule A annexed hereto, on the terms set forth below, subject to satisfaction of the conditions set forth in Exhibit A hereto (the date such conditions are satisfied and the 2024 New Dollar Term Loans are made, the “2017 April Joinder Effective Date”) on the 2017 April Joinder Effective Date.

 

The initial 2024 New Dollar Term Lender (i) confirms that it has received a copy of the Credit Agreement and the other Credit Documents and the exhibits thereto, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent or any other 2024 New Dollar Term Lender or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent or the Collateral Agent, as by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a 2024 New Dollar Term Lender.

 

The 2024 New Dollar Term Loans shall have the following terms:

 

1.             Applicable Margin.  The Applicable ABR Margin shall be 1.50% per annum and the Applicable LIBOR Margin shall be 2.50% per annum.

 

Notwithstanding the foregoing, during any period in which the Borrower’s corporate family rating is Ba3 (stable) or better from Xxxxx’x (the “Target Rating”), (i) the Applicable ABR Margin with respect to 2024 New Dollar Term Loans shall be reduced to 1.25% per annum for 2024 New Dollar Term Loans that are ABR Loans and (ii) the Applicable LIBOR Margin with respect to 2024 New Dollar Term Loans shall be reduced to 2.25% per annum for 2024 New Dollar Term Loans that are LIBOR Loans; provided that each change in the Applicable ABR Margin or Applicable LIBOR Margin, as applicable, with respect to the 2024 New Dollar Term Loans resulting from a change in such rating shall be effective, in the case of an upgrade, commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, commencing

 

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on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change; provided, however, that at any time that the Target Rating is not in effect the Applicable ABR Margin shall be 1.50% per annum and the Applicable LIBOR Margin shall be 2.50% per annum.

 

2.             Principal Payments; Maturity.  The 2024 New Dollar Term Loans shall not require amortization payments prior to final maturity.  The Borrower shall repay in Dollars the outstanding principal amount of the 2024 New Dollar Term Loans on April 26, 2024, or if such date is not a Business Day, the next preceding Business Day.

 

3.             Other Terms.  Other than as set forth herein, for all purposes under the Credit Agreement and the other Credit Documents, the 2024 New Dollar Term Loans shall have terms that are identical to the existing 2021C New Dollar Term Loans outstanding under the Credit Agreement immediately prior to the 2017 April Joinder Effective Date (the “Existing Term Loans”), including for purposes of assignments and voluntary and mandatory prepayments.

 

Notwithstanding the foregoing, each of the 2024 New Dollar Term Loans shall be subject to 101 soft-call protection for the first six months after the 2017 April Joinder Effective Date as set forth in Section 5.1(f) of Exhibit B hereto and the definitions of “Effective Yield”, “IPO”, Repricing Transaction”, “Transformative Acquisition” and “Transformative Disposition”, each included therein. The 2024 New Dollar Term Loans shall constitute a separate Class of Loans under the Credit Agreement.

 

For the avoidance of doubt, solely for purposes of FATCA, the Borrower and the Administrative Agent shall treat (and the 2024 New Dollar Term Lenders hereby authorize the Borrower and the Administrative Agent to treat) all 2024 New Dollar Term Loans as not qualifying as “grandfathered obligations” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

 

The parties shall treat all of the 2024 New Dollar Term Loans (whether issued for cash or in exchange for or conversion of 2021C New Dollar Term Loans) as one fungible tranche for U.S. federal income tax purposes.

 

4.             Availability.  The 2024 New Dollar Term Loans shall be denominated in Dollars and made in a single drawing on the 2017 April Joinder Effective Date.  Repayments and prepayments of the 2024 New Dollar Term Loans may not be reborrowed.

 

5.             Use of Proceeds.  The Net Cash Proceeds of the 2024 New Dollar Term Loans will be used to refinance all of the Borrower’s 2021C New Dollar Term Loans outstanding under the Credit Agreement immediately prior to the 2017 April Joinder Effective Date.

 

6.             Credit Agreement Governs.  Except as set forth in this Agreement, the 2024 New Dollar Term Loans shall have the same terms, rights and benefits as other Term Loans as set forth in the Credit Agreement, shall rank pari passu in right of payment and security with such other Term Loans, and shall be deemed to be Term Loans for purposes of the Credit Agreement.

 

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7.             Proposed Borrowing.  This Agreement represents Borrower’s request to borrow 2024 New Dollar Term Loans from the initial 2024 New Dollar Term Lender as follows (the “Proposed Borrowing”):

 

(a)           Business Day of Proposed Borrowing:  April 26, 2017.

 

(b)           Amount of Proposed Borrowing:  $4,217,000,000.00.

 

(c)           Interest rate option:  LIBOR Loans with an initial Interest Period beginning on the 2017 April Joinder Effective Date and ending on May 24, 2017.

 

8.             Initial 2024 New Term Lender.  The initial 2024 New Dollar Term Lender acknowledges and agrees that upon its execution of this Agreement and the making of its 2024 New Dollar Term Loan, that the initial 2024 New Dollar Term Lender (to the extent it is not already a Lender) shall become a “Lender” under, and for all purposes of, the Credit Agreement and the other Credit Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder.

 

9.             Representations and Warranties.  The Borrower hereby represents and warrants that this Agreement has been duly authorized, executed and delivered by each Credit Party hereto and constitutes the legal, valid and binding obligations of each such Credit Party enforceable against it in accordance with its terms, except that the enforceability hereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and subject to general principles of equity.

 

10.          Borrower’s Certifications.  By its execution of this Agreement, the Borrower hereby certifies that:

 

(i)            The representations and warranties contained in the Credit Agreement and the other Credit Documents are true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date; and

 

(ii)           As of the 2017 April Joinder Effective Date and after giving effect to the making of the 2024 New Dollar Term Loans, no event has occurred and is continuing or would result from the consummation of the proposed Borrowing contemplated hereby that would constitute a Default or an Event of Default.

 

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11.          Post-Closing Covenants.  By its execution of this Agreement, the Borrower hereby covenants that within ninety (90) days after the 2017 April Joinder Effective Date, unless waived or extended by the Administrative Agent in its sole discretion, the applicable Credit Parties shall take all actions as may be reasonably requested by the Administrative Agent (and that in any event are not beyond the requirements set forth in Section 9.14 to the Credit Agreement) in order to ensure that the 2024 New Dollar Term Loans benefit from the Mortgages over the Mortgaged Properties.

 

12.          Notice.  For purposes of the Credit Agreement, the initial notice address of the initial 2024 New Dollar Term Lender shall be as set forth below its signature below.

 

13.          Tax Forms.  For each relevant 2024 New Dollar Term Lender, delivered herewith to the Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such 2024 New Dollar Term Lender may be required to deliver to the Administrative Agent pursuant to Section 5.4(d) and/or Section 5.4(e) of the Credit Agreement.

 

14.          Recordation of the 2024 New Dollar Term Loans.  Upon execution and delivery hereof, the Administrative Agent will record the 2024 New Dollar Term Loans made by the initial 2024 New Dollar Term Lender in the Register.

 

15.          Amendment, Modification and Waiver.  This Agreement may not be amended, modified or waived except in accordance with Section 13.1 of the Credit Agreement.

 

16.          Entire Agreement.  This Agreement, the Engagement Letter (defined in Exhibit A hereto), the Credit Agreement and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and oral, among the parties or any of them with respect to the subject matter hereof.

 

17.          GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

18.          Severability.  Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.

 

19.          WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE OF SERVICES HEREUNDER.

 

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20.          Conformed Credit Agreement.  For purposes of reference and convenience only, attached as Exhibit B hereto is an unofficial conformed copy of the Credit Agreement (with stricken text indicated textually in the same manner as the following example: stricken text and added text indicated textually in the same manner as the following example: double-underlined text) which contains the changes to the Credit Agreement resulting from the effectiveness of the 2024 New Dollar Term Loans.  In the event of a conflict between the attached conformed Credit Agreement and this Agreement, this Agreement shall control.

 

21.          Effect of Agreement.  Except as expressly set forth herein, (i) this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, any other Agent or the Letter of Credit Issuing Bank, in each case under the Credit Agreement or any other Credit Document, and (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of either such agreement or any other Credit Document.  Each and every term, condition, obligation, covenant and agreement contained in the Credit Agreement or any other Credit Document is hereby ratified and re-affirmed in all respects and shall continue in full force and effect.  Each Credit Party reaffirms its obligations under the Credit Documents to which it is party and the validity of the Liens granted by it pursuant to the Security Documents.  This Agreement shall constitute a Credit Document for purposes of the Credit Agreement and from and after the 2017 April Joinder Effective Date, all references to the Credit Agreement in any Credit Document and all references in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement, shall, unless expressly provided otherwise, refer to the Credit Agreement as modified by this Agreement.  Each of the Credit Parties hereby consents to this Agreement and confirms that all obligations of such Credit Party under the Credit Documents to which such Credit Party is a party shall continue to apply to the Credit Agreement as modified hereby.

 

22.          Counterparts.  This Agreement may be executed in counterparts, including by facsimile or other electronic transmission, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.

 

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IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Agreement as of the date first above written.

 

 

FIRST DATA CORPORATION

 

 

 

 

By:

/s/ Xxxxxxxx X. Xxxxx

 

 

Name:

Xxxxxxxx X. Xxxxx

 

 

Title:

Executive Vice President and Chief

 

 

 

Financial Officer

 

[Signature Page to 2017 April Joinder Agreement]

 


 

 

The following entities, each as Guarantor:

 

 

 

BANKCARD INVESTIGATIVE GROUP INC.

 

BUYPASS INCO CORPORATION

 

CALL INTERACTIVE HOLDINGS LLC

 

IGNITE PAYMENTS, LLC

 

CESI HOLDINGS, LLC

 

CLOVER MARKETPLACE, LLC

 

CLOVER NETWORK, INC.

 

CONCORD COMPUTING CORPORATION

 

CONCORD CORPORATE SERVICES, INC.

 

CONCORD EFS FINANCIAL SERVICES, INC.

 

CONCORD EFS, INC.

 

CONCORD EMERGING TECHNOLOGIES, INC.

 

CONCORD FINANCIAL TECHNOLOGIES, INC.

 

CONCORD PAYMENT SERVICES, INC.

 

CONCORD PROCESSING, INC.

 

CONCORD TRANSACTION SERVICES, LLC

 

CTS HOLDINGS, LLC

 

CTS, INC.

 

FIRST DATA TRANSPORTATION SERVICES INC.

 

FDGS GROUP, LLC

 

FDR MISSOURI INC.

 

FDS HOLDINGS, INC.

 

FIRST DATA CAPITAL, INC.

 

FIRST DATA CARD SOLUTIONS, INC.

 

FIRST DATA COMMUNICATIONS CORPORATION

 

FIRST DATA EC, LLC

 

FIRST DATA GOVERNMENT SOLUTIONS, INC.

 

FIRST DATA GOVERNMENT SOLUTIONS, LP

 

FIRST DATA LATIN AMERICA INC.

 

FIRST DATA MERCHANT SERVICES LLC

 

FIRST DATA MERCHANT SERVICES NORTHEAST, LLC

 

FIRST DATA MERCHANT SERVICES SOUTHEAST, L.L.C.

 

 

 

 

 

By:

/s/ Xxxxxxxx X. Xxxxx

 

Name:

Xxxxxxxx X. Xxxxx

 

Title:

Executive Vice President and Chief Financial Officer

 

[Signature Page to 2017 April Joinder Agreement]

 


 

 

The following entities, each as Guarantor:

 

 

 

FIRST DATA MOBILE HOLDINGS, INC.

 

FIRST DATA PAYMENT SERVICES, LLC

 

FIRST DATA REAL ESTATE HOLDINGS L.L.C.

 

FIRST DATA REPORTING SERVICES LLC

 

FIRST DATA RESOURCES, LLC

 

FIRST DATA RETAIL ATM SERVICES L.P.

 

FIRST DATA SOLUTIONS INC.

 

FIRST DATA TECHNOLOGIES, INC.

 

FIRST DATA VOICE SERVICES

 

FUNDSXPRESS, INC.

 

FUNDSXPRESS FINANCIAL NETWORK, INC.

 

GYFT, INC.

 

INSTANT CASH SERVICES, LLC

 

LINKPOINT INTERNATIONAL, INC.

 

MAS OHIO CORPORATION

 

NATIONAL PAYMENT SYSTEMS INC.

 

NEW PAYMENT SERVICES, INC.

 

PAYPOINT ELECTRONIC PAYMENT SYSTEMS, LLC

 

PAYSYS INTERNATIONAL, INC.

 

PERKA, INC.

 

REMITCO LLC

 

SAGEBRUSH HOLDINGS LLC

 

STAR NETWORKS, INC.

 

STAR PROCESSING, INC.

 

STAR SYSTEMS ASSETS, INC.

 

STAR SYSTEMS, INC.

 

STAR SYSTEMS, LLC

 

TASQ LLC

 

TASQ TECHNOLOGY, INC.

 

TELECHECK INTERNATIONAL, INC.

 

TRANSACTION SOLUTIONS, LLC

 

TRANSACTION WIRELESS, INC.

 

TWI MOR HOLDING, LLC

 

UNIFIED MERCHANT SERVICES

 

VALUELINK, LLC

 

 

 

 

 

By:

/s/ Xxxxxxxx X. Xxxxx

 

Name:

Xxxxxxxx X. Xxxxx

 

Title:

Executive Vice President and Chief Financial Officer

 

[Signature Page to 2017 April Joinder Agreement]

 


 

 

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as 2024 New Dollar Term Lender

 

 

 

 

 

 

 

By:

/s/ Xxxxxxx X’Xxxx

 

 

Name:

Xxxxxxx X’Xxxx

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

By:

/s/ D. Xxxxxx Xxxxxxx

 

 

Name:

D. Xxxxxx Xxxxxxx

 

 

Title:

Authorized Signatory

 

[Signature Page to 2017 April Joinder Agreement]

 


 

 

Consented to by:

 

 

 

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent and Collateral Agent

 

 

 

 

 

 

 

By:

/s/ Xxxxxxx X’Xxxx

 

 

Name:

Xxxxxxx X’Xxxx

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

By:

/s/ D. Xxxxxx Xxxxxxx

 

 

Name:

D. Xxxxxx Xxxxxxx

 

 

Title:

Authorized Signatory

 

[Signature Page to 2017 April Joinder Agreement]

 


 

SCHEDULE A
TO 2017 April Joinder Agreement

 

Name of 2024 New Dollar

 

 

 

Commitment

Term Lender

 

Type of Commitment

 

Amount

Credit Suisse AG, Cayman Islands Branch

 

2024 New Dollar Term Loan Commitment

 

$

4,217,000,000.00

 


 

Exhibit A

Conditions

 

This Agreement shall become effective upon the satisfaction each of the following conditions:

 

a)             the Administrative Agent shall have received counterparts of this Agreement executed by the Administrative Agent, Borrower, the Guarantors and initial 2024 New Dollar Term Lender;

 

b)             the Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Credit Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Credit Party as of a recent date, from such Secretary of State or similar Governmental Authority (or a certification from an Authorized Officer of each applicable Credit Party that attached is a true and complete copy of such certificate or articles of incorporation or organization, including all amendments thereto, as in effect on the 2017 April Joinder Effective Date) and (ii) a certificate of an Authorized Officer of each Credit Party dated the 2017 April Joinder Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Credit Party as in effect on the 2017 April Joinder Effective Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents to which such Person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of such Credit Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Credit Document on behalf of such Credit Party and countersigned by another officer as to the incumbency and specimen signature of an Authorized Officer executing the certificate pursuant to clause (ii) above;

 

c)              the Engagement Parties (as defined in that certain Engagement Letter dated April 17, 2017 to which the Borrower is a party (the “Engagement Letter”)) shall have been paid such fees as such Engagement Parties and the Borrower have separately agreed to and, to the extent invoices in respect of such costs and expenses have been presented at least two (2) Business Days prior to the 2017 April Joinder Effective Date, Borrower shall have paid all reasonable out of pocket costs and expenses of such Engagement Parties and the Administrative Agent in connection with the preparation, negotiation and execution of this Agreement (including the reasonable fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx LLP as counsel to the Administrative Agent);

 

d)             the Administrative Agent shall have received the legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York counsel to the Borrower, covering such matters as the Administrative Agent may reasonably request and otherwise reasonably satisfactory to the Administrative Agent;

 


 

e)              each Lender that requests a Note at least two (2) Business Days prior to the 2017 April Joinder Effective Date, if any, shall receive a Note executed by an Authorized Officer of the Borrower in favor of each such Lender;

 

f)               the Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each improved Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Credit Party relating thereto) and, with respect to any Mortgaged Property on which any “building” (as defined in the Flood Insurance Laws) is located in a special flood hazard area, evidence of flood insurance as and to the extent required under Section 9.3 of the Credit Agreement;

 

g)              to the extent reasonably requested by the 2024 New Dollar Term Lender in writing not less than five (5) Business Days prior to the 2017 April Joinder Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Agreement, all documentation and other information with respect to the Credit Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act; and

 

h)             substantially contemporaneously herewith, the Borrower shall have prepaid  all of the 2021C New Dollar Term Loans outstanding immediately prior to the 2017 April Joinder Effective Date, together with all accrued and unpaid interest thereon to, but not including, the 2017 April Joinder Effective Date, pursuant to Section 5.1 of the Credit Agreement.

 


 

Exhibit B

 

Conformed Credit Agreement

 

[see attached]

 


 

MARKED VERSION REFLECTING CHANGES

PURSUANT TO 2017 APRIL JOINDER AGREEMENT

ADDED TEXT SHOWN UNDERSCORED

DELETED TEXT SHOWN STRIKETHROUGH

 

$14,000,000,000

 

€709,219,858.16

 

CREDIT AGREEMENT(1)

 

Dated as of September 24, 2007

 

as Amended and Restated as of September 28, 2007

 

among

 

FIRST DATA CORPORATION,
as the Borrower,

 

The Several Lenders
from Time to Time Parties Hereto,

 

CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Administrative Agent, Swingline Lender
and Letter of Credit Issuer,

 

CITIBANK, N.A.,

 

as Syndication Agent,

 

and

 

CREDIT SUISSE SECURITIES (USA) LLC,
CITIGROUP GLOBAL MARKETS, INC.,
DEUTSCHE BANK SECURITIES INC.,
XXXXXXX SACHS CREDIT PARTNERS L.P.,
HSBC SECURITIES (USA) INC.,
XXXXXX BROTHERS INC. and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
as Joint Lead Arrangers and Bookrunners(2)

 

Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx  00000

 

(1)This marked version is marked against the amended and restated credit agreement, dated as of September 28, 2007 (the “2007 ARCA”) conformed to reflect the Amendment Agreement, dated as of August 10, 2010 (the “Amendment”), the 2011 Extension Amendment, dated as of March 24, 2011 (the “Extension Amendment”), the 2012 Extension Amendment, dated as of March 13, 2012 (the “2012 Extension Amendment”), the 2012 September Joinder Agreement, dated as of September 27, 2012 (the “2012 September Joinder Agreement”), the 2013 February Joinder Agreement, dated as of February 13, 2013 (the “2013 February Joinder Agreement”), the 2013 April Repricing Amendment, dated April 10, 2013 (the “2013 April Repricing Amendment”), the 2013 Second April Repricing Amendment, dated April 15, 2013 (the “2013 Second April Repricing Amendment”), the 2014 January Extension and Repricing Amendment, dated January 30, 2014 (the “2014 January Extension and Repricing Amendment”), the 2014 July Repricing Amendment, dated July 18, 2014 (the “2014 July Repricing Amendment”), the 2015 May Amendment, dated June 2, 2015 (the “2015 May Amendment”), the 2015 June Joinder Agreement, dated July 10, 2015 (the “2015 June Joinder Agreement”), the 2015 November Joinder Agreement, dated November 24, 2015 (the “2015 November Joinder Agreement”),  the 2016 March Extension Amendment and Joinder, dated April 13, 2016 (the “2016 March Extension Amendment and Joinder”), the 2016 May Extension Amendment and Joinder, dated June 2, 2016 (the “2016 May Extension Amendment and Joinder”), the 2016 October Joinder, dated October 14, 2016 (the “2016 October Joinder”), the 2016 November Joinder Agreement, dated December 5, 2016 (the “2016 November Joinder”) and ,  the 2017 January Joinder Agreement, dated January 23, 2017 (the “2017 January Joinder”) and the 2017 April Joinder Agreement, dated April 26, 2017 (the “2017 April Joinder”; such amendments and joinder agreements, collectively the “Amendment and Joinder Agreements”).  The 2007 ARCA, conformed to reflect the Amendment and Joinder Agreements, is herein referred to as the “Conformed Document.”  This Conformed Document is provided for convenience only.  In the event of any conflict between this Conformed Document and any of the 2007 ARCA or the Amendment and Joinder Agreements, the 2007 ARCA and the Amendment and Joinder Agreements shall control.

 

(2) In connection with the 2017 April Joinder, Credit Suisse Securities (USA) LLC, KKR Capital Markets LLC, PNC Bank, National Association, Keybanc Capital Markets Inc., Citizens Bank, N.A., Citigroup Global Markets Inc., Xxxxxxx Sachs Lending Partners LLC, Xxxxx Fargo Securities, LLC, Mizuho Bank, Ltd., Barclays Bank PLC, BBVA Securities Inc., Deutsche Bank AG New York Branch, SunTrust Xxxxxxxx Xxxxxxxx, Inc., Regions Capital Markets, a division of Regions Bank, Allied Irish Banks, P.L.C, and Standard Chartered Bank acted as joint lead arrangers and bookrunners.

 


 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

 

SECTION 1.

 

Definitions

3

 

 

 

 

 

1.1.

 

Defined Terms

3

 

1.2.

 

Other Interpretive Provisions

68

 

1.3.

 

Accounting Terms

68

 

1.4.

 

Rounding

68

 

1.5.

 

References to Agreements, Laws, Etc.

69

 

1.6.

 

Exchange Rates

69

 

 

 

 

SECTION 2.

 

Amount and Terms of Credit

69

 

 

 

 

 

2.1.

 

Commitments

69

 

2.2.

 

Minimum Amount of Each Borrowing; Maximum Number of Borrowings

76

 

2.3.

 

Notice of Borrowing

77

 

2.4.

 

Disbursement of Funds

78

 

2.5.

 

Repayment of Loans; Evidence of Debt

79

 

2.6.

 

Conversions and Continuations

84

 

2.7.

 

Pro Rata Borrowings

85

 

2.8.

 

Interest

85

 

2.9.

 

Interest Periods

86

 

2.10.

 

Increased Costs, Illegality, Etc.

87

 

2.11.

 

Compensation

88

 

2.12.

 

Change of Lending Office

89

 

2.13.

 

Notice of Certain Costs

89

 

2.14.

 

Incremental Facilities

89

 

2.15.

 

Permitted Debt Exchanges

94

 

 

 

 

SECTION 3.

 

Letters of Credit

95

 

 

 

 

 

3.1.

 

Letters of Credit

95

 

3.2.

 

Letter of Credit Requests

97

 

3.3.

 

Letter of Credit Participations

98

 

3.4.

 

Agreement to Repay Letter of Credit Drawings

101

 

3.5.

 

Increased Costs

102

 

3.6.

 

New or Successor Letter of Credit Issuer

103

 

3.7.

 

Role of Letter of Credit Issuer

104

 

3.8.

 

Cash Collateral

104

 

3.9.

 

Applicability of ISP and UCP

105

 

3.10.

 

Conflict with Issuer Documents

105

 

3.11.

 

Letters of Credit Issued for Restricted Subsidiaries

105

 

 

 

 

SECTION 4.

 

Fees; Commitments

105

 

 

 

 

 

 

4.1.

 

Fees

105

 

4.2.

 

Voluntary Reduction of Revolving Credit Commitments

107

 

4.3.

 

Mandatory Termination of Commitments

108

 

 

 

 

SECTION 5.

 

Payments

108

 

 

 

 

 

 

5.1.

 

Voluntary Prepayments

108

 

5.2.

 

Mandatory Prepayments

109

 

5.3.

 

Method and Place of Payment

113

 

i


 

 

 

Page

 

 

 

 

5.4.

 

Net Payments

113

 

5.5.

 

Computations of Interest and Fees

116

 

5.6.

 

Limit on Rate of Interest

116

 

 

 

 

SECTION 6.

 

Conditions Precedent to Initial Borrowing

116

 

 

 

 

 

6.1.

 

Credit Documents

117

 

6.2.

 

Collateral

117

 

6.3.

 

Legal Opinions

 

117

 

6.4.

 

[Reserved]

117

 

6.5.

 

Equity Investments

118

 

6.6.

 

Closing Certificates

118

 

6.7.

 

Authorization of Proceedings of Each Credit Party

118

 

6.8.

 

Fees

118

 

6.9.

 

Representations and Warranties

118

 

6.10.

 

Solvency Certificate

118

 

6.11.

 

Merger

118

 

6.12.

 

Patriot Act

118

 

 

 

 

SECTION 7.

 

Conditions Precedent to All Credit Events

119

 

 

 

 

 

7.1.

 

No Default; Representations and Warranties

119

 

7.2.

 

Notice of Borrowing; Letter of Credit Request

119

 

 

 

 

SECTION 8.

 

Representations, Warranties and Agreements

119

 

 

 

 

 

8.1.

 

Corporate Status

119

 

8.2.

 

Corporate Power and Authority

120

 

8.3.

 

No Violation

120

 

8.4.

 

Litigation

120

 

8.5.

 

Margin Regulations

120

 

8.6.

 

Governmental Approvals

120

 

8.7.

 

Investment Company Act

120

 

8.8.

 

True and Complete Disclosure

 

121

 

8.9.

 

Financial Condition; Financial Statements

121

 

8.10.

 

Tax Matters

121

 

8.11.

 

Compliance with ERISA

122

 

8.12.

 

Subsidiaries

122

 

8.13.

 

Intellectual Property

122

 

8.14.

 

Environmental Laws

123

 

8.15.

 

Properties

123

 

8.16.

 

Solvency

123

 

 

 

 

SECTION 9.

 

Affirmative Covenants

123

 

 

 

 

 

9.1.

 

Information Covenants

123

 

9.2.

 

Books, Records and Inspections

126

 

9.3.

 

Maintenance of Insurance

126

 

9.4.

 

Payment of Taxes

127

 

9.5.

 

Consolidated Corporate Franchises

127

 

9.6.

 

Compliance with Statutes, Regulations, Etc.

 

127

 

9.7.

 

ERISA

127

 

9.8.

 

Maintenance of Properties

128

 

9.9.

 

Transactions with Affiliates

128

 

ii


 

 

 

Page

 

 

 

 

9.10.

 

End of Fiscal Years; Fiscal Quarters

128

 

9.11.

 

Additional Guarantors and Grantors

129

 

9.12.

 

Pledge of Additional Stock and Evidence of Indebtedness

129

 

9.13.

 

Use of Proceeds

129

 

9.14.

 

Further Assurances

130

 

 

 

 

SECTION 10.

 

Negative Covenants

131

 

 

 

 

 

10.1.

 

Limitation on Indebtedness

131

 

10.2.

 

Limitation on Liens

137

 

10.3.

 

Limitation on Fundamental Changes

139

 

10.4.

 

Limitation on Sale of Assets

141

 

10.5.

 

Limitation on Investments

143

 

10.6.

 

Limitation on Dividends

146

 

10.7.

 

Limitations on Debt Payments and Amendments

148

 

10.8.

 

Limitations on Sale Leasebacks

149

 

10.9.

 

Changes in Business

149

 

10.10.

 

Consolidated Senior Secured Debt to Consolidated EBITDA Ratio

149

 

 

 

 

SECTION 11.

 

Events of Default

150

 

 

 

 

 

11.1.

 

Payments

150

 

11.2.

 

Representations, Etc.

150

 

11.3.

 

Covenants

150

 

11.4.

 

Default Under Other Agreements

150

 

11.5.

 

Bankruptcy, Etc.

151

 

11.6.

 

ERISA

151

 

11.7.

 

Guarantee

151

 

11.8.

 

Pledge Agreement

152

 

11.9.

 

Security Agreement

152

 

11.10.

 

Mortgages

152

 

11.11.

 

Judgments

152

 

11.12.

 

Change of Control

152

 

11.13.

 

Subordination

152

 

11.14.

 

Application of Proceeds

153

 

11.15.

 

Right to Cure

153

 

 

 

 

SECTION 12.

 

The Agents

154

 

 

 

 

 

12.1.

 

Appointment

154

 

12.2.

 

Delegation of Duties

155

 

12.3.

 

Exculpatory Provisions

155

 

12.4.

 

Reliance by Agents

155

 

12.5.

 

Notice of Default

156

 

12.6.

 

Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders

156

 

12.7.

 

Indemnification

156

 

12.8.

 

Agents in Their Individual Capacities

157

 

12.9.

 

Successor Agents

157

 

12.10.

 

Withholding Tax

158

 

12.11.

 

[Reserved]

158

 

12.12.

 

Agents Under Security Documents and Guarantee

158

 

12.13.

 

Right to Realize on Collateral and Enforce Guarantee

159

 

iii


 

 

 

Page

 

 

 

SECTION 13.

 

Miscellaneous

159

 

 

 

 

 

 

13.1.

 

Amendments, Waivers and Releases

159

 

13.2.

 

Notices

163

 

13.3.

 

No Waiver; Cumulative Remedies

163

 

13.4.

 

Survival of Representations and Warranties

 

164

 

13.5.

 

Payment of Expenses; Indemnification

164

 

13.6.

 

Successors and Assigns; Participations and Assignments

165

 

13.7.

 

Replacements of Lenders Under Certain Circumstances

169

 

13.8.

 

Adjustments; Set-off

170

 

13.9.

 

Counterparts

170

 

13.10.

 

Severability

170

 

13.11.

 

Integration

170

 

13.12.

 

GOVERNING LAW

170

 

13.13.

 

Submission to Jurisdiction; Waivers

171

 

13.14.

 

Acknowledgments

171

 

13.15.

 

WAIVERS OF JURY TRIAL

172

 

13.16.

 

Confidentiality

172

 

13.17.

 

Direct Website Communications

173

 

13.18.

 

USA PATRIOT Act

174

 

13.19.

 

Judgment Currency

174

 

13.20.

 

Payments Set Aside

174

 

13.21.

 

Acknowledgements Relating to the Amendment Effective Date

175

 

SCHEDULES(23)

 

 

 

 

 

Schedule 1.1(a)

Existing Secured Letters of Credit

 

 

 

 

Schedule 1.1(b)

Mortgaged Properties

 

 

 

 

Schedule 1.1(c)

Commitments and Addresses of Lenders

 

 

 

 

Schedule 1.1(d)(i)

Excluded Subsidiaries

 

 

 

 

Schedule 1.1(g)

Debt Repayment

 

 

Schedule 1.1(i)

Existing Hedge Banks

 

 

 

 

Schedule 6.3

Local Counsels

 

 

 

 

Schedule 8.3

Conflicts

 

 

 

 

Schedule 8.4

Litigation

 

 

 

 

Schedule 8.12

Subsidiaries

 

 

 

 

Schedule 9.14(d)

Post-Closing Actions

 

 

 

 

Schedule 10.4

Scheduled Dispositions

 

 

 

 

Schedule 13.2

Notice Addresses

 

 

 

 

EXHIBITS

 

 

 

 

 

Exhibit A

Form of Joinder Agreement

 

 

 

 

Exhibit B

Form of Guarantee

 

 

 

 

Exhibit C

Form of Mortgage (Real Property)

 

 

 

 

Exhibit D

Form of Perfection Certificate

 

 

 

 

Exhibit E

Form of Pledge Agreement

 

 

(23) Schedules (other than Schedule 1.1(c)) and Exhibits are not being amended, other than as shown above and below.

 

iv


 

Exhibit F

 

Form of Security Agreement

Exhibit G

 

Form of Letter of Credit Request

Exhibit H-1

 

Form of Legal Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP

Exhibit H-2

 

Form of Legal Opinion of General Counsel

Exhibit I

 

Form of Credit Party Closing Certificate

Exhibit J

 

Form of Assignment and Acceptance

Exhibit K-1-A

 

Form of Promissory Note (Initial Tranche B-1 Term Loans)

Exhibit K-1-B

 

Form of Promissory Note (Initial Tranche B-2 Term Loans)

Exhibit K-1-C

 

Form of Promissory Note (Initial Tranche B-3 Term Loans)

Exhibit K-2

 

Form of Promissory Note (Delayed Draw Term Loans)

Exhibit K-3-A

 

Form of Promissory Note (2013 Revolving Credit Loans and 2013 Swingline Loans)

Exhibit K-3-B

 

Form of Promissory Note (2016 Revolving Credit Loans and 2016 Swingline Loans)

Exhibit K-3-C

 

Form of Promissory Note (2020 Revolving Credit Loans and 2020 Swingline Loans)

Exhibit K-4-A

 

Form of Promissory Note (Euro Tranche B-1 Term Loans)

Exhibit K-4-B

 

Form of Promissory Note (Euro Tranche B-2 Term Loans)

Exhibit K-5-A

 

Form of Promissory Note (2018 New Dollar Term Loans)

Exhibit K-5-B

 

Form of Promissory Note (2018 New Euro Term Loans)

Exhibit K-6-A

 

Form of Promissory Note (2017 Second New Dollar Term Loans)

Exhibit K-6-B

 

Form of Promissory Note (2017 Second New Euro Term Loans)

Exhibit K-7

 

Form of Promissory Note (2018B Second New Term Loans)

Exhibit K-8-A

 

Form of Promissory Note (2021C New Dollar Term Loans)

Exhibit K-8-B

 

Form of Promissory Note (2021 New Euro Term Loans)

Exhibit K-9-A

 

Form of Promissory Note (2022 Dollar Term Loans)

Exhibit K-9-B

 

Form of Promissory Note (2022 Euro Term Loans)

Exhibit K-10

 

Form of Promissory Note (2020 Term A Loans)

Exhibit K-11       

     

Form of Promissory Note (2024 New Dollar Term Loans)

Exhibit L

 

Form of First Lien Intercreditor Agreement

Exhibit M

 

Form of Second Lien Intercreditor Agreement

 

v


 

CREDIT AGREEMENT, dated as of September 24, 2007, as amended and restated as of September 28, 2007, as amended, restated, supplemented or otherwise modified from time to time, among FIRST DATA CORPORATION, a Delaware corporation (the “Company” or the “Borrower”), the lending institutions from time to time parties hereto (each a “Lender” and, collectively, the “Lenders”), CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Administrative Agent, Swingline Lender and Letter of Credit Issuer (such terms and each other capitalized term used but not defined in this preamble having the meaning provided in Section 1), CITIBANK, N.A., as Syndication Agent, and CREDIT SUISSE SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS, INC., DEUTSCHE BANK SECURITIES INC., XXXXXXX SACHS CREDIT PARTNERS L.P., HSBC SECURITIES (USA) INC., XXXXXX BROTHERS INC. and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, as Joint Lead Arrangers and Bookrunners.

 

WHEREAS, Borrower, the Lenders party thereto (the “Original Lenders”), Credit Suisse, Cayman Islands Branch, as administrative agent, swingline lender and letter of credit issuer, Citibank N.A., as syndication agent and Credit Suisse Securities (USA) LLC, Citigroup Global Markets, Inc., Deutsche Bank Securities Inc., Xxxxxxx Sachs Credit Partners L.P., HSBC Securities (USA) Inc., Xxxxxx Brothers Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as joint lead arrangers and bookrunners, originally entered into this Agreement on September 24, 2007 (the “Original Credit Agreement”) and the parties hereto desire to amend and restate this Agreement on and subject to the terms and conditions set forth herein;

 

WHEREAS, pursuant to the Agreement and Plan of Merger (as amended from time to time in accordance therewith, the “Acquisition Agreement”), dated as of April 1, 2007, by and among the Company, Holdings and Merger Sub, Merger Sub merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly-owned Subsidiary of Holdings;

 

WHEREAS, to fund, in part, the Merger, the Sponsor and the other Initial Investors contributed an amount in cash to Holdings and/or a direct or indirect parent thereof in exchange for Stock and Stock Equivalents (which cash was contributed to the Borrower in exchange for common Stock of the Borrower) (such contribution, the “Equity Investments”), which was no less than 22.5% of the aggregate pro forma capitalization of the Borrower on the Original Closing Date (the “Minimum Equity Amount”);

 

WHEREAS, to consummate the transactions contemplated by the Acquisition Agreement, the Borrower entered into (a) a senior unsecured interim loan agreement, dated as of the Original Closing Date, by and among the Borrower, the lenders from time to time parties thereto, Citibank, N.A., as administrative agent, Credit Suisse, Cayman Islands Branch, as syndication agent, and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Xxxxxxx Sachs Credit Partners L.P., HSBC Securities (USA) Inc., Xxxxxx Brothers Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as joint lead arrangers and bookrunners (as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith, the “Senior Interim Loan Agreement”), pursuant to which the Borrower borrowed senior unsecured loans in an aggregate principal amount of $6,500,000,000, which consisted of (a) $3,750,000,000 of senior interim cash pay loans (the “Senior Interim Cash Pay Loans”) and (b) $2,750,000,000 of senior interim PIK loans (the “Senior Interim PIK Loans” and, together with the Senior Interim Cash Pay Loans, the “Senior Interim Loans”); and (b) a senior subordinated interim loan agreement, dated as of the Original Closing Date, by and among the Borrower, the lenders from time to time parties thereto, Citibank, N.A., as administrative agent, Credit Suisse, Cayman Islands Branch, as syndication agent, and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Xxxxxxx Sachs Credit Partners L.P., HSBC Securities (USA) Inc., Xxxxxx Brothers Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as joint lead arrangers and bookrunners (as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith, the “Senior Subordinated Interim Loan Agreement”),

 


 

pursuant to which the Borrower borrowed term loans in an aggregate principal amount of $2,500,000,000 (the “Senior Subordinated Interim Loans”);

 

WHEREAS, in connection with the foregoing, (I) the Original Lenders extended credit in the form of (a) Initial Term Loans to the Borrower on the Original Closing Date in Dollars, in an aggregate principal amount of $11,775,000,000, (b) Euro Tranche Term Loans to the Borrower on the Original Closing Date in Euro, in an aggregate principal amount of €709,219,858.16, (c) Delayed Draw Term Loans made available to the Borrower at any time and from time to time prior to the Delayed Draw Term Loan Commitment Termination Date in Dollars an aggregate principal amount at any time outstanding not in excess of $225,000,000 and (d) Revolving Credit Loans made available to the Borrower at any time and from time to time prior to the Revolving Credit Maturity Date in Dollars and Alternative Currencies, in an aggregate Dollar Equivalent principal amount at any time outstanding not in excess of $2,000,000,000 less the sum of (i) the aggregate Letters of Credit Outstanding at such time and (ii) the aggregate principal amount of all Swingline Loans outstanding at such time, and (II) the Letter of Credit Issuer shall issue Letters of Credit at any time and from time to time prior to the L/C Maturity Date, in Dollars and Alternative Currencies in an aggregate Stated Amount at any time outstanding not in excess of $500,000,000 and (III)  the Swingline Lender shall extend credit in the form of Swingline Loans at any time and from time to time prior to the Swingline Maturity Date, in Dollars, in an aggregate principal amount at any time outstanding not in excess of $250,000,000;

 

WHEREAS, the proceeds of the Initial Term Loans, Euro Tranche Term Loans and up to $200,000,000 of Revolving Credit Loans were used by the Borrower, together with (a) the net proceeds of the Senior Interim Loans and Senior Subordinated Interim Loans, (b) the net proceeds of the Equity Investments on the Original Closing Date (or, in the case of the Debt Repayment, such later date as may be necessary to effect the Debt Repayments in accordance with the tender offers therefor) solely to effect the Merger, to effect the Debt Repayments and to pay Transaction Expenses.  Proceeds of Revolving Credit Loans and Swingline Loans will be used by the Borrower on or after the Original Closing Date for working capital general corporate purposes (including Permitted Acquisitions).  Letters of Credit will be used by the Borrower for general corporate purposes.  Proceeds of the Delayed Draw Term Loans will be used by the Borrower and its Subsidiaries to refinance certain existing indebtedness not tendered on or before the Original Closing Date; and

 

WHEREAS, the parties hereto desire to amend and restate the Original Credit Agreement in its entirety on the Amendment Effective Date to, inter alia, (i) effect a reallocation of the Initial Tranche B-1 Term Loan Commitments and Initial Tranche B-2 Term Loan Commitments as reflected on Schedule 1.1(c) hereto and (ii) subdivide the Euro Tranche Term Loan Commitments into Euro Tranche B-1 Term Loan Commitments and Euro Tranche B-2 Term Loan Commitments in the aggregate principal amounts set forth in Schedule 1.1(c);

 

WHEREAS, the parties hereto have agreed to amend and restate the Original Credit Agreement in its entirety to read as set forth in this Agreement, and it has been agreed by the parties to the Original Credit Agreement that the Loans and any Letters of Credit outstanding as of the Amendment Effective Date and other “Obligations” under (and as defined herein) the Original Credit Agreement (including indemnities) shall be governed by and deemed to be outstanding under this Agreement with the intent that the terms of this Agreement shall supersede the terms of the Original Credit Agreement (which shall hereafter have no further effect upon the parties thereto other than with respect to any action, event, representation, warranty or covenant occurring, made or applying prior to the Amendment Effective Date), and all references to the Original Credit Agreement in any Credit Document or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof; provided that (1) the grants of security interests, Mortgages and Liens under and pursuant to the Credit Documents shall continue unaltered to secure, guarantee, support and otherwise benefit the

 

2


 

Obligations under the Original Credit Agreement of the Borrower and the other Credit Parties under this Agreement and each other Credit Document shall continue in full force and effect in accordance with its terms except as expressly amended thereby or hereby, and the parties hereto hereby ratify and confirm the terms thereof as being in full force and effect and unaltered by this Agreement and (2) it is agreed and understood that this Agreement does not constitute a novation, satisfaction, payment or reborrowing of any Obligation under the Original Credit Agreement or any other Credit Document except as expressly modified by this Agreement, nor does it operate as a waiver of any right, power or remedy of any Lender under any Credit Document (other than the Original Credit Agreement);

 

NOW, THEREFORE, the parties hereto hereby agree to amend and restate the Original Credit Agreement, and the Original Credit Agreement is hereby amended and restated in its entirety as follows:

 

SECTION 1.                                      Definitions

 

1.1.         Defined Terms.

 

(a)           As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the context otherwise requires (it being understood that defined terms in this Agreement shall include in the singular number the plural and in the plural the singular):

 

“2011 Extension Amendment” shall mean the Extension Amendment dated March 24, 2011 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the Extending Lenders party thereto.

 

“2011 Extension Effective Date” shall have the meaning provided in Section 5 of the Extension Amendment.

 

“2011 Revolving Credit Extension” shall have the meaning provided in Section 2(a) of the 2011 Extension Amendment.

 

“2011 Term Loan Extension” shall have the meaning provided in Section 1(a) of the Extension Amendment.

 

“2012 August Extension Amendment” shall mean the Extension Amendment dated August 16, 2012 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the Extending Lenders party thereto.

 

“2012 August Extension Effective Date” shall have the meaning provided in Section 4(b) of the 2012 August Extension Amendment.

 

“2012 August Term Loan Extension” shall have the meaning provided in Section 1(a) of the 2012 August Extension Amendment.

 

“2012 Extension Amendment” shall mean the Extension Amendment dated March 13, 2012 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Extending Lenders party thereto and the Required Lenders.

 

“2012 Extension Effective Date” shall have the meaning provided in Section 5(b) of the 2012 Extension Amendment.

 

3


 

“2012 September Joinder Agreement” shall mean the Joinder Agreement dated September 27, 2012 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the New Loan Lenders party thereto.

 

“2012 September Joinder Effective Date” shall have the meaning provided in the 2012 September Joinder Agreement.

 

“2012 Term Loan Extension” shall have the meaning provided in Section 1(a) of the 2012 Extension Amendment.

 

“2013 April Repricing Amendment” shall mean the 2013 April Repricing Amendment dated April 10, 2013 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the 2017 New Term Lender party thereto.

 

“2013 April Repricing Effective Date” shall mean the “Repricing Amendment Effective Date” as defined in the 2013 April Repricing Amendment.

 

“2013 February Joinder Agreement” shall mean the Joinder Agreement dated February 13, 2013 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the lender of 2018B Term Loans party thereto.

 

“2013 February Joinder Effective Date” shall have the meaning provided in the 2013 February Joinder Agreement.

 

“2013 Available Commitment” shall mean an amount equal to the excess, if any, of (a) the amount of the Total 2013 Revolving Credit Commitment over (b) the sum of (i) the aggregate Dollar Equivalent principal amount of all 2013 Revolving Credit Loans (but not Swingline Loans) then outstanding and (ii) the aggregate Letters of Credit Outstanding under the 2013 Revolving Credit Commitment.

 

“2013 Letter of Credit Fee” shall have the meaning provided in Section 4.1(c)(i).

 

“2013 Multicurrency Sublimit” shall mean, at any date, the lesser of (x) $500,000,000 less any amounts outstanding under the 2016 Multicurrency Sublimit and (y) the aggregate 2013 Revolving Credit Commitments at such date.

 

“2013 Revolving Credit Commitment” shall mean, (a) with respect to each 2013 Revolving Credit Lender on the 2011 Extension Effective Date that does not execute the 2011 Extension Amendment as an Extending Lender, the amount of the Revolving Credit Commitment of such 2013 Revolving Credit Lender which shall terminate on the 2013 Revolving Credit Maturity Date, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof, (b) in the case of any Lender that receives an assignment of any portion of a 2013 Revolving Credit Commitment that was held by a 2013 Revolving Credit Lender, the amount specified as such Lender’s “Revolving Credit Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total 2013 Revolving Credit Commitment, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof and (c) in the case of any 2013 Revolving Credit Lender that increases its 2013 Revolving Credit Commitment or becomes a New Revolving Loan Lender with respect to its 2013 Revolving Credit Commitment, in each case pursuant to Section 2.14, the amount specified in the applicable Joinder Agreement, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof.  As of the 2011 Extension Effective Date, the aggregate 2013 Revolving Credit Commitments are $744,712,328.77.

 

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“2013 Revolving Credit Commitment Percentage” shall mean at any time, for each 2013 Revolving Credit Lender, the percentage obtained by dividing (a) such Lender’s 2013 Revolving Credit Commitment at such time by (b) the aggregate amount of the 2013 Revolving Credit Commitments at such time; provided that at any time when the 2013 Revolving Credit Commitment shall have been terminated, each Lender’s 2013 Revolving Credit Commitment Percentage shall be the percentage obtained by dividing (a) such Lender’s 2013 Revolving Credit Exposure at such time by (b) the 2013 Revolving Credit Exposure of all Lenders at such time.

 

“2013 Revolving Credit Exposure” shall mean, with respect to any 2013 Revolving Credit Lender at any time, the sum of (a) the aggregate Dollar Equivalent amount of the principal amount of 2013 Revolving Credit Loans of such Lender then outstanding, (b) such Lender’s Letter of Credit Exposure at such time in respect of such Lender’s 2013 Revolving Credit Commitments and (c) such Lender’s Revolving Credit Commitment Percentage of the aggregate principal amount of all outstanding Swingline Loans at such time in respect of such Lender’s 2013 Revolving Credit Commitments.

 

“2013 Revolving Credit Facility” shall mean the revolving credit facility represented by the 2013 Revolving Credit Commitments.

 

“2013 Revolving Credit Lender” shall mean (a) as of the 2011 Extension Effective Date, each Revolving Credit Lender with respect to any Revolving Credit Commitment of such Lender (or a portion thereof) that has not been extended pursuant to the 2011 Extension Amendment and whose name and the aggregate principal amount of its Revolving Credit Commitment not so extended are set forth on Schedule 1.1(c) to the 2011 Extension Amendment under the heading “2013 Revolving Credit Commitment” and (b) after the 2011 Extension Effective Date, each Lender that holds a 2013 Revolving Credit Commitment.

 

“2013 Revolving Credit Loan” shall have the meaning provided in Section 2.1(b).

 

“2013 Revolving Credit Maturity Date” shall mean September 23, 2013 or, if such date is not a Business Day, the next preceding Business Day.

 

“2013 Revolving Final Date” shall mean, with respect to 2013 Revolving Credit Commitments and Letters of Credit, the date on which the 2013 Revolving Credit Commitments shall have terminated, no 2013 Revolving Credit Loans shall be outstanding and the 2013 Revolving Credit Lenders shall have no more Letter of Credit Exposure.

 

“2013 Second April Repricing Amendment” shall mean the 2013 Second April Repricing Amendment dated April 15, 2013 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the 2018B New Term Lender party thereto.

 

“2013 Second April Repricing Effective Date” shall mean the “Repricing Amendment Effective Date” as defined in the 2013 Second April Repricing Amendment.

 

“2013 Swingline Loan” shall mean any Swingline Loan made pursuant to the 2013 Revolving Credit Commitments.

 

“2014 January Arranging Term Lender” has the meaning provided in the 2014 January Extension and Repricing Amendment.

 

“2014 January Extension and Repricing Amendment” shall mean the 2014 January Extension and Repricing Amendment dated January 30, 2014 among First Data Corporation, the other

 

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Credit Parties party thereto, the Administrative Agent and the 2014 January Arranging Term Lender party thereto.

 

“2014 January Amendment Effective Date” shall mean the “Amendment Effective Date” as defined in the 2014 January Extension and Repricing Amendment.

 

“2014 July Repricing Amendment” shall mean the 2014 July Repricing Amendment dated July 18, 2014 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the 2018 New Term Lender party thereto and the 2018B Second New Term Lender party thereto.

 

“2014 July Repricing Effective Date” shall mean the “Repricing Amendment Effective Date” as defined in the 2014 July Repricing Amendment.

 

“2014 New Equity Holders” shall mean such Persons that are a party to stock purchase agreements or subscription agreements with respect to the purchase or subscription of class B common stock, par value $0.01 per share, (or other Equity Interests from the conversion thereof) of the parent of the Borrower on or about July 11, 2014, and each of their respective Affiliates but not including, however, any portfolio companies of any of the foregoing.

 

“2014 Term Lender” shall mean, (a) as of the 2012 August Extension Effective Date, each Term Lender with respect to any Term Loans of such Lender (or a portion thereof) that has not been extended pursuant to the 2011 Extension Amendment, the 2012 Extension Amendment or the 2012 August Extension Amendment and whose name and the aggregate principal amount of its Term Loans not so extended are set forth on Schedule 1.1(c) of the 2012 August Extension Amendment under the heading “2014 Term Loan Amount” (for each such Lender, the “2014 Term Loan Amount”) and (b) after the 2012 August Extension Effective Date, each Lender that holds a 2014 Term Loan.

 

“2014 Term Loan” shall mean a Term Loan the maturity of which is the 2014 Term Loan Maturity Date.  The aggregate amount of the Dollar Equivalent of the 2014 Term Loans as of the 2012 August Extension Effective Date is $3,087,298,419.62.

 

“2014 Term Loan Amount” shall have the meaning provided in the definition of “2014 Term Lender”.

 

“2014 Term Loan Facility” shall mean the 2014 Term Loans.

 

“2014 Term Loan Maturity Date” shall mean the Initial Term Loan Maturity Date.

 

“2015 May Amendment” shall mean the 2015 May Amendment dated June 2, 2015 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer, the Swingline Lender, the 2020 Revolving Credit Lenders and the other Lenders party thereto.

 

“2015 May Effective Date” shall mean the “Amendment Effective Date” as defined in the 2015 May Amendment.

 

“2015 June Joinder Agreement” shall mean the Joinder Agreement dated July 10, 2015 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the lender of 2022 Term Loans party thereto.

 

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“2015 June Joinder Effective Date” shall have the meaning provided in the 2015 June Joinder Agreement.

 

“2015 November Joinder Agreement” shall mean the Joinder Agreement dated November 24, 2015 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the lender of 2022 Term Loans party thereto.

 

“2015 November Joinder Effective Date” shall have the meaning provided in the 2015 November Joinder Agreement.

 

“2016 Available Commitment” shall mean an amount equal to the excess, if any, of (a) the amount of the Total 2016 Revolving Credit Commitment over (b) the sum of (i) the aggregate Dollar Equivalent principal amount of all 2016 Revolving Credit Loans (but not Swingline Loans) then outstanding and (ii) the aggregate Letters of Credit Outstanding under the 2016 Revolving Credit Commitment.

 

“2016 Letter of Credit Fee” shall have the meaning provided in Section 4.1(c)(ii).

 

“2016 March Extension Amendment and Joinder” shall mean the 2016 March Extension Amendment and Joinder dated April 13, 2016, among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the lender of 2021B New Dollar Term Loans party thereto.

 

“2016 March Amendment Effective Date” shall mean the “Amendment Effective Date” as defined in the 2016 March Extension Amendment and Joinder.

 

“2016 May Extension Amendment and Joinder” shall mean the 2016 May Extension Amendment and Joinder dated June 2, 2016, among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the lender of 2022B New Dollar Term Loans party thereto and the lender of 2022B New Euro Term Loans party thereto.

 

“2016 May Amendment Effective Date” shall mean the “Amendment Effective Date” as defined in the 2016 May Extension Amendment and Joinder.

 

“2016 Multicurrency Sublimit” shall mean, at any date, the lesser of (x) $500,000,000 less any amounts outstanding under the 2013 Multicurrency Sublimit and (y) the aggregate 2016 Revolving Credit Commitments at such date.

 

“2016 November Joinder Agreement” shall mean the 2016 November Joinder Agreement dated December 5, 2016 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the 2022 New Term Lender party thereto.

 

“2016 November Joinder Effective Date” shall have the meaning provided in the 2016 November Joinder Agreement.

 

“2016 October Joinder Agreement” shall mean the 2016 October Joinder Agreement dated October 14, 2016 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the 2021 New Term Lender party thereto.

 

“2016 October Joinder Effective Date” shall have the meaning provided in the 2016 October Joinder Agreement.

 

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“2016 Revolving Credit Commitment” shall mean, (a) with respect to each 2016 Revolving Credit Lender on the 2011 Extension Effective Date, the amount set forth on Schedule 1.1(c) to the 2011 Extension Amendment under the heading “2016 Revolving Credit Commitment”, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof, (b) in the case of any Lender that receives an assignment of any portion of a 2016 Revolving Credit Commitment that was held by a 2016 Revolving Credit Lender, the amount specified as such Lender’s “Revolving Credit Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total 2016 Revolving Credit Commitment, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof and (c) in the case of any 2016 Revolving Credit Lender that increases its 2016 Revolving Credit Commitment or becomes a New Revolving Loan Lender with respect to its 2016 Revolving Credit Commitment, in each case pursuant to Section 2.14, the amount specified in the applicable Joinder Agreement, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof.  As of the 2011 Extension Effective Date, the aggregate 2016 Revolving Credit Commitments are $1,004,230,136.98.

 

“2016 Revolving Credit Commitment Percentage” shall mean at any time, for each 2016 Revolving Credit Lender, the percentage obtained by dividing (a) such Lender’s 2016 Revolving Credit Commitment at such time by (b) the aggregate amount of the 2016 Revolving Credit Commitments at such time; provided that at any time when the 2016 Revolving Credit Commitment shall have been terminated, each Lender’s 2016 Revolving Credit Commitment Percentage shall be the percentage obtained by dividing (a) such Lender’s 2016 Revolving Credit Exposure at such time by (b) the 2016 Revolving Credit Exposure of all Lenders at such time.

 

“2016 Revolving Credit Exposure” shall mean, with respect to any 2016 Revolving Credit Lender at any time, the sum of (a) the aggregate Dollar Equivalent amount of the principal amount of 2016 Revolving Credit Loans of such Lender then outstanding, (b) such Lender’s Letter of Credit Exposure at such time in respect of such Lender’s 2016 Revolving Credit Commitments and (c) such Lender’s Revolving Credit Commitment Percentage of the aggregate principal amount of all outstanding Swingline Loans at such time in respect of such Lender’s 2016 Revolving Credit Commitments.

 

“2016 Revolving Credit Facility” shall mean the revolving credit facility represented by the 2016 Revolving Credit Commitments.

 

“2016 Revolving Credit Lender” shall mean (a) as of the 2011 Extension Effective Date, each Revolving Credit Lender with respect to any Revolving Credit Commitment of such Lender (or a portion thereof) that have not been extended pursuant to the 2011 Extension Amendment and whose name and the aggregate principal amount of its Revolving Credit Commitment not so extended are set forth on Schedule 1.1(c) to the 2011 Extension Amendment under the heading “2016 Revolving Credit Commitment” and (b) after the 2011 Extension Effective Date, each Lender that holds a 2016 Revolving Credit Commitment.

 

“2016 Revolving Credit Loan” shall have the meaning provided in Section 2.1(b).

 

“2016 Revolving Credit Maturity Date” shall mean the earliest of (i) June 24, 2015 (or, if such date is not a Business Day, the next preceding Business Day), if on such date the aggregate outstanding principal amount of the Borrower’s 9.875% Senior Notes due 2015 and 10.55% Senior Notes due 2015 exceeds $750.0 million, (ii) December 31, 2015 (or, if such date is not a Business Day, the next preceding Business Day), if on such date the aggregate outstanding principal amount of the Borrower’s 11.25% Senior Subordinated Notes due 2016 exceeds $750.0 million and (iii) September 24, 2016 (or, if such date is not a Business Day, the next preceding Business Day).

 

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“2016 Revolving Final Date” shall mean, with respect to 2016 Revolving Credit Commitments and Letters of Credit, the date on which the 2016 Revolving Credit Commitments shall have terminated, no 2016 Revolving Credit Loans shall be outstanding and the 2016 Revolving Credit Lenders shall have no more Letter of Credit Exposure. For the avoidance of doubt, the 2015 May Effective Date shall be deemed to be the 2016 Revolving Final Date.

 

“2016 Swingline Loan” shall mean any Swingline Loan made pursuant to the 2016 Revolving Credit Commitments.

 

“2017 April Joinder Agreement” shall mean the 2017 April Joinder Agreement dated April 26, 2017 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the 2024 New Dollar Term Lender party thereto.

 

“2017 April Joinder Effective Date” shall have the meaning provided in the 2017 April Joinder Agreement.

 

“2017 Dollar Term Loan” shall mean an Initial Tranche B-1 Term Loan, Initial Tranche B-2 Term Loan, Initial Tranche B-3 Term Loan or Delayed Draw Term Loan the maturity of which has been extended to the 2017 Term Loan Maturity Date pursuant to the 2012 Extension Amendment.  The aggregate amount of the 2017 Dollar Term Loans as of the 2012 Extension Effective Date is $2,153,655,492.24.

 

“2017 Dollar Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(z).

 

“2017 Dollar Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

“2017 Euro Term Loan” shall mean a Euro Tranche B-1 Term Loan or Euro Tranche B-2 Term Loan the maturity of which has been extended to the 2017 Term Loan Maturity Date pursuant to the 2012 Extension Amendment.  The aggregate amount of the 2017 Euro Term Loans as of the 2012 Extension Effective Date is €167,450,751.70.

 

“2017 Euro Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(z).

 

“2017 Euro Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

“2017 January Joinder Agreement” shall mean the 2017 January Joinder Agreement dated January 23, 2017 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the 2020 Term A Lenders party thereto.

 

“2017 January Joinder Effective Date” shall have the meaning provided in the 2017 January Joinder Agreement.

 

“2017 New Dollar Term Loan” shall mean a Replacement Term Loan denominated in Dollars which replaced the 2017 Dollar Term Loans and 2017B Dollar Term Loans on the 2013 April Repricing Effective Date pursuant to the 2013 April Repricing Amendment. The aggregate amount of the 2017 New Dollar Term Loans as of the 2013 April Repricing Effective Date is $2,435,819,506.50.

 

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“2017 New Euro Term Loan” shall mean a Replacement Term Loan denominated in Euro which replaced the 2017 Euro Term Loans and 2017B Euro Term Loans on the 2013 April Repricing Effective Date pursuant to the 2013 April Repricing Amendment. The aggregate amount of the 2017 New Euro Term Loans as of the 2013 April Repricing Effective Date is €178,437,058.78.

 

“2017 New Term Lender” shall mean, (a) as of the 2013 April Repricing Effective Date, the Term Lender that is party to the 2013 April Repricing Amendment and (b) after the 2013 Repricing Effective Date, each Lender that holds a 2017 New Term Loan.

 

“2017 New Term Loan” shall mean a 2017 New Dollar Term Loan or a 2017 New Euro Term Loan, as the case may be.

 

“2017 Second New Dollar Term Loan” shall mean a Replacement Term Loan denominated in Dollars which replaced 2017 New Dollar Term Loans on the 2014 January Amendment Effective Date pursuant to the 2014 January Extension and Repricing Amendment. The aggregate amount of the 2017 Second New Dollar Term Loans as of the 2014 January Amendment Effective Date is $1,431,473,598.63.

 

“2017 Second New Euro Term Loan” shall mean a Replacement Term Loan denominated in Euro which replaced 2017 New Euro Term Loans on the 2014 January Amendment Effective Date pursuant to the 2014 January Extension and Repricing Amendment. The aggregate amount of the 2017 Second New Euro Term Loans as of the 2014 January Amendment Effective Date is €24,662,949.79.

 

“2017 Second New Term Lender” shall mean, (a) as of the 2014 January Amendment Effective Date, the 2014 January Arranging Term Lender and (b) after the 2014 January Amendment Effective Date, each Lender that holds a 2017 Second New Term Loan.

 

“2017 Second New Term Loan” shall mean a 2017 Second New Dollar Term Loan or a 2017 Second New Euro Term Loan, as the case may be.

 

“2017 Second New Term Loan Maturity Date” shall mean March 24, 2017 or, if such date is not a Business Day, the next preceding Business Day.

 

“2017 Term Lender” shall mean, (a) as of the 2012 Extension Effective Date, each Term Lender with respect to any 2014 Term Loans of such Lender (or a portion thereof) that has been extended pursuant to the 2012 Extension Amendment and whose name and the aggregate principal amount of its Term Loans so extended are set forth on Schedule 1.1(c) to the 2012 Extension Amendment under the heading “2017 Term Loan Amount” (for each such Lender, the “2017 Term Loan Amount”) and (b) after the 2012 Extension Effective Date, each Lender that holds a 2017 Term Loan.

 

“2017 Term Loan” shall mean a 2017 Dollar Term Loan or a 2017 Euro Term Loan, as the case may be.

 

“2017 Term Loan Amount” shall have the meaning provided in the definition of “2017 Term Lender”.

 

“2017 Term Loan Facility” shall mean the 2017 Term Loans.

 

“2017 Term Loan Maturity Date” shall mean March 24, 2017 or, if such date is not a Business Day, the next preceding Business Day.

 

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“2017B Dollar Term Loan” shall mean an Initial Tranche B-1 Term Loan, Initial Tranche B-2 Term Loan, Initial Tranche B-3 Term Loan or Delayed Draw Term Loan the maturity of which has been extended to the 2017B Term Loan Maturity Date pursuant to the 2012 August Extension Amendment.  The aggregate amount of the 2017B Dollar Term Loans as of the 2012 August Extension Effective Date is $282,164,014.99.

 

“2017B Dollar Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(aa).

 

“2017B Dollar Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

“2017B Euro Term Loan” shall mean a Euro Tranche B-1 Term Loan or Euro Tranche B-2 Term Loan the maturity of which has been extended to the 2017B Term Loan Maturity Date pursuant to the 2012 August Extension Amendment.  The aggregate amount of the 2017B Euro Term Loans as of the 2012 August Extension Effective Date is €10,986,307.40.

 

“2017B Euro Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(aa).

 

“2017B Euro Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

“2017B Term Lender” shall mean, (a) as of the 2012 August Extension Effective Date, each Term Lender with respect to any 2014 Term Loans of such Lender (or a portion thereof) that has been extended pursuant to the 2012 August Extension Amendment and whose name and the aggregate principal amount of its Term Loans so extended are set forth on Schedule 1.1(c) to the 2012 August Extension Amendment under the heading “2017B Term Loan Amount” (for each such Lender, the “2017B Term Loan Amount”) and (b) after the 2012 August Extension Effective Date, each Lender that holds a 2017B Term Loan.

 

“2017B Term Loan” shall mean a 2017B Dollar Term Loan or a 2017B Euro Term Loan, as the case may be.

 

“2017B Term Loan Amount” shall have the meaning provided in the definition of “2017B Term Lender”.

 

“2017B Term Loan Facility” shall mean the 2017B Term Loans.

 

“2017B Term Loan Maturity Date” shall mean March 24, 2017 or, if such date is not a Business Day, the next preceding Business Day.

 

“2018 Dollar Term Loan” shall mean an Initial Tranche B-1 Term Loan, Initial Tranche B-2 Term Loan, Initial Tranche B-3 Term Loan or Delayed Draw Term Loan the maturity of which has been extended to the 2018 Term Loan Maturity Date pursuant to the 2011 Extension Amendment.  The aggregate amount of the 2018 Dollar Term Loans as of the 2011 Extension Effective Date is $4,250,017,089.16.

 

“2018 Dollar Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(y).

 

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“2018 Dollar Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

“2018 Euro Term Loan” shall mean a Euro Tranche B-1 Term Loan or Euro Tranche B-2 Term Loan the maturity of which has been extended to the 2018 Term Loan Maturity Date pursuant to the 2011 Extension Amendment.  The aggregate amount of the 2018 Euro Term Loans as of the 2011 Extension Effective Date is €311,197,526.32.

 

“2018 Euro Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(y).

 

“2018 Euro Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

“2018 New Dollar Term Loan” shall mean the (i) Replacement Term Loan denominated in Dollars which replaced the 2018 Dollar Term Loans on the 2014 July Repricing Effective Date pursuant to the 2014 July Repricing Amendment and (ii) Additional 2018 New Dollar Term Loan made on the 2014 July Repricing Effective Date. The aggregate amount of the 2018 New Dollar Term Loans as of the 2014 July Repricing Effective Date is $4,600,017,089.16.

 

“2018 New Euro Term Loan” shall mean a Replacement Term Loan denominated in Euro which replaced the 2018 Euro Term Loans on the 2014 July Repricing Effective Date pursuant to the 2014 July Repricing Amendment. The aggregate amount of the 2018 New Euro Term Loans as of the 2014 July Repricing Effective Date is €311,197,526.32.

 

“2018 New Term Lender” shall mean, (a) as of the 2014 July Repricing Effective Date, the Term Lender that is party to the 2014 July Repricing Amendment and (b) after the 2014 July Repricing Effective Date, each Lender that holds a 2018 New Term Loan.

 

“2018 New Term Loan” shall mean a 2018 New Dollar Term Loan or a 2018 New Euro Term Loan, as the case may be.

 

“2018 New Term Loan Maturity Date” shall mean March 24, 2018 or, if such date is not a Business Day, the next preceding Business Day.

 

“2018 Term Lender” shall mean, (a) as of the 2011 Extension Effective Date, each Term Lender with respect to any 2014 Term Loans of such Lender (or a portion thereof) that has been extended pursuant to the 2011 Extension Amendment and whose name and the aggregate principal amount of its Term Loans so extended are set forth on Schedule 1.1(c) to the 2011 Extension Amendment under the heading “2018 Term Loan Amount” (for each such Lender, the “2018 Term Loan Amount”) and (b) after the 2011 Extension Effective Date, each Lender that holds a 2018 Term Loan.

 

“2018 Term Loan” shall mean a 2018 Dollar Term Loan or a 2018 Euro Term Loan, as the case may be.

 

“2018 Term Loan Amount” shall have the meaning provided in the definition of “2018 Term Lender”.

 

“2018 Term Loan Facility” shall mean the 2018 Term Loans.

 

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“2018 Term Loan Maturity Date” shall mean March 24, 2018 or, if such date is not a Business Day, the next preceding Business Day.

 

“2018B New Term Loan” shall mean a Replacement Term Loan denominated in Dollars which replaced the 2018B Term Loans on the 2013 Second April Repricing Effective Date pursuant to the 2013 Second April Repricing Amendment. The aggregate amount of the 2018B New Term Loans as of the 2013 Second April Repricing Effective Date is $1,008,000,000.00.

 

“2018B New Term Lender” shall mean, (a) as of the 2013 Second April Repricing Effective Date, the Term Lender that is party to the 2013 Second April Repricing Amendment and (b) after the 2013 Second April Repricing Effective Date, each Lender that holds a 2018B New Term Loan.

 

“2018B New Term Loan Maturity Date” shall mean September 24, 2018 or, if such date is not a Business Day, the next preceding Business Day.

 

“2018B Second New Term Loan” shall mean a Replacement Term Loan denominated in Dollars which replaced the 2018B New Term Loans on the 2014 July Repricing Effective Date pursuant to the 2014 July Repricing Amendment. The aggregate amount of the 2018B Second New Term Loans as of the 2014 July Repricing Effective Date is $1,008,000,000.00.

 

“2018B Second New Term Lender” shall mean, (a) as of the 2014 July Repricing Effective Date, the Term Lender that is party to the 2014 July Repricing Amendment and (b) after the 2014 July Repricing Effective Date, each Lender that holds a 2018B Second New Term Loan.

 

“2018B Second New Term Loan Maturity Date” shall mean September 24, 2018 or, if such date is not a Business Day, the next preceding Business Day.

 

“2018B Term Lender” shall mean each Lender that holds a 2018B Term Loan.

 

“2018B Term Loan” shall mean the term loans made pursuant to the 2012 September Joinder Agreement and the 2013 February Joinder Agreement.  The aggregate amount of the 2018B Term Loans as of the 2013 February Joinder Effective Date is $1,008,000,000.00.

 

“2018B Term Loan Facility” shall mean the 2018B Term Loans.

 

“2018B Term Loan Maturity Date” shall mean September 24, 2018 or, if such date is not a Business Day, the next preceding Business Day.

 

“2020 Available Commitment” shall mean an amount equal to the excess, if any, of (a) the amount of the Total 2020 Revolving Credit Commitment over (b) the sum of (i) the aggregate Dollar Equivalent principal amount of all 2020 Revolving Credit Loans (but not Swingline Loans) then outstanding and (ii) the aggregate Letters of Credit Outstanding under the 2020 Revolving Credit Commitment.

 

“2020 Letter of Credit Fee” shall have the meaning provided in Section 4.1(c)(iii).

 

“2020 Revolving Credit Commitment” shall mean, (a) with respect to each 2020 Revolving Credit Lender on the 2015 May Effective Date, the amount set forth on Schedule 1.1(c) to the 2015 May Amendment under the heading “2020 Revolving Credit Commitment”, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof, (b) in the case of any Lender that receives an assignment of any portion of a 2020 Revolving Credit Commitment that was held

 

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by a 2020 Revolving Credit Lender, the amount specified as such Lender’s “Revolving Credit Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total 2020 Revolving Credit Commitment, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof and (c) in the case of any 2020 Revolving Credit Lender that increases its 2020 Revolving Credit Commitment or becomes a New Revolving Loan Lender with respect to its 2020 Revolving Credit Commitment, in each case pursuant to Section 2.14, the amount specified in the applicable Joinder Agreement, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof.  As of the 2015 May Effective Date, the aggregate 2020 Revolving Credit Commitments are $1,250,000,000.

 

“2020 Revolving Credit Commitment Percentage” shall mean at any time, for each 2020 Revolving Credit Lender, the percentage obtained by dividing (a) such Lender’s 2020 Revolving Credit Commitment at such time by (b) the aggregate amount of the 2020 Revolving Credit Commitments at such time; provided that at any time when the 2020 Revolving Credit Commitment shall have been terminated, each Lender’s 2020 Revolving Credit Commitment Percentage shall be the percentage obtained by dividing (a) such Lender’s 2020 Revolving Credit Exposure at such time by (b) the 2020 Revolving Credit Exposure of all Lenders at such time.

 

“2020 Revolving Credit Exposure” shall mean, with respect to any 2020 Revolving Credit Lender at any time, the sum of (a) the aggregate Dollar Equivalent amount of the principal amount of 2020 Revolving Credit Loans of such Lender then outstanding, (b) such Lender’s 2020 Letter of Credit Exposure at such time in respect of such Lender’s 2020 Revolving Credit Commitments and (c) such Lender’s 2020 Revolving Credit Commitment Percentage of the aggregate principal amount of all outstanding 2020 Swingline Loans at such time in respect of such Lender’s 2020 Revolving Credit Commitments.

 

“2020 Revolving Credit Facility” shall mean the revolving credit facility represented by the 2020 Revolving Credit Commitments.

 

“2020 Revolving Credit Lender” shall mean (a) as of the 2015 May Effective Date, each 2020 Revolving Credit Lender with respect to any 2020 Revolving Credit Commitment of such Lender (or a portion thereof) whose name and the aggregate principal amount of its 2020 Revolving Credit Commitment are set forth on Schedule 1.1(c) to the 2015 May Amendment under the heading “2020 Revolving Credit Commitment” and (b) after the 2015 May Effective Date, each Lender that holds a 2020 Revolving Credit Commitment.

 

“2020 Revolving Credit Loan” shall have the meaning provided in Section 2.1(c).

 

“2020 Revolving Credit Maturity Date” shall mean the earliest of (i) December 24, 2016 (or, if such date is not a Business Day, the next preceding Business Day), to the extent that on such date more than $750.0 million in aggregate principal amount of the Borrower’s 2017 Second New Term Loans are outstanding, (ii) December 24, 2017 (or, if such date is not a Business Day, the next preceding Business Day), to the extent that on such date more than $750.0 million in aggregate principal amount of the Borrower’s 2018 New Term Loans are outstanding, (iii) June 26, 2018 (or, if such date is not a Business Day, the next preceding Business Day), to the extent that on such date more than $750.0 million in aggregate principal amount of the Borrower’s 2018B Second New Term Loans are outstanding, (iv) March 17, 2019 (or, if such date is not a Business Day, the next preceding Business Day), to the extent that on such date more than $750.0 million in aggregate principal amount of the Borrower’s 7.375% senior secured notes due 2019 are outstanding and (v) June 2, 2020 (or, if such date is not a Business Day, the next preceding Business Day).

 

14


 

“2020 Revolving Credit Multicurrency Sublimit” at any date, the lesser of (x) $500,000,000 and (y) the aggregate 2020 Revolving Credit Commitments at such date.

 

“2020 Revolving Final Date” shall mean, with respect to 2020 Revolving Credit Commitments and Letters of Credit, the date on which the 2020 Revolving Credit Commitments shall have terminated, no 2020 Revolving Credit Loans shall be outstanding and the 2020 Revolving Credit Lenders shall have no more Letter of Credit Exposure.

 

“2020 Term A Lender” shall mean, (a) as of the 2017 January Joinder Effective Date, the Term Lenders that are party to the 2017 January Joinder Agreement and (b) after the 2017 January Joinder Effective Date, each Lender that holds a 2020 Term A Loan.

 

“2020 Term A Loan” shall mean the Dollar denominated term loans made pursuant to the 2017 January Joinder Agreement.  The aggregate amount of the 2020 Term A Loans as of the 2017 January Joinder Effective Date is $1,300,000,000.00.

 

“2020 Term A Loan Maturity Date” shall mean June 2, 2020.

 

“2020 Term A Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(bb).

 

“2020 Term A Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

“2020 Swingline Loan” shall mean any Swingline Loan made pursuant to the 2020 Revolving Credit Commitments.

 

“2021 Dollar Term Loan” shall mean a 2021 Extended Dollar Term Loan, a 2021 New Dollar Term Loan, a 2021B Extended Dollar Term Loan or a 2021B New Dollar Term Loan, as the case may be. The aggregate amount of the 2021 Dollar Term Loans as of the 2016 March Amendment Effective Date is $4,717,862,997.76, which is comprised of (i) $941,113,216.75 aggregate principal amount of 2021 Extended Dollar Term Loans, (ii) $63,232,691.85 aggregate principal amount of 2021 New Dollar Term Loans, (iii) $2,630,928,238.66 aggregate principal amount of 2021B Extended Dollar Term Loans, and (iv) $1,082,588,850.50 aggregate principal amount of 2021B New Dollar Term Loans.

 

“2021 Euro Term Loan” shall mean a 2021 Extended Euro Term Loan. The aggregate amount of the 2021 Euro Term Loans as of the 2014 January Amendment Effective Date is €153,774,108.99.

 

“2021 Extended Dollar Term Loan” shall have the meaning provided in the 2014 January Extension and Repricing Amendment.

 

“2021 Extended Euro Term Loan” shall have the meaning provided in the 2014 January Extension and Repricing Amendment.

 

“2021 New Dollar Term Loan” shall have the meaning provided in the 2014 January Extension and Repricing Amendment.

 

“2021 New Euro Term Loan” shall mean the Euro denominated term loans made pursuant to the 2016 October Joinder Agreement.  The aggregate amount of the 2021 New Euro Term Loans as of the 2016 October Joinder Effective Date is €153,774,108.99.

 

15


 

“2021 New Term Lender” shall mean, (a) as of the 2016 October Joinder Effective Date, the Term Lender that is party to the 2016 October Joinder Agreement and (b) after the 2016 October Joinder Effective Date, each Lender that holds a 2021 New Term Loan.

 

“2021 New Term Loan” shall mean a 2021C New Dollar Term Loan or a 2021 New Euro Term Loan, as the case may be.

 

“2021 Term Lender” shall mean each Lender that holds a 2021 Term Loan.

 

“2021 Term Loan” shall mean a 2021 Dollar Term Loan or a 2021 Euro Term Loan, as the case may be.

 

“2021 Term Loan Facility” shall mean the 2021 Term Loans.

 

“2021 Term Loan Maturity Date” shall mean March 24, 2021 or, if such date is not a Business Day, the next preceding Business Day.

 

“2021B Extended Dollar Term Loan” shall have the meaning provided in the 2016 March Extension Amendment and Joinder.

 

“2021B New Dollar Term Loan” shall have the meaning provided in the 2016 March Extension Amendment and Joinder.

 

“2021C New Dollar Term Loan” shall mean the Dollar denominated term loans made pursuant to the 2016 October Joinder Agreement.  The aggregate amount of the 2021C New Dollar Term Loans as of the 2016 October Joinder Effective Date is $4,267,862,997.76.

 

“2022 Dollar Term Loan” shall mean the Dollar denominated term loans made pursuant to the 2015 June Joinder Agreement, the 2015 November Joinder Agreement and the 2016 May Extension Amendment and Joinder.  The aggregate amount of the 2022 Dollar Term Loans as of the 2016 May Amendment Effective Date is $2,983,000,000.00, which is comprised of (i) $725,000,000 aggregate principal amount of 2022 Dollar Term Loans made pursuant to the 2015 June Joinder Agreement, (ii) $1,250,000,000 aggregate principal amount of 2022 Dollar Term Loans made pursuant to the 2015 November Joinder Agreement, (iii) $691,801,791.54 aggregate principal amount of 2022B Extended Dollar Term Loans made pursuant to the 2016 May Extension Amendment and Joinder, and (iv) $316,198,208.46 aggregate principal amount of 2022B New Dollar Term Loans made pursuant to the 2016 May Extension Amendment and Joinder.

 

“2022 Euro Term Loan” shall mean the Euro denominated term loans made pursuant to the 2015 June Joinder Agreement, the 2015 November Joinder Agreement and the 2016 May Extension Amendment and Joinder.  The aggregate amount of the 2022 Euro Term Loans as of the 2016 May Amendment Effective Date is €761,197,526.32, which is comprised of (i) €250,000,000 aggregate principal amount of 2022 Euro Term Loans made pursuant to the 2015 June Joinder Agreement, (ii) €200,000,000 aggregate principal amount of 2022 Euro Term Loans made pursuant to the 2015 November Joinder Agreement, (iii) €226,244,127.71 aggregate principal amount of 2022B Extended Euro Term Loans made pursuant to the 2016 May Extension Amendment and Joinder, and (iv) €84,953,398.61 aggregate principal amount of 2022B New Euro Term Loans made pursuant to the 2016 May Extension Amendment and Joinder.

 

16


 

“2022 New Term Lender” shall mean, (a) as of the 2016 November Joinder Effective Date, the Term Lender that is party to the 2016 November Joinder Agreement and (b) after the 2016 November Joinder Effective Date, each Lender that holds a 2022 New Term Loan.

 

“2022 New Term Loan” shall mean a 2022C New Dollar Term Loan or a 2022C New Euro Term Loan, as the case may be.

 

“2022B Extended Dollar Term Loan” shall have the meaning provided in the 2016 May Extension Amendment and Joinder.

 

“2022B Extended Euro Term Loan” shall have the meaning provided in the 2016 May Extension Amendment and Joinder.

 

“2022B New Dollar Term Loan” shall have the meaning provided in the 2016 May Extension Amendment and Joinder.

 

“2022B New Euro Term Loan” shall have the meaning provided in the 2016 May Extension Amendment and Joinder.

 

“2022C New Dollar Term Loan” shall mean the Dollar denominated term loans made pursuant to the 2016 November Joinder Agreement.  The aggregate amount of the 2022C New Dollar Term Loans as of the 2016 November Joinder Effective Date is $2,783,000,000.00.

 

“2022C New Euro Term Loan” shall mean the Euro denominated term loans made pursuant to the 2016 November Joinder Agreement.  The aggregate amount of the 2022C New Euro Term Loans as of the 2016 November Joinder Effective Date is €761,197,525.32.

 

“2022 Term Lender” shall mean each Lender that holds a 2022 Term Loan.

 

“2022 Term Loan” shall mean a 2022 Dollar Term Loan or a 2022 Euro Term Loan, as the case may be.

 

“2022 Term Loan Maturity Date” shall mean July 10, 2022 or, if such date is not a Business Day, the next preceding Business Day.

 

“2024 New Dollar Term Lender” shall mean, (a) as of the 2017 April Joinder Effective Date, the Term Lender that is party to the 2017 April Joinder Agreement and (b) after the 2017 April Joinder Effective Date, each Lender that holds a 2024 New Dollar Term Loan.

 

“2024 New Dollar Term Loan” shall mean the Dollar denominated term loans made pursuant to the 2017 April Joinder Agreement.  The aggregate amount of the 2024 New Dollar Term Loans as of the 2017 April Joinder Effective Date is $4,217,000,000.00.

 

“2024 New Dollar Term Loan Maturity Date” shall mean April 26, 2024 or, if such date is not a Business Day, the next preceding Business Day.

 

“ABR” shall mean for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Effective Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as announced from time to time by the Administrative Agent as its “prime rate”.  The “prime rate” is a rate set by the Administrative Agent based upon various factors including the Administrative Agent’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some

 

17


 

loans, which may be priced at, above, or below such announced rate.  Any change in the ABR due to a change in such rate announced by the Administrative Agent or in the Federal Funds Effective Rate shall take effect at the opening of business on the day specified in the announcement of such change.

 

“ABR Loan” shall mean each Loan bearing interest based on the ABR and, in any event, shall (i) include all Swingline Loans and (ii) exclude all Loans denominated in Alternative Currencies.

 

“Acquired EBITDA” shall mean, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary (any of the foregoing, a “Pro Forma Entity”) for any period, the amount for such period of Consolidated EBITDA of such Pro Forma Entity (determined using such definitions as if references to the Borrower and its Restricted Subsidiaries therein were to such Pro Forma Entity and its Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity.

 

“Acquired Entity or Business” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”

 

“Acquisition Agreement” shall have the meaning provided in the preamble to this Agreement.

 

“Additional Swingline Lender” shall mean any lender of Additional Swingline Loans hereunder.

 

“Additional 2018 New Dollar Term Loan” has the meaning provided to such term in the 2014 July Repricing Amendment.

 

“Additional Swingline Loan” shall have the meaning provided  in Section 2.1(c).

 

“Additional Swingline Maximum Amount” shall mean an aggregate principal amount equal to $200,000,000.

 

“Adjusted Total Delayed Draw Term Loan Commitment” shall mean at any time the Total Delayed Draw Term Loan Commitment less the Delayed Draw Term Loan Commitments of all Defaulting Lenders.

 

“Adjusted Total Euro Tranche Term Loan Commitment” shall mean at any time the Total Euro Tranche Term Loan Commitment less the Euro Tranche Term Loan Commitments of all Defaulting Lenders.

 

“Adjusted Total Initial Term Loan Commitment” shall mean at any time the Total Initial Term Loan Commitment less the Initial Term Loan Commitments of all Defaulting Lenders.

 

“Adjusted Total Revolving Credit Commitment” shall mean at any time the Total Revolving Credit Commitment less the aggregate Revolving Credit Commitments of all Defaulting Lenders.

 

“Adjusted Total Term Loan Commitment” shall mean at any time the Total Term Loan Commitment less the Term Loan Commitments of all Defaulting Lenders.

 

“Administrative Agent” shall mean Credit Suisse, as the administrative agent for the Lenders under this Agreement and the other Credit Documents, or any successor administrative agent pursuant to Section 12.9.

 

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“Administrative Agent’s Office” shall mean the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 13.2 to the Original Credit Agreement or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

 

“Administrative Questionnaire” shall have the meaning provided in Section 13.6(b).

 

“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person.  A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise.

 

“Agent Parties” shall have the meaning provided in Section 13.17(c).

 

“Agents” shall mean the Administrative Agent, the Collateral Agent, the Syndication Agent and each Joint Lead Arranger and Bookrunner.

 

“Aggregate Multicurrency Exposures” shall have the meaning provided in Section 5.2(b).

 

“Aggregate Revolving Credit Outstandings” shall have the meaning provided in Section 5.2(b).

 

“Agreement” shall mean, on any date, the Original Credit Agreement as amended and restated hereby and as the same may thereafter from time to time be further amended, supplemented, amended and restated or otherwise modified and in effect on such date in accordance with the terms hereof.

 

“Agreement Currency” shall have the meaning provided in Section 13.19.

 

“Alternative Currency” shall mean Euro, British Pounds Sterling and any other currency acceptable to the Administrative Agent that is freely convertible into Dollars and readily available in the London interbank market.

 

“Amendment Agreement” shall mean that certain Amendment Agreement to the Amended and Restated Credit Agreement, which amends this Agreement, dated as of August 10, 2010, among the Borrower, the Guarantors, the Administrative Agent and the Required Lenders.

 

“Amendment Effective Date” shall mean September 28, 2007.

 

“Amendment No. 1 Effective Date” shall mean the date on or before November 8, 2010 on which all conditions to effectiveness set forth in Sections 4(a) and 4(b) of the Amendment Agreement have been satisfied.

 

“Applicable ABR Margin” shall mean, at any date:

 

(a) with respect to each ABR Loan that is either a 2020 Revolving Credit Loan or 2020 Swingline Loan, 2.50% per annum;

 

(b) with respect to each ABR Loan that is a 2021C New Dollar Term Loan, 2.00% per annum;

 

19


 

(c) with respect to each ABR Loan that is a 2017 Second New Term Loan, 2018 New Dollar Term Loan or 2018B Second New Term Loan, 2.50% per annum;

 

(d) with respect to each ABR Loan that is a 2022C New Dollar Term Loan, (i) from the 2016 November Joinder Effective Date until the delivery of Section 9.1 Financials and the related officer’s certificate for the fiscal year ending December 31, 2016, 2.00% per annum and (ii) thereafter, the rate per annum set forth below opposite the Status in effect on such day:

 

2022C New Dollar Term Loans

 

Status

 

ABR Loans

 

Level I Status

 

2.00

%

Level II Status

 

1.75

%

 

(e) with respect to each ABR Loan that is a 2020 Term A Loan, (i) from the 2017 January Joinder Effective Date until the delivery of Section 9.1 Financials and the related officer’s certificate for the fiscal year ending December 31, 2016, 1.00% per annum and (ii) thereafter, the rate per annum set forth below opposite the Status in effect on such day:

 

2020 Term A Loans

 

Status

 

ABR Loans

 

Level I Status

 

1.00

%

Level II Status

 

0.75

%

 

(f) with respect to each ABR Loan that is a 2024 New Dollar Term Loan, 1.50% per annum.

 

Notwithstanding the foregoing, during any period in which the Borrower’s corporate family rating is Ba3 (stable) or better from Xxxxx’x (the “Target Rating”), the Applicable ABR Margin with respect to 2024 New Dollar Term Loans shall be reduced to 1.25% per annum for 2024 New Dollar Term Loans that are ABR Loans; provided that each change in the Applicable ABR Margin with respect to the 2024 New Dollar Term Loans resulting from a change in such rating shall be effective, in the case of an upgrade, commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change; provided, however, that at any time that the Target Rating is not in effect the Applicable ABR Margin for the 2024 New Dollar Term Loans shall be 1.50% per annum.

 

“Applicable Amount” shall mean, at any time (the “Applicable Amount Reference Time”), an amount equal to (a) the sum, without duplication, of:

 

(i)          an amount (which shall not be less than zero) equal to the greater of (x) 50% of Cumulative Consolidated Net Income of the Borrower and the Restricted Subsidiaries for the period from January 1, 2014 until the last day of the then most recent fiscal quarter or fiscal year, as applicable, for which Section 9.1 Financials have been delivered and (y) (A) the cumulative amount of Excess Cash Flow of the Borrower and the Restricted Subsidiaries from January 1, 2014 and prior to the Applicable Amount Reference Time, minus (B) the portion of such Excess Cash

 

20


 

Flow that has been (or is required to be) applied after January 1, 2014 and prior to the Applicable Amount Reference Time to the prepayment of Loans in accordance with Section 5.2(a)(ii);

 

(ii)          to the extent not (A) already included in the calculation of Consolidated Net Income of the Borrower and the Restricted Subsidiaries or (B) already reflected as a return of capital or deemed reduction in the amount of such Investment, the aggregate JV Distribution Amount received by the Borrower or any Restricted Subsidiary during the period from and including the Business Day immediately following the Original Closing Date through and including the Applicable Amount Reference Time;

 

(iii)           to the extent not (A) already included in the calculation of Consolidated Net Income of the Borrower and the Restricted Subsidiaries, (B) already reflected as a return of capital or deemed reduction in the amount of such Investment and (C) required to be applied to prepay Term Loans in accordance with Section 5.2(a), the aggregate amount of all Net Cash Proceeds received by the Borrower or any Restricted Subsidiary in connection with the sale, transfer or other disposition of its ownership interest in any joint venture that is not a Subsidiary or in any Unrestricted Subsidiary, in each case, to the extent of the Investment in such joint venture or Unrestricted Subsidiary following the Original Closing Date, during the period from and including the Business Day immediately following the Original Closing Date through and including the Applicable Amount Reference Time; and

 

(iv)          other than for purposes of Section 10.6(c), the aggregate amount of Retained Declined Proceeds retained by the Borrower during the period from and including the Business Day immediately following the Original Closing Date through and including the Applicable Amount Reference Time; and

 

minus (b) the sum, without duplication, of:

 

(i)          the aggregate amount of Investments made pursuant to Section 10.5(g)(ii)(y), 10.5(i)(y) or 10.5(v)(y) following the Original Closing Date and prior to the Applicable Amount Reference Time (with regard to Investments made pursuant to Section 10.5(g)(ii)(y), net of any return of capital in respect of such Investment or deemed reduction in the amount of such Investment including, without limitation, upon the re-designation of any Unrestricted Subsidiary as a Restricted Subsidiary or the Disposition of any such Investment);

 

(ii)          the aggregate amount of dividends pursuant to Section 10.6(c)(y) (or amounts loaned or advanced pursuant to Section 10.5(m) in lieu of such dividends) following the Original Closing Date and prior to the Applicable Amount Reference Time; and

 

(iii)           the aggregate amount of prepayments, repurchases and redemptions of Restricted Indebtedness pursuant to subclause (2) of Section 10.7(a)(y)(i) following the 2014 July Repricing Effective Date and prior to the Applicable Amount Reference Time.

 

“Applicable Equity Amount” shall mean, at any time (the “Applicable Equity Amount Reference Time”), an amount equal to:

 

(a) the amount of any capital contributions (other than (A) the Equity Investments, (B) the Cure Amount, (C) any amount added back in the definition of Consolidated EBITDA pursuant to clause (a)(viii) thereof, (D) any contributions in respect of Disqualified Equity Interests and (E) any amount applied to redeem Stock or Stock Equivalents of the Borrower pursuant to Section 10.6(a)) made in cash to, or any proceeds of an equity issuance received by, the Borrower from and

 

21


 

including the Business Day immediately following the Original Closing Date through and including the Applicable Equity Amount Reference Time, including proceeds from the issuance of Stock or Stock Equivalents of any direct or indirect parent of the Borrower (for the avoidance of doubt the proceeds received by the Borrower from capital contributions or offerings of the Borrower’s Qualified Equity Interests arising from proceeds received by its direct or indirect parent company from the 2014 New Equity Holders shall be included in the calculation of this clause (a) regardless of any usage of any capital contribution or equity issuance component of the Applicable Amount (as defined prior to the 2014 July Repricing Effective Date) prior to the 2014 July Repricing Effective Date);

 

minus (b) the sum, without duplication, of:

 

(i)          the aggregate amount of Investments made pursuant to Section 10.5(g)(ii)(z), 10.5(i)(aa) or 10.5(v)(z) following the 2014 July Repricing Effective Date and prior to the Applicable Equity Amount Reference Time (with regard to Investments made pursuant to Section 10.5(g)(ii)(z), net of any return of capital in respect of such Investment or deemed reduction in the amount of such Investment including, without limitation, upon the re-designation of any Unrestricted Subsidiary as a Restricted Subsidiary or the Disposition of any such Investment);

 

(ii)          the aggregate amount of dividends pursuant to Section 10.6(c)(z) (or amounts loaned or advanced pursuant to Section 10.5(m) in lieu of such dividends) following the 2014 July Repricing Effective Date and prior to the Applicable Equity Amount Reference Time; and

 

(iii)           the aggregate amount of prepayments, repurchases and redemptions of Restricted Indebtedness pursuant to subclause (3) of Section 10.7(a)(y)(i) following the 2014 July Repricing Effective Date and prior to the Applicable Equity Amount Reference Time.

 

“Applicable LIBOR Margin” shall mean, at any date:

 

(a) with respect to each LIBOR Loan that is a 2020 Revolving Credit Loan, 3.50% per annum;

 

(b) with respect to each LIBOR Loan that is a 2021 New Term Loan, 3.00% per annum;

 

(c) with respect to each LIBOR Loan that is a 2017 Second New Term Loan, 2018 New Term Loan or 2018B Second New Term Loan, 3.50% per annum; and

 

(d) with respect to each LIBOR Loan that is a 2022C New Dollar Term Loans or each 2022C New Euro Term Loan, as applicable, (i) from the 2016 November Joinder Effective Date until the delivery of Section 9.1 Financials and the related officer’s certificate for the fiscal year ending December 31, 2016, (x) with respect to 2022C New Dollar Term Loans, 3.00% per annum and (y) with respect to 2022C New Euro Term Loans, 3.25% per annum and (ii) thereafter, the rate per annum set forth below opposite the Status in effect on such day:

 

LIBOR Loans

 

Status

 

2022C New
Dollar Term
Loans

 

2022C New
Euro Term
Loans

 

Level I Status

 

3.00

%

3.25

%

Level II Status

 

2.75

%

3.00

%

 

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(e) with respect to each LIBOR Loan that is a 2020 Term A Loan, (i) from the 2017 January Joinder Effective Date until the delivery of Section 9.1 Financials and the related officer’s certificate for the fiscal year ending December 31, 2016, 2.00% per annum and (ii) thereafter, the rate per annum set forth below opposite the Status in effect on such day:

 

2020 Term A Loans

 

Status

 

LIBOR Loans

 

Level I Status

 

2.00

%

Level II Status

 

1.75

%

 

(f) with respect to each LIBOR Loan that is a 2024 New Dollar Term Loan, 2.50% per annum.

 

Notwithstanding the foregoing, during any period in which the Target Rating is in effect, the Applicable LIBOR Margin with respect to 2024 New Dollar Term Loans shall be reduced to 2.25% per annum for 2024 New Dollar Term Loans that are LIBOR Loans; provided that each change in the Applicable LIBOR Margin with respect to the 2024 New Dollar Term Loans resulting from a change in such rating shall be effective, in the case of an upgrade, commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change; provided, however, that at any time that the Target Rating is not in effect the Applicable LIBOR Margin for the 2024 New Dollar Term Loans shall be 2.50% per annum.

 

“Approved Fund” shall mean any Fund 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 or manages a Lender.

 

“Asset Sale Prepayment Event” shall mean any Disposition of any business units, assets or other property of the Credit Parties or any of their Restricted Subsidiaries not in the ordinary course of business (including any Disposition of any Stock or Stock Equivalents of any Subsidiary of the Borrower owned by the Borrower or a Restricted Subsidiary).  Notwithstanding the foregoing, the term “Asset Sale Prepayment Event” shall not include any transaction permitted by Section 10.4 (other than transactions permitted by Section 10.4(b) and Section 10.4(o), which shall constitute Asset Sale Prepayment Events).

 

“Assignment and Acceptance” shall mean (a) an assignment and acceptance substantially in the form of Exhibit J to the Original Credit Agreement, or such other form as may be approved by the Administrative Agent and (b) in the case of any assignment of Term Loans in connection with a Permitted Debt Exchange conducted in accordance with Section 2.15, such  form of assignment (if any) as may have been requested by the Administrative Agent in accordance with Section 2.15(a).

 

“Authorized Officer” shall mean the Chief Executive Officer, President, the Chief Financial Officer, the Treasurer, the Vice President-Finance or any other senior officer of the Borrower designated as such in writing to the Administrative Agent by the Borrower.

 

“Auto-Extension Letter of Credit” shall have the meaning provided in Section 3.2(d).

 

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“Available Delayed Draw Commitment” shall mean an amount equal to the excess, if any, of (a) the amount of the Total Delayed Draw Term Loan Commitment over (b) the aggregate principal amount of all Delayed Draw Term Loans.

 

“Bankruptcy Code” shall have the meaning provided in Section 11.5.

 

“BBA LIBOR” shall have the meaning provided in the definition of “LIBOR Rate.”

 

“benefited Lender” shall have the meaning provided in Section 13.8.

 

“Board” shall mean the Board of Governors of the Federal Reserve System of the United States (or any successor).

 

“Borrower” shall have the meaning provided in the preamble to this Agreement.

 

“Borrowing” shall mean and include (a) the incurrence of Swingline Loans from the Swingline Lender on a given date and (b) the incurrence of one Class and Type of Loan on a given date (or resulting from conversions on a given date) having a single Maturity Date  and in the case of LIBOR Loans, the same Interest Period (provided that ABR Loans incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of LIBOR Loans).

 

“British Pounds Sterling” shall mean the lawful currency of Great Britain.

 

“Business Day” shall mean any day excluding Saturday, Sunday and any other day on which banking institutions in New York City are authorized by law or other governmental actions to close, and,

 

(a)           if such day relates to any interest rate settings as to a LIBOR Loan denominated in Dollars or any Alternative Currency (other than Euro), any fundings, disbursements, settlements and payments in Dollars or any Alternative Currency (other than Euro) in respect of any such LIBOR Loan, or any other dealings in Dollars or any Alternative Currency (other than Euro) to be carried out pursuant to this Agreement in respect of any such LIBOR Loan, such day shall be a day on which dealings in deposits in Dollars or such Alternative Currency are conducted by and between banks in the London interbank eurodollar market; provided, however,

 

(b)           if such day relates to any interest rate settings as to a LIBOR Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such LIBOR Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such LIBOR Loan, such day shall be a TARGET Day.

 

“Capital Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases) by the Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures on a consolidated statement of cash flows of the Borrower and its Subsidiaries (including capitalized software expenditures, customer acquisition costs and incentive payments, conversion costs and contract acquisition costs).

 

“Capital Lease” shall mean, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to be, accounted for as a capital lease on the balance sheet of that Person.

 

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“Capitalized Lease Obligations” shall mean, as applied to any Person, all obligations under Capital Leases of such Person or any of its Subsidiaries, in each case taken at the amount thereof accounted for as liabilities in accordance with GAAP.

 

“Cash Collateralize” shall have the meaning provided in Section 3.8(d).

 

“Cash Management Agreement” shall mean any agreement or arrangement to provide cash management services, including treasury, depository, overdraft, credit or debit card, purchase card, electronic funds transfer and other cash management arrangements.

 

“Cash Management Bank” shall mean any Person that, either (x) at the time it enters into a Cash Management Agreement or (y) on the Original Closing Date, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.

 

“Casualty Event” shall mean, with respect to any property of any Person, any loss of or damage to, or any condemnation or other taking by a Governmental Authority of, such property for which such Person or any of its Restricted Subsidiaries receives insurance proceeds, or proceeds of a condemnation award or other compensation.

 

“Change in Law” shall mean (a) the adoption of any law, treaty, order, policy, rule or regulation after the Original Closing Date, (b) any change in any law, treaty, order, policy, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Original Closing Date or (c) compliance by any Lender with any guideline, request, directive or order issued or made after the Original Closing Date by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law).

 

“Change of Control” shall mean and be deemed to have occurred if (a) either (i) the Permitted Holders shall at any time not own, in the aggregate, directly or indirectly, beneficially and of record, at least 35% of the voting power of the outstanding Voting Stock of the Borrower or (ii) the Sponsor shall at any time not own, in the aggregate, directly or indirectly, beneficially and of record, at least 12% of the voting power of the outstanding Voting Stock of the Borrower; or (b) any person, entity or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended), other than the Permitted Holders, shall at any time have acquired direct or indirect beneficial ownership of a percentage of the voting power of the outstanding Voting Stock of the Borrower that exceeds 35% thereof, unless, in the case of either clause (a) or (b) above, the Permitted Holders have, at such time, the right or the ability by voting power, contract or otherwise to elect or designate for election at least a majority of the board of directors of the Borrower; or (c) Continuing Directors shall not constitute at least a majority of the board of directors of the Borrower; or (d) at any time, a Change of Control (as defined in the Senior Interim Loan Agreement, the Senior Notes Indenture, the Senior Subordinated Interim Loan Agreement or the Senior Subordinated Notes Indenture) shall have occurred.

 

“Class”, when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are 2013 Revolving Credit Loans, 2016 Revolving Credit Loans, 2020 Revolving Credit Loans, 2018 Dollar Term Loans, 2018 Euro Term Loans, 2018 New Dollar Term Loans, 2018 New Euro Term Loans, 2018B Term Loans, 2017 Dollar Term Loans, 2017 Euro Term Loans, 2017B Dollar Term Loans, 2017B Euro Term Loans, 2017 New Dollar Term Loans, 2017 New Euro Term Loans, 2017 Second New Dollar Term Loans, 2017 Second New Euro Term Loans, 2018B New Term Loans, 2018B Second New Term Loans, 2020 Term A Loans, 2021C New Dollar Term Loans, 2021 New Euro Term Loans, 2022C New Dollar Term Loans, 2022C New Euro Term Loans, 2024 New Dollar Term Loans, New Revolving Loans, Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Initial Tranche B-3 Term Loans, Delayed Draw Term Loans, Euro Tranche B-1 Term Loans, Euro Tranche

 

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B-2 Term Loans, New Term Loans (of each Series), Extended Term Loans (of the same Extension Series), Extended Revolving Credit Loans (of the same Extension Series) or 2013 Swingline Loans, 2016 Swingline Loans, 2020 Swingline Loans and, when used in reference to any Commitment, refers to whether such Commitment is a 2013 Revolving Credit Commitment, a 2016 Revolving Credit Commitment, a 2020 Revolving Credit Commitment, a New Revolving Credit Commitment, an Extended Revolving Credit Commitment (of the same Extension Series), an Initial Tranche B-1 Term Loan Commitment, an Initial Tranche B-2 Term Loan Commitment, an Initial Tranche B-3 Term Loan Commitment, a Delayed Draw Term Loan Commitment, a Euro Tranche B-1 Term Loan Commitment, a Euro Tranche B-2 Term Loan Commitment or a New Term Loan Commitment.  For the avoidance of doubt, each Extended Revolving Credit Loan is of a different Class than the Revolving Credit Loan from which it was converted, each Extended Revolving Credit Commitment is of a different Class than the Revolving Credit Commitment from which it was converted, and each Extended Term Loan is of a different Class than the Class or Classes of Term Loan from which it was converted.

 

“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.  Section references to the Code are to the Code, as in effect at the 2014 July Repricing Effective Date, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.

 

“Collateral” shall mean all property pledged or purported to be pledged pursuant to the Security Documents.

 

“Collateral Agent” shall mean Credit Suisse, as collateral agent under the Security Documents, or any successor collateral agent pursuant to Section 12.9.

 

“Commitment Fee” shall have the meaning provided in Section 4.1(a).

 

“Commitment Fee Rate” shall mean, with respect to the 2020 Available Commitment on any day, the rate per annum set forth below opposite the Status in effect on such day:

 

Status

 

Commitment Fee Rate

 

Level I Status

 

0.50

%

Level II Status

 

0.375

%

 

Notwithstanding the foregoing, the term “Commitment Fee Rate” shall mean 0.50% during the period from and including the 2015 May Effective Date to but excluding the Trigger Date.

 

“Commitments” shall mean, with respect to each Lender (to the extent applicable), such Lender’s 2013 Revolving Credit Commitment, 2016 Revolving Credit Commitment, 2020 Revolving Credit Commitment, a New Revolving Credit Commitment, an Extended Revolving Credit Commitment, an Initial Tranche B-1 Term Loan Commitment, an Initial Tranche B-2 Term Loan Commitment, an Initial Tranche B-3 Term Loan Commitment, a Delayed Draw Term Loan Commitment, a Euro Tranche B-1 Term Loan Commitment, a Euro Tranche B-2 Term Loan Commitment or a New Term Loan Commitment.

 

“Communications” shall have the meaning provided in Section 13.17(a).

 

“Company” shall have the meaning provided in the preamble to this Agreement.

 

“Confidential Information” shall have the meaning provided in Section 13.16.

 

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“Confidential Information Memorandum” shall mean the Confidential Information Memorandum of the Borrower dated September 2007.

 

“Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period, plus:

 

(a)           without duplication and to the extent already deducted (and not added back) in arriving at such Consolidated Net Income, the sum of the following amounts for the Borrower and the Restricted Subsidiaries for such period:

 

(i)          total interest expense and to the extent not reflected in such total interest expense, any losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such hedging obligations, bank fees and costs of surety bonds in connection with financing activities, and commissions, discounts, yield and other fees and charges (including any interest expense) related to any Permitted Receivables Financing,

 

(ii)          provision for taxes based on income, profits or capital, including federal, foreign state, franchise, excise and similar taxes and foreign withholding taxes paid or accrued during such period, including any penalties and interest relating to any tax examinations,

 

(iii)           depreciation and amortization, including the amortization of deferred financing fees or costs, capitalized software expenditures, customer acquisition costs and incentive payments, conversion costs, contract acquisition costs, and amortization of unrecognized prior service costs and actuarial gains and losses related to pension and other post-employment benefits,

 

(iv)          Non-Cash Charges,

 

(v)          business optimization expenses (including data center consolidation initiatives, severance costs and other costs relating to initiatives aimed at profitability improvement) and restructuring charges or reserves (including restructuring costs related to acquisitions after the Original Closing Date and to closure and/or consolidation of facilities),

 

(vi)          the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly-owned Subsidiary deducted (and not added back) in such period in arriving at Consolidated Net Income,

 

(vii)          the amount of management, monitoring, consulting and advisory fees (including termination fees) and related indemnities and expenses paid or accrued in such period to the Sponsor,

 

(viii)          any costs or expenses incurred 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 shareholder 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 an issuance of Stock or Stock Equivalents (other than Disqualified Equity Interests) of

 

27


 

the Borrower (provided such capital contributions have not been applied to increase the “Applicable Equity Amount” pursuant to clause (a) of the definition thereof),

 

(ix)          the amount of net cost savings and net cash flow effect of revenue enhancements related to new agreements or amendments to existing agreements with customers or joint ventures projected by the Borrower in good faith to be realized as a result of specified actions taken or to be taken prior to or during such period (which cost savings or revenue enhancements shall be subject only to certification by management of the Borrower and shall be calculated on a Pro Forma Basis as though such cost savings or revenue enhancements 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 (A) such cost savings or revenue enhancements are reasonably identifiable and factually supportable, (B) such actions have been taken or are to be taken within 12 months after the date of determination to take such action and (C) no cost savings or revenue enhancements shall be added pursuant to this clause (ix) to the extent duplicative of any expenses or charges relating to such cost savings or revenue enhancements that are included in clause (v) above with respect to such period,

 

(x)          to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (A) not denied by the applicable carrier in writing within 180 days and (B) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within such 365 days), expenses with respect to liability or casualty events or business interruption,

 

(xi)          the amount of losses on Dispositions of receivables and related assets in connection with any Permitted Receivables Financing,

 

(xii)          extraordinary losses and unusual or non-recurring charges (including litigation and regulatory settlements, and spin-off costs relating to divestitures of subsidiaries, including without limitation from the spin-off of The Western Union Company),

 

(xiii)          to the extent included in Consolidated Net Income, the negative EBITDA of IPS and IPS Canada, and

 

(xiv)          with respect to any Joint Venture, an amount equal to the proportion of those items described in clauses (ii) and (iii) above relating to such Joint Venture corresponding to the Borrower’s and the Restricted Subsidiaries’ proportionate share of such Joint Venture’s Consolidated Net Income (determined as if such Joint Venture were a Restricted Subsidiary),

 

less

 

(b)           without duplication and to the extent included in arriving at such Consolidated Net Income, the sum of the following amounts for such period:

 

(i)          extraordinary gains and unusual or non-recurring gains,

 

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(ii)          non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated Net Income or Consolidated EBITDA in any prior period),

 

(iii)           gains on asset sales (other than asset sales in the ordinary course of business),

 

(iv)          any net after-tax income from the early extinguishment of Indebtedness or hedging obligations or other derivative instruments, and

 

(v)          cash expenditures (or any netting arrangements resulting in increased cash expenditures) not deducted in arriving at Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash losses relating to such income were added in the calculation of Consolidated EBITDA pursuant to paragraph (a) above for any previous period and not deducted,

 

in each case, as determined on a consolidated basis for the Borrower and the Restricted Subsidiaries in accordance with GAAP; provided that

 

(i)          to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA currency translation gains and losses related to currency remeasurements of Indebtedness or intercompany balances (including the net loss or gain resulting from Hedge Agreements for currency exchange risk),

 

(ii)          to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period any adjustments resulting from the application of Statement of Financial Accounting Standards No. 133 and its related pronouncements and interpretations,

 

(iii)           there shall be included in determining Consolidated EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person or business, or attributable to any property or asset acquired by the Borrower or any Restricted Subsidiary during such period (but not the Acquired EBITDA of any related Person or business or any Acquired EBITDA attributable to any assets or property, in each case to the extent not so acquired) to the extent not subsequently sold, transferred, abandoned or otherwise disposed by the Borrower or such Restricted Subsidiary (each such Person, business, property or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”) and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such acquisition or conversion) and (B) other than for purposes of determining the Applicable Amount, the Applicable Equity Amount, the Applicable ABR Margin, the Applicable LIBOR Margin, Commitment Fee Rate and the Delayed Draw Commitment Fee Rate, an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) as specified in a Pro Forma Adjustment Certificate and delivered to the Lenders and the Administrative Agent, and

 

(iv)          to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset sold, transferred, abandoned or otherwise disposed of, closed or classified as

 

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discontinued operations by the Borrower or any Restricted Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”) based on the actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer or disposition or conversion).

 

“Consolidated Net Income” shall mean, for any period, the net income (loss) of the Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, excluding, without duplication,

 

(a)           extraordinary items for such period,

 

(b)           the cumulative effect of a change in accounting principles during such period to the extent included in Consolidated Net Income,

 

(c)           Transaction Expenses incurred during such period,

 

(d)           any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, investment, recapitalization, asset disposition, issuance or repayment of debt, issuance of equity securities, refinancing transaction or amendment or other modification of any debt instrument (in each case, including any such transaction consummated prior to the Original Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction,

 

(e)           any effect of income or loss for such period attributable to the early extinguishment of Indebtedness,

 

(f)            accruals and reserves established or adjusted within twelve months after the Original Closing Date that are so required to be established as a result of the Transactions in accordance with GAAP or changes as a result of adoption of or modification of accounting policies during such period,

 

(g)           the xxxx-to-market effects on net income during the period of any derivatives or similar financial instruments, including the ineffective portion of hedging arrangements, but including such effects settled in cash in the period,

 

(h)           Net Income of IPS and IPS Canada,

 

(i)            solely for purposes of determining the Applicable Amount, the net income for such period of any Restricted Subsidiary (other than any Guarantor) to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its net 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

 

30


 

Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein, and

 

(j)                                    the amount of any net income (or loss) for such period from disposed or discontinued operations.

 

There shall be excluded from Consolidated Net Income for any period the purchase accounting effects of adjustments in component amounts required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the Borrower and the Restricted Subsidiaries), as a result of the Transactions, any consummated acquisition whether consummated before or after the Original Closing Date, or the amortization or write-off of any amounts thereof.

 

“Consolidated Senior Secured Debt” shall mean Consolidated Total Debt secured by a Lien on any Collateral (excluding any Permitted Other Indebtedness incurred pursuant to Section 10.1(aa), Section 10.1(bb)(i)(a) (but solely to the extent the Net Cash Proceeds thereof are applied not later than five (5) Business Days after the receipt thereof to repurchase, repay, redeem or otherwise defease Senior Notes and/or Senior Subordinated Notes pursuant to and in accordance with Section 10.7(a)(y)(i)), Section 10.1(bb)(i)(b) or Section 10.1(cc) and, in each case, secured by a Lien on Collateral ranking junior to the Lien securing the Obligations).

 

“Consolidated Senior Secured Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Senior Secured Debt as of such date to (b) Consolidated EBITDA for the Test Period then last ended.

 

“Consolidated Total Assets” shall mean, as of any date of determination, the amount that would, in conformity with GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries at such date (excluding any settlement assets).

 

“Consolidated Total Debt” shall mean, as of any date of determination, (a) all Indebtedness of the types described in clause (a) and clause (d) of the definition thereof (but, (i) in the case of clause (d), only to the extent of any unreimbursed drawings under any letter of credit and (ii) in any event, excluding any Settlement Indebtedness) of the definition thereof, in each case actually owing by the Borrower and the Restricted Subsidiaries on such date and to the extent appearing on the balance sheet of the Borrower determined on a consolidated basis in accordance with GAAP minus (b) the aggregate cash and cash equivalents (in each case, free and clear of all Liens, other than Liens permitted by Section 10.2 other than clause (u) thereof) included in the cash and cash equivalents accounts (other than settlement assets) (x) listed on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries as at such date and (y) listed on the balance sheet of any Joint Venture (excluding settlement assets) in an amount corresponding to the Borrower’s or Restricted Subsidiaries’, as applicable, proportionate share thereof, based on its ownership of such Joint Venture’s Voting Stock.

 

“Consolidated Total Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Total Debt as of such date to (b) Consolidated EBITDA for the Test Period then last ended.

 

“Consolidated Working Capital” shall mean, at any date, the excess of (a) the sum of all amounts (other than cash and Permitted Investments) 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 the Restricted Subsidiaries at such date excluding the current portion of current and deferred income taxes over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite

 

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the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries on such date, including deferred revenue but excluding, without duplication, (i) the current portion of any Funded Debt, (ii) all Indebtedness consisting of Loans and Letter of Credit Exposure to the extent otherwise included therein, (iii) the current portion of interest and (iv) the current portion of current and deferred income taxes.

 

“Continuing Director” shall mean, at any date, an individual (a) who is a member of the board of directors of the Borrower on the Original Closing Date, (b) who, as of the date of determination, has been a member of such board of directors for at least the twelve preceding months, (c) who has been nominated to be a member of such board of directors, directly or indirectly, by a Sponsor or Persons nominated by a Sponsor or (d) who has been nominated to be a member of such board of directors by a majority of the other Continuing Directors then in office.

 

“Contract Consideration” shall have the meaning provided in the definition of “Excess Cash Flow.”

 

“Contractual Requirement” shall have the meaning provided in Section 8.3.

 

“Converted Restricted Subsidiary” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”

 

“Converted Unrestricted Subsidiary” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”

 

“Credit Documents” shall mean this Agreement (including the Original Credit Agreement), the Guarantees, the Security Documents, each Letter of Credit and any promissory notes issued by the Borrower hereunder.

 

“Credit Event” shall mean and include the making (but not the conversion or continuation) of a Loan and the issuance of a Letter of Credit.

 

“Credit Facility” shall mean a category of Commitments and extensions of credit thereunder.

 

“Credit Party” shall mean the Borrower, the Guarantors and each other Subsidiary of the Borrower that is a party to a Credit Document.

 

“Credit Suisse” shall mean Credit Suisse, Cayman Islands Branch and its successors.

 

“Cumulative Consolidated Net Income” shall mean, for any period, Consolidated Net Income for such period, taken as a single accounting period.  Cumulative Consolidated Net Income may be a positive or negative amount.

 

“Cure Amount” shall have the meaning provided in Section 11.15(a).

 

“Cure Right” shall have the meaning provided in Section 11.15(a).

 

“Debt Incurrence Prepayment Event” shall mean any issuance or incurrence by the Borrower or any of the Restricted Subsidiaries of any Indebtedness (excluding any Indebtedness permitted to be issued or incurred under Section 10.1 other than Section 10.1(o) or, except to the extent accompanied by a corresponding reduction of the Revolving Credit Commitments Section 10.1(y)).

 

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“Debt Repayment” shall mean the repayment, prepayment, repurchase or defeasance of the Indebtedness of the Borrower under the Indebtedness that is identified on Schedule 1.1(g) to the Original Credit Agreement and that is repaid, prepaid, repurchased or defeased on the Original Closing Date (or such later date as may be necessary to effect the Debt Repayment in accordance with the tender offers therefor).

 

“Declined Proceeds” shall have the meaning provided in Section 5.2(h).

 

“Default” shall mean any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.

 

“Default Rate” shall have the meaning provided in Section 2.8(c).

 

“Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in effect.

 

“Deferred Net Cash Proceeds” shall have the meaning provided such term in the definition of “Net Cash Proceeds”.

 

“Deferred Net Cash Proceeds Payment Date” shall have the meaning provided such term in the definition of “Net Cash Proceeds”.

 

“Delayed Draw Commitment Fee” shall have the meaning provided in Section 4.1(b).

 

“Delayed Draw Commitment Fee Rate” shall mean, with respect to the Available Delayed Draw Commitment on any day, 0.75% per annum.

 

“Delayed Draw Repayment Amount” shall have the meaning provided in Section 2.5(b)(x).

 

“Delayed Draw Repayment Date” shall have the meaning provided in Section 2.5(b).

 

“Delayed Draw Term Loan” shall have the meaning provided in Section 2.1(a).  For the avoidance of doubt, all Delayed Draw Term Loans are 2014 Term Loans.

 

“Delayed Draw Term Loan Commitment” shall mean, (a) in the case of each Lender that is a Lender as of the date hereof, the amount set forth opposite such Lender’s name on Schedule 1.1(c)-1 as such Lender’s “Delayed Draw Term Loan Commitment” and (b) in the case of any Lender that becomes a Lender as of the date hereof, the amount specified as such Lender’s “Delayed Draw Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Delayed Draw Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Delayed Draw Term Loan Commitments as of the Original Closing Date was $225,000,000.

 

“Delayed Draw Term Loan Commitment Percentage” shall mean at any time, for each Lender, the percentage obtained by dividing (a) such Lender’s Delayed Draw Term Loan Commitment at such time by (b) the amount of the Total Delayed Draw Term Loan Commitment at such time, provided that at any time when the Total Delayed Draw Term Loan Commitment shall have been terminated, each Lender’s Delayed Draw Term Loan Commitment Percentage shall be the percentage obtained by dividing (a) such Lender’s Delayed Draw Term Loan Exposure at such time by (b) the Delayed Draw Term Loan Exposure of all Lenders at such time.

 

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“Delayed Draw Term Loan Commitment Termination Date” shall mean the earliest to occur of (i) December 31, 2008, (ii) the date the Delayed Draw Term Loan Commitments are permanently reduced to zero pursuant to Section 2.1, and (iii) the date of the termination of the Delayed Draw Term Loan Commitments pursuant to Section 11.1.

 

“Delayed Draw Term Loan Exposure” shall mean, with respect to any Lender as of any date of determination, (a) prior to the termination of the Delayed Draw Term Loan Commitments, that Lender’s Delayed Draw Term Loan Commitment; and (b) after the termination of the Delayed Draw Term Loan Commitments, the aggregate outstanding principal amount of the Delayed Draw Term Loans of that Lender and any Extended Term Loans in respect of Delayed Draw Term Loans.

 

“Delayed Draw Term Loan Lender” shall mean a Lender with a Delayed Draw Term Loan Commitment or an outstanding Delayed Draw Term Loan.

 

“Delayed Draw Term Loan Maturity Date” shall mean the earlier of (a) September 24, 2014, or, if such date is not a Business Day, the next preceding Business Day, and (b) the date that all Delayed Draw Term Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.

 

“Designated Non-Cash Consideration” shall mean the fair market value of non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to Section 10.4(b) or Section 10.4(c) that is designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Borrower, setting forth the basis of such valuation (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within 180 days following the consummation of the applicable Disposition).

 

“Designated Obligations” shall mean all obligations of the Borrower with respect to (a) principal of and interest on the Loans, (b) Unpaid Drawings and interest thereon and (c) accrued and unpaid fees under the Credit Documents.

 

“Disposed EBITDA” shall mean, with respect to any Sold Entity or Business or any Converted Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to the Borrower and the Restricted Subsidiaries in the definition of Consolidated EBITDA were references to such Sold Entity or Business or Converted Unrestricted Subsidiary and its respective Subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business or Converted Unrestricted Subsidiary, as the case may be.

 

“Disposition” shall have the meaning provided in Section 10.4(b).

 

“Disqualified Equity Interests” shall mean, with respect to any Person, any Stock or Stock Equivalents of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely for Stock or Stock Equivalent that is not Disqualified Equity Interests), other than as a result of a change of control or asset sale, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than as a result of a change of control or asset sale to the extent the terms of such Stock or Stock Equivalents provide that such Stock or Stock Equivalents shall not be required to be repurchased or redeemed until the Final Maturity Date has occurred or such repurchase or redemption is otherwise permitted by this Agreement (including as a result of a waiver hereunder)), in whole or in part, in each case prior to the date that is ninety-one (91) days after the Final Maturity Date hereunder; provided that if such Stock or Stock Equivalents are issued to any plan for

 

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the benefit of employees of the Borrower or its Subsidiaries or by any such plan to such employees, such Stock or Stock Equivalents shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations; provided, further, that any Stock or Stock Equivalents held by any future, present or former employee, director, manager or consultant, of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies or any other entity in which the Borrower or a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate” by the Board of Directors of the Borrower, in each case pursuant to any stockholders’ agreement, management equity plan or stock incentive plan or any other management or employee benefit plan or agreement shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Borrower or its Subsidiaries.

 

“Dividends” or “dividends” shall have the meaning provided in Section 10.6.

 

“Dollar Equivalent” shall mean, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any currency other than Dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the Letter of Credit Issuer, as the case may be, on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or other relevant date of determination) for the purchase of Dollars with such currency.

 

“Dollars” and “$” shall mean dollars in lawful currency of the United States of America.

 

“Domestic Subsidiary” shall mean each Subsidiary of the Borrower that is organized under the laws of the United States, any state thereof, or the District of Columbia.

 

“Drawing” shall have the meaning provided in Section 3.4(b).

 

“Effective Yield” shall mean, as to any Indebtedness, the effective yield on such Indebtedness in the reasonable determination of the Administrative Agent in consultation with the Borrower and consistent with generally accepted financial practices, taking into account the applicable interest rate margins, any interest rate floors (the effect of which floors shall be determined in a manner set forth in the proviso below), or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (i) the remaining weighted average life to maturity of such Indebtedness and (ii) the four years following the date of incurrence thereof) payable generally to Lenders or other institutions providing such Indebtedness in connection with the initial primary syndication thereof, but excluding any arrangement, structuring, ticking, or other similar fees payable in connection therewith that are not generally shared with the relevant Lenders and, if applicable, consent fees for an amendment paid generally to consenting Lenders; provided that with respect to any Indebtedness that includes a “LIBOR floor” or “ABR floor,” (a) to the extent that the LIBOR Rate (with an Interest Period of three months) or ABR (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the purpose of calculating the Effective Yield and (b) to the extent that the LIBOR Rate (with an Interest Period of three months) or ABR (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield.

 

“EMU” shall mean the economic and monetary union in accordance with the Treaty of Rome 1957, as amended by the Single Xxxxxxxx Xxx 0000, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.

 

“EMU Legislation” shall mean the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

 

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“Environmental Claims” shall mean any and all actions, suits, orders, decrees, demands, demand letters, claims, liens, notices of noncompliance, violation or potential responsibility or investigation (other than internal reports prepared by the Borrower or any of the Subsidiaries (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing transaction or an acquisition or disposition of real estate) or proceedings relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereinafter, “Claims”), including, without limitation, (i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief relating to the presence, release or threatened release of Hazardous Materials or arising from alleged injury or threat of injury to health or safety (to the extent relating to human exposure to Hazardous Materials), or the environment including, without limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands.

 

“Environmental Law” shall mean any applicable Federal, state, foreign or local statute, law, rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree or judgment, relating to the protection of environment, including, without limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands, or human health or safety (to the extent relating to human exposure to Hazardous Materials), or Hazardous Materials.

 

“Equity Investments” shall have the meaning provided in the preamble to this Agreement.

 

“Equity Offering” shall mean any public or private sale of common stock or Preferred Stock of the Borrower or any of its direct or indirect parent companies (excluding Disqualified Stock), other than: (a) public offerings with respect to the Borrower’s or any direct or indirect parent company’s common stock registered on Form S-8, (b) issuances to any Subsidiary of the Borrower and (c) any Cure Amount.

 

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.  Section references to ERISA are to ERISA as in effect at the Original Closing Date and any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.

 

“ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) that together with the Borrower would be deemed to be a “single employer” within the meaning of 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.

 

“Euro” and “€” shall mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

 

“Euro Tranche Repayment Amount” shall have the meaning provided in Section 2.5(b)(x).

 

“Euro Tranche Repayment Date” shall have the meaning provided in Section 2.5(b).

 

“Euro Tranche Term Loan” shall mean any Euro Tranche B-1 Term Loan or Euro Tranche B-2 Term Loan.  For the avoidance of doubt, all Euro Tranche Term Loans are 2014 Term Loans.

 

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“Euro Tranche Term Loan Commitment” shall mean, (i) as of the Original Closing Date (prior to giving effect to this amendment and restatement) with respect to each Lender, the amount set forth opposite such Lender’s name on Schedule 1.1(c) to the Original Credit Agreement and (ii) as of the Original Closing (after giving effect to this amendment and restatement) with respect to each Lender, such Lender’s Euro Tranche B-1 Term Loan Commitment and Euro Tranche B-2 Term Loan Commitment.

 

“Euro Tranche Term Loan Lender” shall mean a Lender with a Euro Tranche Term Loan Commitment or an outstanding Euro Tranche Term Loan.

 

“Euro Tranche Term B-1 Loan Lender” shall mean a Lender with a Euro Tranche B-1 Term Loan Commitment or an outstanding Euro Tranche B-1 Term Loan.

 

“Euro Tranche B-1 Term Loan” shall have the meaning provided in Section 2.1(a).

 

“Euro Tranche B-1 Term Loan Commitment” shall mean (a) in the case of each Lender that was a Lender on the Original Closing Date (after giving effect to this amendment and restatement), the amount set forth opposite such Lender’s name on Schedule 1.1(c) as such Lender’s “Euro Tranche B-1 Term Loan Commitment” and (b) in the case of any Lender that became a Lender after the Original Closing Date, the amount specified as such Lender’s “Euro Tranche B-1 Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Euro Tranche B-1 Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Euro Tranche B-1 Term Loan Commitments as of the Original Closing Date (after giving effect to this amendment and restatement) was €238,849,487.79.

 

“Euro Tranche Term B-1 Loan Lender” shall mean a Lender with a Euro Tranche B-1 Term Loan Commitment or an outstanding Euro Tranche B-1 Term Loan.

 

“Euro Tranche B-2 Term Loan” shall have the meaning provided in Section 2.1(a).

 

“Euro Tranche B-2 Term Loan Commitment” shall mean (a) in the case of each Lender that was a Lender on the Original Closing Date (after giving effect to this amendment and restatement), the amount set forth opposite such Lender’s name on Schedule 1.1(c) as such Lender’s “Euro Tranche B-2 Term Loan Commitment” and (b) in the case of any Lender that became a Lender after the Original Closing Date, the amount specified as such Lender’s “Euro Tranche B-2 Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Euro Tranche B-2 Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Euro Tranche B-2 Term Loan Commitments as of the Original Closing Date (after giving effect to this amendment and restatement) was €470,370,370.37.

 

“Euro Tranche B-2 Term Loan Lender” shall mean a Lender with a Euro Tranche B-2 Term Loan Commitment or an outstanding Euro Tranche B-2 Term Loan.

 

“Euro Tranche Term Loan Maturity Date” shall mean September 24, 2014 or, if such date is not a Business Day, the first Business Day thereafter.

 

“Event of Default” shall have the meaning provided in Section 11.

 

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“Excess Cash Flow” shall mean, for any period, 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 and cash receipts included in clauses (a) through (f) of the definition of “Consolidated Net Income” and excluded in arriving at such Consolidated Net Income,

 

(iii)                                decreases in Consolidated Working Capital for such period (other than any such decreases arising from acquisitions by the Borrower and the Restricted Subsidiaries completed during such period or the application of purchase accounting),

 

(iv)                              an amount equal to the aggregate net non-cash loss on Dispositions by the Borrower and the Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; and

 

(v)                             cash receipts in respect of Hedge Agreements during such fiscal year to the extent not otherwise included in Consolidated Net Income;

 

over (b) the sum, without duplication, of

 

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

 

(ii)                               without duplication of amounts deducted pursuant to clause (xi) below in prior years, the amount of Capital Expenditures or acquisitions of intellectual property accrued or made in cash during such period, except to the extent that such Capital Expenditures or acquisitions were financed with the proceeds of Indebtedness of the Borrower or the Restricted Subsidiaries (unless such Indebtedness has been repaid),

 

(iii)                                the aggregate amount of all principal payments of Indebtedness of the Borrower and the Restricted Subsidiaries (including (A) the principal component of payments in respect of Capitalized Lease Obligations, (B) the amount of any repayment of Term Loans pursuant to Section 2.5 and (C) the amount of a mandatory prepayment of Term Loans pursuant to Section 5.2(a) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase but excluding (x) all other prepayments of Term Loans and (y) all prepayments of Revolving Credit Loans and Swingline Loans) 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 the Restricted Subsidiaries,

 

(iv)                              an amount equal to the aggregate net non-cash gain on Dispositions by the Borrower and the Restricted Subsidiaries during such period (other than Dispositions in the

 

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ordinary course of business) to the extent included in arriving at such Consolidated Net Income,

 

(v)                             increases in Consolidated Working Capital for such period (other than any such increases arising from acquisitions by the Borrower and the Restricted Subsidiaries completed during such period or the application of purchase accounting),

 

(vi)                              payments by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, to the extent not already deducted from Consolidated Net Income,

 

(vii)                               without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the aggregate amount of cash consideration paid by the Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such period pursuant to Section 10.5 to the extent that such Investments were financed with internally generated cash flow of the Borrower and the Restricted Subsidiaries,

 

(viii)                               the amount of dividends paid during such period (on a consolidated basis) by the Borrower and the Restricted Subsidiaries pursuant to Section 10.6(a), (b) or (d), to the extent such dividends were financed with internally generated cash flow of the Borrower and the Restricted Subsidiaries,

 

(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 and are not deducted in calculating Consolidated Net Income,

 

(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 made in connection with any prepayment of Indebtedness to the extent that such payments are not deducted in calculating Consolidated Net Income,

 

(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 the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period (including Permitted Acquisitions), Capital Expenditures or acquisitions of intellectual property 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 Permitted Acquisitions, Capital Expenditures or acquisitions of intellectual property 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 taxes (including penalties and interest) paid in cash or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period, and

 

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(xiii)                               cash expenditures in respect of Hedge Agreements during such fiscal year to the extent not deducted in arriving at such Consolidated Net Income.

 

“Excluded Stock and Stock Equivalents” shall mean (i) any Stock or Stock Equivalents with respect to which, in the reasonable judgment of the Collateral Agent (confirmed in writing by notice to the Borrower), the cost or other consequences (including any adverse tax consequences) of pledging such Stock or Stock Equivalents in favor of the Secured Parties under the Security Documents shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (ii) solely in the case of any pledge of Stock and Stock Equivalents of any Foreign Subsidiary or any Domestic Subsidiary substantially all of the assets of which consist of Stock or Stock Equivalents of Foreign Subsidiaries to secure the Obligations, any Stock or Stock Equivalents of any class of such Foreign Subsidiary or such Domestic Subsidiary in excess of 65% of the outstanding Stock or Stock Equivalents of such class (such percentage to be adjusted upon any Change in Law as may be required to avoid adverse U.S. federal income tax consequences to the Borrower or any Subsidiary), (iii) any Stock or Stock Equivalents to the extent the pledge thereof would violate any applicable Requirement of Law, (iv) in the case of (A) any Stock or Stock Equivalents of any Subsidiary to the extent such Stock or Stock Equivalents are subject to a Lien permitted by Section 10.2(h) or (B) any Stock or Stock Equivalents of any Subsidiary that is not wholly-owned by the Borrower and its Subsidiaries at the time such Subsidiary becomes a Subsidiary, any Stock or Stock Equivalents of each such Subsidiary described in clause (A) or (B) to the extent (1) that a pledge thereof to secure the Obligations is prohibited by any applicable Contractual Requirement (other than customary non-assignment provisions which are ineffective under the Uniform Commercial Code or other applicable law), (2) any Contractual Requirement prohibits such a pledge without the consent of any other party; provided that this clause (2) shall not apply if (x) such other party is a Credit Party or wholly-owned Subsidiary or (y) consent has been obtained to consummate such pledge (it being understood that the foregoing shall not be deemed to obligate the Borrower or any Subsidiary to obtain any such consent) and for so long as such Contractual Requirement or replacement or renewal thereof is in effect, or (3) a pledge thereof to secure the Obligations would give any other party (other than a Credit Party or wholly-owned Subsidiary) to any contract, agreement, instrument or indenture governing such Stock or Stock Equivalents the right to terminate its obligations thereunder (other than customary non-assignment provisions which are ineffective under the Uniform Commercial Code or other applicable law) and (v) any Stock or Stock Equivalents of any Subsidiary to the extent that (A) the pledge of such Stock or Stock Equivalents would result in adverse tax consequences to the Borrower or any Subsidiary as reasonably determined by the Borrower and (B) such Stock or Stock Equivalents have been identified in writing to the Collateral Agent by an Authorized Officer of the Borrower.

 

“Excluded Subsidiary” shall mean (a) each Domestic Subsidiary listed on Schedule 1.1(d)(i) to the Original Credit Agreement hereto and each future Domestic Subsidiary, in each case, for so long as any such Subsidiary does not (on a consolidated basis with its Restricted Subsidiaries), have property, plant and equipment with a book value in excess of $10,000,000 or a contribution to Consolidated EBITDA for any four fiscal quarter period that includes any date on or after the Original Closing Date in excess of $10,000,000, (b) each Domestic Subsidiary that is not a wholly-owned Subsidiary on any date such Subsidiary would otherwise be required to become a Guarantor pursuant to the requirements of Section 9.11 (for so long as such Subsidiary remains a non-wholly-owned Restricted Subsidiary), (c) any Domestic Subsidiary substantially all the assets of which consist of (x) Stock and Stock Equivalents of Foreign Subsidiaries and/or (y) of other Domestic Subsidiaries so long as substantially all the assets of any such other Domestic Subsidiary consist of Stock and Stock Equivalents of Foreign Subsidiaries, (d) each Domestic Subsidiary that is prohibited by any applicable Contractual Requirement or Requirement of Law from guaranteeing or granting Liens to secure the Obligations at the time such Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction or any replacement or renewal thereof is in effect), (e) each Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary, (f) each Domestic Subsidiary with respect to which, as reasonably determined by the Borrower, the consequence of providing a

 

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Guarantee of  the Obligations would adversely affect the ability of the Borrower and its Subsidiaries to satisfy applicable Requirements of Law, (g) any other Domestic Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent (confirmed in writing by notice to the Borrower), the cost or other consequences (including any adverse tax consequences) of providing a Guarantee of the Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (h) each Unrestricted Subsidiary, (i) any Receivables Subsidiary and (j) IPS.

 

“Excluded Taxes” shall mean, with respect to any Agent or any Lender, (a)(i) income taxes imposed on or measured by net income and franchise and excise taxes (imposed in lieu of net income taxes) imposed on such Agent or Lender, and (ii) any Taxes imposed on any Agent or any Lender as a result of any current or former connection between such Agent or Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising from such Agent or Lender having executed, delivered or performed its obligations or received a payment under, or having been a party to or having enforced, this Agreement or any other Credit Document), (b) in the case of a Non-U.S. Lender any U.S. federal withholding tax that is imposed on amounts payable to such Non-U.S. Lender under the law in effect at the time such Non-U.S. Lender becomes a party to this Agreement (or, in the case of a Non- U.S. Participant, on the date such Non-U.S. Participant became a Participant hereunder); provided that this subclause (b) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this subclause (b)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer or (y) any Tax is imposed on a Lender in connection with an interest or participation in any Loan or other obligation that such Lender was required to acquire pursuant to Section 13.8(a) or that such Lender acquired pursuant to Section 13.7 (it being understood and agreed, for the avoidance of doubt, that any U.S. federal withholding tax imposed on a Non-U.S. Lender as a result of a Change in Law occurring after the time such Non-U.S. Lender became a party to this Agreement (or designates a new lending office) shall not be an Excluded Tax), (c) any Tax to the extent attributable to such Lender’s failure to comply with Section 5.4(d) (in the case of any Non-U.S. Lender) or Section 5.4(i) (in the case of a U.S. Lender) and (d) any Taxes imposed pursuant to FATCA.

 

“Existing Class” shall mean any Existing Term Loan Class and any Existing Revolving Credit Class.

 

“Existing Letters of Credit” shall have the meaning provided in Section 3.3(f).

 

“Existing Revolving Credit Class” shall have the meaning provided in Section 2.14(f)(ii).

 

“Existing Revolving Credit Commitment” shall have the meaning provided in Section 2.14(f)(ii).

 

“Existing Revolving Credit Loans” shall have the meaning provided in Section 2.14(f)(ii).

 

“Existing Secured Letters of Credit” shall mean each letter of credit existing on the Original Closing Date and identified on Schedule 1.1(a) to the Original Credit Agreement; provided, however, no letter of credit on Schedule 1.1(a) to the Original Credit Agreement shall continue to constitute an Existing Secured Letter of Credit after the expiration date set forth opposite such letter of credit on Schedule 1.1(a) to the Original Credit Agreement except to the extent of unreimbursed drawings thereunder.

 

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“Existing Term Loan Class” shall have the meaning provided in Section 2.14(f)(i).

 

“Existing Secured Letter of Credit Issuer” shall mean each issuer of any Existing Secured Letter of Credit identified on Schedule 1.1(a) to the Original Credit Agreement.

 

“Extended Repayment Date” shall have the meaning provided in Section 2.5(c).

 

“Extended Revolving Credit Commitments” shall have the meaning provided in Section 2.14(f)(ii).  The 2016 Revolving Credit Commitments shall be deemed Extended Revolving Credit Commitments for all purposes of this Agreement.

 

“Extended Revolving Credit Facility” shall mean each tranche of Extended Revolving Credit Commitments established pursuant to Section 2.14(f).  The 2016 Revolving Credit Facility shall be deemed an Extended Revolving Credit Facility for all purposes of this Agreement.

 

“Extended Revolving Credit Loans” shall have the meaning provided in Section 2.14(f)(ii).  The 2016 Revolving Credit Loans shall be deemed Extended Revolving Credit Loans for all purposes of this Agreement..

 

“Extended Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).

 

“Extended Term Loans” shall have the meaning provided in Section 2.14(f)(i).  The 2018 Term Loans, the 2017 Term Loans, the 2017B Term Loans and 2021 Extended Term Loans shall be deemed Extended Term Loans for all purposes of this Agreement.

 

“Extending Lender” shall have the meaning provided in Section 2.14(f)(iii).  The 2016 Revolving Credit Lenders, the 2018 Term Lenders, the 2017 Term Lenders, the 2017B Term Lenders and the Term Lenders that extended the maturities of their 2017 New Term Loans pursuant to the 2014 January Extension and Repricing Amendment shall be deemed Extending Lenders for all purposes of this Agreement.

 

“Extension Amendment” shall have the meaning provided in Section 2.14(f)(iv).  The 2011 Extension Amendment shall be deemed an Extension Amendment with respect to the 2016 Revolving Credit Loans and with respect to the 2018 Term Loans, the 2012 Extension Amendment shall be deemed an Extension Amendment with respect to the 2017 Term Loans, the 2012 August Extension Amendment shall be deemed an Extension Amendment with respect to the 2017B Term Loans and the 2014 January Extension and Repricing Amendment shall be deemed an Extension Amendment with respect to the 2017 New Term Loans with maturities extended thereunder, in each case for all purposes of this Agreement.

 

“Extension Date” shall have the meaning provided in Section 2.14(f)(v).

 

“Extension Election” shall have the meaning provided in Section 2.14(f)(iii).

 

“Extension Request” shall mean a Revolving Credit Extension Request or a Term Loan Extension Request.

 

“Extension Series” shall mean all Extended Term Loans and Extended Revolving Credit Commitments that are established pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans or Extended Revolving Credit Commitments, as applicable, provided for therein are intended

 

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to be a part of any previously established Extension Series) and that provide for the same interest margins, extension fees and amortization schedule.

 

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

 

“Federal Funds Effective Rate” shall mean, for any day, the weighted average of the per annum rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published on the next succeeding Business Day by the Federal Reserve Bank of New York; provided that (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.

 

“Fees” shall mean all amounts payable pursuant to, or referred to in, Section 4.1.

 

“Final Maturity Date” shall mean April 26, 2024, or if the 2024 New Dollar Term Loans shall have been repaid in full, July 10, 2022, or if the 2022 New Term Loans shall have been repaid in full, March 24, 2021, or if the 2021 New Term Loans shall have been repaid in full, June 2, 2020, or if the 2020 Revolving Credit Commitments shall have been terminated, the 2020 Revolving Credit Loans shall have been repaid in full and the 2020 Term A Loans shall have been repaid in full, September 24, 2018 or, if the 2018B Second New Term Loans shall have been repaid in full, March 24, 2018, or if the 2018 New Term Loans shall have been repaid in full, March 24, 2017.

 

“First Delayed Draw Repayment Date” shall mean March 31, 2009.

 

“First Lien Intercreditor Agreement” shall mean an Intercreditor Agreement substantially in the form of Exhibit L among the Administrative Agent, the Collateral Agent and the representatives for purposes thereof for any other First Lien Secured Parties, with such changes thereto as may be reasonably acceptable to the Administrative Agent; provided that such changes are not materially adverse to the Lenders.

 

“First Lien Obligations” shall mean the Obligations and the Permitted Other Indebtedness Obligations (other than any Permitted Other Indebtedness Obligations that are unsecured or secured by a Lien ranking junior to the Lien securing the Obligations), collectively.

 

“First Lien Secured Parties” shall mean the Secured Parties and the Permitted Other Indebtedness Secured Parties and any representative on their behalf for such purposes (other than in the case of Permitted Other Indebtedness Secured Parties whose Permitted Other Indebtedness Obligations are secured by a Lien ranking junior to the Lien securing the Obligations, such Permitted Other Indebtedness Secured Parties, the Collateral Agent and any other representative on their behalf), collectively.

 

“Foreign Asset Sale” shall have the meaning provided in Section 5.2(i).

 

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“Foreign Plan” shall mean any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by the Borrower or any of its Subsidiaries with respect to employees employed outside the United States.

 

“Foreign Subsidiary” shall mean each Subsidiary of the Borrower that is not a Domestic Subsidiary.

 

“Fronting Fee” shall have the meaning provided in Section 4.1(d).

 

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

 

“Funded Debt” shall mean all indebtedness of the Borrower and the 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 the Borrower or any Restricted Subsidiary, 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 all amounts of Funded Debt required to be paid or prepaid within one year from the date of its creation and, in the case of the Borrower, Indebtedness in respect of the Loans.

 

“GAAP” shall mean generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that if there occurs after the 2014 July Repricing Effective Date any change in GAAP that affects in any respect the calculation of any covenant contained in Section 10, the Lenders and the Borrower shall negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant with the intent of having the respective positions of the Lenders and the Borrower after such change in GAAP conform as nearly as possible to their respective positions as of the 2014 July Repricing Effective Date and, until any such amendments have been agreed upon, the covenants in Section 10 shall be calculated as if no such change in GAAP has occurred.

 

“Governmental Authority” shall mean any nation, sovereign or government, any state, province, territory or other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including a central bank or stock exchange.

 

“Granting Lender” shall have the meaning provided in Section 13.6(g).

 

“Guarantee” shall mean (a) the Guarantee made by the Borrower and each Guarantor in favor of the Administrative Agent for the benefit of the Secured Parties, substantially in the form of Exhibit B to the Original Credit Agreement, and (b) any other guarantee of the Obligations made by a Restricted Subsidiary that is a Domestic Subsidiary in form and substance reasonably acceptable to the Administrative Agent, in each case as the same may be amended, supplemented or otherwise modified from time to time.

 

“Guarantee Obligations” shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring

 

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the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided, however, that the term “Guarantee Obligations” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Original Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness).  The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

 

“Guarantors” shall mean (a) each Domestic Subsidiary that is party to the Guarantee on the Original Closing Date, (b) each Domestic Subsidiary that becomes a party to the Guarantee after the Original Closing Date pursuant to Section 9.11 or otherwise and (c) each other Subsidiary that the Borrower may from time to time, in its discretion, cause to become a party to the Guarantee pursuant to Section 9.11 or otherwise.

 

“Hazardous Materials” shall mean (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing regulated levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous waste”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or “pollutants”, or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, which is prohibited, limited or regulated by any Environmental Law.

 

“Hedge Agreements” shall mean interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, cross-currency rate swap agreements, currency future or option contracts, commodity price protection agreements or other commodity price hedging agreements, and other similar agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business (and not for speculative purposes) for the principal purpose of protecting the Borrower or any of the Restricted Subsidiaries against fluctuations in interest rates, currency exchange rates or commodity prices.

 

“Hedge Bank” shall mean (a) any Person that, at the time it enters into a Hedge Agreement, is a Lender or an Affiliate of a Lender, (b) solely with respect to any currency Hedge Agreement in effect on the Original Closing Date, the counterparties listed on Schedule 1.1(i) to the Original Credit Agreement or (c) with respect to any Hedge Agreement entered into prior to the Original Closing Date, any person that is a Lender or an Affiliate of a Lender on the Original Closing Date.

 

“Historical Financial Statements” shall mean the audited consolidated balance sheets of the Borrower as of December 31, 2006 and December 31, 2005 and the audited consolidated statements of income, stockholders’ equity and cash flows of the Borrower for each of the fiscal years in the three year period ending on December 31, 2006.

 

“Holdings” shall mean New Omaha Holdings Corporation, a Delaware corporation, and its successors.

 

“Increased Amount Date” shall have the meaning provided in Section 2.14(a).

 

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“Indebtedness” of any Person shall mean (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (c) the deferred purchase price of assets or services that in accordance with GAAP would be included as a liability on the balance sheet of such Person, (d) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder, (e) all Indebtedness of any other Person secured by any Lien on any property owned by such Person, whether or not such Indebtedness has been assumed by such Person, (f) the principal component of all Capitalized Lease Obligations of such Person, (g) all obligations of such Person under interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts, commodity price protection agreements or other commodity price hedging agreements and other similar agreements, (h) all obligations of such Person in respect of Disqualified Equity Interests and (i) without duplication, all Guarantee Obligations of such Person, provided that Indebtedness shall not include (i) trade and other ordinary course payables and accrued expenses arising in the ordinary course of business, (ii) deferred or prepaid revenue, (iii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller and (iv) all intercompany indebtedness having a term not exceeding 364 days and incurred in the ordinary course of business.  The amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.

 

“indemnified liabilities” shall have the meaning provided in Section 13.5.

 

“Indemnified Taxes” shall mean all Taxes (including Other Taxes) other than (i) Excluded Taxes and (ii) any interest, penalties or expenses caused by an Agent’s or Lender’s gross negligence or willful misconduct.

 

“Initial Investors” shall have Kohlberg Kravis Xxxxxxx & Co. L.P., KKR 2006 Fund L.P., Citigroup Global Markets Inc., Credit Suisse Management LLC, Deutsche Bank Investment Partners, Inc., HSBC Bank plc, LBI Group Inc., GMI Investments, Inc., Citigroup Capital Partners II 2007 Citigroup Investment L.P., Citigroup Capital Partners II Employee Master Fund, L.P., Citigroup Capital Partners II Onshore, L.P., Citigroup Capital Partners II Cayman Holdings, L.P., CGI CPE LLC, GS Capital Partners VI Parallel, L.P., GS Capital Partners VI GmbH & Co. KG, GS Capital Partners VI Fund, L.P., GS Capital Partners VI Offshore Fund, L.P., GS Mezzanine Partners 2006 Fund, L.P. and Xxxxxxx Sachs Investments Ltd. and each of their respective Affiliates but not including, however, any portfolio companies of any of the foregoing.

 

“Initial Term Loan” shall mean any Initial Tranche B-1 Term Loan, Initial Tranche B-2 Term Loan or Initial Tranche B-3 Term Loan.  For the avoidance of doubt, all Initial Term Loans are 2014 Term Loans.

 

“Initial Term Loan Commitment” shall mean, with respect to each Lender, such Lender’s Initial Tranche B-1 Term Loan Commitment, Initial Tranche B-2 Term Loan Commitment and Initial Tranche B-3 Term Loan Commitment.

 

“Initial Term Loan Lender” shall mean a Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan.

 

“Initial Term Loan Maturity Date” shall mean September 24, 2014 or, if such date is not a Business Day, the first Business Day thereafter.

 

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“Initial Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(x).

 

“Initial Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

“Initial Tranche B-1 Term Loan” shall have the meaning provided in Section 2.1(a)(i).

 

“Initial Tranche B-1 Term Loan Commitment” shall mean, (a) in the case of each Lender that was a Lender on the Original Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(c) as such Lender’s “Initial Tranche B-1 Term Loan Commitment” and (b) in the case of any Lender that became a Lender after the Original Closing Date, the amount specified as such Lender’s “Initial Tranche B-1 Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Initial Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Initial B-1 Term Loan Commitments as of the Original Closing Date (after giving effect to this amendment and restatement) was $4,438,222,222.22.

 

“Initial Tranche B-1 Term Loan Lender” shall mean a Lender with an Initial Tranche B-1 Term Loan Commitment or an outstanding Initial Tranche B-1 Term Loan.

 

“Initial Tranche B-2 Term Loan” shall have the meaning provided in Section 2.1(a)(ii).

 

“Initial Tranche B-2 Term Loan Commitment” shall mean, (a) in the case of each Lender that was a Lender on the Original Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(c)-1 as such Lender’s “Initial Tranche B-2 Term Loan Commitment” and (b) in the case of any Lender that became a Lender after the Original Closing Date, the amount specified as such Lender’s “Initial Tranche B-2 Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Initial Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Initial B-2 Term Loan Commitments as of the Original Closing Date (after giving effect to this amendment and restatement) was $4,336,777,777.78.

 

“Initial Tranche B-2 Term Loan Lender” shall mean a Lender with an Initial Tranche B-2 Term Loan Commitment or an outstanding Initial Tranche B-2 Term Loan.

 

“Initial Tranche B-3 Term Loan” shall have the meaning provided in Section 2.1(a)(iii).

 

“Initial Tranche B-3 Term Loan Commitment” shall mean, (a) in the case of each Lender that was a Lender on the Original Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(c)-1 as such Lender’s “Initial Tranche B-3 Term Loan Commitment” and (b) in the case of any Lender that became a Lender after the Original Closing Date, the amount specified as such Lender’s “Initial Tranche B-3 Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Initial Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Initial B-3 Term Loan Commitments as of the Original Closing Date was $3,000,000,000.

 

“Initial Tranche B-3 Term Loan Lender” shall mean a Lender with an Initial Tranche B-3 Term Loan Commitment or an outstanding Initial Tranche B-3 Term Loan.

 

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“Interest Period” shall mean, with respect to any Term Loan, Extended Revolving Credit Loan or Revolving Credit Loan, the interest period applicable thereto, as determined pursuant to Section 2.9.

 

“Investment” shall mean, for any Person:  (a) the acquisition (whether for cash, property, services or securities or otherwise) of Stock, Stock Equivalents, bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person (including any “short sale” or any sale of any securities at a time when such securities are not owned by the Person entering into such sale); (b) the making of any deposit with, or advance, loan or other extension of credit to, any other Person (including the purchase of property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such property to such Person) (including any partnership or joint venture); (c) the entering into of any guarantee of, or other contingent obligation with respect to, Indebtedness; or (d) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person; provided that, in the event that any Investment is made by the Borrower or any Restricted Subsidiary in any Person through substantially concurrent interim transfers of any amount through one or more other Restricted Subsidiaries, then such other substantially concurrent interim transfers shall be disregarded for purposes of Section 10.5.

 

“IPO” shall mean the initial underwritten public offering (other than a public offering pursuant to a registration statement on Form S-8) of common Stock or Stock Equivalents in the Borrower or a parent entity of the Borrower.

 

“IPS” shall mean Integrated Payment Systems Inc., a Delaware corporation and its successors.

 

“IPS Canada” shall mean Integrated Payment Systems Canada Inc., a Canadian corporation and its successors.

 

“ISP” shall mean, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).

 

“Issuer Documents” shall mean with respect to any Letter of Credit, the Letter of Credit Request, and any other document, agreement and instrument entered into by the Letter of Credit Issuer and the Borrower (or any Restricted Subsidiary) or in favor of the Letter of Credit Issuer and relating to such Letter of Credit.

 

“Joinder Agreement” shall mean an agreement substantially in the form of Exhibit A to the Original Credit Agreement or in such other form as is agreed between the Borrower and the Administrative Agent.

 

“Joint Lead Arrangers and Bookrunners” shall mean Credit Suisse Securities (USA) LLC, Citigroup Global Markets, Inc., Deutsche Bank Securities Inc., Xxxxxxx Xxxxx Credit Partners L.P., HSBC Securities (USA) Inc., Xxxxxx Brothers Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.

 

“Joint Venture” shall mean, at any date of determination, each joint venture accounted for as an equity method investee of the Borrower and its Subsidiaries, determined in accordance with GAAP.

 

“Judgment Currency” shall have the meaning provided in Section 13.19.

 

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“JV Distribution Amount” shall mean, at any time, the lesser of (x) the aggregate amount of cash distributed to the Borrower or any Restricted Subsidiary by any joint venture that is not a Subsidiary (regardless of the form of legal entity) since the Original Closing Date and prior to such time (without duplication of any amount treated as a reduction in the outstanding amount of Investments by the Borrower or any Restricted Subsidiary pursuant to clause (d), (i) or (v) of Section 10.5) and only to the extent that neither the Borrower nor any Restricted Subsidiary is under any obligation to repay such amount to such joint venture and (y) the amount of Investments by the Borrower or such Restricted Subsidiary in such joint venture.

 

“KKR” shall mean each of Kohlberg Kravis Xxxxxxx & Co., L.P. and KKR Associates, L.P.

 

“L/C Borrowing” shall mean an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.  All L/C Borrowings shall be denominated in Dollars or any Alternative Currency.

 

“L/C Maturity Date” shall mean the date that is three Business Days prior to the 2020 Revolving Credit Maturity Date; provided that the L/C Maturity Date may be extended beyond such date with the consent of the Letter of Credit Issuer.

 

“L/C Obligations” shall mean, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unpaid Drawings, including all L/C Borrowings.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

“L/C Participant” shall have the meaning provided in Section 3.3(a).

 

“L/C Participation” shall have the meaning provided in Section 3.3(a).

 

“Lender” shall have the meaning provided in the preamble to this Agreement.

 

“Lender Default” shall mean (a) the failure (which has not been cured) of a Lender to make available its portion of any Borrowing or to fund its portion of any unreimbursed payment under Section 3.3 or (b) a Lender having notified the Administrative Agent and/or the Borrower that it does not intend to comply with the obligations under Section 2.1(a), 2.1(b), 2.1(d) or 3.3, or (c) a Lender becoming the subject of a bankruptcy or insolvency proceeding.

 

“Letter of Credit” shall mean each letter of credit issued pursuant to Section 3.1.

 

“Letter of Credit Commitment” shall mean $250,000,000, as the same may be reduced from time to time pursuant to Section 3.1.

 

“Letter of Credit Exposure” shall mean, with respect to any Lender, at any time, the sum of (a) the Dollar Equivalent amount of the principal amount of any Unpaid Drawings in respect of which such Lender has made (or is required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a) at such time and (b) such Lender’s Revolving Credit Commitment Percentage of the Letters of Credit Outstanding at such time (excluding the portion thereof consisting of Unpaid Drawings in respect of which the Lenders have made (or are required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a)).

 

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“Letter of Credit Fee” shall mean the 2013 Letter of Credit Fee, the 2016 Letter of Credit Fee and/or the 2020 Letter of Credit Fee, as the case may be.

 

“Letter of Credit Issuer” shall mean Credit Suisse, Cayman Islands Branch, any of its Affiliates or any replacement or successor pursuant to Section 3.6.  The Letter of Credit Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Letter of Credit Issuer, and in each such case the term “Letter of Credit Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.  In the event that there is more than one Letter of Credit Issuer at any time, references herein and in the other Credit Documents to the Letter of Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in respect of the applicable Letter of Credit or to all Letter of Credit Issuers, as the context requires.

 

“Letters of Credit Outstanding” shall mean, at any time, the sum of, without duplication, (a) the aggregate Stated Amount of all outstanding Letters of Credit and (b) the aggregate Dollar Equivalent amount of the principal amount of all Unpaid Drawings.

 

“Letter of Credit Request” shall have the meaning provided in Section 3.2(a).

 

“Level I Status” shall mean, on any date, (a) with respect to the calculation of the Commitment Fee Rate,  the circumstance that the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio is greater than 3.00 to 1.00 as of such date or (b) with respect to the calculation of the Applicable ABR Margin or Applicable LIBOR Margin in connection with the 2020 Term A Loans and the 2022 New Term Loans,  the circumstance that the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio is greater than or equal to 3.50 to 1.00 as of such date.

 

“Level II Status” shall mean, on any date, (a) with respect to the calculation of the Commitment Fee Rate,  the circumstance that the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio is less than or equal to 3.00 to 1.00 as of such date or (b) with respect to the calculation of the Applicable ABR Margin or Applicable LIBOR Margin in connection with the 2020 Term A Loans and the 2022 New Term Loans,  the circumstance that the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio is less than 3.50 to 1.00 as of such date.

 

“LIBOR Delayed Draw Term Loan” shall mean any Delayed Draw Term Loan bearing interest at a rate determined by reference to the LIBOR Rate.

 

“LIBOR Loan” shall mean any LIBOR Term Loan or LIBOR Revolving Credit Loan.

 

“LIBOR Rate” shall mean, for any Interest Period with respect to a LIBOR Loan of any currency, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Bloomberg (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in such currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time for any reason, then the “LIBOR Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in such currency for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBOR Loan being made, continued or converted by the Administrative Agent and with a term equivalent to such Interest Period would be offered by the Administrative Agent’s London Branch to major banks in the applicable London interbank eurocurrency market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period (or on the first day of such Interest Period in the case of any LIBOR Loan denominated in Sterling).

 

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“LIBOR Revolving Credit Loan” shall mean any Revolving Credit Loan bearing interest at a rate determined by reference to the LIBOR Rate.

 

“LIBOR Term Loan” shall mean any Term Loan bearing interest at a rate determined by reference to the LIBOR Rate.

 

“Lien” shall mean any mortgage, pledge, security interest, hypothecation, assignment, lien (statutory or other) or similar encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof).

 

“Loan” shall mean any 2013 Revolving Credit Loan, 2016 Revolving Credit Loan, 2020 Revolving Credit Loan, Extended Revolving Credit Loan, Swingline Loan, Term Loan, Extended Term Loan, New Revolving Loan or New Term Loan made by any Lender hereunder.

 

“Management Investors” shall mean the directors, management officers and employees of the Borrower and its Subsidiaries on the Original Closing Date.

 

“Mandatory Borrowing” shall have the meaning provided in Section 2.1(d).

 

“Material Adverse Effect” shall mean a circumstance or condition affecting the business, assets, operations, properties or financial condition of the Borrower and the Subsidiaries, taken as a whole, that would, individually or in the aggregate, materially adversely affect (a) the ability of the Borrower and the other Credit Parties, taken as a whole, to perform their payment obligations under this Agreement or any of the other Credit Documents or (b) the rights and remedies of the Administrative Agent and the Lenders under this Agreement or any of the other Credit Documents.

 

“Material Subsidiary” shall mean, at any date of determination, (i) each Restricted Subsidiary of the Borrower (a) whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal period for which Section 9.1 Financials have been delivered were equal to or greater than 5% of the Consolidated Total Assets of the Borrower and the Restricted Subsidiaries at such date or (b) whose revenues during such Test Period were equal to or greater than 5% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Original Closing Date, Restricted Subsidiaries that are not Material Subsidiaries have, in the aggregate, (x) total assets at the last day of such Test Period equal to or greater than 10% of the Consolidated Total Assets of the Borrower and the Restricted Subsidiaries at such date or (y) revenues during such Test Period equal to or greater than 10% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP, then the Borrower shall, on the date on which financial statements for such quarter are delivered pursuant to this Agreement, designate in writing to the Administrative Agent one or more of such Restricted Subsidiaries as “Material Subsidiaries”.

 

“Maturity Date” shall mean the Initial Term Loan Maturity Date, the Delayed Draw Term Loan Maturity Date, the Euro Tranche Term Loan Maturity Date, the 2013 Revolving Credit Maturity Date, the 2016 Revolving Credit Maturity Date, the 2020 Revolving Credit Maturity Date, the 2018 New Term Loan Maturity Date, the 2018B Second New Term Loan Maturity Date, the 2017 Second New Term Loan Maturity Date, the 2020 Term A Loan Maturity Date, the 2021 Term Loan Maturity Date, the 2022 Term Loan Maturity Date or the 20222024 New Dollar Term Loan Maturity Date, as applicable.

 

“Maximum Incremental Facilities Amount” shall mean, at any date of determination, (a) the sum of (i) $500,000,000, plus (ii) an amount such that the Borrower is in Pro Forma Compliance with the Senior Secured Leverage Test (for the avoidance of doubt without netting any cash from the

 

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proceeds of any Indebtedness  being incurred in reliance on such test and, if applicable, assuming the full amount of any New Revolving Credit Commitments are drawn), plus (iii) amounts used to incur Indebtedness the Net Cash Proceeds of which are substantially concurrently used to refinance or replace Revolving Credit Commitments and/or Term Loans (including any fees, accrued interest or other amounts owing in respect thereof), plus (iv) from and after the 2012 Extension Effective Date, the aggregate principal amount of 2014 Term Loans outstanding as of such date of determination, provided that such additional amounts pursuant to this clause (iv) are only available to the extent such amounts are used to incur Indebtedness the Net Cash Proceeds of which are substantially concurrently used to prepay 2014 Term Loans in accordance with Section 5.1 of this Agreement (such prepaid 2014 Term Loans, “Incremental Facility Prepaid 2014 Term Loans”) plus (v) the Dollar Equivalent principal amount of Term Loans (other than New Term Loans, Incremental Facility Prepaid 2014 Term Loans or Term Loans refinanced or replaced pursuant to clause (iii) above) voluntarily prepaid pursuant to Section 5.1 prior to such date, plus (vi) the amount of all  Revolving Credit Commitments that have either been permanently reduced pursuant to Section 4.2 or have otherwise terminated in accordance with the terms of this Agreement after the 2012 Extension Effective Date (without duplication of the amounts incurred pursuant to clause (iii) above) minus (b) the sum of (i) the aggregate principal amount of New Loan Commitments incurred pursuant to Section 2.14(a) prior to such date and (ii) the aggregate principal amount of Permitted Other Indebtedness issued or incurred pursuant to Section 10.1(bb)(i)(a) prior to such date.

 

“Merchant Acquisition and Processing Alliance” shall mean any joint venture or other strategic alliance entered into with any financial institution or other third party primarily entered into to offer Merchant Services.

 

“Merchant Agreement” shall mean any contract entered into with a merchant relating to the provision of Merchant Services.

 

“Merchant Services” shall mean services provided to merchants relating to the authorization, transaction capture, settlement, chargeback handling and internet-based transaction processing of credit, debit, stored-value and loyalty card and other payment transactions (including provision of point of service devices and other equipment necessary to capture merchant transactions and other ancillary services).

 

“Merger” shall have the meaning provided in the preamble to this Agreement.

 

“Merger Sub” shall mean Omaha Acquisition Corporation, a Delaware corporation.

 

“Minimum Borrowing Amount” shall mean (a) with respect to a Borrowing of LIBOR Loans, $5,000,000 or the Dollar Equivalent thereof (or, if less, the entire remaining Commitments under the applicable Credit Facility at the time of such Borrowing) and (b) with respect to a Borrowing of ABR Loans (other than Swingline Loans), $1,000,000 (or, if less, the entire remaining Commitments under the applicable Credit Facility at the time of such Borrowing).

 

“Minimum Equity Amount” shall have the meaning provided in the preamble to this Agreement.

 

“Minimum Tender Condition” shall have the meaning provided in Section 2.15(b).

 

“Moody’s” shall mean Xxxxx’x Investors Service, Inc. or any successor by merger or consolidation to its business.

 

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“Mortgage” shall mean a Mortgage, Assignment of Leases and Rents, Security Agreement and Financing Statement or other security document entered into by the owner of a Mortgaged Property and the Collateral Agent for the benefit of the Secured Parties in respect of that Mortgaged Property to secure the Obligations, substantially in the form of Exhibit C to the Original Credit Agreement, as the same may be amended, supplemented or otherwise modified from time to time.

 

“Mortgaged Property” shall mean, initially, each parcel of real estate and the improvements thereto owned by a Credit Party and identified on Schedule 1.1(b) to the Original Credit Agreement, and includes each other parcel of real property and improvements thereto with respect to which a Mortgage is granted pursuant to Section 9.14.

 

“Multicurrency Exposure” shall mean, for any Revolving Credit Lender at any date, the sum of (a) the aggregate Dollar Equivalent amount of the principal amount of Revolving Credit Loans denominated in Alternative Currencies of such Lender then outstanding, and (b) such Lender’s Letter of Credit Exposure in respect of Letters of Credit denominated in Alternative Currencies at such time.

 

“Multicurrency Sublimit” shall mean the 2013 Multicurrency Sublimit, the 2016 Multicurrency Sublimit and/or the 2020 Multicurrency Sublimit, as the case may be.

 

“Multiemployer Plan” shall mean a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

 

“Net Cash Proceeds” shall mean, with respect to any Prepayment Event and any incurrence of Permitted Other Indebtedness, (a) the gross cash proceeds (including payments from time to time in respect of installment obligations, if applicable) received by or on behalf of the Borrower or any of the Restricted Subsidiaries in respect of such Prepayment Event or incurrence of Permitted Other Indebtedness, as the case may be, less (b) the sum of:

 

(i)          the amount, if any, of all taxes paid or estimated to be payable by the Borrower or any of the Restricted Subsidiaries in connection with such Prepayment Event or incurrence of Permitted Other Indebtedness,

 

(ii)          the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant to clause (i) above) (x) associated with the assets that are the subject of such Prepayment Event and (y) retained by the Borrower or any of the Restricted Subsidiaries, provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event occurring on the date of such reduction,

 

(iii)           the amount of any Indebtedness secured by a Lien on the assets that are the subject of such Prepayment Event to the extent that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consummation of such Prepayment Event,

 

(iv)          in the case of any Asset Sale Prepayment Event or Casualty Event or Permitted Sale Leaseback, the amount of any proceeds of such Prepayment Event that the Borrower or any Restricted Subsidiary has reinvested (or intends to reinvest within the Reinvestment Period or has entered into a binding commitment prior to the last day of the Reinvestment Period to reinvest) in the business of the Borrower or any of the Restricted Subsidiaries (subject to Section 10.9), provided that any portion of such proceeds that has not been so reinvested within such Reinvestment Period (with respect to such Prepayment Event, the “Deferred Net Cash Proceeds”)

 

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shall, unless the Borrower or a Restricted Subsidiary has entered into a binding commitment prior to the last day of such Reinvestment Period to reinvest such proceeds, (x) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback occurring on the last day of such Reinvestment Period or, if later, 180 days after the date the Borrower or such Restricted Subsidiary has entered into such binding commitment, as applicable (such last day or 180th day, as applicable, the “Deferred Net Cash Proceeds Payment Date”), and (y) be applied to the repayment of Term Loans in accordance with Section 5.2(a)(i),

 

(v)          in the case of any Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback by a non-wholly-owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (v)) attributable to minority interests and not available for distribution to or for the account of the Borrower or a wholly-owned Restricted Subsidiary as a result thereof,

 

(vi)          reasonable and customary fees paid by the Borrower or a Restricted Subsidiary in connection with any of the foregoing, and

 

(vii)          in the case of any Debt Incurrence Prepayment Event or the incurrence of any Permitted Other Indebtedness, any fees or expenses paid in connection with an Extension Amendment or other debt offering or exchange with a similar purpose to the extent related to a substantially contemporaneous sale, offering or similar incurrence of Indebtedness which constitutes a Debt Incurrence Prepayment Event or the incurrence of Permitted Other Indebtedness,

 

in each case only to the extent not already deducted in arriving at the amount referred to in clause (a) above.

 

“New Loan Commitments” shall have the meaning provided in Section 2.14(a).

 

“New Revolving Credit Commitments” shall have the meaning provided in Section 2.14(a).

 

“New Revolving Loan Lender” shall have the meaning provided in Section 2.14(b).

 

“New Revolving Loans” shall have the meaning provided in Section 2.14(b).

 

“New Term Loan Commitments” shall have the meaning provided in Section 2.14(a).

 

“New Term Loan Lender” shall have the meaning provided in Section 2.14(c).

 

“New Term Loan Maturity Date” shall mean the date on which a New Term Loan matures.

 

“New Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).

 

“New Term Loan Repayment Date” shall have the meaning provided in Section 2.5(c).

 

“New Term Loans” shall have the meaning provided in Section 2.14(c).

 

“Non-Cash Charges” shall mean, without duplication, (a) losses on non-ordinary course asset sales, disposals or abandonments, (b) any impairment charge or asset write-off related to intangible assets (including goodwill), long-lived assets, and investments in debt and equity securities pursuant to

 

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GAAP, (c) all losses from investments recorded using the equity method, (d) stock-based awards compensation expense, including any such charges arising from stock options, restricted stock grants or other equity incentive grants, and any cash compensation charges associated with the rollover or acceleration of stock-based awards or payment of stock options in connection with the Transactions, and (e) other non-cash charges (provided that (x) if any non-cash charges referred to in this clause (e) represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent and (y) the amortization of a prepaid current asset item that was paid in a prior period shall not be included in Non-Cash Charges).

 

“Non-Consenting Lender” shall have the meaning provided in Section 13.7(b).

 

“Non-Defaulting Lender” shall mean and include each Lender other than a Defaulting Lender.

 

“Non-Extension Notice Date” shall have the meaning provided in Section 3.2(d).

 

“Non-U.S. Lender” shall mean any Agent or Lender that is not, for United States federal income tax purposes, (a) an individual who is a citizen or resident of the United States, (b) a corporation, partnership or entity treated as a corporation or partnership created or organized in or under the laws of the United States, or any political subdivision thereof, (c) an estate whose income is subject to U.S. federal income taxation regardless of its source or (d) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States persons have the authority to control all substantial decisions of such trust or a trust that has a valid election in effect under applicable U.S. Treasury regulations to be treated as a United States person.

 

“Non-U.S. Participant” shall mean any Participant that if it were a Lender would qualify as a Non-U.S. Lender.

 

“Notes” shall mean, collectively, the Senior Notes and the Senior Subordinated Notes.

 

“Notice of Borrowing” shall have the meaning provided in Section 2.3(a).

 

“Notice of Conversion or Continuation” shall have the meaning provided in Section 2.6(a).

 

“Obligations” shall mean all advances to, and debts, liabilities, obligations, covenants and duties of, any Credit Party arising under any Credit Document or otherwise with respect to any Revolving Credit Commitment, Loan or Letter of Credit or under any Secured Cash Management Agreement, Secured Hedge Agreement or Existing Secured Letter of  Credit, in each case, entered into with the Borrower or any of its Domestic Subsidiaries, or certain Foreign Subsidiaries to the extent agreed to from time to time by the Borrower or such Foreign Subsidiaries with one or more Lenders or an Affiliate of a Lender, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.  Without limiting the generality of the foregoing, the Obligations of the Credit Parties under the Credit Documents (and any of their Subsidiaries to the extent they have obligations under the Credit Documents) include the obligation (including guarantee obligations) to pay principal, interest, charges, expenses, fees, attorney costs, indemnities and other amounts payable by any Credit Party under any Credit Document.

 

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“Old Revolving Credit Commitments” shall mean all Revolving Credit Commitments, Existing Revolving Credit Commitments and Extended Revolving Credit Commitments, other than any New Revolving Credit Commitments (and any Extended Revolving Credit Commitments related thereto).

 

“Old Revolving Credit Loans” shall mean all Loans made pursuant to Old Revolving Credit Commitments.

 

“Original Closing Date” shall mean September 24, 2007, the date of the initial extension of credit under the Original Credit Agreement.

 

“Original Closing Date Term Loans” shall mean any Tranche X-0 Xxxx Xxxx, Xxxxxxx X-0 Term Loan or Initial Tranche B-3 Term Loan.

 

“Original Credit Agreement” shall have the meaning assigned to such term in the recitals hereto.

 

“Original Lenders” shall have the meaning assigned to such term in the recitals hereto.

 

“Other Taxes” shall mean any and all present or future stamp, registration, documentary or any other excise, property or similar taxes (including interest, fines, penalties, additions to tax and related expenses with regard thereto) arising from any payment made or required to be made under this Agreement or any other Credit Document or from the execution or delivery of, registration or enforcement of, consummation or administration of, or otherwise with respect to, this Agreement or any other Credit Document.

 

“Overnight Rate” shall mean, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Effective Rate and (ii) an overnight rate determined by the Administrative Agent, the Letter of Credit Issuer or the Swingline Lender, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in any Alternative Currency, the rate of interest per annum at which overnight deposits in such Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of the Administrative Agent in the applicable offshore interbank market for such Alternative Currency to major banks in such interbank market.

 

“Participant” shall have the meaning provided in Section 13.6(c).

 

“Participating Member State” shall mean each state so described in any EMU Legislation.

 

“Patriot Act” shall have the meaning provided in Section 13.18.

 

“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.

 

“Pension Act” shall mean the Pension Protection Act of 2006, as it presently exists or as it may be amended from time to time.

 

“Perfection Certificate” shall mean a certificate of the Borrower in the form of Exhibit D to the Original Credit Agreement or any other form approved by the Administrative Agent.

 

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“Permitted Acquisition” shall mean the acquisition, by merger or otherwise, by the Borrower or any of the Restricted Subsidiaries of assets or Stock or Stock Equivalents, so long as (a) such acquisition and all transactions related thereto shall be consummated in accordance with applicable law; (b) such acquisition shall result in the issuer of such Stock or Stock Equivalents becoming a Restricted Subsidiary and a Subsidiary Guarantor, to the extent required by Section 9.11; (c) such acquisition shall result in the Administrative Agent, for the benefit of the applicable Lenders, being granted a security interest in any Stock, Stock Equivalent or any assets so acquired, to the extent required by Sections 9.11, 9.12 and/or 9.14; (d) each Person (or, as applicable, the assets) so acquired shall be in (or with respect to assets, useful for engaging in) the same or generally related line of business as conducted by the Borrower and its Subsidiaries on the 2014 July Repricing Effective Date; (e) on the date the definitive agreement for such Permitted Acquisition is entered into, no Default or Event of Default shall have occurred and be continuing; (f) the aggregate fair market value (as determined in good faith by the Borrower) of all Investments funded or financed in any Persons that do not become Guarantors in connection with all such acquisitions following the 2014 July Repricing Effective Date in reliance on Section 10.5(h) shall not exceed $5,000,000,000 (it being understood that additional Investments in Persons that are not Credit Parties may be made in connection with Permitted Acquisitions in reliance on any exception in Section 10.5 other than clause (h) thereof); and (g) on the date the definitive agreement for such Permitted Acquisition is entered into, the Borrower shall be in compliance, on a Pro Forma Basis (assuming the consummation of such acquisition on such date) (including without limitation any Indebtedness in connection therewith to be assumed or permitted to exist or incurred pursuant to Sections 10.1(j) and 10.1(k), respectively, and any related Pro Forma Adjustment), with the covenant set forth in Section 10.10, or the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio shall be no higher after giving effect to such acquisition (assuming the consummation of the acquisition on such date) on a Pro Forma Basis after giving effect to such acquisition (including without limitation any Indebtedness in connection therewith to be assumed or permitted to exist or incurred pursuant to Sections 10.1(j) and 10.1(k), respectively, and any related Pro Forma Adjustment).

 

“Permitted Additional Debt” shall mean unsecured Indebtedness, issued by the Borrower or a Guarantor, (a) the terms of which (i) do not provide for any scheduled repayment, mandatory redemption or sinking fund obligation prior to the Final Maturity Date (or to the extent such Permitted Additional Debt is being utilized to refinance Indebtedness, the latest maturity date of the Indebtedness being so refinanced) (other than customary offers to purchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default) and (ii) to the extent the same are subordinated, provide for customary subordination to the Obligations under the Credit Documents, (b) the covenants, events of default, guarantees and other terms of which (other than fees, pricing and redemption premiums), taken as a whole, are not more restrictive to the Borrower and the Restricted Subsidiaries than those herein (or to the extent such Permitted Additional Debt is being utilized to refinance Indebtedness, those applicable to the Indebtedness being so refinanced); provided that a certificate of an Authorized Officer of the Borrower is delivered to the Administrative Agent at least five Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees) and (c) of which no Subsidiary of the Borrower (other than a Guarantor or any guarantor of the Indebtedness being refinanced by such Permitted Additional Debt, if applicable) is an obligor.

 

“Permitted Debt Exchange” shall have the meaning provided in Section 2.15(a).

 

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“Permitted Debt Exchange Notes” shall have the meaning provided in Section 2.15(a).

 

“Permitted Debt Exchange Offer” shall have the meaning provided in Section 2.15(a).

 

“Permitted Holders” shall mean the Sponsor, the Management Investors, the 2014 New Equity Holders, the Initial Investors and each Person to whom any Initial Investor transfers Stock or Stock Equivalents of Holdings or any direct or indirect parent thereof in connection with the primary equity syndication following the Original Closing Date.

 

“Permitted Investments” shall mean:

 

(a)           securities issued or unconditionally guaranteed by the United States government or any agency or instrumentality thereof, in each case having maturities of not more than 24 months from the date of acquisition thereof;

 

(b)           securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than 24 months from the date of acquisition thereof and, at the time of acquisition, having an investment grade rating generally obtainable from either S&P or Xxxxx’x (or, if at any time neither S&P nor Xxxxx’x shall be rating such obligations, then from another nationally recognized rating service);

 

(c)           commercial paper maturing no more than 12 months after the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 or P-2 from either S&P or Xxxxx’x (or, if at any time neither S&P nor Xxxxx’x shall be rating such obligations, an equivalent rating from another nationally recognized rating service);

 

(d)           domestic and LIBOR certificates of deposit or bankers’ acceptances maturing no more than two years after the date of acquisition thereof issued by any Lender or any other bank having combined capital and surplus of not less than $500,000,000 in the case of domestic banks and $100,000,000 (or the Dollar Equivalent thereof) in the case of foreign banks;

 

(e)           repurchase agreements with a term of not more than 90 days for underlying securities of the type described in clauses (a), (b) and (d) above entered into with any bank meeting the qualifications specified in clause (d) above or securities dealers of recognized national standing;

 

(f)            marketable short-term money market and similar funds (x) either having assets in excess of $500,000,000 or (y) having a rating of at least A-2 or P-2 from either S&P or Xxxxx’x (or, if at any time neither S&P nor Xxxxx’x shall be rating such obligations, an equivalent rating from another nationally recognized rating service);

 

(g)           shares of investment companies that are registered under the Investment Company Act of 1940 and substantially all the investments of which are one or more of the types of securities described in clauses (a) through (f) above;

 

(h)           in the case of Investments by any Restricted Foreign Subsidiary or Investments made in a country outside the United States of America, other customarily utilized high-quality Investments in the country where such Restricted Foreign Subsidiary is located or in which such Investment is made; and

 

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(i)            Investments of assets made pursuant to any non-qualified deferred compensation plan sponsored by the Borrower or its Restricted Subsidiaries.

 

“Permitted Liens” shall mean:

 

(a)           Liens for taxes, assessments or governmental charges or claims not yet due and payable or that are being contested in good faith and by appropriate proceedings for which appropriate reserves have been established to the extent required by and in accordance with GAAP;

 

(b)           Liens in respect of property or assets of the Borrower or any of the Subsidiaries imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business, in each case so long as such Liens arise in the ordinary course of business and do not individually or in the aggregate have a Material Adverse Effect;

 

(c)           Liens arising from judgments or decrees in circumstances not constituting an Event of Default under Section 11.11;

 

(d)           Liens incurred or deposits made in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business or otherwise constituting Investments permitted by Section 10.5;

 

(e)           ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its Subsidiaries are located;

 

(f)            easements, rights-of-way, restrictions, minor defects or irregularities in title and other similar charges or encumbrances not interfering in any material respect with the business of the Borrower and its Subsidiaries, taken as a whole;

 

(g)           any interest or title of a lessor or secured by a lessor’s interest under any lease permitted by this Agreement;

 

(h)           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;

 

(i)            Liens on goods the purchase price of which is financed by a documentary letter of credit issued for the account of the Borrower or any of its Subsidiaries, provided that such Lien secures only the obligations of the Borrower or such Subsidiaries in respect of such letter of credit to the extent permitted under Section 10.1;

 

(j)            leases, licenses, subleases or sublicenses granted to others not interfering in any material respect with the business of the Borrower and its Subsidiaries, taken as a whole;

 

(k)           Liens arising from precautionary Uniform Commercial Code financing statement or similar filings made in respect of operating leases entered into by the Borrower or any of its Subsidiaries;

 

(l)            Liens created in the ordinary course of business in favor of banks and other financial institutions over credit balances of any bank accounts of the Borrower and the Restricted Subsidiaries held at such banks or financial institutions, as the case may be, to facilitate the

 

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operation of cash pooling and/or interest set-off arrangements in respect of such bank accounts in the ordinary course of business;

 

(m)          Settlement Liens;

 

(n)           Liens on accounts receivable and related assets incurred in connection with a Permitted Receivables Financing; and

 

(o)           any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries, taken as a whole.

 

“Permitted Other Indebtedness” shall mean subordinated or senior Indebtedness (which Indebtedness may (x) be unsecured, (y) have the same lien priority as the Obligations or (z) be secured by a Lien ranking junior to the Lien securing the Obligations), in each case issued or incurred by the Borrower or a Guarantor, (a) the terms of which do not provide for any scheduled repayment, mandatory repayment or redemption or sinking fund obligations prior to, at the time of incurrence, the Final Maturity Date (or to the extent such Permitted Other Indebtedness is being utilized to refinance Indebtedness, the latest maturity date of the Indebtedness being so refinanced) (other than, in each case, customary offers to repurchase upon a change of control, asset sale or casualty or condemnation event and customary acceleration rights after an event of default), (b) the covenants, events of default, guarantees, collateral and other terms of which (other than fees, pricing and redemption or prepayment premiums), taken as a whole, are not more restrictive to the Borrower and the Restricted Subsidiaries than those herein (or to the extent such Permitted Other Indebtedness is being utilized to refinance Indebtedness, those set forth in the Indebtedness being so refinanced); provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at least five Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within two Business Days after receipt of such certificate that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees), (c) of which no Subsidiary of the Borrower (other than a Guarantor) is an obligor and (d) that, if secured, are not secured by any assets other than the Collateral.

 

“Permitted Other Indebtedness Documents” shall mean any document or instrument (including any guarantee, security agreement or mortgage and which may include any or all of the Credit Documents) issued or executed and delivered with respect to any Permitted Other Indebtedness by any Credit Party.

 

“Permitted Other Indebtedness Obligations” shall mean, if any Permitted Other Indebtedness is issued or incurred, all advances to, and debts, liabilities, obligations, covenants and duties of, any Credit Party arising under any Permitted Other Indebtedness Document, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.  Without limiting the generality of the foregoing, the Permitted Other Indebtedness Obligations of the applicable Credit Parties under the Permitted Other Indebtedness Documents (and any of their Restricted Subsidiaries to the extent they have obligations under the Permitted Other Indebtedness Documents) include the obligation (including guarantee obligations) to pay principal,

 

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interest, charges, expenses, fees, attorney costs, indemnities and other amounts payable by any such Credit Party under any Permitted Other Indebtedness Document.

 

“Permitted Other Indebtedness Secured Parties” shall mean the holders from time to time of secured Permitted Other Indebtedness Obligations (and any representative on their behalf).

 

“Permitted Receivables Financing” shall mean any customary accounts receivable financing facility (including customary back-to-back intercompany arrangements in respect thereof) to the extent that (a) the maturity date is no earlier than the Revolving Credit Maturity Date; (b) any collateral securing the obligations of the obligors thereunder shall be pledged to the Secured Parties on a second priority basis to secure the Obligations pursuant to intercreditor arrangement reasonably acceptable to the Administrative Agent; (c) the remaining terms applicable to such financing facility must be customary for financings of such type and (d) (i) the proceeds of all Indebtedness incurred under such facility must be applied to the prepayment of Term Loans pursuant to Section 5.2 or (ii) the Revolving Credit Commitments are reduced by an amount equal to such facility.

 

“Permitted Sale Leaseback” shall mean any Sale Leaseback consummated by the Borrower or any of the Restricted Subsidiaries after the Original Closing Date, provided that any such Sale Leaseback not between (a) a Credit Party and another Credit Party or (b) a Restricted Subsidiary that is not a Credit Party to another Restricted Subsidiary that is not a Credit Party is consummated for fair value as determined at the time of consummation in good faith by (i) the Borrower or such Restricted Subsidiary and, in the case of any Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds of which exceed $100,000,000, (ii) the board of directors of the Borrower or such Restricted Subsidiary (which such determination may take into account any retained interest or other Investment of the Borrower or such Restricted Subsidiary in connection with, and any other material economic terms of, such Sale Leaseback).

 

“Person” shall mean any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise or any Governmental Authority.

 

“PIK Interest Amount” shall (i) mean the aggregate principal amount of all increases in outstanding principal amount of PIK Notes and issuances of additional “PIK Notes” (as defined in the Senior Notes Indenture) in connection with an election by the Borrower to pay interest on the PIK Notes in kind and (ii) the aggregate principal amount of all increases in outstanding principal amount of Senior Interim PIK Loans in connection with an election by the Borrower to pay interest on the Senior Interim PIK Loans in kind.

 

“Plan” shall mean any multiemployer or single-employer plan, as defined in Section 4001 of ERISA and subject to Title IV of ERISA, that is or was within any of the preceding six plan years maintained or contributed to by (or to which there is or was an obligation to contribute or to make payments to) the Borrower or an ERISA Affiliate.

 

“Platform” shall have the meaning provided in Section 13.17(b).

 

“Pledge Agreement” shall mean (a) the Pledge Agreement, entered into by the Credit Parties party thereto and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit E to the Original Credit Agreement, on the Original Closing Date, and (b) any other pledge agreement with respect to all of the Obligations delivered pursuant to Section 9.12, in each case, as the same may be amended, supplemented or otherwise modified from time to time.

 

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“Post-Acquisition Period” shall mean, with respect to any Permitted Acquisition, the period beginning on the date such Permitted Acquisition is consummated and ending on the last day of the sixth full consecutive fiscal quarter immediately following the date on which such Permitted Acquisition is consummated.

 

“Prepayment Event” shall mean any Asset Sale Prepayment Event, Debt Incurrence Prepayment Event, Casualty Event or any Permitted Sale Leaseback.

 

“Prime Rate” shall mean the “prime rate” referred to in the definition of “ABR”.

 

“Pro Forma Adjustment” shall mean, for any Test Period that includes all or any part of a fiscal quarter included in any Post-Acquisition Period, with respect to the Acquired EBITDA of the applicable Acquired Entity or Business or Converted Restricted Subsidiary or the Consolidated EBITDA of the Borrower, the pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected by the Borrower in good faith as a result of (a) actions taken during such Post-Acquisition Period for the purposes of realizing reasonably identifiable and factually supportable cost savings or (b) any additional costs incurred during such Post-Acquisition Period, in each case in connection with the combination of the operations of such Acquired Entity or Business or Converted Restricted Subsidiary with the operations of the Borrower and the Restricted Subsidiaries; provided that (i) at the election of the Borrower, such Pro Forma Adjustment shall not be required to be determined for any Acquired Entity or Business or Converted Restricted Subsidiary to the extent the aggregate consideration paid in connection with such acquisition was less than $5,000,000 and (ii) so long as such actions are taken during such Post-Acquisition Period or such costs are incurred during such Post-Acquisition Period, as applicable, it may be assumed, for purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, that the applicable amount of such cost savings will be realizable during the entirety of such Test Period, or the applicable amount of such additional costs, as applicable, will be incurred during the entirety of such Test Period; provided further that any such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be without duplication for cost savings or additional costs already included in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, for such Test Period.

 

“Pro Forma Adjustment Certificate” shall mean any certificate of an Authorized Officer of the Borrower delivered pursuant to Section 9.1(h) or Section 9.1(d).

 

“Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” shall mean, with respect to compliance with any test or covenant hereunder, that (A) to the extent applicable, the Pro Forma Adjustment shall have been made and (B) all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test or covenant:  (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (i) in the case of a sale, transfer or other disposition of all or substantially all Stock in any Subsidiary of the Borrower or any division, product line, or facility used for operations of the Borrower or any of its Subsidiaries, shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction”, shall be included, (b) any retirement of Indebtedness and (c) any incurrence or assumption of Indebtedness by the Borrower or any of the Restricted Subsidiaries in connection therewith (it being agreed that if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness as at the relevant date of determination); provided that, without limiting the application of the Pro Forma Adjustment pursuant to (A) above (but without duplication thereof), the foregoing pro forma adjustments may be applied to any such test or covenant solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and

 

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give effect to events (including operating expense reductions) that are (i) (x) directly attributable to such transaction, (y) expected to have a continuing impact on the Borrower and the Restricted Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of Pro Forma Adjustment.

 

“Pro Forma Entity” shall have the meaning provided in the definition of the term “Acquired EBITDA.”

 

“Qualified Equity Interest” shall mean any Stock or Stock Equivalent that does not constitute a Disqualified Equity Interest.

 

“Real Estate” shall have the meaning provided in Section 9.1(f).

 

“Receivables Subsidiary” shall mean any Subsidiary established in connection with a Permitted Receivables Financing that is not permitted by the terms of such Permitted Receivables Financing to guarantee the Obligations.

 

“Refinanced Term Loans” shall have the meaning provided in Section 13.1.

 

“Refinancing Permitted Other Indebtedness” shall have the meaning provided in Section 10.1(bb)(ii).

 

“Register” shall have the meaning provided in Section 13.6(b)(iv).

 

“Regulation T” shall mean Regulation T of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

 

“Regulation U” shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

 

“Regulation X” shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

 

“Reimbursement Date” shall have the meaning provided in Section 3.4(a).

 

“Reinvestment Period” shall mean 15 months following the date of receipt of Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback.

 

“Rejection Notice” shall have the meaning provided in Section 5.2(h).

 

“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees, agents, trustees and advisors of such Person and any Person that possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.

 

“Repaid Tranche B-2 Loans” shall have the meaning provided in Section 5.2(a)(i)(B).

 

“Repaid Tranche B-3 Loans” shall have the meaning provided in Section 5.1(b).

 

“Repayment Amount” shall mean the Initial Term Loan Repayment Amount, the Delayed Draw Repayment Amount, the Euro Tranche Repayment Amount, the 2018 Dollar Term Loan Repayment Amount, the 2018 Euro Term Loan Repayment Amount, the 2017 Dollar Term Loan Repayment Amount, the 2017 Euro Term Loan Repayment Amount, the 2017B Dollar Term Loan

 

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Repayment Amount, the 2017B Euro Term Loan Repayment Amount, the 2020 Term A Loan Repayment Amount, a New Term Loan Repayment Amount with respect to any Series or an Extended Term Loan Repayment Amount with respect to any Extension Series, as applicable. As the context requires, the term “Repayment Amount” shall take into account that the 2017 Second New Dollar Term Loans, the 2017 Second New Euro Term Loans, 2018 New Dollar Term Loans, the 2018 New Euro Term Loans, the 2018B Second New Term Loans, the 2021 New Term Loans and, 2022 New Term Loans and 2024 New Dollar Term Loans do not require any amortization payments prior to the 2017 Second New Term Loan Maturity Date, 2018 New Term Loan Maturity Date, 2018B Second New Term Loan Maturity Date, the 2021 Term Loan Maturity Date, the 2022 Term Loan Maturity Date or the 20222024 New Dollar Term Loan Maturity Date, as applicable, and the aggregate principal amount of such 2017 Second New Dollar Term Loans, 2017 Second New Euro Term Loans, 2018 New Dollar Term Loans, 2018 New Euro Term Loans, 2018B Second New Term Loans, 2021 New Term Loans and, 2022 New Term Loans and 2024 New Dollar Term Loans shall be due and payable on the 2017 Second New Term Loan Maturity Date, 2018 New Term Loan Maturity Date, 2018B Second Term Loan Maturity Date, 2021 Term Loan Maturity Date or, 2022 Term Loan Maturity Date or 2024 New Dollar Term Loan Maturity Date, as applicable.

 

“Repayment Date” shall mean the Initial Term Loan Repayment Date, a 2018 Dollar Term Loan Repayment Date, a 2018 Euro Term Loan Repayment Date, a 2017 Dollar Term Loan Repayment Date, a 2017 Euro Term Loan Repayment Date, a 2017B Dollar Term Loan Repayment Date, a 2017B Euro Term Loan Repayment Date, a 2020 Term A Loan Repayment Date, an Extended Repayment Date with respect to any Extension Series of Extended Term Loans other than the 2018 Term Loans, the 2017 Term Loans and the 2017B Term Loans and a New Term Loan Repayment Date.

 

“Replacement Term Loans” shall have the meaning provided in Section 13.1.

 

“Reportable Event” shall mean an event described in Section 4043 of ERISA and the regulations thereunder, other than any event as to which the thirty day notice period has been waived.

 

“Repricing Transaction” shall mean (i) the incurrence by the Borrower of any Indebtedness in the form of a similar term loan that is broadly marketed or syndicated to banks and other institutional investors (a) having an Effective Yield for the respective Type of such Indebtedness that is less than the Effective Yield for the applicable Term Loans of the respective equivalent Type, but excluding Indebtedness incurred in connection with an IPO, Change of Control, Transformative Acquisition or Transformative Disposition and (b) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of the applicable Term Loans or (ii) any effective reduction in the Effective Yield for the applicable Term Loans (e.g., by way of amendment, waiver or otherwise), except for a reduction in connection with an IPO, Change of Control, Transformative Acquisition or Transformative Disposition.

 

“Required 2018 Dollar Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2018 Dollar Term Loans (excluding 2018 Dollar Term Loans held by Defaulting Lenders) at such date.

 

“Required 2018 Euro Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2018 Euro Term Loans (excluding 2018 Euro Term Loans held by Defaulting Lenders) at such date.

 

“Required 2018 New Dollar Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2018 New Dollar Term Loans (excluding 2018 New Dollar Term Loans held by Defaulting Lenders) at such date.

 

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“Required 2018 New Euro Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2018 New Euro Term Loans (excluding 2018 New Euro Term Loans held by Defaulting Lenders) at such date.

 

“Required 2017 Dollar Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2017 Dollar Term Loans (excluding 2017 Dollar Term Loans held by Defaulting Lenders) at such date.

 

“Required 2017 Euro Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2017 Euro Term Loans (excluding 2017 Euro Term Loans held by Defaulting Lenders) at such date.

 

“Required 2017B Dollar Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2017B Dollar Term Loans (excluding 2017B Dollar Term Loans held by Defaulting Lenders) at such date.

 

“Required 2017B Euro Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2017B Euro Term Loans (excluding 2017B Euro Term Loans held by Defaulting Lenders) at such date.

 

“Required 2017 New Dollar Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2017 New Dollar Term Loans (excluding 2017 New Dollar Term Loans held by Defaulting Lenders) at such date.

 

“Required 2017 New Euro Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2017 New Euro Term Loans (excluding 2017 New Euro Term Loans held by Defaulting Lenders) at such date.

 

“Required 2017 Second New Dollar Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2017 Second New Dollar Term Loans (excluding 2017 Second New Dollar Term Loans held by Defaulting Lenders) at such date.

 

“Required 2017 Second New Euro Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2017 Second New Euro Term Loans (excluding 2017 Second New Euro Term Loans held by Defaulting Lenders) at such date.

 

“Required 2018B New Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2018B New Term Loans (excluding 2018B New Term Loans held by Defaulting Lenders) at such date.

 

“Required 2018B Second New Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2018B Second New Term Loans (excluding 2018B Second New Term Loans held by Defaulting Lenders) at such date.

 

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“Required 2018B Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2018B Term Loans (excluding 2018B Term Loans held by Defaulting Lenders) at such date.

 

“Required 2020 Term A Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2020 Term A Loans (excluding 2020 Term A Loans held by Defaulting Lenders) at such date.

 

“Required 2021 New Euro Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2021 New Euro Term Loans (excluding 2021 New Euro Term Loans held by Defaulting Lenders) at such date.

 

“Required 2021C New Dollar Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2021C New Dollar Term Loans (excluding 2021C New Dollar Term Loans held by Defaulting Lenders) at such date.

 

“Required 2022C New Dollar Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2022C New Dollar Term Loans (excluding 2022C New Dollar Term Loans held by Defaulting Lenders) at such date.

 

“Required 2022C New Euro Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2022C New Euro Term Loans (excluding 2022C New Euro Term Loans held by Defaulting Lenders) at such date.

 

“Required 2024 New Dollar Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2024 New Dollar Term Loans (excluding 2024 New Dollar Term Loans held by Defaulting Lenders) at such date.

 

“Required Delayed Draw Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Adjusted Total Delayed Draw Term Loan Commitment at such date and (b) the aggregate outstanding principal amount of the Delayed Draw Term Loans (excluding Delayed Draw Term Loans held by Defaulting Lenders) at such date.

 

“Required Euro Tranche B-1 Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a Dollar Equivalent of a majority of the sum of (a) the Euro Tranche B-1 Term Loan Commitments at such date (excluding Euro Tranche B-1 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate outstanding principal amount of the Euro Tranche B-1 Term Loans (excluding Euro Tranche B-1 Term Loans held by Defaulting Lenders) at such date.

 

“Required Euro Tranche B-2 Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Euro Tranche B-2 Term Loan Commitments at such date (excluding Euro Tranche B-2 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate outstanding principal amount of the Euro Tranche B-2 Term Loans (excluding Euro Tranche B-2 Term Loans held by Defaulting Lenders) at such date.

 

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“Required Initial Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Adjusted Total Initial Term Loan Commitment at such date and (b) the aggregate outstanding principal amount of the Initial Term Loans (excluding Initial Term Loans held by Defaulting Lenders) at such date.

 

“Required Initial Tranche B-1 Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Initial Tranche B-1 Term Loan Commitments at such date (excluding Initial Tranche B-1 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate outstanding principal amount of the Initial Tranche B-1 Term Loans (excluding Initial Tranche B-1 Term Loans held by Defaulting Lenders) at such date.

 

“Required Initial Tranche B-2 Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Initial Tranche B-2 Term Loan Commitments at such date (excluding Initial Tranche B-2 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate outstanding principal amount of the Initial Tranche B-2 Term Loans (excluding Initial Tranche B-2 Term Loans held by Defaulting Lenders) at such date.

 

“Required Initial Tranche B-3 Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Initial Tranche B-3 Term Loan Commitments at such date (excluding Initial Tranche B-3 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate outstanding principal amount of the Initial Tranche B-3 Term Loans (excluding Initial Tranche B-3 Term Loans held by Defaulting Lenders) at such date.

 

“Required Tranche B-1 Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Tranche B-1 Term Loan Commitments at such date (excluding Tranche B-1 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate outstanding principal amount of the Tranche B-1 Term Loans (excluding Tranche B-1 Term Loans held by Defaulting Lenders) at such date.

 

“Required Tranche B-2 Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Tranche B-2 Term Loan Commitments at such date (excluding Tranche B-2 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate outstanding principal amount of the Tranche B-2 Term Loans (excluding Tranche B-2 Term Loans held by Defaulting Lenders) at such date.

 

“Required Lenders” shall mean, at any date, (a) Non-Defaulting Lenders having or holding a majority of the Dollar Equivalent of the sum of (i) the Adjusted Total Revolving Credit Commitment at such date, (ii) the Adjusted Total Term Loan Commitment at such date and (iii) the outstanding principal amount of the Term Loans (excluding Term Loans held by Defaulting Lenders) at such date or (b) if the Total Revolving Credit Commitment and the Total Term Loan Commitment have been terminated or for the purposes of acceleration pursuant to Section 11, Non-Defaulting Lenders having or holding a majority of the Dollar Equivalent of the outstanding principal amount of the Loans and Letter of Credit Exposure (excluding the Loans and Letter of Credit Exposure of Defaulting Lenders) in the aggregate at such date.

 

“Required Revolving Credit Lenders” shall mean, at any date, Non-Defaulting Lenders holding a majority of the Adjusted Total Revolving Credit Commitment at such date (or, if the Total Revolving Credit Commitment has been terminated at such time, a majority of the Revolving Credit Exposure (excluding Revolving Credit Exposure of Defaulting Lenders) at such time).

 

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“Requirement of Law” shall mean, 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 assets or to which such Person or any of its property or assets is subject.

 

“Restricted Foreign Subsidiary” shall mean a Foreign Subsidiary that is a Restricted Subsidiary.

 

“Restricted Indebtedness” shall mean any Subordinated Indebtedness other than the Senior Subordinated Notes.

 

“Restricted Subsidiary” shall mean any Subsidiary of the Borrower other than an Unrestricted Subsidiary.

 

“Retained Declined Proceeds” shall have the meaning provided in Section 5.2(h).

 

“Revaluation Date” shall mean (a) with respect to any Revolving Credit Loan or Swingline Loan, each of the following: (i) each date of a Borrowing of a Revolving Credit Loan or Swingline Loan, (ii) each date of a continuation of a Revolving Credit Loan pursuant to Section 2.6, and (iii) such additional dates as the Administrative Agent shall determine or the Required Revolving Credit Lenders or Swingline Lender shall require; and (b) with respect to any Letter of Credit, each of the following:  (i) each date of issuance of any such Letter of Credit, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by the applicable Letter of Credit Issuer under any Letter of Credit, and (iv) such additional dates as the Administrative Agent or the Letter of Credit Issuer shall determine or the Required Revolving Credit Lenders shall require.

 

“Revolving Credit Commitment” shall mean, (a) with respect to each Lender that is a Lender prior to the 2015 May Effective Date, the “Revolving Credit Commitment” as defined in the Credit Agreement as in effect at any time prior to such date, (b) with respect to each Lender that is a Lender on and after the 2015 May Effective Date, such Lender’s 2020 Revolving Credit Commitments and (c) in the case of any Lender that becomes a Lender after the 2015 May Effective Date, the amount specified as such Lender’s “Revolving Credit Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Revolving Credit Commitment, in each case of the same may be changed from time to time pursuant to terms hereof.  The aggregate amount of the Revolving Credit Commitments as of the 2015 May Effective Date is $1,250,000,000.

 

“Revolving Credit Commitment Percentage” shall mean the 2013 Revolving Credit Commitment Percentage, the 2016 Revolving Credit Commitment Percentage and/or the 2020 Revolving Credit Commitment Percentage, as the case may be.

 

“Revolving Credit Exposure” shall mean the 2013 Revolving Credit Exposure, the 2016 Revolving Credit Exposure and/or the 2020 Revolving Credit Exposure, as the case may be.

 

“Revolving Credit Extension Request” shall have the meaning provided in Section 2.14(f)(ii).

 

“Revolving Credit Facility” shall mean the 2013 Revolving Credit Facility, the 2016 Revolving Credit Facility and/or the 2020 Revolving Credit Facility, as the case may be.

 

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“Revolving Final Date” shall mean, with respect to the 2013 Revolving Credit Commitments, the 2013 Revolving Final Date, with respect to the 2016 Revolving Credit Commitments, the 2016 Revolving Final Date and with respect to the 2020 Revolving Credit Commitments, the 2020 Revolving Final Date.

 

“Revolving Credit Lender” shall mean, at any time, any Lender that has a Revolving Credit Commitment or Extended Revolving Credit Commitment at such time.

 

“Revolving Credit Loans” shall mean the 2013 Revolving Credit Loans, the 2016 Revolving Credit Loans and/or the 2020 Revolving Credit Loans, as the case may be.

 

“Revolving Credit Termination Date” shall mean the date on which the Revolving Credit Commitments shall have terminated, no Revolving Credit Loans shall be outstanding and the Letters of Credit Outstanding shall have been reduced to zero or Cash Collateralized.

 

“S&P” shall mean Standard & Poor’s Ratings Services or any successor by merger or consolidation to its business.

 

“Sale Leaseback” shall mean any transaction or series of related transactions pursuant to which the Borrower or any of the Restricted Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.

 

“Scheduled Dispositions” shall have the meaning provided in Section 10.4(k).

 

“SEC” shall mean the Securities and Exchange Commission or any successor thereto.

 

“Second Lien Intercreditor Agreement” shall mean an Intercreditor Agreement substantially in the form of Exhibit M among the Administrative Agent, the Collateral Agent and the representatives for purposes thereof for any other Permitted Other Indebtedness Secured Parties that are holders of Permitted Other Indebtedness Obligations having a Lien on the Collateral ranking junior to the Lien securing the Obligations, with such changes thereto as may be reasonably acceptable to the Administrative Agent; provided that such changes are not materially adverse to the Lenders.

 

“Section 2.14 Additional Amendment” shall have the meaning provided in Section 2.14(f)(iv).

 

“Section 9.1 Financials” shall mean the financial statements delivered, or required to be delivered, pursuant to Section 9.1(a) or (b) together with the accompanying officer’s certificate delivered, or required to be delivered, pursuant to Section 9.1(d).

 

“Secured Cash Management Agreement” shall mean any Cash Management Agreement that is entered into by and between the Borrower or any of its Subsidiaries and any Cash Management Bank.

 

“Secured Hedge Agreement” shall mean any Hedge Agreement that is entered into by and between the Borrower or any Restricted Subsidiary and any Hedge Bank; provided that in the case of a Hedge Bank that is considered a Hedge Bank solely as a result of the operation of clause (b) of the definition thereof, the only Hedge Agreements with such Hedge Bank that shall be considered Secured Hedge Agreements are those set forth on Schedule 1.1(i) to the Original Credit Agreement except as such

 

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Hedge Bank may otherwise be considered a Hedge Bank after the Original Closing Date in accordance with clause (a) of the definition thereof.

 

“Secured Parties” shall mean the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer and each Lender, in each case with respect to the Credit Facilities, each Existing Secured Letter of Credit Issuer that is an issuer of any Existing Secured Letter of Credit, each Hedge Bank that is party to any Secured Hedge Agreement with the Borrower or any Domestic Subsidiary, each Cash Management Bank that is party to a Secured Cash Management Agreement with the Borrower or any Domestic Subsidiary or certain Foreign Subsidiaries to the extent agreed to from time to time by the Borrower or such Foreign Subsidiaries with one or more Lenders or an Affiliate of a Lender and each sub-agent pursuant to Section 12 appointed by the Administrative Agent with respect to matters relating to the Credit Facilities or the Collateral Agent with respect to matters relating to any Security Document.

 

“Securitization” shall mean a public or private offering by a Lender or any of its Affiliates or their respective successors and assigns of securities or notes which represent an interest in, or which are collateralized, in whole or in part, by the Loans and the Lender’s rights under the Credit Documents.

 

“Security Agreement” shall mean the Security Agreement entered into by the Borrower, the other grantors party thereto and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit F to the Original Credit Agreement, as the same may be amended, supplemented or otherwise modified from time to time.

 

“Security Documents” shall mean, collectively, (a) the Guarantee, (b) the Pledge Agreement, (c) the Security Agreement, (d) the Mortgages, (e) the First Lien Intercreditor Agreement, (f) if executed, the Second Lien Intercreditor Agreement and (g) each other security agreement or other instrument or document executed and delivered pursuant to Section 9.11, 9.12 or 9.14 or pursuant to any other such Security Documents to secure all of the Obligations.

 

“Senior Interim Loan Agreement” shall have the meaning provided in the recitals to this Agreement.

 

“Senior Interim Loans” shall have the meaning provided in the recitals to this Agreement and shall include term loans outstanding under the Senior Interim Loan Agreement after conversion thereof.

 

“Senior Interim PIK Loans” shall have the meaning provided in the recitals to this Agreement and shall include term loans outstanding under the Senior Interim Loan Agreement after conversion thereof.

 

“Senior Notes” shall mean (a) senior notes and/or senior PIK notes (the “PIK Notes”) with a stated maturity no earlier than seven and one-half years after the Original Closing Date to be issued in connection with the refinancing or exchange of the Senior Interim Loans in sales pursuant to Rule 144A and Regulation S under the Securities Act of 1933, as amended, under the Senior Notes Indenture or Senior Interim Loan Agreement, as applicable, in each case together with interest, fees and all other amounts payable in connection therewith, generating aggregate gross proceeds of up to $6,500,000,000 plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing (less the amount of any Senior Interim Loans and Senior Interim PIK Loans that remain outstanding after the issuance of the Senior Notes), and (b) any modification, replacement, refinancing, refunding, renewal or extension thereof that constitutes Permitted Additional Debt.

 

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“Senior Notes Indenture” shall mean the Indenture to be entered into in connection with the refinancing or exchange of the Senior Interim Loans, among the Borrower, the guarantors party thereto and a trustee, pursuant to which the Senior Notes shall be issued, as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith.

 

“Senior Secured Leverage Test” shall mean, as of any date of determination, with respect to the last day of the most recently ended Test Period, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio shall be no greater than 5.5 to 1.0.

 

“Senior Subordinated Interim Loan Agreement” shall have the meaning provided in the recitals to this Agreement.

 

“Senior Subordinated Interim Loans” shall have the meaning provided in the recitals to this Agreement and shall include term loans outstanding under the Senior Subordinated Interim Loan Agreement after conversion thereof.

 

“Senior Subordinated Notes” shall mean (a) senior subordinated notes with a stated maturity no earlier than seven and one-half years after the Original Closing Date to be issued in connection with the refinancing or exchange of the Senior Subordinated Interim Loans in a sale pursuant to Rule 144A and Regulation S under the Securities Act of 1933, as amended, under the Senior Subordinated Notes Indenture or Senior Subordinated Interim Loan Agreement, as applicable, together with interest, fees and all other amounts payable in connection therewith, generating aggregate gross proceeds of up to $2,500,000,000 plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing (less the amount of any Senior Subordinated Interim Loans that remain outstanding after the issuance of the Senior Subordinated Notes), and (b) any modification, replacement, refinancing, refunding, renewal or extension thereof that constitutes Permitted Additional Debt.

 

“Senior Subordinated Notes Indenture” shall mean the Indenture to be entered into in connection with the refinancing or exchange of the Senior Subordinated Interim Loans, among the Borrower, the guarantors party thereto and a trustee, pursuant to which the Senior Subordinated Notes shall be issued, as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith.

 

“Series” shall have the meaning provided in Section 2.14(a).

 

“Settlement” shall mean the transfer of cash or other property with respect to any credit or debit card charge, check or other instrument, electronic funds transfer, or other type of paper-based or electronic payment, transfer, or charge transaction for which a Person acts as a processor, remitter, funds recipient or funds transmitter in the ordinary course of its business.

 

“Settlement Asset” shall mean any cash, receivable or other property, including a Settlement Receivable, due or conveyed to a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person or an Affiliate of such Person, including prior to Settlement any such cash, receivable or other property, including a Settlement Receivable, Invested in anticipation of such Settlement.

 

“Settlement Indebtedness” shall mean any payment or reimbursement obligation in respect of a Settlement Payment.

 

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“Settlement Lien” shall mean any Lien relating to any Settlement or Settlement Indebtedness (and may include, for the avoidance of doubt, the grant of a Lien in or other assignment of a Settlement Asset in consideration of a Settlement Payment, Liens securing intraday and overnight overdraft and automated clearing house exposure, and similar Liens).

 

“Settlement Payment” shall mean the transfer, or contractual undertaking (including by automated clearing house transaction) to effect a transfer, of cash or other property to effect a Settlement.

 

“Settlement Receivable” shall mean any general intangible, payment intangible, or instrument representing or reflecting an obligation to make payments to or for the benefit of a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person.

 

“Sold Entity or Business” shall have the meaning provided in the definition of the term “Consolidated EBITDA.”

 

“Solvent” shall mean, with respect to any Person, that as of the Original Closing Date, (a) (i) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (ii) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Original Closing Date; and (iii) such Person has not incurred and does not intend to incur, or believe that it will incur, debts including current obligations beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (b) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).

 

“Specified Existing Revolving Credit Commitment” shall have the meaning provided in Section 2.14(f)(ii).

 

“Specified Subsidiary” shall mean, at any date of determination (a) any Material Subsidiary or (b) any Unrestricted Subsidiary (i) whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal period for which Section 9.1 Financials have been delivered were equal to or greater than 10% of the Consolidated Total Assets of the Borrower and the Subsidiaries at such date, or (ii) whose revenues during such Test Period were equal to or greater than 10% of the consolidated revenues of the Borrower and the Subsidiaries for such period, in each case determined in accordance with GAAP, and (c) each other Unrestricted Subsidiary that is the subject of an Event of Default under Section 11.5 and that, when such Subsidiary’s total assets or revenues are aggregated with the total assets or revenues, as applicable, of each other Subsidiary that is the subject of an Event of Default under Section 11.5 would constitute a Specified Subsidiary under clause (b) above.

 

“Specified Transaction” shall mean, with respect to any period, any Investment, any Disposition of assets, incurrence or repayment of Indebtedness, Dividend, Subsidiary designation, New Term Loan, New Revolving Credit Commitment or other event that by the terms of this Agreement requires “Pro Forma Compliance” with a test or covenant hereunder or requires such test or covenant to be calculated on a “Pro Forma Basis”.

 

“Sponsor” shall mean any of KKR and its Affiliates but excluding portfolio companies of any of the foregoing.

 

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“Spot Rate” for a currency shall mean the rate determined by the Administrative Agent to be the rate quoted by the Administrative Agent as the spot rate for the purchase by the Administrative Agent of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if it does not have as of the date of determination a spot buying rate for any such currency.

 

“SPV” shall have the meaning provided in Section 13.6(g).

 

“Stated Amount” of any Letter of Credit shall mean the Dollar Equivalent of the maximum amount from time to time available to be drawn thereunder, determined without regard to whether any conditions to drawing could then be met; provided, however, that with respect to any Letter of Credit that by its terms or the terms of any Issuer Document provides for one or more automatic increases in the stated amount thereof, the Stated Amount shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

“Status” shall mean, as to the Borrower as of any date, the existence of Level I Status or Level II Status, as the case may be, on such date. Changes in Status resulting from changes in the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio shall become effective as of the first day following each date that (a) Section 9.1 Financials (x) for, with respect to the 2020 Revolving Credit Facility, the first full fiscal quarter ended after the 2015 May Effective Date and (y) with respect to the 2022 New Term Loans and 2020 Term A Loans (commencing with Section 9.1 Financials for the fiscal year ending December 31, 2016), are delivered to the Administrative Agent under Section 9.1 and (b) an officer’s certificate is delivered by the Borrower to the Administrative Agent setting forth, with respect to such Section 9.1 Financials, the then-applicable Status with respect to each of the 2020 Revolving Credit Facility, the 2022 New Term Loans and the 2020 Term A Loans, and shall remain in effect until the next change to be effected pursuant to this definition, provided that each determination of the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio pursuant to this definition shall be made as of the end of the Test Period ending at the end of the fiscal period covered by the relevant Section 9.1 Financials.

 

“Stock” shall mean shares of capital stock or shares in the capital, as the case may be (whether denominated as common stock or preferred stock or ordinary shares or preferred shares, as the case may be), beneficial, partnership or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity, whether voting or non-voting.

 

“Stock Equivalents” shall mean all securities convertible into or exchangeable for Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable.

 

“Subordinated Indebtedness” shall mean Indebtedness of the Borrower or any Guarantor that is by its terms subordinated in right of payment to the obligations of the Borrower and such Guarantor, as applicable, under this Agreement.

 

“Subsidiary” of any Person shall mean and include (a) any corporation more than 50% of whose Stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time Stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries, (b) any limited liability

 

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company, partnership, association, joint venture or other entity of which such Person directly or indirectly through Subsidiaries has more than a 50% equity interest at the time.  Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.

 

“Successor Borrower” shall have the meaning provided in Section 10.3(a).

 

“Swingline Commitment” shall mean $50,000,000.

 

“Swingline Lender” shall mean Credit Suisse, in its capacity as lender of Swingline Loans hereunder, or any replacement or successor thereto.

 

“Swingline Loans” shall mean swingline loans made by the Swingline Lender under the 2013 Revolving Credit Commitments, the 2016 Revolving Credit Commitments and/or the 2020 Revolving Credit Commitments, as the case may be.

 

“Swingline Maturity Date” shall mean, with respect to any Swingline Loan, the date that is five Business Days prior to the 2020 Revolving Credit Maturity Date.

 

“Syndication Agent” shall mean Citibank, N.A., together with its Affiliates, as syndication agent for the Lenders under this Agreement and the other Credit Documents.”TARGET Day” shall mean any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.

 

“Target Rating” shall have the meaning provided in the definition of “Applicable ABR Margin.”

 

“Taxes” shall mean any and all present or future taxes, duties, levies, imposts, assessments, deductions, withholdings or other similar charges imposed by any Governmental Authority whether computed on a separate, consolidated, unitary, combined or other basis and any interest, fines, penalties or additions to tax with respect to the foregoing.

 

“Term Loan Commitment” shall mean, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Delayed Draw Term Loan Commitment, Euro Tranche Term Loan Commitment and, if applicable, New Term Loan Commitment with respect to any Series.

 

“Term Loan Extension Request” shall have the meaning provided in Section 2.14 (f)(i).

 

“Term Loans” shall mean the Initial Term Loans, the Delayed Draw Term Loans, the Euro Tranche Term Loans, 2017 Second New Dollar Term Loans, 2017 Second New Euro Term Loans, 2018B New Term Loans, 2020 Term A Loans, 2021 New Term Loans, 2022 New Term Loans, 2024 New Dollar Term Loans, any New Term Loans and any Extended Term Loans (including, without limitation, the 2018 New Term Loans, the 2018B Second New Term Loans, the 2017 Term Loans, the 2017B Term Loans and the Term Loans whose maturities were extended pursuant to the 2014 January Extension and Repricing Amendment), collectively.

 

“Test Period” shall mean, for any determination under this Agreement, the four consecutive fiscal quarters of the Borrower then last ended.

 

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“Total 2013 Revolving Credit Commitment” shall mean, on any date, the sum of the 2013 Revolving Credit Commitments on such date of all 2013 Revolving Credit Lenders.

 

“Total 2016 Revolving Credit Commitment” shall mean, on any date, the sum of the 2016 Revolving Credit Commitments on such date of all 2016 Revolving Credit Lenders.

 

“Total 2020 Revolving Credit Commitment” shall mean, on any date, the sum of the 2020 Revolving Credit Commitments on such date of all 2020 Revolving Credit Lenders.

 

“Total Credit Exposure” shall mean, at any date, the sum, without duplication, of (a) the Total Revolving Credit Commitment at such date (or, if the Total Revolving Credit Commitment shall have terminated on such date, the aggregate Revolving Credit Exposure of all Lenders at such date), (b) the Total Term Loan Commitment at such date and (c) without duplication of clause (b), the Dollar Equivalent of the aggregate outstanding principal amount of all Term Loans at such date.

 

“Total Delayed Draw Term Loan Commitment” shall mean the sum of the Delayed Draw Term Loan Commitments of all Lenders.

 

“Total Euro Tranche B-1 Term Loan Commitment” shall mean the sum of the Euro Tranche Term Loan Commitments of all Lenders.

 

“Total Euro Tranche B-2 Term Loan Commitment” shall mean the sum of the Euro Tranche Term Loan Commitments of all Lenders.

 

“Total Initial Term Loan Commitment” shall mean the sum of the Initial Term Loan Commitments of all Lenders.

 

“Total Revolving Credit Commitment” shall mean the sum of the Revolving Credit Commitments of all the Lenders.

 

“Total Term Loan Commitment” shall mean the sum of the Initial Term Loan Commitments, the Delayed Draw Term Loan Commitments, the Euro Tranche Term Loan Commitments and the New Term Loan Commitments, if applicable, of all the Lenders.

 

“Tranche B-1 Term Loan Commitment” shall mean the sum of the Initial Tranche B-1 Term Loan Commitments and the Euro Tranche B-1 Term Loan Commitments of all the Lenders.

 

“Tranche B-1 Term Loan Lender” shall mean a Lender with a Tranche B-1 Term Loan Commitment or an outstanding Tranche B-1 Term Loan.

 

“Tranche B-1 Term Loans” shall mean any Initial Tranche B-1 Term Loan or Euro Tranche B-1 Term Loan.

 

“Tranche B-2 Term Loan Commitment” shall mean the sum of the Initial Tranche B-2 Term Loan Commitments and the Euro Tranche B-2 Term Loan Commitments of all the Lenders.

 

“Tranche B-2 Term Loan Lender” shall mean a Lender with a Tranche B-2 Term Loan Commitment or an outstanding Tranche B-2 Term Loan.

 

“Tranche B-2 Term Loans” shall mean any Initial Tranche B-2 Term Loan or Euro Tranche B-2 Term Loan.

 

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“Transaction Expenses” shall mean any fees or expenses incurred or paid by the Borrower or any of its Subsidiaries in connection with the Transactions, this Agreement and the other Credit Documents and the transactions contemplated hereby and thereby.

 

“Transactions” shall mean, collectively, the transactions contemplated by this Agreement, the Senior Interim Loan Agreement, the Senior Subordinated Interim Loan Agreement, the Merger and the Equity Investments and any repayment, repurchase, prepayment or defeasance of Indebtedness of the Borrower or any of its Subsidiaries in connection therewith.

 

“Transferee” shall have the meaning provided in Section 13.6(e).

 

“Transformative Acquisition” shall mean any acquisition by the Borrower or any other Restricted Subsidiary that (i) is not permitted by the terms of the Credit Documents immediately prior to the consummation of such acquisition or (ii) would result in an upsizing of the Credit Facilities.

 

“Transformative Disposition” shall mean any disposition by the Borrower or any Restricted Subsidiary that (i) is not permitted by the terms of the Credit Documents immediately prior to the consummation of such acquisition or (ii) would result in a downsizing of the Credit Facilities.

 

“Treasury Rate” shall mean at any date, the yield to maturity as of such date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to such date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such date to the date which is 3.25 years following the Original Closing Date; provided, however, that if the period from such date to the date which is 3.25 years following the Original Closing Date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.

 

“Trigger Date” shall mean the day following the date on which Section 9.1 Financials are delivered to the Administrative Agent for the fiscal quarter ending on June 30, 2015.

 

“Type” shall mean (a) as to any Term Loan, its nature as an ABR Loan or a LIBOR Term Loan and (b) as to any Revolving Credit Loan, its nature as an ABR Loan or a LIBOR Revolving Credit Loan.

 

“Unfunded Current Liability” of any Plan shall mean the amount, if any, by which the Accumulated Benefit Obligation (as defined under Statement of Financial Accounting Standards No. 87 (“SFAS 87”) under the Plan as of the close of its most recent plan year, determined in accordance with SFAS 87 as in effect on the Original Closing Date, exceeds the fair market value of the assets allocable thereto.

 

“Unpaid Drawing” shall have the meaning provided in Section 3.4(a).

 

“Unrestricted Subsidiary” shall mean (a) any Subsidiary of the Borrower that is formed or acquired after the Original Closing Date, provided that at such time (or promptly thereafter) the Borrower designates such Subsidiary an Unrestricted Subsidiary in a written notice to the Administrative Agent, (b) any Restricted Subsidiary subsequently designated as an Unrestricted Subsidiary by the Borrower in a written notice to the Administrative Agent; provided that in the case of (a) and (b), (x) such designation shall be deemed to be an Investment (or reduction in an outstanding Investment, in the case of a designation of an Unrestricted Subsidiary as a Restricted Subsidiary), on the date of such designation in an amount equal to the sum of (i) the Borrower’s direct or indirect equity ownership percentage of the net

 

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worth of such designated Restricted Subsidiary immediately prior to such designation (such net worth to be calculated without regard to any guarantee provided by such designated Restricted Subsidiary) and (ii) without duplication, the aggregate principal amount of any Indebtedness owed by such designated Restricted Subsidiary to the Borrower or any other Restricted Subsidiary immediately prior to such designation, all calculated, except as set forth in the parenthetical to clause (i), on a consolidated basis in accordance with GAAP and (y) no Default or Event of Default would result from such designation after giving Pro Forma Effect thereto and the Borrower shall be in compliance with the covenant set forth in Section 10.10 determined on a Pro Forma Basis both before and after giving effect to such designation and (c) each Subsidiary of an Unrestricted Subsidiary.  The Borrower may, by written notice to the Administrative Agent, redesignate any Unrestricted Subsidiary as a Restricted Subsidiary, and thereafter, such Subsidiary shall no longer constitute an Unrestricted Subsidiary, but only if no Default or Event of Default would result from such re-designation.  On or promptly after the date of its formation, acquisition, designation or re-designation, as applicable, each Unrestricted Subsidiary (other than an Unrestricted Subsidiary that is a Foreign Subsidiary) shall have entered into a tax sharing agreement containing terms that, in the reasonable judgment of the Administrative Agent, provide for an appropriate allocation of tax liabilities and benefits.

 

“U.S.” and “United States” shall mean the United States of America.

 

“U.S. Lender” shall have the meaning provided in Section 5.4(j).

 

“Voting Stock” shall mean, with respect to any Person, such Person’s Stock or Stock Equivalents having the right to vote for the election of directors of such Person under ordinary circumstances.

 

1.2.         Other Interpretive Provisions.  With reference to this Agreement and each other Credit Document, unless otherwise specified herein or in such other Credit Document:

 

(a)           The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)           The words “herein”, “hereto”, “hereof’ and “hereunder” and words of similar import when used in any Credit Document shall refer to such Credit Document as a whole and not to any particular provision thereof.

 

(c)           Article, Section, Exhibit and Schedule references are to the Credit Document in which such reference appears.

 

(d)           The term “including” is by way of example and not limitation.

 

(e)           The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

 

(f)            In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including”.

 

(g)           Section headings herein and in the other Credit Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Credit Document.

 

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1.3.         Accounting Terms.

 

(a)           All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP.

 

(b)           Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this Agreement with respect to any period during which any Specified Transaction occurs, the Consolidated Total Debt to Consolidated EBITDA Ratio, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio and the Senior Secured Leverage Test shall each be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis.

 

1.4.         Rounding.  Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

1.5.         References to Agreements, Laws, Etc.  Unless otherwise expressly provided herein, (a) references to organizational documents, agreements (including the Credit Documents) and other Contractual Requirements shall be deemed to include all subsequent amendments, restatements, amendment and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, amendment and restatements, extensions, supplements and other modifications are permitted by any Credit Document; and (b) references to any Requirement of Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Requirement of Law.

 

1.6.         Exchange Rates.  For purposes of determining compliance under Sections 10.4, 10.5 and 10.6 with respect to any amount in a currency other than Dollars (other than with respect to (a) any amount derived from the financial statements of Holdings, the Borrower or its Subsidiaries or (b) any Indebtedness denominated in a currency other than Dollars), such amount shall be deemed to equal the Dollar Equivalent thereof based on the average Spot Rate for such currency for the most recent twelve-month period immediately prior to the date of determination determined in a manner consistent with that used in calculating Consolidated EBITDA for the related period.  For purposes of determining compliance with Sections 10.1, 10.2 and 10.5, with respect to any amount of Indebtedness denominated in a currency other than Dollars, compliance will be determined at the time of incurrence or advancing thereof using the Dollar Equivalent thereof at the Spot Rate in effect at the time of such incurrence or advancement.

 

SECTION 2.                                      Amount and Terms of Credit

 

2.1.         Commitments.

 

(a)           Subject to and upon the terms and conditions herein set forth,

 

(i)      each Lender having an Initial Tranche B-1 Term Loan Commitment made a loan or loans (each an “Initial Tranche B-1 Term Loan”) on the Original Closing Date to the Borrower in Dollars, which Initial Tranche B-1 Term Loans did not exceed for any such Lender the Initial Tranche B-1 Term Loan Commitment of such Lender and in the aggregate equaled (after giving effect to this amendment and restatement) $4,438,222,222.22;

 

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(ii)     each Lender having an Initial Tranche B-2 Term Loan Commitment made a loan or loans (each an “Initial Tranche B-2 Term Loan”) on the Original Closing Date to the Borrower in Dollars, which Initial Tranche B-2 Term Loans did not exceed for any such Lender the Initial Tranche B-2 Term Loan Commitment of such Lender and in the aggregate equaled (after giving effect to this amendment and restatement) $4,336,777,777.78;

 

(iii)    each Lender having an Initial Tranche B-3 Term Loan Commitment made a loan or loans (each an “Initial Tranche B-3 Term Loan”) on the Original Closing Date to the Borrower in Dollars, which Initial Tranche B-3 Term Loans did not exceed for any such Lender the Initial Tranche B-3 Term Loan Commitment of such Lender and in the aggregate equaled $3,000,000,000;

 

(iv)    each Lender having a Delayed Draw Term Loan Commitment severally agrees to make a loan or loans (each a “Delayed Draw Term Loan”) at any time and from time to time prior to the Delayed Draw Term Loan Commitment Termination Date to Borrower in Dollars, which Delayed Draw Term Loans shall not exceed for any such Lender the Delayed Draw Term Loan Commitment of such Lender and in the aggregate did not exceed $225,000,000; and

 

(v)     each Lender having an Euro Tranche Term Loan Commitment made a loan or loans (each a “Euro Tranche Term Loan”) on the Original Closing Date to the Borrower in Euro, which Euro Tranche Term Loan did not exceed for any such Lender the Euro Tranche Term Loan Commitment of such Lender and in the aggregate did not exceed €709,219,858.16.

 

On the Amendment Effective Date and effective as of the Original Closing Date:

 

(A)          the Borrower and the Lenders effected a reallocation of Initial Tranche B-1 Term Loan Commitments and Initial Tranche B-2 Term Loan Commitments  such that

 

(I) the Initial Tranche B-1 Term Loan Commitments shall be amended to be the respective amounts set forth opposite each Lender’s name on Schedule 1.1(c) hereto; and

 

(II) the Initial Tranche B-2 Term Loan Commitments shall be amended to be the respective amounts set forth opposite each Lender’s name on Schedule 1.1(c) hereto; and

 

(B)          the Euro Tranche Term Loan Commitments were amended to be subdivided into Euro Tranche B-1 Term Loan Commitments (which loans thereunder  are herein referred to as the “Euro Tranche B-1 Term Loans”) and Euro Tranche B-2 Term Loan Commitments (which loans thereunder are herein referred to as the “Euro Tranche B-2 Term Loans”), in each case, in the respective amounts set forth opposite each Lender’s name on Schedule 1.1(c) hereto.

 

On the 2011 Extension Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2011 Extension Amendment, (a) the 2014 Term Loans of each 2018 Term Lender outstanding on such date were continued hereunder and reclassified as 2018 Dollar Term Loans (in the case of 2014 Term Loans that were Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Initial Tranche B-3 Term Loans or Delayed Draw Term Loans) or as 2018 Euro Term Loans (in the case of 2014 Term Loans that were Euro Tranche B-1 Term Loans or Euro Tranche B-2 Term Loans) in the principal amount set forth on Schedule 1.1(c) to the 2011 Extension Amendment and (b) the 2014 Term Loans of each 2014 Term Lender outstanding on such date that was not a 2018 Term Lender (and the 2014 Term Loans (if any) of each 2018 Term Lender not reclassified as 2018 Term Loans pursuant to clause (a) above) were continued hereunder and were classified as 2014 Term Loans.  On and after the 2011 Extension Effective Date, all 2018 Term Loans rank pari passu in right of payment and security with, and, except as provided herein, have the same

 

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rights and benefits as, the 2014 Term Loans outstanding immediately prior to the 2011 Extension Effective Date under the Credit Documents.

 

On the 2012 Extension Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2012 Extension Amendment, (a) the 2014 Term Loans of each 2017 Term Lender outstanding on such date were continued hereunder and reclassified as 2017 Dollar Term Loans (in the case of 2014 Term Loans that were Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Initial Tranche B-3 Term Loans or Delayed Draw Term Loans) or as 2017 Euro Term Loans (in the case of 2014 Term Loans that were Euro Tranche B-1 Term Loans or Euro Tranche B-2 Term Loans) in the principal amount set forth on Schedule 1.1(c) to the 2012 Extension Amendment and (b) the 2014 Term Loans of each 2014 Term Lender outstanding on such date that was not a 2017 Term Lender (and the 2014 Term Loans (if any) of each 2017 Term Lender not reclassified as 2017 Term Loans pursuant to clause (a) above) were continued hereunder and were classified as 2014 Term Loans.  On and after the 2012 Extension Effective Date, all 2017 Term Loans rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the 2014 Term Loans outstanding immediately prior to the 2012 Extension Effective Date under the Credit Documents.

 

On the 2012 August Extension Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2012 August Extension Amendment, (a) the 2014 Term Loans of each 2017B Term Lender outstanding on such date were continued hereunder and reclassified as 2017B Dollar Term Loans (in the case of 2014 Term Loans that were Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Initial Tranche B-3 Term Loans or Delayed Draw Term Loans) or as 2017B Euro Term Loans (in the case of 2014 Term Loans that were Euro Tranche B-1 Term Loans or Euro Tranche B-2 Term Loans) in the principal amount set forth on Schedule 1.1(c) to the 2012 August Extension Amendment and (b) the 2014 Term Loans of each 2014 Term Lender outstanding on such date that was not a 2017B Term Lender (and the 2014 Term Loans (if any) of each 2017B Term Lender not reclassified as 2017B Term Loans pursuant to clause (a) above) were continued hereunder and were classified as 2014 Term Loans.  On and after the 2012 August Extension Effective Date, all 2017B Term Loans rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the 2014 Term Loans outstanding immediately prior to the 2012 August Extension Effective Date under the Credit Documents.

 

On the 2012 September Joinder Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2012 September Joinder Agreement, $750,000,000 of 2018B Term Loans were made.  On the 2013 February Joinder Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2013 February Joinder Agreement, $258,000,000 of 2018B Term Loans shall be made. On and after the 2012 September Joinder Effective Date (including on and after the 2013 February Joinder Effective Date), all 2018B Term Loans shall rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the Term Loans outstanding on the 2012 September Joinder Effective Date and the 2013 February Joinder Effective Date under the Credit Documents.

 

On the 2013 April Repricing Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2013 April Repricing Amendment, the 2017 Dollar Term Loans and 2017B Dollar Term Loans were refinanced in full by the 2017 New Dollar Term Loans.  On the 2013 April Repricing Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2013 April Repricing Amendment, the 2017 Euro Term Loans and 2017B Euro Term Loans were refinanced in full by the 2017 New Euro Term Loans.  On and after the 2013 April Repricing Effective Date, all 2017 New Term Loans shall rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the Term Loans outstanding on the 2013 April Repricing Effective Date under the Credit Documents.

 

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On the 2013 Second April Repricing Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2013 Second April Repricing Amendment, the 2018B Term Loans were refinanced in full by the 2018B New Term Loans.  On and after the 2013 Second April Repricing Effective Date, all 2018B New Term Loans shall rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the Term Loans outstanding on the 2013 Second April Repricing Effective Date under the Credit Documents.

 

On the 2014 January Amendment Effective Date, in accordance with, and upon the terms and conditions set forth in the 2014 January Extension and Repricing Amendment (a) the 2017 New Term Loans of each 2017 New Term Lender outstanding on such date were continued hereunder and reclassified as and/or replaced by 2021 Dollar Term Loans and 2021 Euro Term Loans in the principal amount set forth on Schedule 1.1(c) to the 2014 January Extension and Repricing Amendment, (b) the 2017 New Term Loans of each 2017 New Term Lender that were not reclassified and/or replaced by 2021 Term Loans pursuant to clause (a) above were refinanced in full by the 2017 Second New Dollar Term Loans and the 2017 New Euro Term Loans.  On and after the 2014 January Amendment Effective Date, all 2017 Second New Term Loans and 2021 Term Loans shall rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the Term Loans outstanding on the 2014 January Amendment Effective Date under the Credit Documents.

 

On the 2014 July Repricing Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2014 July Repricing Amendment, (a) the 2018 Dollar Term Loans were refinanced in full by a portion of the 2018 New Dollar Term Loans, (b) the 2018 Euro Term Loans were refinanced in full by the 2018 New Euro Term Loans and (c) the 2018B New Term Loans were refinanced in full by the 2018B Second New Term Loans.  On and after the 2014 July Repricing Effective Date, all 2018 New Dollar Term Loans, 2018 New Euro Term Loans and 2018B Second New Term Loans shall rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the Term Loans outstanding on the 2014 July Repricing Effective Date under the Credit Documents.

 

On the 2015 June Joinder Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2015 June Joinder Agreement, $725,000,000 of 2022 Dollar Term Loans shall be made and €250,000,000 of 2022 Euro Term Loans shall be made. On the 2015 November Joinder Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2015 November Joinder Agreement, $1,250,000,000 of 2022 Dollar Term Loans shall be made and €200,000,000 of 2022 Euro Term Loans shall be made. On the 2016 May Amendment Effective Date, in accordance with, and upon the terms and conditions set forth in the 2016 May Extension Amendment and Joinder (a) the 2018B Second New Term Loans of each 2018B Second New Term Lender outstanding on such date were continued hereunder and reclassified as and/or replaced by 2022 Dollar Term Loans in the principal amount set forth on Schedule 1.1(c) to the 2016 May Extension Amendment and Joinder, (b) the 2018B Second New Term Loans of each 2018B Second New Term Lender that were not reclassified and/or replaced by 2022 Dollar Term Loans pursuant to clause (a) above were  refinanced in full by the 2022B New Dollar Term Loans, (c) $316,198,208.46 of 2022B New Dollar Term Loans shall be made, (d) the 2018 New Euro Term Loans of each 2018 New Term Lender outstanding on such date were continued hereunder and reclassified as and/or replaced by 2022 Euro Term Loans in the principal amount set forth on Schedule 1.1(c) to the 2016 May Extension Amendment and Joinder, (e) the 2018 New Euro Term Loans of each 2018 New Term Lender that were not reclassified and/or replaced by 2022 Euro Term Loans pursuant to clause (d) above were refinanced in full by the 2022B New Euro Term Loans, and (f) €84,953,398.61 of 2022B New Euro Term Loans shall be made.  On and after the 2015 June Joinder Effective Date (including on or after the 2015 November Joinder Effective Date and the 2016 May Amendment Effective Date), all 2022 Term Loans shall rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the Term Loans outstanding on the 2015 June Joinder Effective Date, the 2015

 

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November Joinder Effective Date and the 2016 May Amendment Effective Date under the Credit Documents.

 

On the 2016 March Amendment Effective Date, in accordance with, and upon the terms and conditions set forth in the 2016 March Extension Amendment and Joinder (a) the 2018 New Dollar Term Loans of each 2018 New Term Lender outstanding on such date were continued hereunder and reclassified as and/or replaced by 2021 Dollar Term Loans in the principal amount set forth on Schedule 1.1(c) to the 2016 March Extension Amendment and Joinder, (b) the 2018 New Dollar Term Loans of each 2018 New Term Lender that were not reclassified and/or replaced by 2021 Dollar Term Loans pursuant to clause (a) above were refinanced in full by the 2021B New Dollar Term Loans and (c) $1,082,588,850.50 of 2021B New Dollar Term Loans shall be made.  On and after the 2016 March Amendment Effective Date, all 2021 Term Loans shall rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the Term Loans outstanding on the 2016 March Amendment Effective Date under the Credit Documents.

 

On the 2016 October Joinder Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2016 October Joinder Agreement, $4,267,862,997.76 of 2021C New Dollar Term Loans shall be made and €153,774,108.99 of 2021 New Euro Term Loans shall be made. On the 2016 October Joinder Effective Date, the 2021 Term Loans were refinanced in full by the 2021 New Term Loans.  On and after the 2016 October Joinder Effective Date, all 2021 New Term Loans shall rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the Term Loans outstanding on the 2016 October Joinder Effective Date under the Credit Documents.

 

On the 2016 November Joinder Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2016 November Joinder Agreement, $2,783,000,000.00 of 2022C New Dollar Term Loans shall be made and €761,197,525.32 of 2022C New Euro Term Loans shall be made. On the 2016 November Joinder Effective Date, the 2022 Term Loans were refinanced in full by the 2022 New Term Loans.  On and after the 2016 November Joinder Effective Date, all 2022 New Term Loans shall rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the Term Loans outstanding on the 2016 November Joinder Effective Date under the Credit Documents.

 

On the 2017 January Joinder Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2017 January Joinder Agreement, $1,300,000,000.00 of 2020 Term A Loans shall be made.  On and after the 2017 January Joinder Effective Date, all 2020 Term A Loans shall rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the Term Loans outstanding on the 2017 January Joinder Effective Date under the Credit Documents.

 

On the 2017 April Joinder Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2017 April Joinder Agreement, $4,217,000,000 of 2024 New Dollar Term Loans shall be made. On the 2017 April Joinder Effective Date, the 2021C New Dollar Term Loans were refinanced in full by the 2024 New Dollar Term Loans.  On and after the 2017 April Joinder Effective Date, all 2024 New Dollar Term Loans shall rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the Term Loans outstanding on the 2017 April Joinder Effective Date under the Credit Documents.

 

Such Term Loans (i) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans (except in the case of Euro Tranche Term Loans, 2018 New Euro Term Loans, 2017 Second New Euro Term Loans, 2021 New Euro Term Loans or 2022C New Euro Term Loans) or LIBOR Term Loans, provided that all Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Term Loans of the same Type, (ii) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid, may not be

 

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reborrowed, (iii) shall not exceed for any such Lender the Initial Term Loan Commitment, Delayed Draw Term Loan Commitment or Euro Tranche Term Loan Commitment, as applicable, of such Lender, and (iv) shall not exceed in the aggregate the Total Initial Term Loan Commitments, Total Delayed Draw Term Loan Commitments or Total Euro Tranche Term Loan Commitments, as applicable.  On the 2014 Term Loan Maturity Date: (x) all then unpaid Initial Term Loans shall be repaid in full in Dollars, (y) all then unpaid Delayed Draw Term Loans shall be repaid in full in Dollars and (z) all then unpaid Euro Tranche Term Loans shall be repaid in full in Euro.  On the 2018 New Term Loan Maturity Date: (x) all then unpaid 2018 New Dollar Term Loans shall be repaid in full in Dollars and (y) all then unpaid 2018 New Euro Term Loans shall be repaid in full in Euro.  On the 2017 Second New Term Loan Maturity Date: (x) all then unpaid 2017 Second New Dollar Term Loans shall be repaid in full in Dollars and (y) all then unpaid 2017 Second New Euro Term Loans shall be repaid in full in Euro.  On the 2018B Second New Term Loan Maturity Date all then unpaid 2018B Second New Term Loans shall be repaid in full in Dollars.  On the 2020 Term A Loan Maturity Date: all then unpaid 2020 Term A Loans shall be repaid in full in Dollars. On the 2021 Term Loan Maturity Date: (x) all then unpaid 2021C New Dollar Term Loans shall be repaid in full in Dollars and (y) all then unpaid 2021 New Euro Term Loans shall be repaid in full in Euro. On the 2022 Term Loan Maturity Date: (x) all then unpaid 2022C New Dollar Term Loans shall be repaid in full in Dollars and (y) all then unpaid 2022C New Euro Term Loans shall be repaid in full in Euro. On the 2024 New Dollar Term Loan Maturity Date all then unpaid 2024 New Dollar Term Loans shall be repaid in full in Dollars.

 

(b)           On the 2011 Extension Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2011 Extension Amendment, (x) the Existing Revolving Credit Commitment of each 2013 Revolving Credit Lender were continued hereunder on such date in an amount as set forth on Schedule 1.1(c) of the 2011 Extension Amendment and (y) the Existing Revolving Credit Commitment of each 2016 Revolving Credit Lender outstanding on such date were continued hereunder and reclassified as a 2016 Revolving Credit Commitment on such date in an amount as set forth on Schedule 1.1(c) of the 2011 Extension Amendment.  (i) Subject to and upon the terms and conditions herein set forth, each Lender having a 2013 Revolving Credit Commitment severally agrees to make a loan or loans denominated in Dollars or any Alternative Currency (each a “2013 Revolving Credit Loan” and, collectively, the “2013 Revolving Credit Loans”) and each Lender having a 2016 Revolving Credit Commitment severally agrees to make a loan or loans denominated in Dollars or any Alternative Currency (each a “2016 Revolving Credit Loan” and collectively the “2016 Revolving Credit Loans”) to the Borrower, which Revolving Credit Loans (A) shall be made at any time and from time to time on and after the Original Closing Date and prior to (x) in the case of 2013 Revolving Credit Loans, the 2013 Revolving Credit Maturity Date and (y) in the case of 2016 Revolving Credit Loans, the 2016 Revolving Credit Maturity Date, (B) may, at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans (in the case of Revolving Credit Loans denominated in Dollars only) or LIBOR Revolving Credit Loans, provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type, (C) may be repaid and reborrowed in accordance with the provisions hereof, (D) shall not, for any Lender at any time with respect to any Class of Revolving Credit Loan, after giving effect thereto and to the application of the proceeds thereof, result in such Lender’s Revolving Credit Exposure with respect to such Class at such time exceeding such Lender’s Revolving Credit Commitment with respect to such Class at such time, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of the Lenders’ Revolving Credit Exposures with respect to any Class of Revolving Credit Loans at such time exceeding the Total Revolving Credit Commitment with respect to such Class then in effect and (F) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the Aggregate Multicurrency Exposure at such time exceeding the Multicurrency Sublimit then in effect.  With respect to 2013 Revolving Credit Lenders, on the 2013 Revolving Credit Maturity Date, all outstanding 2013 Revolving Credit Loans shall be repaid in full.  With respect to 2016 Revolving Credit Lenders, on the 2016 Revolving Credit Maturity Date, all outstanding 2016 Revolving

 

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Credit Loans shall be repaid in full.  For the avoidance of doubt, prior to the 2013 Revolving Credit Maturity Date, all borrowings of Revolving Credit Loans under this Section 2.1(b) shall be made pro rata between the 2013 Revolving Credit Facility and the 2016 Revolving Credit Facility in proportion to the respective Revolving Credit Commitments under each such Revolving Credit Facility.  Any Existing Revolving Credit Loans outstanding on the 2011 Extension Effective Date shall be continued as Revolving Credit Loans hereunder; provided that (x) the Existing Revolving Credit Loans of each 2013 Revolving Credit Lender will be reclassified as 2013 Revolving Credit Loans and (y) the Existing Revolving Credit Loans of each 2016 Revolving Credit Lender will be reclassified as 2016 Revolving Credit Loans hereunder.  The Existing Revolving Credit Loans of any Revolving Credit Lender having both a 2013 Revolving Credit Commitment and a 2016 Revolving Credit Commitment shall be so reclassified as 2013 Revolving Credit Loans and 2016 Revolving Credit Loans, respectively, in proportion to the relative amounts of such Revolving Credit Lender’s 2013 Revolving Credit Commitment and 2016 Revolving Credit Commitment, respectively.

 

(c)           On the 2015 May Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2015 May Amendment, the Borrower (x) terminated the 2016 Revolving Credit Commitments outstanding immediately prior to the 2015 May Effective Date of each 2016 Revolving Credit Lender and paid to each such 2016 Revolving Credit Lender (i) all accrued and unpaid fees related to such 2016 Revolving Credit Lender’s 2016 Revolving Credit Commitments to, but not including, the 2015 May Effective Date, (ii) all accrued and unpaid interest on such 2016 Revolving Credit Lender’s 2016 Revolving Credit Loans to, but not including, the 2015 May Effective Date and (iii) the aggregate principal amount of 2016 Revolving Credit Loans held by such 2016 Revolving Credit Lender immediately prior to the 2015 May Effective Date and (y) obtained new 2020 Revolving Credit Commitments from the 2020 Revolving Credit Lenders in the amount set forth on Schedule 1.1(c) of the 2015 May Amendment to refinance and replace such terminated 2016 Revolving Credit Commitments on such date.  Subject to and upon the terms and conditions herein set forth, each Lender having a 2020 Revolving Credit Commitment severally agrees to make a loan or loans denominated in Dollars or any Alternative Currency (each a “2020 Revolving Credit Loan” and, collectively, the “2020 Revolving Credit Loans”) to the Borrower, which 2020 Revolving Credit Loans (A) shall be made at any time and from time to time on and after the 2015 May Effective Date and prior to the 2020 Revolving Credit Maturity Date, (B) may, at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans (in the case of 2020 Revolving Credit Loans denominated in Dollars only) or LIBOR Revolving Credit Loans, provided that all 2020 Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of 2020 Revolving Credit Loans of the same Type, (C) may be repaid and reborrowed in accordance with the provisions hereof, (D) shall not, for any Lender at any time with respect to any 2020 Revolving Credit Loan, after giving effect thereto and to the application of the proceeds thereof, result in such Lender’s 2020 Revolving Credit Exposure at such time exceeding such Lender’s 2020 Revolving Credit Commitment at such time, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of the Lenders’ 2020 Revolving Credit Exposure at such time exceeding the Total 2020 Revolving Credit Commitment then in effect and (F) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the Aggregate Multicurrency Exposure at such time exceeding the 2020 Multicurrency Sublimit then in effect.  With respect to 2020 Revolving Credit Lenders, on the 2020 Revolving Credit Maturity Date, all outstanding 2020 Revolving Credit Loans shall be repaid in full.

 

(ii)           Each Lender may at its option make any LIBOR Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan, provided that (A) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (B) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower resulting therefrom (which obligation of the 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 determines would

 

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be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).

 

(c)           Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Original Closing Date and prior to the Swingline Maturity Date, to make a loan or loans  to the Borrower in Dollars, which Swingline Loans (i) shall be ABR Loans, (ii) shall have the benefit of the provisions of Section 2.1(d), (iii) shall not exceed at any time outstanding the Swingline Commitment, (iv) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of the Lenders’ Revolving Credit Exposures at such time exceeding the Total Revolving Credit Commitment then in effect and (v) may be repaid and reborrowed in accordance with the provisions hereof.  On the Swingline Maturity Date, all Swingline Loans shall be repaid in full.  Any Additional Swingline Lender may, in its individual capacity and in its sole discretion, agree, at any time and from time to time on and after the Original Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each an “Additional Swingline Loan” and, collectively, the “Additional Swingline Loans”) to the Borrower in Dollars, which Additional Swingline Loans (i) shall bear interest at rates, and have interest periods and maturities (not to be later than the 2020 Revolving Credit Maturity Date), mutually agreed by the Borrower and the applicable Additional Swingline Lender, (ii) shall not have the benefit of the provisions of Section 2.1(d), (iii) shall not exceed at any time outstanding the Additional Swingline Maximum Amount, (iv) shall have notice, borrowing, conversion and repayment provisions as mutually agreed by the Borrower, the applicable Additional Swingline Lender and the Administrative Agent, acting reasonably, (v) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of the Lenders’ Revolving Credit Exposures at such time exceeding the Total Revolving Credit Commitment then in effect, and (vi) shall constitute a Revolving Credit Loan for purposes of Section 5.2 and Section 13.1 and shall constitute a Loan for all other purposes hereunder.  Neither the Swingline Lender nor any Additional Swingline Lender shall make any Swingline Loan after receiving a written notice from the Borrower, Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default exists and is continuing until such time as the Swingline Lender or such Additional Swingline Lender shall have received written notice of (i) rescission of all such notices from the party or parties originally delivering such notice or (ii) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.

 

(d)           On any Business Day, the Swingline Lender may, in its sole discretion, give notice to each Revolving Credit Lender that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans denominated in Dollars, in which case Revolving Credit Loans denominated in Dollars constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by each Revolving Credit Lender pro rata based on each Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans.  Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made.  In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause the Lenders

 

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to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages, provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to such Lender purchasing same from and after such date of purchase.

 

(e)           Special Provisions Relating to Reclassifications of Term Loans.  Notwithstanding anything to the contrary in this Agreement:

 

(i)      on the 2011 Extension Effective Date, (x) 2014 Term Loans and 2018 Term Loans were deemed made as LIBOR Loans in an amount equal to the principal amount of the 2014 Term Loans outstanding as LIBOR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a), (y) Interest Periods for the Term Loans described in the preceding clause (x) ended on the same dates as the Interest Periods applicable to the 2014 Term Loans outstanding immediately prior to the time of reclassification pursuant to Section 2.1(a) and (z) 2014 Term Loans and 2018 Term Loans were deemed made as ABR Loans in an amount equal to the principal amount of the 2014 Term Loans outstanding as ABR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a);

 

(ii)     each 2018 Term Loan that was reclassified from any 2014 Term Loan shall continue to be entitled to all accrued and unpaid amounts (including interest) owing by the Borrower hereunder with respect to any 2014 Term Loan from which such 2018 Term Loan was reclassified, up to but excluding the 2011 Extension Effective Date; and

 

(iii)    on the 2012 Extension Effective Date, (x) 2014 Term Loans and 2017 Term Loans were deemed made as LIBOR Loans in an amount equal to the principal amount of the 2014 Term Loans outstanding as LIBOR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a), (y) Interest Periods for the Term Loans described in the preceding clause (x) ended on the same dates as the Interest Periods applicable to the 2014 Term Loans outstanding immediately prior to the time of reclassification pursuant to Section 2.1(a) and (z) 2014 Term Loans and 2017 Term Loans were deemed made as ABR Loans in an amount equal to the principal amount of the 2014 Term Loans outstanding as ABR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a);

 

(iv)    each 2017 Term Loan that was reclassified from any 2014 Term Loan shall continue to be entitled to all accrued and unpaid amounts (including interest) owing by the Borrower hereunder with respect to any 2014 Term Loan from which such 2017 Term Loan was reclassified, up to but excluding the 2012 Extension Effective Date;

 

(v)     on the 2012 August Extension Effective Date, (x) 2014 Term Loans and 2017B Term Loans were deemed made as LIBOR Loans in an amount equal to the principal amount of the 2014 Term Loans outstanding as LIBOR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a), (y) Interest Periods for the Term Loans described in the preceding clause (x) ended on the same dates as the Interest Periods applicable to the 2014 Term Loans outstanding immediately prior to the time of reclassification pursuant to Section 2.1(a) and (z) 2014 Term Loans and 2017B Term Loans were deemed made as ABR Loans in an amount equal to the principal amount of the 2014 Term Loans outstanding as ABR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a);

 

(vi)    each 2017B Term Loan that was reclassified from any 2014 Term Loan shall continue to be entitled to all accrued and unpaid amounts (including interest) owing by the

 

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Borrower hereunder with respect to any 2014 Term Loan from which such 2017B Term Loan was reclassified, up to but excluding the 2012 August Extension Effective Date;

 

(vii)   no reclassification of outstanding Term Loans pursuant to Section 2.1(a) shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement. that would result in the application or operation of the provisions of Section 2.11;

 

(viii)  on the 2014 January Amendment Effective Date, (x) 2021 Extended Term Loans were deemed made as LIBOR Loans in an amount equal to the principal amount of the 2017 New Term Loans so extended pursuant to the 2014 January Extension and Repricing Amendment and outstanding as LIBOR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a) and (y) 2021 Extended Term Loans were deemed made as ABR Loans in an amount equal to the principal amount of the 2017 New Term Loans so extended pursuant to the 2014 Extension and Repricing January Amendment Effective Date and outstanding as ABR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a); and

 

(ix)    each 2021 Extended Term Loan that was reclassified from any 2017 New Term Loan shall continue to be entitled to all accrued and unpaid amounts (including interest) owing by the Borrower hereunder with respect to any 2017 New Term Loan from which such 2021 Extended Term Loan was reclassified, up to but excluding the 2014 January Amendment Effective Date.

 

(f)            Special Provisions Relating to Reclassifications of Revolving Credit Loans on the 2011 Extension Effective Date.  Notwithstanding anything to the contrary in this Agreement:

 

(i)      on the 2011 Extension Effective Date, (x) 2013 Revolving Credit Loans and 2016 Revolving Credit Loans shall be deemed made as LIBOR Loans in an amount equal to the principal amount of the Existing Revolving Loans outstanding as LIBOR Loans immediately prior to the time of reclassification pursuant to Section 2.1(b), (y) Interest Periods for the Revolving Credit Loans described in the preceding clause (x) shall end on the same dates as the Interest Periods applicable to the Revolving Credit Loans outstanding immediately prior to the time of reclassification pursuant to Section 2.1(b) and (z) 2013 Revolving Credit Loans and 2016 Revolving Credit Loans shall be deemed made as ABR Loans in an amount equal to the principal amount of the Revolving Credit Loans outstanding as ABR Loans immediately prior to the time of reclassification pursuant to Section 2.1(b);

 

(ii)     each 2016 Revolving Credit Loan that was reclassified from any 2013 Revolving Credit Loan shall continue to be entitled to all accrued and unpaid amounts (including interest) owing by the Borrower hereunder with respect to any 2013 Revolving Credit Loan from which such 2016 Revolving Credit Loan was reclassified, up to but excluding the 2011 Extension Effective Date; and

 

(iii)    no reclassification of outstanding Revolving Credit Loans pursuant to Section 2.1(b) shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement, that would result in the application or operation of the provisions of Section 2.11.

 

2.2.         Minimum Amount of Each Borrowing; Maximum Number of Borrowings.  The aggregate principal amount of each Borrowing of Term Loans or Revolving Credit Loans shall be in a minimum amount of at least the Minimum Borrowing Amount for such Type of Loans and in a multiple of $100,000 (or the Dollar Equivalent thereof) in excess thereof and Swingline Loans shall be in a minimum amount of $500,000 and in a multiple of $100,000 in excess thereof (except that Mandatory Borrowings shall be made in the amounts required by Section 2.1(d) and Revolving Credit Loans to reimburse the Letter

 

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of Credit Issuer with respect to any Unpaid Drawing shall be made in the amounts required by Section 3.3 or Section 3.4, as applicable).  More than one Borrowing may be incurred on any date, provided that at no time shall there be outstanding more than 30 Borrowings of LIBOR Loans under this Agreement.

 

2.3.         Notice of Borrowing.

 

(a)           The Borrower gave the Administrative Agent at the Administrative Agent’s Office (i) prior to 9:00 a.m. (New York City time) at least two Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) in the case of a Borrowing of Initial Term Loans made on the Original Closing Date initially as LIBOR Loans, (ii) prior to 9:00 a.m. (New York City time) at least two Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of the Borrowing of Original Euro Tranche Term Loans made on the Original Closing Date and (iii) prior to 10:00 a.m. (New York City time) written notice (or telephonic notice promptly confirmed in writing) on the date of the Borrowing of Initial Term Loans if such Initial Term Loans are to be ABR Loans.  Such notice (together with each notice of a Borrowing of Delayed Draw Term Loans pursuant to Section 2.3(b), each notice of a Borrowing of Revolving Credit Loans pursuant to Section 2.3(c) and each notice of a Borrowing of Swingline Loans pursuant to Section 2.3(d), a “Notice of Borrowing”) shall specify (i) the identity of the Borrower, (ii) the aggregate principal amount of the Term Loans to be made under each Term Loan Facility, (iii) the date of the Borrowing (which shall be the Original Closing Date) and (iv) whether the Term Loans shall consist of ABR Term Loans (in the case of Loans denominated in Dollars) and/or LIBOR Term Loans and, if the Term Loans are to include LIBOR Term Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall promptly give each Lender written notice (or telephonic notice promptly confirmed in writing) of the proposed Borrowing of Term Loans, of such Lender’s proportionate share thereof and of the other matters covered by the related Notice of Borrowing.

 

(b)           Whenever the Borrower desires to incur Delayed Draw Term Loans, it shall give the Administrative Agent at the Administrative Agent’s Office, (i) prior to 1:00 p.m. (New York City Time) at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of LIBOR Delayed Draw Term Loans denominated in Dollars (or prior to 9:00 a.m. (New York City time)) and (ii) prior to 10:00 a.m. (New York City time) on the date of such Borrowing prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of Delayed Draw Term Loans that are ABR Loans.  Each such Notice of Borrowing, except as otherwise expressly provided in Section 2.10, shall specify (i) the aggregate principal amount of the Delayed Draw Term Loans to be made pursuant to such Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the respective Borrowing shall consist of ABR Loans or LIBOR Term Loans and, if LIBOR Term Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall promptly give each Delayed Draw Term Loan Lender written notice (or telephonic notice promptly confirmed in writing) of each proposed Borrowing of Delayed Draw Term Loans, of such Lender’s Delayed Draw Term Loan Commitment Percentage thereof and of the other matters covered by the related Notice of Borrowing.

 

(c)           Whenever the Borrower desires to incur Revolving Credit Loans (other than Mandatory Borrowings or borrowings to repay Unpaid Drawings), it shall give the Administrative Agent at the Administrative Agent’s Office, (i) prior to 1:00 p.m. (New York City Time) at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of LIBOR Revolving Credit Loans denominated in Dollars (or prior to 9:00 a.m. (New York City time) two Business Days’ prior written notice in the case of a Borrowing of Revolving Credit Loans to be made on the Original Closing Date initially as LIBOR Loans denominated in Dollars), (ii) prior to 1:00 p.m. (New York City Time) at least four Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of Revolving Credit Loans denominated in Alternative Currencies and (iii) prior to 2:00 p.m. (New York City time) on the date of such Borrowing prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of Revolving Credit Loans that are ABR Loans.

 

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Each such Notice of Borrowing, except as otherwise expressly provided in Section 2.10, shall specify (i) the aggregate principal amount of the Revolving Credit Loans to be made pursuant to such Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the respective Borrowing shall consist of ABR Loans (in the case of Revolving Credit Loans denominated in Dollars) or LIBOR Revolving Credit Loans and, if LIBOR Revolving Credit Loans, (A) the Interest Period to be initially applicable thereto and (B) whether such LIBOR Revolving Credit Loans are to be made in Dollars or an Alternative Currency.  The Administrative Agent shall promptly give each Revolving Credit Lender written notice (or telephonic notice promptly confirmed in writing) of each proposed Borrowing of Revolving Credit Loans, of such Lender’s Revolving Credit Commitment Percentage thereof and of the other matters covered by the related Notice of Borrowing.

 

(d)           Whenever the Borrower desires to incur Swingline Loans hereunder, it shall give the Swingline Lender written notice (or telephonic notice promptly confirmed in writing) with a copy to the Administrative Agent of each Borrowing of Swingline Loans prior to 2:30 p.m. (New York City time) on the date of such Borrowing.  Each such notice shall specify (i) the aggregate principal amount of the Swingline Loans to be made pursuant to such Borrowing and (ii) the date of Borrowing (which shall be a Business Day).

 

(e)           Mandatory Borrowings shall be made upon the notice specified in Section 2.1(d), with the Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of Mandatory Borrowings as set forth in such Section.

 

(f)            Borrowings to reimburse Unpaid Drawings shall be made upon the notice specified in Section 3.4(a).

 

(g)           Without in any way limiting the obligation of the Borrower to confirm in writing any notice it may give hereunder by telephone, the Administrative Agent may act prior to receipt of written confirmation without liability upon the basis of such telephonic notice believed by the Administrative Agent in good faith to be from an Authorized Officer of the Borrower.

 

2.4.         Disbursement of Funds.

 

(a)           No later than 2:00 p.m. (New York City time) on the date specified in each Notice of Borrowing (including Mandatory Borrowings), each Lender made available its pro rata portion, if any, of each Borrowing requested to be made on such date in the manner provided below; provided that on the Original Closing Date, such funds were made available at such earlier time as may be agreed among the Lenders, the Borrower and the Administrative Agent for the purpose of consummating the Transactions; provided further that all Swingline Loans shall be made available to the Borrower in the full amount thereof by the Swingline Lender no later than 4:00 p.m. (New York City time) on the date requested.

 

(b)           Each Lender shall make available all amounts it is to fund to the Borrower under any Borrowing for its applicable Commitments, and in immediately available funds to the Administrative Agent at the Administrative Agent’s Office and the Administrative Agent will (except in the case of Mandatory Borrowings and Borrowings to repay Unpaid Drawings) make available to the Borrower, by depositing to an account designated by the Borrower to the Administrative Agent the aggregate of the amounts so made available in the applicable currency.  Unless the Administrative Agent shall have been notified by any Lender prior to the date of any such Borrowing that such Lender does not intend to make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make available to the Borrower

 

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a corresponding amount.  If such corresponding amount is not in fact made available to the Administrative Agent by such Lender and the Administrative Agent has made available such amount to the Borrower, the Administrative Agent shall be entitled to recover such corresponding amount from such Lender.  If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent in the applicable currency.  The Administrative Agent shall also be entitled to recover from such Lender or the Borrower interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if paid by such Lender, the Overnight Rate or (ii) if paid by the Borrower, the then-applicable rate of interest or fees, calculated in accordance with Section 2.8, for the respective Loans.

 

(c)           Nothing in this Section 2.4 shall be deemed to relieve any Lender from its obligation to, fulfill its commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to fulfill its commitments hereunder).

 

2.5.         Repayment of Loans; Evidence of Debt.

 

(a)           The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, (i) on the Initial Term Loan Maturity Date, the then-outstanding Initial Term Loans, in Dollars, and (ii) on the Delayed Draw Term Loan Maturity Date, the then-outstanding Delayed Draw Term Loans, in Dollars.  The Borrower shall repay to the Administrative Agent, for the benefit of the Euro Tranche Term Lenders, on the Euro Tranche Term Loan Maturity Date, the then-outstanding Euro Tranche Term Loans, in Euro.  The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, on the 2018 New Term Loan Maturity Date, (i) the then-outstanding 2018 New Dollar Term Loans, in Dollars and (ii) the then-outstanding 2018 New Euro Term Loans, in Euro.  The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, on the 2018B Second New Term Loan Maturity Date the then-outstanding 2018B Second New Term Loans, in Dollars.  The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, on the 2017 Second New Term Loan Maturity Date, (i) the then-outstanding 2017 Second New Dollar Term Loans, in Dollars and (ii) the then-outstanding 2017 Second New Euro Term Loans, in Euro.  The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, on the 2020 Term A Loan Maturity Date, the then-outstanding 2020 Term A Loans, in Dollars.  The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, on the 2021 Term Loan Maturity Date, (i) the then-outstanding 2021C New Dollar Term Loans, in Dollars and (ii) the then-outstanding 2021 New Euro Term Loans, in Euro.  The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, on the 2022 Term Loan Maturity Date, (i) the then-outstanding 2022C New Dollar Term Loans, in Dollars and (ii) the then-outstanding 2022C New Euro Term Loans, in Euro.  The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, on the 2024 New Dollar Term Loan Maturity Date, the then-outstanding 2024 New Dollar Term Loans, in Dollars.  The Borrower shall repay to the Administrative Agent for the benefit of the Revolving Credit Lenders, (i) on the 2013 Revolving Credit Maturity Date, the then outstanding 2013 Revolving Credit Loans made to the Borrower in currency in which such 2013 Revolving Credit Loans are denominated, (ii) on the 2016 Revolving Credit Maturity Date, the then outstanding 2016 Revolving Credit Loans made to the Borrower in currency in which such 2016 Revolving Credit Loans are denominated and (iii) on the 2020 Revolving Credit Maturity Date, the then outstanding 2020 Revolving Credit Loans made to the Borrower in currency in which such 2020 Revolving Credit Loans are denominated.  The Borrower shall repay to the Swingline Lender, in Dollars, on the Swingline Maturity Date, the then-outstanding Swingline Loans.

 

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(b)           The Borrower shall repay to the Administrative Agent on the last Business Day of each March 31, June 30, September 30 and December 31 (or, if not a Business Day, the immediately preceding Business Day) (each such date being referred to herein as an “Initial Term Loan Repayment Date,” a “Euro Tranche Repayment Date,” a “Delayed Draw Repayment Date,” a “2018 Dollar Term Loan Repayment Date,” a “2018 Euro Term Loan Repayment Date,” a “2017 Dollar Term Loan Repayment Date,” a “2017 Euro Term Loan Repayment Date,” a “2017B Dollar Term Loan Repayment Date,” a “2017B Euro Term Loan Repayment Date” and a “2020 Term A Loan Repayment Date”):

 

(x)           commencing on December 31, 2007 and on each applicable Repayment Date until and including the December 31, 2010 Repayment Date, an aggregate amount equal to 0.25% of the amount of Term Loans of the applicable Class outstanding on the Amendment Effective Date (or, in the case of Delayed Draw Term Loans, an amount equal to 0.25% of the sum of (I) the outstanding principal amount of Delayed Draw Term Loans immediately before the First Delayed Draw Repayment Date and (II) the aggregate principal amount of Delayed Draw Term Loans funded from and after the First Delayed Draw Repayment Date and prior to such applicable Delayed Draw Repayment Date) (such amount, with respect to each Class of Term Loan, the “Quarterly Amortization Amount”) (i) in Dollars, for the benefit of the Initial Term Loan Lenders, a principal amount in respect of the Initial Term Loans equal to the Quarterly Amortization Amount (each, an “Initial Term Loan Repayment Amount”); (ii) in Euro, for the benefit of the Euro Tranche Term Loan Lenders a principal amount equal to the Quarterly Amortization Amount (each, a “Euro Tranche Repayment Amount”); (iii) in Dollars, for the benefit of the Delayed Draw Term Loan Lenders, a principal amount in respect of the Delayed Draw Term Loans equal to the Quarterly Amortization Amount (each, a “Delayed Draw Repayment Amount”);

 

(y)           commencing on the March 31, 2011 Repayment Date (and after giving effect to the 2011 Extension Effective Date) and on each applicable Repayment Date until and including the December 31, 2011 Repayment Date, (i) in Dollars, for the benefit of the Initial Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Initial Term Loans outstanding on the 2011 Extension Effective Date and the denominator of which is the sum of the aggregate amount of Initial Term Loans outstanding on the 2011 Extension Effective Date and the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that represent extended Initial Term Loans; (ii) in Euro, for the benefit of the Euro Tranche Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Euro Tranche Term Loans outstanding on the 2011 Extension Effective Date and the denominator of which is the sum of the aggregate amount of Euro Tranche Term Loans outstanding on the 2011 Extension Effective Date and the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that represent extended Euro Tranche Term Loans; (iii) in Dollars, for the benefit of the Delayed Draw Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Delayed Draw Term Loans outstanding on the 2011 Extension Effective Date and the denominator of which is the sum of the aggregate amount of Delayed Draw Term Loans outstanding on the 2011 Extension Effective Date and the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that represent extended Delayed Draw Term Loans; (iv) in Dollars, for the benefit of the 2018 Dollar Term Loan Lenders, a principal amount (the “2018 Dollar Term Loan Repayment Amount”) equal to (X) the sum of the Quarterly Amortization Amounts in respect of the Initial Term Loans and Delayed Draw Term Loans multiplied by (Y) a fraction the numerator of which is the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that represent extended Initial

 

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Term Loans and extended Delayed Draw Term Loans and the denominator of which is the sum of (A) the aggregate amount of Initial Term Loans and Delayed Draw Term Loans outstanding on the 2011 Extension Effective Date and (B) the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and (v) in Euro, for the benefit of the 2018 Euro Term Loan Lenders, a principal amount (the “2018 Euro Term Loan Repayment Amount”) equal to the Quarterly Amortization Amount in respect of the Euro Tranche Term Loans multiplied by a fraction the numerator of which is the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that represent extended Euro Tranche Term Loans and the denominator of which is the sum of the aggregate amount Euro Tranche Term Loans outstanding on the 2011 Extension Effective Date and the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that represent extended Euro Tranche Term Loans;

 

(z)           commencing on the March 31, 2012 Repayment Date (and after giving effect to the 2012 Extension Effective Date) and on each Repayment Date until and including the June 30, 2012 Repayment Date, (i) in Dollars, for the benefit of the Initial Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Initial Term Loans outstanding on the 2012 Extension Effective Date and the denominator of which is the sum of the aggregate amount of Initial Term Loans outstanding on the 2012 Extension Effective Date and the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Initial Term Loans; (ii) in Euro, for the benefit of the Euro Tranche Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Euro Tranche Term Loans outstanding on the 2012 Extension Effective Date and the denominator of which is the sum of the aggregate amount of Euro Tranche Term Loans outstanding on the 2012 Extension Effective Date and the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Euro Tranche Term Loans; (iii) in Dollars, for the benefit of the Delayed Draw Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Delayed Draw Term Loans outstanding on the 2012 Extension Effective Date and the denominator of which is the sum of the aggregate amount of Delayed Draw Term Loans outstanding on the 2012 Extension Effective Date and the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Delayed Draw Term Loans; (iv) in Dollars, for the benefit of the 2018 Dollar Term Loan Lenders, a principal amount equal to (X) the sum of the Quarterly Amortization Amounts in respect of the Initial Term Loans and Delayed Draw Term Loans multiplied by (Y) a fraction the numerator of which is the aggregate amount of 2018 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and the denominator of which is the sum of (A) the aggregate amount of Initial Term Loans and Delayed Draw Term Loans outstanding on the 2012 Extension Effective Date, and (B) the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans; (v) in Euro, for the benefit of the 2018 Euro Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount in respect of the Euro Tranche Term Loans multiplied by a fraction the numerator of which is the aggregate amount of 2018 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Euro Tranche Term Loans and the denominator of which is the sum of the aggregate amount Euro Tranche Term Loans outstanding on the 2012 Extension Effective Date and the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Euro Tranche Term Loans; (vi) in Dollars, for the benefit of the 2017 Dollar Term Loan Lenders, a principal amount (the “2017 Dollar Term Loan Repayment Amount”)

 

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equal to (X) the sum of the Quarterly Amortization Amounts in respect of the Initial Term Loans and Delayed Draw Term Loans multiplied by (Y) a fraction the numerator of which is the aggregate amount of 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and the denominator of which is the sum of (A) the aggregate amount of Initial Term Loans and Delayed Draw Term Loans outstanding on the 2012 Extension Effective Date and (B) the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and (vii) in Euro, for the benefit of the 2017 Euro Term Loan Lenders, a principal amount (the “2017 Euro Term Loan Repayment Amount”) equal to the Quarterly Amortization Amount in respect of the Euro Tranche Term Loans multiplied by a fraction the numerator of which is the aggregate amount of 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Euro Tranche Term Loans and the denominator of which is the sum of the aggregate amount Euro Tranche Term Loans outstanding on the 2012 Extension Effective Date and the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012  Extension Effective Date that represent extended Euro Tranche Term Loans;

 

(aa)         commencing on the September 30, 2012 Repayment Date (and after giving effect to the 2012 August Extension Effective Date) and on each Repayment Date thereafter (provided that, for the avoidance of doubt, no such payments under clauses (vi) through (ix) below shall be required after the 2013 April Repricing Amendment Effective Date, and no such payments under clauses (iv) through (v) below shall be required after the 2014 July Repricing Effective Date), (i) in Dollars, for the benefit of the Initial Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Initial Term Loans outstanding on the 2012 August Extension Effective Date and the denominator of which is the sum of the aggregate amount of Initial Term Loans outstanding on the 2012 August Extension Effective Date and the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans; (ii) in Euro, for the benefit of the Euro Tranche Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Euro Tranche Term Loans outstanding on the 2012 August Extension Effective Date and the denominator of which is the sum of the aggregate amount of Euro Tranche Term Loans outstanding on the 2012 August Extension Effective Date and the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans; (iii) in Dollars, for the benefit of the Delayed Draw Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Delayed Draw Term Loans outstanding on the 2012 August Extension Effective Date and the denominator of which is the sum of the aggregate amount of Delayed Draw Term Loans outstanding on the 2012 August Extension Effective Date and the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Delayed Draw Term Loans; (iv) in Dollars, for the benefit of the 2018 Dollar Term Loan Lenders, a principal amount equal to (X) the sum of the Quarterly Amortization Amounts in respect of the Initial Term Loans and Delayed Draw Term Loans multiplied by (Y) a fraction the numerator of which is the aggregate amount of 2018 Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and the denominator of which is the sum of (A) the aggregate amount of Initial Term Loans and Delayed Draw Term Loans outstanding on the 2012 August Extension Effective Date, and (B) the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans; (v) in Euro, for

 

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the benefit of the 2018 Euro Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount in respect of the Euro Tranche Term Loans multiplied by a fraction the numerator of which is the aggregate amount of 2018 Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans and the denominator of which is the sum of the aggregate amount Euro Tranche Term Loans outstanding on the 2012 August Extension Effective Date and the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans; (vi) in Dollars, for the benefit of the 2017 Dollar Term Loan Lenders, a principal amount equal to (X) the sum of the Quarterly Amortization Amounts in respect of the Initial Term Loans and Delayed Draw Term Loans multiplied by (Y) a fraction the numerator of which is the aggregate amount of 2017 Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and the denominator of which is the sum of (A) the aggregate amount of Initial Term Loans and Delayed Draw Term Loans outstanding on the 2012 August Extension Effective Date and (B) the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans; (vii) in Euro, for the benefit of the 2017 Euro Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount in respect of the Euro Tranche Term Loans multiplied by a fraction the numerator of which is the aggregate amount of 2017 Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans and the denominator of which is the sum of the aggregate amount Euro Tranche Term Loans outstanding on the 2012 August Extension Effective Date and the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans; (viii) in Dollars, for the benefit of the 2017B Dollar Term Loan Lenders, a principal amount (the “2017B Dollar Term Loan Repayment Amount”) equal to (X) the sum of the Quarterly Amortization Amounts in respect of the Initial Term Loans and Delayed Draw Term Loans multiplied by (Y) a fraction the numerator of which is the aggregate amount of 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and the denominator of which is the sum of (A) the aggregate amount of Initial Term Loans and Delayed Draw Term Loans outstanding on the 2012 August Extension Effective Date and (B) the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and (ix) in Euro, for the benefit of the 2017B Euro Term Loan Lenders, a principal amount (the “2017B Euro Term Loan Repayment Amount”) equal to the Quarterly Amortization Amount in respect of the Euro Tranche Term Loans multiplied by a fraction the numerator of which is the aggregate amount of 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans and the denominator of which is the sum of the aggregate amount Euro Tranche Term Loans outstanding on the 2012 August Extension Effective Date and the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans; and

 

(bb)        commencing on March 31, 2017, and on each applicable Repayment Date until and including the March 31, 2020 Repayment Date, an aggregate amount equal to 1.25% of the amount of Term A Loans outstanding on the 2017 January Joinder Effective Date (the “2020 Term A Loan Repayment Amount”) in Dollars, for the benefit of the 2020 Term A Lenders.

 

Payments described in this Section 2.5(b) (other than with respect to the 2020 Term A Loans) shall be reduced with respect to each Class of Term Loan as a result of the application of

 

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prepayments, whether prior to or after the 2012 August Extension Effective Date, in accordance with Section 5 or in connection with any Extension as provided in Section 2.14.  For the avoidance of doubt, the amounts determined above are deemed to be reduced or eliminated to reflect prepayments of Term Loans made on or prior to the 2012 August Extension Effective Date, which were applied in direct order of maturity to the respective Repayment Amounts of the Term Loans. Payments described in this Section 2.5(b) with respect to the 2020 Term A Loans shall be reduced as a result of the application of prepayments of 2020 Term A Loans, in accordance with Section 5 or in connection with any Extension as provided in Section 2.14.

 

(c)           In the event that any New Term Loans are made, such New Term Loans shall, subject to Section 2.14(d), be repaid by the Borrower in the amounts (each, a “New Term Loan Repayment Amount”) and on the dates (each a “New Term Loan Repayment Date”) set forth in the applicable Joinder Agreement.  In the event that any Extended Term Loans are established, such Extended Term Loans shall, subject to Section 2.14(f), be repaid by the Borrower in the amounts (each such amount with respect to any Extended Repayment Date, an “Extended Term Loan Repayment Amount”) and on the dates (each, an “Extended Repayment Date”) set forth in the applicable Extension Amendment.

 

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

 

(e)           The Administrative Agent shall maintain the Register pursuant to Section 13.6(b), and a subaccount for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Loan made hereunder, whether such Loan is an Initial Term Loan, Delayed Draw Term Loan, Euro Tranche Term Loan, 2018 New Dollar Term Loan, 2018 New Euro Term Loan, 2018B Second New Term Loan, 2017 Second New Dollar Term Loan, 2017 Second New Euro Term Loan, 2020 Term A Loan, 2021C New Dollar Term Loan, 2021 New Euro Term Loan, 2022C New Dollar Term Loan, 2022C New Euro Term Loan, 2024 New Dollar Term Loan, 2013 Revolving Credit Loan, 2016 Revolving Credit Loan, 2020 Revolving Credit Loan or Swingline Loan, as applicable, the Type of each Loan made, the currency in which made 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 Administrative Agent hereunder from the Borrower and each Lender’s share thereof.

 

(f)            The entries made in the Register and accounts and subaccounts maintained pursuant to clauses (d) and (e) of this Section 2.5 shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the failure of any Lender, the Administrative Agent or the Swingline Lender to maintain such account, such Register or subaccount, as applicable, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.

 

2.6.         Conversions and Continuations.

 

(a)           Subject to the penultimate sentence of this clause (a), (x) the Borrower shall have the option on any Business Day to convert all or a portion equal to at least $5,000,000 (or the Dollar Equivalent thereof) of the outstanding principal amount of Term Loans or Revolving Credit Loans denominated in Dollars of one Type into a Borrowing or Borrowings of another Type and (y) the Borrower shall have the option on any Business Day to continue the outstanding principal amount of any LIBOR

 

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Loans as LIBOR Loans for an additional Interest Period, provided that (i) no partial conversion of LIBOR Loans shall reduce the outstanding principal amount of LIBOR Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount, (ii) ABR Loans may not be converted into LIBOR Loans if a Default or Event of Default is in existence on the date of the conversion and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such conversion, (iii) LIBOR Loans may not be continued as LIBOR Loans for an additional Interest Period if a Default or Event of Default is in existence on the date of the proposed continuation and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuation, (iv) Borrowings resulting from conversions pursuant to this Section 2.6 shall be limited in number as provided in Section 2.2 and (v) Euro Tranche Term Loans and Revolving Credit Loans denominated in any Alternative Currency may not be converted to ABR Loans.  Each such conversion or continuation shall be effected by the Borrower by giving the Administrative Agent at the Administrative Agent’s Office prior to 1:00 p.m. (New York City time) at least (i) three Business Days’ notice, in the case of a continuation of or conversion to LIBOR Loans (other than in the case of a notice delivered on the Original Closing Date pursuant to clause (d), which shall be deemed to be effective on the Original Closing Date) or (ii) one Business Day’s notice in the case of a conversion into ABR Loans prior written notice (or telephonic notice promptly confirmed in writing) (each, a “Notice of Conversion or Continuation”) specifying the Loans to be so converted or continued, the Type of Loans to be converted or continued into and, if such Loans are to be converted into or continued as LIBOR Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall give each applicable Lender notice as promptly as practicable of any such proposed conversion or continuation affecting any of its Loans.

 

(b)           If any Default or Event of Default is in existence at the time of any proposed continuation of any LIBOR Loans denominated in Dollars and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuation, such LIBOR Loans shall be automatically converted on the last day of the current Interest Period into ABR Loans.  If upon the expiration of any Interest Period in respect of LIBOR Loans (other than Borrowings of LIBOR Loans denominated in Alternative Currencies), the Borrower has failed to elect a new Interest Period to be applicable thereto as provided in clause (a), the Borrower shall be deemed to have elected to convert such Borrowing of LIBOR Loans into a Borrowing of ABR Loans, effective as of the expiration date of such current Interest Period. Notwithstanding the foregoing, with respect to the Borrowings of LIBOR Loans denominated in Alternative Currencies, in connection with the occurrence of any of the events described in the preceding two sentences, at the expiration of the then current Interest Period each such Borrowing shall be automatically continued as a Borrowing of LIBOR Loans with an Interest Period of one month.

 

(c)           No Loan may be converted into or continued as a Loan denominated in a different currency.

 

(d)           Notwithstanding anything to the contrary herein, the Borrower may deliver a Notice of Conversion or Continuation pursuant to which the Borrower elects to irrevocably continue the outstanding principal amount of any Initial Term Loans subject to an interest rate Hedge Agreement as LIBOR Loans for each Interest Period until the expiration of the term of such applicable Hedge Agreement.

 

2.7.         Pro Rata Borrowings.  Each Borrowing of (i) Initial Term Loans, (ii) Delayed Draw Term Loans and (iii) Euro Tranche Term Loans under this Agreement shall be made by the Lenders pro rata on the basis of their then-applicable Initial Term Loan Commitments, Delayed Draw Term Loan Commitments and Euro Tranche Term Loan Commitments, respectively.  Subject to Section 2.1(b), each Borrowing of Revolving Credit Loans under this Agreement shall be made by the Revolving Credit Lenders pro rata on the basis of their then-applicable Revolving Credit Commitment Percentages.  Each Borrowing of New Term Loans under this Agreement shall be made by the Lenders pro rata on the basis of

 

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their then-applicable New Term Loan Commitments.  It is understood that (a) no Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder and that each Lender severally but not jointly shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its commitments hereunder and (b) other than as expressly provided herein with respect to a Defaulting Lender, failure by a Lender to perform any of its obligations under any of the Credit Documents shall not release any Person from performance of its obligation under any Credit Document.

 

2.8.         Interest.

 

(a)           The unpaid principal amount of each ABR Loan shall bear interest from the date of the Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable ABR Margin plus the ABR, in each case, in effect from time to time.

 

(b)           The unpaid principal amount of each LIBOR Loan shall bear interest from the date of the Borrowing thereof until maturity the