Execution Version $1,800,000,000 CREDIT AGREEMENT among GARTNER, INC., as Borrower, The Several Lenders from Time to Time Parties Hereto, WELLS FARGO BANK, NATIONAL ASSOCIATION, CITIZENS BANK, N.A., TD BANK, N.A. and U.S. BANK NATIONAL ASSOCIATION as...
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Execution Version
$1,800,000,000
CREDIT AGREEMENT
among
GARTNER, INC.,
as Borrower,
The Several Lenders from Time to Time Parties Hereto,
XXXXX FARGO BANK, NATIONAL ASSOCIATION, CITIZENS BANK, N.A., TD BANK, N.A. and
U.S. BANK NATIONAL ASSOCIATION
as Co-Syndication Agents,
BANK OF AMERICA, N.A., SUNTRUST BANK and PNC BANK, NATIONAL ASSOCIATION
as Co-Documentation Agents,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Dated as of June 17, 2016
JPMORGAN CHASE BANK, N.A., XXXXX FARGO SECURITIES, LLC, CITIZENS BANK, N.A., TD
SECURITIES (USA) LLC and U.S. BANK NATIONAL ASSOCIATION
as Joint Lead Arrangers and Joint Bookrunners
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SCHEDULES:
1.1A Commitments
3.9 Existing Letters of Credit
4.6 Litigation
4.10 Tax Claims
4.15 Subsidiaries
4.21 Perfection requirements
7.2(d) Existing Indebtedness
7.3(h) Existing Liens
7.8(e) Existing Investments
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Assignment and Assumption
E Form of Legal Opinion of Xxxxxxxx & Xxxxxxxx LLP
F Form of Exemption Certificate
G Form of Increasing Lender Supplement
H Form of Augmenting Lender Supplement
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CREDIT AGREEMENT (this βAgreementβ), dated as of June 17, 2016 among
GARTNER, INC., a Delaware corporation (the βBorrowerβ), the several banks and other financial
institutions or entities from time to time parties to this Agreement (the βLendersβ), XXXXX FARGO
BANK, NATIONAL ASSOCIATION, CITIZENS BANK, N.A., TD BANK, N.A. and U.S. BANK
NATIONAL ASSOCIATION, as co-syndication agents (in such capacity, the βCo-Syndication Agentsβ),
BANK OF AMERICA, N.A., SUNTRUST BANK and PNC BANK, NATIONAL ASSOCIATION , as
co-documentation agents (in such capacity, the βCo-Documentation Agentsβ), and JPMORGAN CHASE
BANK, N.A., as administrative agent (the βAdministrative Agentβ).
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in this
Section 1.1 shall have the respective meanings set forth in this Section 1.1.
βABRβ: for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect
on such day, (b) the Federal Funds Effective Rate in effect on such day plus Β½ of 1% and (c) the
Eurodollar Rate that would be calculated as of such day (or, if such day is not a Business Day, as of the
next preceding Business Day) in respect of a proposed Eurodollar Loan with a one-month Interest Period
plus 1.0%; provided that for the purposes of clause (c) of this definition, the Eurodollar Rate for any day
shall be based on the Eurodollar Screen Rate (or if the Eurodollar Screen Rate is not available for such
one-month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day.
Any change in the ABR due to a change in the Prime Rate, the Federal Funds Effective Rate or such
Eurodollar Rate shall be effective as of the opening of business on the day of such change in the Prime
Rate, the Federal Funds Effective Rate or such Eurodollar Rate, respectively.
βABR Loansβ: Loans the rate of interest applicable to which is based upon the ABR.
βAcquisition Step-Up Periodβ: a period of four fiscal quarters commencing with the fiscal
quarter in which the threshold for a Designated Acquisition has been met in accordance with the
definition thereof and ending on the last day of the fourth fiscal quarter ending after the date on which the
threshold for a Designated Acquisition is met.
βAdjustment Dateβ: as defined in the definition of βApplicable Marginβ.
βAdministrative Agentβ: JPMorgan Chase Bank, together with its affiliates, as the
arranger of the Commitments and as the administrative agent for the Lenders under this Agreement and
the other Loan Documents, together with any of its successors.
βAffiliateβ: as to any Person, any other Person that, directly or indirectly, is in control of,
is controlled by, or is under common control with, such Person. For purposes of this definition, βcontrolβ
of a Person means the power, directly or indirectly, either to (a) vote 20% or more of the securities having
ordinary voting power for the election of directors (or persons performing similar functions) of such
Person or (b) direct or cause the direction of the management and policies of such Person, whether by
contract or otherwise.
βAgentsβ: the collective reference to the Co-Syndication Agents, the Co-Documentation
Agents and the Administrative Agent.
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βAggregate Exposureβ: with respect to any Lender at any time, an amount equal to (a)
until the Closing Date, the aggregate amount of such Lenderβs Commitments at such time and (b)
thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lenderβs Term Loans and
(ii) the amount of such Lenderβs Revolving Commitment then in effect or, if the Revolving Commitments
have been terminated, the amount of such Lenderβs Revolving Extensions of Credit then outstanding.
βAggregate Exposure Percentageβ: with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lenderβs Aggregate Exposure at such time to the Aggregate Exposure
of all Lenders at such time; provided, that in the case of Section 2.21 when a Defaulting Lender shall
exist, βAggregate Exposure Percentageβ shall mean the percentage of the Aggregate Exposure of all
Lenders (disregarding any Defaulting Lenderβs Aggregate Exposure) represented by such Lenderβs
Aggregate Exposure. If the Commitments have terminated or expired, the Aggregate Exposure
Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any
assignments and to any Lenderβs status as a Defaulting Lender at the time of determination.
βAgreementβ: as defined in the preamble hereto.
βAnti-Corruption Lawsβ: all laws, rules and regulations of any jurisdiction applicable to
the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.
βApplicable Marginβ: for each Type of Loan or the Commitment Fee Rate, the rate per
annum set forth under the relevant column heading below:
Level Consolidated
Leverage Ratio
Applicable Margin
for Eurodollar Loans
Applicable Margin
for ABR Loans
Commitment Fee
Rate
I
> 4.00 to 1.00 2.00% 1.00% 0.35%
II
> 3.50 to 1.00
β€ 4.00 to 1.00 1.75% 0.75%
0.30%
III
> 2.75 to 1.00
β€ 3.50 to 1.00 1.50% 0.50%
0.25%
IV
> 1.75 to 1.00
β€ 2.75 to 1.00 1.375% 0.375% 0.20%
V
> 0.75 to 1.00
β€ 1.75 to 1.00 1.25% 0.25% 0.175%
VI
β€ 0.75 to 1.00 1.125% 0.125% 0.15%
The Applicable Margin and Commitment Fee Rate on the Closing Date and until the Adjustment Date (as
defined below) corresponding to the fiscal quarter ended December 31, 2016 shall be the rate per annum
set forth in Level IV above. Changes in the Applicable Margin and the Commitment Fee Rate resulting
from changes in the Consolidated Leverage Ratio shall become effective on the date (the βAdjustment
Dateβ) that is three Business Days after the date on which financial statements are delivered to the
Lenders pursuant to Section 6.1 and shall remain in effect until the next change to be effected pursuant to
this paragraph. If any financial statements referred to above are not delivered within the time periods
specified in Section 6.1, then, until the date that is three Business Days after the date on which such
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financial statements are delivered, the highest Applicable Margin and Commitment Fee Rate shall apply.
Each determination of the Consolidated Leverage Ratio pursuant hereto shall be made in a manner
consistent with the determination thereof pursuant to Section 7.1(a). In the event that any financial
statement or certification delivered pursuant to Section 6.2(a) is shown to be inaccurate (regardless of
whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such
inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period
(an βApplicable Periodβ) than the Applicable Margin applied for such Applicable Period, the Borrower
shall immediately (a) deliver to the Administrative Agent a corrected Compliance Certificate for such
Applicable Period, (b) determine the Applicable Margin for such Applicable Period based upon the
corrected Compliance Certificate, and (c) immediately pay to the Administrative Agent for the benefit of
the Lenders the accrued additional interest and other fees owing as a result of such increased Applicable
Margin for such Applicable Period, which payment shall be promptly distributed by the Administrative
Agent to the Lenders entitled thereto.
βApplicationβ: an application, in such form as the Issuing Lender may specify from time
to time, requesting the Issuing Lender to open a Letter of Credit.
βApproved Fundβ: as defined in Section 10.6(b).
βAsset Saleβ: any Disposition of property or series of related Dispositions of property
(excluding any such Disposition permitted by clause (a), (b), (c), (d), (e) or (g) of Section 7.5) that yields
gross proceeds to any Group Member (valued at the initial principal amount thereof in the case of non-
cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of
other non-cash proceeds) in excess of $100,000,000.
βAssigneeβ: as defined in Section 10.6(b).
βAssignment and Assumptionβ: an Assignment and Assumption, substantially in the
form of Exhibit D.
βAugmenting Revolving Lenderβ: as defined in Section 2.4(b).
βAugmenting Term Lenderβ: as defined in Section 2.1(b).
βAvailable Revolving Commitmentβ: as to any Revolving Lender at any time, an amount
equal to the excess, if any, of (a) such Lenderβs Revolving Commitment then in effect over (b) such
Lenderβs Revolving Extensions of Credit then outstanding.
βBail-In Actionβ: the exercise of any Write-Down and Conversion Powers by the
applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
βBail-In Legislationβ: with respect to any EEA Member Country which has implemented,
or which at any time implements, Article 55 of Directive 2014/59/EU of the European Parliament and of
the Council of the European Union, the relevant implementing law for such EEA Member Country from
time to time which is described in the EU Bail-In Legislation Schedule.
βBankruptcy Eventβ: with respect to any Person, such Person becomes the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian,
assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its
business appointed for it, or in the good faith determination of the Administrative Agent, has taken any
action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding
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or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership
interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or
instrumentality thereof, provided, further, that such ownership interest does not result in or provide such
Person with immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or
instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such
Person.
βBenefitted Lenderβ: as defined in Section 10.7(a).
βBoardβ: the Board of Governors of the Federal Reserve System of the United States (or
any successor).
βBorrowerβ: as defined in the preamble hereto.
βBorrowing Dateβ: any Business Day specified by the Borrower as a date on which the
Borrower requests the relevant Lenders to make Loans hereunder.
βBusiness Dayβ: a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close, provided, that with respect to notices
and determinations in connection with, and payments of principal and interest on, Eurodollar Loans, such
day is also a day for trading by and between banks in Dollar deposits in the interbank eurodollar market.
βCapital Lease Obligationsβ: as to any Person, the obligations of such Person to pay rent
or other amounts under any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP (as in effect on the Closing Date) and, for
the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized
amount thereof at such time determined in accordance with GAAP (as in effect on the Closing Date).
Any lease that would be characterized as an operating lease in accordance with GAAP on the Closing
Date (whether or not such operating lease was in effect on such date) shall continue to be accounted for as
an operating lease (and not as a capital lease) for purposes of this Agreement, regardless of any change in
GAAP following the Closing Date that would otherwise require such lease to be re-characterized (on a
prospective or retroactive basis or otherwise) as a capitalized lease.
βCapital Stockβ: any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests in a
Person (other than a corporation) and any and all warrants, rights or options to purchase any of the
foregoing.
βCash Equivalentsβ: (a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith
and credit of the United States, in each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits, eurodollar certificates or overnight bank
deposits of (i) any domestic commercial bank of recognized standing having capital and surplus in excess
of $500,000,000, (ii) any U.S. branch or agency of a nonβU.S. commercial bank of internationally
recognized standing, having capital and surplus in excess of $500,000,000 or (iii) any bank whose
shortβterm commercial paper rating is at least Aβ2 or the equivalent thereof from Standard & Poorβs
Rating Services (βS&Pβ) or at least Pβ2 or the equivalent thereof from Xxxxxβx Investment Service, Inc.
(βMoodyβsβ) (any such bank being an βApproved Bankβ), in each case with maturities of not more than
three hundred sixtyβfour (364) days from the date of acquisition; (c) commercial paper and variable or
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fixed rate notes issued by any Approved Bank (or by any Affiliate or Subsidiary thereof) or any variable
rate notes issued by, or guaranteed by any domestic corporation rated Aβ2 (or the equivalent thereof) or
better by S&P or Pβ2 (or the equivalent thereof) or better by Moodyβs, or carrying an equivalent rating by
a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings
of commercial paper issues generally, and maturing within six months of the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than 30 days, with respect to securities issued or fully
guaranteed or insured by the United States government; (e) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the
United States, by any political subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A
by Moodyβs; (f) securities with maturities of six months or less from the date of acquisition backed by
standby letters of credit issued by any Lender (or any Affiliate or Subsidiary thereof) or any commercial
bank satisfying the requirements of clause (b) of this definition; (g) money market mutual or similar funds
that invest primarily in assets satisfying the requirements of clauses (a) through (f) of this definition; (h)
money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment
Company Act of 1940, as amended, (ii) are rated A by S&P and A1 by Xxxxxβx and (iii) have portfolio
assets of at least $5,000,000,000; or (i) other short-term investments utilized by the Borrowerβs Foreign
Subsidiaries in accordance with normal investment practices for cash management in investments of a
type analogous to the foregoing.
βClosing Dateβ: the date on which the conditions precedent set forth in Section 5.1 shall
have been satisfied.
βCo-Documentation Agentβ: as defined in the preamble hereto.
βCo-Syndication Agentβ: as defined in the preamble hereto.
βCodeβ: the Internal Revenue Code of 1986, as amended from time to time.
βCollateralβ: all property of the Loan Parties, now owned or hereafter acquired, subject
to a Lien pursuant to any Security Document.
βCommitmentβ: as to any Lender, the sum of the Term Commitment and the Revolving
Commitment of such Lender.
βCommitment Fee Rateβ: at any date, the rate set forth under the heading βCommitment
Fee Rateβ in the definition of βApplicable Marginβ.
βCommodity Exchange Actβ: the Commodity Exchange Act (7 U.S.C. Β§ 1 et seq.), as
amended from time to time, and any successor statute.
βCommonly Controlled Entityβ: an entity, whether or not incorporated, that is under
common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group
that includes the Borrower and that is treated as a single employer under Section 414 of the Code.
βCompliance Certificateβ: a certificate duly executed by a Responsible Officer
substantially in the form of Exhibit B.
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βConduit Lenderβ: any special purpose corporation organized and administered by any
Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by
such Lender in a written instrument; provided, that the designation by any Lender of a Conduit Lender
shall not relieve the designating Lender of any of its obligations to fund a Loan under this Agreement if,
for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the
Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or
requested under this Agreement with respect to its Conduit Lender, and provided, further, that no Conduit
Lender shall (a) be entitled to receive any greater amount pursuant to Section 2.16, 2.17, 2.18 or 10.5 than
the designating Lender would have been entitled to receive in respect of the extensions of credit made by
such Conduit Lender or (b) be deemed to have any Commitment.
βConfidential Information Memorandumβ: the Confidential Information Memorandum
dated May 2016 and furnished to certain Lenders.
βConsolidated EBITDAβ: for any period, Consolidated Net Income for such period plus,
without duplication and to the extent reflected as a charge in the statement of such Consolidated Net
Income for such period, the sum of:
(a) income tax expense,
(b) interest expense, amortization or writeoff of debt discount and debt issuance costs and
commissions, prepayment penalties, agency fees under debt facilities, amortization or expensing of
deferred financing fees, amendment and consent fees, discounts and other fees and charges associated
with Indebtedness (including the Loans),
(c) depreciation, accretion and amortization expense,
(d) amortization of intangibles (including, but not limited to, goodwill) and organization
costs,
(e) (i) any extraordinary, unusual or non-recurring cash expenses or cash losses not to
exceed 20.0% of Consolidated EBITDA for any fiscal year when aggregated with any amounts under
clause (j) below (determined after giving effect to all items added to and subtracted from Consolidated
EBITDA pursuant hereto and calculated on a Pro Forma Basis) and (ii) any extraordinary non-cash or
non-recurring non-cash expenses or losses (each including, in any event, (w) compensation charges or
other expenses or charges arising from the grant of or issuance of stock, stock options, other equity-based
awards, stock appreciation rights or restricted stock units to the directors, officers and employees of the
Borrower and its Subsidiaries, (x) loss on investments excluding marketable securities, (y) writeoffs of
fixed assets not included in depreciation, and (z) write-offs or impairment of any goodwill or intangible
assets),
(f) costs and expenses incurred in connection with Permitted Acquisitions, Material
Dispositions, and debt issuances or equity financings, including restructuring and integration expenses
(whether or not consummated),
(g) non-cash charges related to the application of purchase accounting for Permitted
Acquisitions,
(h) non-cash expenses and losses relating to hedging activities,
(i) charges taken related to stock repurchases,
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(j) cost savings, business optimization expenses, operating expense reductions and
synergies related to any Specified Transaction, restructurings, cost savings initiatives and other initiatives
and/or actions (together, βOperating Expense Initiativesβ) (calculated on a Pro Forma Basis; provided that
any such amounts that would not be of the type that would be permitted to be included in pro forma
financial statements prepared in accordance with Regulation S-X shall not exceed, when aggregated with
any amounts under clause (e)(i) above, 20.0% of Consolidated EBITDA for any fiscal year (determined
after giving effect to all items added to and subtracted from Consolidated EBITDA pursuant hereto and
calculated on a Pro Forma Basis); provided, further that a Responsible Officer of the Borrower shall have
certified to the Administrative Agent that any such Operating Expense Initiatives (whether or not
permitted in accordance with Regulation S-X) (i) are reasonably identifiable, factually supportable and
reasonably anticipated to result from the actions taken or expected to be taken, and (ii) any such
Operating Expense Initiatives are taken or initiated, or expected to be taken or initiated and the benefits of
such actions are anticipated to be realized, on or prior to the date that is 18 months after the end of the
fiscal quarter in which the event giving rise to the taking of such Operating Expense Initiative occurs;
(k) any other non-cash charges,
minus,
(a) to the extent included in the statement of such Consolidated Net Income for such
period, the sum of (i) interest income, (ii) any extraordinary non-cash or non-recurring non-cash income
or gains (including, whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period) in the ordinary course of business, (iii) income tax credits (to
the extent not netted from income tax expense), and (iv) any other non-cash income (other than accruals
of revenue by the Borrower and its Subsidiaries in the ordinary course of business) and
(b) any cash payments made during such period in respect of items described in clauses
(e)(i) and (j) above subsequent to the fiscal quarter in which the relevant non-cash expenses or losses
were reflected as a charge in the statement of Consolidated Net Income, all as determined on a
consolidated basis.
βConsolidated Interest Expenseβ: for any period, total cash interest expense (including
that attributable to Capital Lease Obligations) of the Borrower and its Subsidiaries for such period with
respect to all outstanding Indebtedness of the Borrower and its Subsidiaries (including all commissions,
discounts and other fees and charges owed with respect to letters of credit and bankersβ acceptance
financing and net payments made (less net payments, if any, received) under Swap Agreements in respect
of interest rates to the extent such net payments are allocable to such period in accordance with GAAP)
minus, to the extent included in cash interest expense, any payments required in connection with the
termination of any Swap Agreement and all premiums paid, gains/losses incurred, charges and fees paid,
in each case by the Borrower and its Subsidiaries in connection with the redemption, repurchase or
retirement of Indebtedness, amortization of debt discounts and premiums and any interest income for the
period.
βConsolidated Interest Expense Ratioβ: for any period, the ratio of (a) Consolidated
EBITDA for such period to (b) Consolidated Interest Expense for such period.
βConsolidated Leverage Ratioβ: as at the last day of any period, the ratio of (a)
Consolidated Total Debt on such day to (b) Consolidated EBITDA for such period.
βConsolidated Net Incomeβ: for any period, the consolidated net income (or loss) of the
Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided
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that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of the Borrower or, other than an existing Subsidiary, is merged into or consolidated with the
Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary of
the Borrower) in which the Borrower or any of its Subsidiaries has an ownership interest, except to the
extent that any such income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions, (c) the undistributed earnings of any Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar distributions by such Subsidiary to the
Borrower or another Subsidiary is not at the time permitted by the terms of any Contractual Obligation
(other than under any Loan Document) or Requirement of Law applicable to such Subsidiary, (d) any
gain (or loss) realized upon the sale or other disposition of any assets of the Borrower or any Subsidiary
(including pursuant to any sale and leaseback arrangement) which is not sold or otherwise disposed of in
the ordinary course of business, (e) any net after-tax gain (loss) attributable to the early repurchase,
extinguishment or conversion of Indebtedness, hedging obligations or other derivative instruments, (f)
any unrealized foreign currency gains or losses in respect of Indebtedness of any Person denominated in a
currency other than the functional currency of such Person, and (g) any income or loss from discontinued
operations.
βConsolidated Secured Leverage Ratioβ: as at the last day of any period, the ratio of (a)
the aggregate principal amount of all Indebtedness of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP, that is secured by a Lien on any property
of the Borrower or any Subsidiary of the Borrower on such day to (b) Consolidated EBITDA for such
period.
βConsolidated Total Debtβ: at any date, the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP.
βContractual Obligationβ: as to any Person, any provision of any security issued by such
Person or of any material agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.
βCredit Partyβ: the Administrative Agent, the Issuing Lender or any other Lender.
βDefaultβ: any of the events specified in Section 8, whether or not any requirement for
the giving of notice, the lapse of time, or both, has been satisfied.
βDefaulting Lenderβ: any Lender that (a) has failed, within two Business Days of the
date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its
participations in Letters of Credit or (iii) pay over to any Credit Party any other amount required to be
paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent
in writing that such failure is the result of such Lenderβs good faith determination that a condition
precedent to funding (specifically identified and including the particular default, if any) has not been
satisfied, (b) has notified the Borrower or any Credit Party in writing, or has made a public statement to
the effect, that it does not intend or expect to comply with any of its funding obligations under this
Agreement (unless such writing or public statement indicates that such position is based on such Lenderβs
good faith determination that a condition precedent (specifically identified and including the particular
default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other
agreements in which it commits to extend credit, (c) has failed, within three Business Days after request
by a Credit Party or the Borrower, acting in good faith, to provide a certification in writing from an
authorized officer of such Lender that it will comply with its obligations (and is financially able to meet
such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit under
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this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause
(c) upon such Credit Partyβs receipt of such certification in form and substance satisfactory to it and the
Administrative Agent, (d) has become the subject of a Bankruptcy Event or (e) has, or has a direct or
indirect parent company that has, become the subject of a Bail-In Action.
βDesignated Acquisitionβ: means one or more transactions or series of transactions
consummated within a period of six consecutive months, (i) with a total aggregate purchase price of not
less than $200,000,000, and (ii) which involve the acquisition by the Borrower or any of its Subsidiaries
of any portion of the assets of a Person or line of business of such Person or any equity interests of a
Person.
βDesignated Non-Cash Considerationβ: the fair market value of non-cash consideration
received by a Loan Party in connection with a Disposition pursuant to Section 7.5(q) that is designated as
Designated Non-Cash Consideration by a Responsible Officer, setting forth the basis of such valuation
(which amount shall be reduced by the fair market value of the portion of non-cash consideration
converted to cash within 180 days following consummation of the applicable Disposition).
βDesignated Foreign Currenciesβ: Australian dollars, Canadian dollars, Euros, Hong
Kong dollars, New Zealand dollars, Singapore dollars, Sterling, Swiss francs, Indian rupees, Korean won,
Mexican pesos, Yen and other currencies to be agreed upon by the Issuing Lenders.
βDispositionβ: with respect to any property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof. The terms βDisposeβ and βDisposed ofβ
shall have correlative meanings.
βDisqualified Institutionsβ: (i) competitors of the Borrower and its respective Subsidiaries
specified to the Administrative Agent by the Borrower in writing prior to the Closing Date and otherwise
specified in writing to the Administrative Agent from time to time and provided to the Lenders (it being
understood that any update shall not apply retroactively to disqualify any parties that have previously
acquired an assignment or participation interest in the Facilities), (ii) certain banks, financial institutions,
other institutional lenders and other entities that have been specified to the Administrative Agent by the
Borrower in writing on or prior to the Closing Date and provided to the Lenders and (iii) in the case of
each of clauses (i) and (ii) above, any of their known Affiliates that are clearly identifiable as such on the
basis of such Affiliatesβ names or that are identified in writing by the Borrower to the Administrative
Agent and provided to the Lenders (in each case other than any Affiliate that is a bona fide diversified
debt fund) it being understood that any update shall not apply retroactively to disqualify any parties that
have previously acquired an assignment or participation interest in the Facilities, provided that once
designated, any such party shall not be entitled to acquire any additional assignments or participation
interests in the Facilities. Any updates to the list by the Borrower shall not be effective until one Business
Day after notice is provided to the Administrative Agent. The list of Disqualified Institutions and any
changes, modifications or updates thereto shall be provided by the Borrower to the Administrative Agent
and to the email address: XXXXX_Xxxxxxx@xxxxxxxx.xxx (or as otherwise notified by the
Administrative Agent to the Borrower from time to time) and failure to provide the list or any updates
thereto to the specified email address shall result in notification being deemed not to be effective.
βDollarsβ and β$β: dollars in lawful currency of the United States.
βDollar Equivalentβ: with respect to any amount in respect of any Letter of Credit
denominated in any Designated Foreign Currency, at any date of determination thereof, an amount in
Dollars equivalent to such amount calculated on the basis of the Spot Rate of Exchange.
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βDomestic Subsidiaryβ: any Subsidiary of the Borrower organized under the laws of any
jurisdiction within the United States.
βEEA Financial Institutionβ: (a) any bank, investment firm or other financial institution
or affiliate of a bank, investment firm or other financial institution established in any EEA Member
Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in
an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or
(c) any institution established in an EEA Member Country which is a subsidiary of an institution
described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
βEEA Member Countryβ: any of the member states of the European Union, Iceland,
Liechtenstein, and Norway.
βEEA Resolution Authorityβ: any public administrative authority or any Person entrusted
with public administrative authority of any EEA Member Country (including any delegee) having
responsibility for the resolution of any EEA Financial Institution.
βEnvironmental Lawsβ: any and all applicable foreign, Federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental
Authority or other Requirements of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health as it relates to any Materials of
Environmental Concern, or the protection of the environment, as now or may at any time hereafter be in
effect.
βERISAβ: the Employee Retirement Income Security Act of 1974, as amended from
time to time.
βEurocurrency Reserve Requirementsβ: for any day as applied to a Eurodollar Loan, the
aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including basic, supplemental, marginal and emergency reserves)
under any regulations of the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as
βEurocurrency Liabilitiesβ in Regulation D of the Board) maintained by a member bank of the Federal
Reserve System.
βEurodollar Base Rateβ: with respect to each day during each Interest Period pertaining
to a Eurodollar Loan, the Eurodollar Screen Rate as at 11:00 a.m., London time, on the Quotation Day for
such Interest Period; provided that if the Eurodollar Screen Rate shall not be available at such time for
such Interest Period (an βImpacted Interest Periodβ) with respect to Dollars then the Eurodollar Base Rate
shall be the Interpolated Rate; provided that if any Interpolated Rate shall be less than zero, such rate
shall be deemed to be zero for purposes of this Agreement.
βEurodollar Loansβ: Loans the rate of interest applicable to which is based upon the
Eurodollar Rate.
βEurodollar Rateβ: with respect to each day during each Interest Period pertaining to a
Eurodollar Loan, a rate per annum determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100,000th of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
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βEurodollar Screen Rateβ: for any day and time, with respect to any Eurodollar Loan for
any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration
(or any other Person that takes over the administration of such rate for a period equal in length to such
Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen
that displays such rate (rounded to four decimal places), or, in the event such rate does not appear on a
Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on
the appropriate page of such other information service that publishes such rate from time to time as
selected by the Administrative Agent in its reasonable discretion (in each case rounded to four decimal
places), provided that if the Eurodollar Screen Rate shall be less than zero, such rate shall be deemed to
zero for the purposes of this Agreement.
βEurodollar Trancheβ: the collective reference to Eurodollar Loans under a particular
Facility the then current Interest Periods with respect to all of which begin on the same date and end on
the same later date (whether or not such Loans shall originally have been made on the same day).
βEU Bail-In Legislation Scheduleβ: the EU Bail-In Legislation Schedule published by the
Loan Market Association (or any successor Person), as in effect from time to time.
βEvent of Defaultβ: any of the events specified in Section 8, provided that any
requirement for the giving of notice, the lapse of time, or both, has been satisfied.
βExchange Actβ: as defined in Section 8.1(k).
βExcluded Collateralβ: as defined in the Guarantee and Collateral Agreement.
βExcluded Foreign Subsidiaryβ: any Foreign Subsidiary or Foreign Subsidiary Holdco (i)
the entire Capital Stock of which is owned by a Foreign Subsidiary or Foreign Subsidiary Holdco or (ii)
in respect of which the pledge of all of the Capital Stock of such Subsidiary as Collateral would, in the
good faith judgment of the Borrower, result in adverse tax consequences to the Borrower or any of its
Subsidiaries.
βExcluded Swap Obligationβ: with respect to any Subsidiary Guarantor, any Swap
Obligation if, and to the extent that, all or a portion of the guarantee of such Subsidiary Guarantor of, or
the grant by such Subsidiary Guarantor of a security interest to secure, such Swap Obligation (or any
guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or
order of the Commodity Futures Trading Commission (or the application or official interpretation of any
thereof) by virtue of such Subsidiary Guarantorβs failure to constitute an βeligible contract participant,β as
defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to
any applicable keepwell, support or other agreement for the benefit of such Subsidiary Guarantor and any
and all guarantees by the other Loan Parties of such Subsidiary Guarantorβs obligations in respect of
Swap Obligations), at the time the guarantee of or grant of such security interest by such Subsidiary
Guarantor becomes or would become effective with respect to such Swap Obligation. If a Swap
Obligation arises under a master agreement governing more than one Swap Obligation, such exclusion
shall apply only to the portion of such Swap Obligation that is attributable to Swaps for which such
guarantee or security interest is or becomes illegal.
βExisting Credit Agreementβ: the credit agreement dated as of December 16, 2014,
among the Borrower, the several lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as
the administrative agent, and the other agents party thereto, as amended.
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βExisting Letters of Creditβ: those letters of credit individually described on Schedule
3.9.
βFacilityβ: each of (a) the Term Commitments and the Term Loans made thereunder (the
βTerm Facilityβ) and (b) the Revolving Commitments and the extensions of credit made thereunder (the
βRevolving Facilityβ).
βFATCAβ: (a) Sections 1471 to 1474 of the Code or any associated regulations; (b) any
treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between
the United States and any other jurisdiction, which (in either case) facilitates the implementation of any
law or regulation referred to in paragraph (a) above; or (c) any agreement pursuant to the implementation
of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the U.S. Internal Revenue
Service, the United States government or the government or tax authority of any other jurisdiction.
βFederal Funds Effective Rateβ: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by JPMorgan Chase Bank from three federal funds
brokers of recognized standing selected by it; provided that, if the Federal Funds Effective Rate shall be
less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
βFee Payment Dateβ: (a) the third Business Day following the last day of each March,
June, September and December and (b) the last day of the Revolving Commitment Period.
βForeign Subsidiaryβ: any Subsidiary of the Borrower that is not a Domestic Subsidiary.
βForeign Subsidiary Holdcoβ: any Domestic Subsidiary of the Borrower all or
substantially all of whose assets consist of Capital Stock of one or more Foreign Subsidiaries that are
βcontrolled foreign corporationsβ as defined in Section 957 of the Code.
βFunding Officeβ: the office of the Administrative Agent specified in Section 10.2 or
such other office as may be specified from time to time by the Administrative Agent as its funding office
by written notice to the Borrower and the Lenders.
βGAAPβ: generally accepted accounting principles in the United States as in effect from
time to time, except that for purposes of Section 7.1, GAAP shall be determined on the basis of such
principles in effect on the date hereof and consistent with those used in the preparation of the most recent
audited financial statements referred to in Section 4.1. In the event that any βAccounting Changeβ (as
defined below) shall occur and such change results in a change in the method of calculation of financial
covenants, standards or terms in this Agreement, then the Borrower and the Administrative Agent agree
to enter into negotiations in order to amend such provisions of this Agreement so as to reflect equitably
such Accounting Changes with the desired result that the criteria for evaluating the Borrowerβs financial
condition shall be the same after such Accounting Changes as if such Accounting Changes had not been
made. Until such time as such an amendment shall have been executed and delivered by the Borrower,
the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this
Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred.
βAccounting Changesβ refers to changes in accounting principles required by (x) the promulgation of any
rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants or, if applicable, the SEC, or (y) the adoption by the Borrower of
International Financial Reporting Standards.
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βGovernmental Authorityβ: any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory organization (including the
National Association of Insurance Commissioners).
βGroup Membersβ: the collective reference to the Borrower and its respective
Subsidiaries.
βGuarantee and Collateral Agreementβ: the Guarantee and Collateral Agreement to be
executed and delivered by the Borrower and each Subsidiary Guarantor, substantially in the form of
Exhibit A.
βGuarantee Obligationβ: as to any Person (the βguaranteeing personβ), any obligation
(other than, with respect to any guaranteeing person, any Excluded Swap Obligations of such
guaranteeing person), including a reimbursement, counterindemnity or similar obligation, of the
guaranteeing person that guarantees or in effect guarantees, or which is given to induce the creation of a
separate obligation by another Person (including any bank under any letter of credit) that guarantees or in
effect guarantees, any Indebtedness, leases, dividends or other obligations (the βprimary obligationsβ) of
any other third Person (the βprimary obligorβ) in any manner, whether directly or indirectly, including
any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds
(1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against
loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of business. The amount of
any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing personβs
maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.
βImpacted Interest Periodβ as defined in the definition of βEurodollar Base Rateβ.
βIncreasing Revolving Lenderβ: as defined in Section 2.4(b).
βIncreasing Term Lenderβ: as defined in Section 2.1(b).
βIncremental Amendmentβ: as defined in Section 2.1(b).
βIncremental Extensions of Creditβ: as defined in Section 2.1(b).
βIncremental Facility Closing Dateβ: as defined in Section 2.1(b).
βIncremental Term Loansβ: as defined in Section 2.1(b).
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βIndebtednessβ: of any Person at any date, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price or
deferred consideration or similar arrangements in respect of property or services (other than (i) current
trade payables incurred in the ordinary course of such Personβs business and (ii) any earnout obligation
until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP
(excluding disclosure on the notes and footnotes thereto)), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Capital Lease Obligations of such Person, (f) all
obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of
acceptances, letters of credit, surety bonds or similar arrangements, except that, for the purposes of the
definition of βConsolidated Total Debtβ only, obligations in respect of letters of credit or bankersβ
acceptances issued in support of obligations not otherwise constituting Indebtedness shall not constitute
Indebtedness except to the extent such letter of credit or bankersβ acceptance is drawn, (g) all Guarantee
Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (f)
above, (h) all obligations of the kind referred to in clauses (a) through (g) above secured by (or for which
the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on
property (including accounts and contract rights) owned by such Person, whether or not such Person has
assumed or become liable for the payment of such obligation, and (i) for the purposes of Section 8.1(e)
only, all obligations of such Person in respect of Swap Agreements. For the avoidance of doubt, neither
deferred compensation nor any pension obligations or liabilities shall be deemed to constitute
βIndebtedness.β The Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Personβs ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor.
βInsolvencyβ: with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA.
βInsolventβ: pertaining to a condition of Insolvency.
βIntellectual Propertyβ: the collective reference to all rights, priorities and privileges
relating to intellectual property, whether arising under United States, multinational or foreign laws or
otherwise, including, without limitation, copyrights, copyright licenses, patents, patent licenses, domain
names, trademarks, trademark licenses, technology, know-how and processes, and all rights to xxx at law
or in equity for any infringement or other impairment thereof, including the right to receive all proceeds
and damages therefrom.
βInterest Payment Dateβ: (a) as to any ABR Loan, the last day of each March, June,
September and December to occur while such Loan is outstanding and the final maturity date of such
Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months, each
day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last
day of such Interest Period, and (d) as to any Loan (other than any Revolving Loan that is an ABR Loan),
the date of any repayment or prepayment made in respect thereof.
βInterest Periodβ: as to any Eurodollar Loan, (a) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and ending one
week or one, two, three or six months thereafter, as selected by the Borrower in its notice of borrowing or
notice of conversion, as the case may be, given with respect thereto (provided that the initial Interest
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Period for the Term Loans shall commence on the Closing Date and end on June 30, 2016; provided
further that for the purposes of the initial Interest Period only, all necessary calculations related thereto
shall be determined as if the Borrower had selected a one month Interest Period); and (b) thereafter, each
period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected by the Borrower by irrevocable
notice to the Administrative Agent not later than 11:00 A.M., New York City time, on the date that is
three Business Days prior to the last day of the then current Interest Period with respect thereto; provided
that, all of the foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into another calendar month in which event
such Interest Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period under a particular Facility that
would extend beyond the Revolving Termination Date or beyond the Term Loan Maturity Date,
as the case may be;
(iii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to require a payment or
prepayment of any Eurodollar Loan during an Interest Period for such Loan.
βInterpolated Rateβ: for any Interest Period, the rate per annum (rounded to the same
number of decimal places as the Eurodollar Screen Rate) determined by the Administrative Agent (which
determination shall be conclusive and binding absent manifest error) to be equal to the rate that results
from interpolating on a linear basis between: (a) the Eurodollar Screen Rate for the longest period for
which the Eurodollar Screen Rate is available for Dollars that is shorter than the Impacted Interest Period;
and (b) the Eurodollar Screen Rate for the shortest period (for which that Screen Rate is available for
Dollars) that exceeds the Impacted Interest Period, in each case, as at 11:00 a.m., London time, on the
Quotation Day for such Interest Period. When determining a rate for a period which is less than the
shortest period for which the Eurodollar Screen Rate is available, the Eurodollar Screen Rate for the
purposes of clause (a) above shall be deemed to be the overnight rate for Dollars determined by the
Administrative Agent from such information service as the Administrative Agent may select in its
reasonable discretion.
βInvestmentsβ: as defined in Section 7.8.
βIssuing Lenderβ: each of (a) JPMorgan Chase Bank, (b) Xxxxx Fargo Bank, National
Association, (c) Citizens Bank, N.A., (d) T.D. Bank, N.A. and (e) U.S. Bank National Association or any
of their respective affiliates, in each case in its capacity as an issuer of any Letter of Credit. Each
reference herein to βthe Issuing Lenderβ shall be deemed to be a reference to the relevant Issuing Lender.
βJPMorgan Chase Bankβ: JPMorgan Chase Bank, N.A.
βJunior Debtβ: any Permitted Senior Unsecured Debt, the Permitted Senior Unsecured
Notes, any Permitted Subordinated Debt or any other Indebtedness of any Loan Party that is secured by
Liens on all or a portion of any Collateral on a junior priority basis to the Liens on the Collateral securing
the Obligations (other than any Indebtedness owed by any Group Member to any Loan Party).
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βL/C Commitmentβ: with respect to each Issuing Lender individually, $10,000,000 or
such other amount as the Issuing Lender and the Borrower may agree; provided that at no time shall the
aggregate amount of the L/C Commitments exceed $50,000,000.
βL/C Obligationsβ: at any time, an amount equal to the sum of (a) the aggregate then
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of
drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5. The L/C
Obligations in respect of any Letter of Credit in a Designated Foreign Currency shall be deemed for the
purposes of calculating the Available Revolving Commitments and similar amounts from time to time
and commitment fees and Letter of Credit and fronting fees to be equal to the Dollar Equivalent of the
amount of such Designated Foreign Currency as at the date of issuance thereof, and such Dollar
Equivalent shall be thereafter re-calculated by the Issuing Lender from time to time in its discretion (but
no less often than quarterly); any such determination by the Issuing Lender of any such Dollar Equivalent
amount shall be conclusive and binding on the other parties hereto in the absence of manifest error.
βL/C Participantsβ: the collective reference to all the Revolving Lenders other than the
Issuing Lender.
βLendersβ: as defined in the preamble hereto; provided, that unless the context otherwise
requires, each reference herein to the Lenders shall be deemed to include any Conduit Lender.
βLetters of Creditβ: as defined in Section 3.1(a).
βLienβ: any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having substantially the same
economic effect as any of the foregoing).
βLimited Conditionality Representationsβ: (a) those representations and warranties
enumerated in Sections 4.3 (but only with respect to its obligations under this Agreement), 4.4 (but only
with respect to its obligations under this Agreement), 4.5 (but only with respect to no violation of any
Requirement of Law on any material Contractual Obligation and not with respect to the creation or
imposition of any Lien or any Material Adverse Effect), 4.11, 4.14, 4.19 and 4.20 and (b) with respect to
any acquisition, those representations and warranties that are made by the target of the applicable
acquisition in the acquisition agreement related thereto as are material to the interests of the Lenders, but
only to the extent that the accuracy of such representations and warranties is a condition to the obligations
of the Borrower or the applicable Subsidiary to close under such acquisition agreement or the Borrower or
the applicable Subsidiary has the right to decline to consummate the acquisition as a result of a breach of
such representations and warranties in such acquisition agreement.
βLoanβ: any loan made by any Lender pursuant to this Agreement.
βLoan Documentsβ: this Agreement, the Security Documents, the Notes and any
amendment, waiver, supplement or other modification to any of the foregoing.
βLoan Partyβ: each Group Member that is a party to a Loan Document.
βMajority Facility Lendersβ: with respect to any Facility, the holders of more than 50%
of the aggregate unpaid principal amount of the Term Loans or the Total Revolving Extensions of Credit,
as the case may be, outstanding under such Facility (or, in the case of the Revolving Facility, prior to any
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termination of the Revolving Commitments, the holders of more than 50% of the Total Revolving
Commitments).
βMargin Stockβ: βmargin stockβ as defined in Regulation U.
βMarket Disruption Eventβ: as defined in Section 2.14(b).
βMaterial Acquisitionβ: any acquisition of assets or series of related acquisitions of
property that (a) constitutes assets comprising all or substantially all of an operating unit of a business or
constitutes all or substantially all of the common stock of a Person and (b) involves payment of total
consideration by the Borrower or any of its Subsidiaries in excess of $1,000,000.
βMaterial Adverse Effectβ: a material adverse effect on (a) the business, property,
operations, or financial condition of the Borrower and its Subsidiaries taken as a whole or (b) the validity
or enforceability of any of the material provisions of this Agreement or any of the other Loan Documents
or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.
βMaterial Dispositionβ: any Disposition of property or series of related Dispositions of
property that yields gross proceeds to the Borrower or any of its Subsidiaries in excess of $1,000,000.
βMaterial Subsidiaryβ: any Subsidiary of the Borrower that either (i) holds assets having
a total book value of greater than five percent (5%) of the total assets held by the Borrower and its
Subsidiaries taken as a whole (as determined as of the end of the fiscal quarter immediately preceding the
date of determination) or (ii) has revenues representing greater than five percent (5%) of total revenues of
the Borrower and its Subsidiaries taken as a whole (for the period of four consecutive fiscal quarters most
recently ended at or prior to such time and for which financial statements are available); provided, that (x)
any Subsidiary that directly or indirectly owns a Material Subsidiary shall itself be a Material Subsidiary
and (y) in the event Subsidiaries that would otherwise not be Material Subsidiaries shall in the aggregate
account for a percentage in excess of 10% of the total assets attributable to the Borrower and its
Subsidiaries taken as a whole (as determined as of the end of the fiscal quarter immediately preceding the
date of determination) or 30% of the revenue of the Borrower and its Subsidiaries taken as a whole (for
the period of four consecutive fiscal quarters most recently ended at or prior to such time and for which
financial statements are available) then, in each case, one or more of such Subsidiaries designated by the
Borrower (or, if the Borrower shall make no designation, one or more of such Subsidiaries in descending
order based on their respective contributions to the total assets held by the Borrower and its Subsidiaries
taken as a whole), shall be included as Material Subsidiaries to the extent necessary to eliminate such
excess.
βMaterials of Environmental Concernβ: any gasoline or petroleum (including crude oil or
any fraction thereof) or petroleum products, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation and any other substances, materials or wastes, defined or regulated as βhazardousβ or βtoxicβ,
under, or that could give rise to liability pursuant to, any Environmental Law.
βMultiemployer Planβ: a Plan that is a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
βNet Cash Proceedsβ: (a) in connection with any Asset Sale (including in connection
with any Permitted Sale Leaseback) or any Recovery Event, the proceeds thereof in the form of cash and
Cash Equivalents (including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only
as and when received), net of attorneysβ fees, accountantsβ fees, investment banking fees, amounts
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required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder
on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a
Security Document) and other customary fees and expenses actually incurred in connection therewith and
net of taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements) and (b) in connection with any
issuance or sale of Capital Stock or any incurrence of Indebtedness, the cash proceeds received from such
issuance or incurrence, net of attorneysβ fees, investment banking fees, accountantsβ fees, underwriting
discounts and commissions and other customary fees and expenses actually incurred in connection
therewith.
βNon-Excluded Taxesβ: as defined in Section 2.17(a).
βNon-U.S. Lenderβ: as defined in Section 2.17(d).
βNotesβ: the collective reference to any promissory note evidencing Loans.
βObligationsβ: the unpaid principal of and interest on (including interest accruing after
the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans and all other obligations and liabilities of the Borrower to the Administrative
Agent or to any Lender (or, in the case of Specified Swap Agreements and Specified Cash Management
Agreements, any affiliate of any Lender), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with,
this Agreement, any other Loan Document, the Letters of Credit, any Specified Swap Agreement, any
Specified Cash Management Agreements or any other document made, delivered or given in connection
herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the
Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or
otherwise.
βOperating Expense Initiativesβ: as defined in the definition of βConsolidated EBITDAβ.
βOther Taxesβ: any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a
security interest under, or otherwise with respect to, this Agreement or any other Loan Document,
including any interest, additions to tax or penalties applicable thereto.
βParentβ: with respect to any Lender, any Person as to which such Lender is, directly or
indirectly, a subsidiary.
βParticipantβ: as defined in Section 10.6(c).
βParticipant Registerβ: as defined in Section 10.6(c)(i).
βPBGCβ: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of
Title IV of ERISA (or any successor).
βPermitted Acquisitionsβ: any acquisition (by way of merger, consolidation,
amalgamation, purchase of assets or otherwise) permitted pursuant to Section 7.4 or Section 7.8.
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βPermitted Preferred Stockβ: preferred stock issued by the Borrower that (a) does not
require any repurchase or redemption (other than conversion or exchange into the common stock of the
Borrower), whether contingent or not, prior to the date that is 91 days after the later of the Revolving
Termination Date or Term Loan Maturity Date and (b) is in the Borrowerβs good faith opinion on terms
and conditions customary in the relevant capital markets for preferred stock issued by issuers similar to
the Borrower.
βPermitted Sale Leasebackβ: any sale-leaseback transaction consummated by the
Borrower or any of its Subsidiaries after the Closing Date; provided that, at the time of the consummation
of such sale-leaseback transaction, the aggregate amount of Net Cash Proceeds received from all such
sale-leaseback transactions do not exceed 5.0% of the consolidated total assets of the Borrower and its
Subsidiaries as of the end of the fiscal quarter immediately prior to the date of such sale-leaseback
transaction for which financial statements have been delivered pursuant to Section 6.1; provided, further,
that any such sale-leaseback transactions not among the Borrower or its Subsidiaries must be
consummated for fair value as determined at the time of consummation in good faith by the Borrower or
such Subsidiary.
βPermitted Senior Unsecured Debtβ: senior unsecured Indebtedness of a Loan Party that
(a) requires no scheduled cash payments of principal and no mandatory repurchase or redemption
obligations prior to the date that is 91 days after the later of the Revolving Termination Date or Term
Loan Maturity Date, other than in connection with a change of control of Borrower or similar event, an
asset disposition or, if the Indebtedness is incurred to finance a Permitted Acquisition (or refinance,
replace, modify, repay, redeem, refund, renew or extend Indebtedness in connection therewith) and
related costs, fees, expenses, premiums and accrued but unpaid interest (including any refinancing,
replacement, modification, repayment, redemption, refunding, renewal or extension thereof), subject to
conditions relating to the non-occurrence of such Permitted Acquisition, and (b) does not impose financial
βmaintenanceβ (as distinct from βincurrenceβ) covenants on the Borrower or any of the Subsidiaries that
are more restrictive than the maintenance covenants herein.
βPermitted Senior Unsecured Notesβ: one or more series of senior unsecured notes
constituting Permitted Senior Unsecured Debt that may be issued by following the Closing Date in an
aggregate principal amount not exceeding $500,000,000 (including any refinancing, replacement,
modification, repayment, redemption, refunding, renewal or extension thereof).
βPermitted Subordinated Debtβ: unsecured Indebtedness subordinated to the Obligations
that (a) requires no scheduled cash payments of principal and no mandatory repurchase or redemption
obligations prior to the date that is 91 days after the later of the Revolving Termination Date or Term
Loan Maturity Date, other than in connection with a change of control of Borrower or similar event, an
asset disposition or, if the Indebtedness is incurred to finance a Permitted Acquisition (or refinance,
replace, modify, repay, redeem, refund, renew or extend Indebtedness in connection therewith) and
related costs, fees, expenses, premiums and accrued but unpaid interest (including any refinancing,
replacement, modification, repayment, redemption, refunding, renewal or extension thereof), subject to
conditions relating to the non-occurrence of such Permitted Acquisition, (b) does not impose financial
βmaintenanceβ (as distinct from βincurrenceβ) covenants on the Borrower or any of the Subsidiaries that
are more restrictive than the maintenance covenants herein, and (c) contains customary subordination
terms that are reasonably acceptable to the Administrative Agent.
βPersonβ: an individual, partnership, corporation, limited liability company, business
trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
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βPlanβ: at a particular time, any employee benefit plan that is covered by ERISA and in
respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an βemployerβ as defined in Section
3(5) of ERISA.
βPledged Stockβ: as defined in the Guarantee and Collateral Agreement.
βPrime Rateβ: the rate of interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate in effect at its principal office in New York City (the Prime Rate
not being intended to be the lowest rate of interest charged by the Administrative Agent in connection
with extensions of credit to debtors).
βPro Forma Basisβ: with respect to any calculation required by the terms of this
Agreement to be made on a Pro Forma Basis, that such calculation shall be made after taking into account
(a) any Specified Transaction, (b) any Operating Expense Initiative and (c) any redemption, repurchase,
retirement, defeasance, discharge or incurrence of Indebtedness that has occurred on or by such time, as
though such Specified Transaction, Operating Expense Initiative, redemption, repurchase, retirement,
discharge or incurrence had occurred at or prior to such date or on the first day of such period, as the case
may be, including pro forma adjustments arising out of events attributable to or actions taken in
connection with such Specified Transaction, Operating Expense Initiative or such redemption, repurchase,
retirement, defeasance, discharge or incurrence of Indebtedness. Upon giving effect to a Specified
Transaction on a βPro Forma Basis,β (i) any Indebtedness incurred by the Borrower or any of its
Subsidiaries in connection with such Specified Transaction (or any other transaction that occurred during
the relevant period) shall be deemed to have been incurred as of the first day of the relevant period; (ii)
income statement items (whether positive or negative) and Consolidated EBITDA attributable to all
property acquired in such Specified Transaction or to the Investment constituting such Specified
Transaction, as applicable, shall be included as if such Specified Transaction has occurred as of the first
day of the relevant period; (iii) income statement items (whether positive or negative) and Consolidated
EBITDA attributable to all property disposed of in any Specified Transaction (including any income
statement items attributable to disposed abandoned or discontinued operations), shall be excluded as if
such Specified Transaction has occurred as of the first day of the relevant period; and (iv) such other pro
forma adjustments which would be permitted or required by Regulations S-K and S-X under the
Securities Act of 1933, as amended, shall be taken into account (in addition to any adjustments permitted
pursuant to any applicable financial definition or test). For the purposes of any such calculation, if any
Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such
Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation is
made had been the applicable rate for the entire period (taking into account any interest hedging
arrangements applicable to such Indebtedness); provided, in the case of repayment of any Indebtedness, to
the extent actual interest related thereto was included during all or any portion of the applicable period,
the actual interest may be used for the applicable portion of such period. Interest on a Capital Lease
Obligation shall be deemed to accrue at an interest rate reasonably determined by the Borrower to be the
rate of interest implicit in such Capital Lease Obligation in accordance with GAAP. Interest on
Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate, or other rate, shall be determined to have been based
upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower or a
Subsidiary may designate.
βProjectionsβ: as defined in Section 6.2(b).
βQuotation Dayβ: with respect to any Eurodollar Loan for any Interest Period, two
Business Days prior to the commencement of such Interest Period.
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βRecovery Eventβ: any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of any Group Member.
βRegisterβ: as defined in Section 10.6(b).
βRegulation Uβ: Regulation U of the Board as in effect from time to time.
βRegulation S-Xβ: Regulation S-X of the Securities Act of 1933, as amended from time
to time.
βReimbursement Obligationβ: the obligation of the Borrower to reimburse the Issuing
Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.
βReimbursement Percentageβ: as defined in Section 3.5.
βReinvestment Deferred Amountβ: with respect to any Reinvestment Event, the
aggregate Net Cash Proceeds received by any Group Member in connection therewith that are not applied
to prepay the Term Loans pursuant to Section 2.9(a) as a result of the delivery of a Reinvestment Notice.
βReinvestment Eventβ: any Asset Sale or Recovery Event in respect of which the
Borrower has delivered a Reinvestment Notice.
βReinvestment Noticeβ: a written notice executed by a Responsible Officer stating that
no Event of Default has occurred and is continuing and that the Borrower (directly or indirectly through a
Subsidiary) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale
or Recovery Event for (i) capital expenditures or to restore, rebuild, repair, construct, improve, replace or
otherwise acquire the assets similar to those that are the subject of such Asset Sale or Recovery Event or
that are used or useful in its business or (ii) a Permitted Acquisition or any acquisition of all or
substantially all of the assets of, or all of the Capital Stock (other than directorsβ qualifying shares) of a
Person or business unit, division or line of business of a Person (or any subsequent investment made in a
Person, or business unit, division or line of business of a Person previously acquired)).
βReinvestment Prepayment Amountβ: with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant
Reinvestment Prepayment Date for capital expenditures or to restore, rebuild, repair, construct, improve,
replace or otherwise acquire the assets similar to those that are the subject of such Asset Sale or Recovery
Event or that are used or useful in the Borrowerβs business or pursuant to a Permitted Acquisition or any
acquisition of all or substantially all of the assets of, or all of the Capital Stock (other than directorsβ
qualifying shares) of a Person or business unit, division or line of business of a Person (or any subsequent
investment made in a Person or business unit, division or line of business of a Person previously
acquired).
βReinvestment Prepayment Dateβ: with respect to any Reinvestment Event, the earlier of
(a) the date occurring twelve months after such Reinvestment Event and (b) the date on which the
Borrower shall have determined not to, or shall have otherwise ceased to, restore, rebuild, repair,
construct, improve, replace or otherwise acquire the assets similar to these that are the subject of such
Asset Sale or Recovery Event or that are used or useful in the Borrowerβs business with all or any portion
of the relevant Reinvestment Deferred Amount.
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βReportable Eventβ: any of the events set forth in Section 4043(c) of ERISA, other than
those events as to which the thirty day notice period is waived under subsections .27, .28, .29, .30, .31,
.32, .34 or .35 of PBGC Reg. Β§ 4043.
βRequired Lendersβ: at any time, the holders of more than 50% of (a) until the Closing
Date, the Commitments then in effect and (b) thereafter, the sum of (i) the aggregate unpaid principal
amount of the Term Loans then outstanding and (ii) the Total Revolving Commitments then in effect or,
if the Revolving Commitments have been terminated, the Total Revolving Extensions of Credit then
outstanding.
βRequirement of Lawβ: as to any Person, the Certificate of Incorporation and By-Laws
or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person or any of its property is subject.
βResponsible Officerβ: the chief executive officer, president, chief financial officer,
treasurer or assistant treasurer of the Borrower, but in any event, with respect to financial matters, the
chief financial officer, treasurer or assistant treasurer of the Borrower.
βRestricted Debt Paymentsβ: as defined in Section 7.6.
βRestricted Equity Paymentsβ: as defined in Section 7.6.
βRestricted Paymentsβ: as defined in Section 7.6.
βRevolving Commitmentβ: as to any Lender, the obligation of such Lender, if any, to
make Revolving Loans and participate in Letters of Credit in an aggregate principal and/or face amount
not to exceed the amount set forth under the heading βRevolving Commitmentβ opposite such Lenderβs
name on Schedule 1.1A or in the Assignment and Assumption pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant to the terms hereof. The original
amount of the Total Revolving Commitments is $1,200,000,000.
βRevolving Commitment Increaseβ: as defined in Section 2.4.
βRevolving Commitment Periodβ: the period from and including the Closing Date to the
Revolving Termination Date.
βRevolving Extensions of Creditβ: as to any Revolving Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender then
outstanding and (b) such Lenderβs Revolving Percentage of the L/C Obligations then outstanding.
βRevolving Facilityβ: as defined in the definition of βFacilityβ.
βRevolving Lenderβ: each Lender that has a Revolving Commitment or that holds
Revolving Loans.
βRevolving Loansβ: as defined in Section 2.4(a).
βRevolving Percentageβ: as to any Revolving Lender at any time, the percentage which
such Lenderβs Revolving Commitment then constitutes of the Total Revolving Commitments or, at any
time after the Revolving Commitments shall have expired or terminated, the percentage which the
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aggregate principal amount of such Lenderβs Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding, provided that, in the event that the
Revolving Loans are paid in full prior to the reduction to zero of the Total Revolving Extensions of
Credit, the Revolving Percentages shall be determined in a manner designed to ensure that the other
outstanding Revolving Extensions of Credit shall be held by the Revolving Lenders on a comparable
basis. Notwithstanding the foregoing, when a Defaulting Lender shall exist, (i) in the case of Section 2.21,
the Revolving Lendersβ Revolving Percentages shall be determined without regard to any Defaulting
Lenderβs Revolving Commitment and (ii) in the case of the defined term βRevolving Extensions of
Creditβ (other than as used in Section 2.21(c)) and Section 2.4(a), the Revolving Lendersβ Revolving
Percentages shall be adjusted to give effect to any reallocation effected pursuant to Section 2.21(c).
βRevolving Termination Dateβ: June 17, 2021.
βSanctioned Countryβ: at any time, a country, region or territory which is itself the
subject or target of any Sanctions (at the time of this Agreement, the Crimea region of Ukraine, Cuba,
Iran, North Korea, Sudan and Syria).
βSanctioned Personβ: at any time, (a) any Person listed in any Sanctions-related list of
designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the
Treasury or the U.S. Department of State or by the United Nations Security Council, the European Union,
Her Majestyβs Treasury of the United Kingdom, (b) any Person operating, organized or resident in a
Sanctioned Country or (c) any Person owned or controlled by any Person or Persons described in the
foregoing clauses (a) and (b).
βSanctionsβ: economic or financial sanctions or trade embargoes imposed, administered
or enforced from time to time by (a) the U.S. government, including those administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (b) the
United Nations Security Council, the European Union, Her Majestyβs Treasury of the United Kingdom.
βSECβ: the Securities and Exchange Commission, any successor thereto and any
analogous Governmental Authority.
βSecured Partiesβ: the collective reference to the Administrative Agent, the Issuing
Lenders, the Lenders and any affiliate of any Lender to which Obligations are owed.
βSecurity Documentsβ: the collective reference to the Guarantee and Collateral
Agreement and all other security documents hereafter delivered to the Administrative Agent granting a
Lien on any property of any Person to secure the obligations and liabilities of any Loan Party under any
Loan Document.
βSingle Employer Planβ: any Plan that is covered by Title IV of ERISA, but that is not a
Multiemployer Plan.
βSolventβ: when used with respect to any Person, means that, as of any date of
determination, (a) the amount of the βpresent fair saleable valueβ of the assets of such Person and its
subsidiaries, on a consolidated basis, will, as of such date, exceed the amount of all βliabilities of such
Person and its subsidiaries, on a consolidated basis, contingent or otherwiseβ, as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person
and its subsidiaries, on a consolidated basis, will, as of such date, be greater than the amount that will be
required to pay the liability of such Person and its subsidiaries, on a consolidated basis, on its debts as
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such debts become absolute and matured, (c) such Person and its subsidiaries, on a consolidated basis,
will not have, as of such date, an unreasonably small amount of capital with which to conduct their
business, and (d) such Person and its subsidiaries, on a consolidated basis, will be able to pay their debts
as they mature. The amount of contingent liabilities at any time shall be computed as the amount that, in
light of all the facts and circumstances existing at the time, represents the amount that would reasonably
be expected to become an actual or matured liability.
βSpecified Cash Management Agreementβ: any agreement providing for treasury,
depositary, purchasing card or cash management services, including in connection with any automated
clearing house transfers of funds or any similar transactions between the Borrower or any Subsidiary
Guarantor and any Lender or Affiliate thereof.
βSpecified Swap Agreementβ: any Swap Agreement entered into by the Borrower and
any Lender or affiliate thereof at the time of entering into such Swap Agreement in respect of interest
rates, currency exchange rates or commodity prices.
βSpecified Transactionβ means any (a) Material Acquisition or Material Disposition, (b)
Permitted Acquisition, (c) Investment that results in a Person becoming a Subsidiary of the Borrower
(which, for purposes hereof, shall be deemed to also include (1) the merger, consolidation, liquidation or
similar amalgamation of any Person into the Borrower or any Subsidiary, so long as the Borrower or such
Subsidiary is the surviving Person, and (2) the transfer of all or substantially all of the assets of a Person
to the Borrower or any Subsidiary) or (d) the proposed incurrence of Indebtedness or making of a
Restricted Payment or payment in respect of Indebtedness in respect of which compliance with any
financial ratio is by the terms of this Agreement required to be calculated on a Pro Forma Basis.
βSpot Rate of Exchangeβ: with respect to any Designated Foreign Currency, at any date
of determination thereof, the spot rate of exchange in London that appears on the display page applicable
to such Designated Foreign Currency on the Telerate System (or such other page as may replace such
page for the purpose of displaying the spot rate of exchange in London); provided that if there shall at any
time no longer exist such a page, the spot rate of exchange shall be determined by reference to another
similar rate publishing service selected by the Administrative Agent and, if no such similar rate
publishing service is available, by reference to the published rate of the Administrative Agent in effect at
such date for similar commercial transactions.
βSubsidiaryβ: as to any Person, a corporation, partnership, limited liability company or
other entity of which shares of stock or other ownership interests having ordinary voting power (other
than stock or such other ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a βSubsidiaryβ or to βSubsidiariesβ in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
βSubsidiary Guarantorβ: each Domestic Subsidiary of the Borrower that is a Material
Subsidiary.
βSwapβ: any agreement, contract, or transaction that constitutes a βswapβ within the
meaning of section 1a(47) of the Commodity Exchange Act.
βSwap Agreementβ: any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or more
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rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing
indices or measures of economic, financial or pricing risk or value or any similar transaction or any
combination of these transactions; provided that no phantom stock or similar plan providing for payments
only on account of services provided by current or former directors, officers, employees or consultants of
the Borrower or any of its Subsidiaries shall be a βSwap Agreementβ.
βSwap Obligationβ: with respect to any Person, any obligation to pay or perform under
any Swap.
βTerm Commitmentβ: as to any Lender, the obligation of such Lender, if any, to make a
Term Loan to the Borrower in a principal amount not to exceed the amount set forth under the heading
βTerm Commitmentβ opposite such Lenderβs name on Schedule 1.1A. The original aggregate amount of
the Term Commitments is $600,000,000.
βTerm Facilityβ: as defined in the definition of βFacilityβ.
βTerm Lenderβ: each Lender that has a Term Commitment or that holds a Term Loan.
βTerm Loanβ: as defined in Section 2.1.
βTerm Loan Maturity Dateβ: June 17, 2021.
βTerm Percentageβ: as to any Term Lender at any time, the percentage which such
Lenderβs Term Commitment then constitutes of the aggregate Term Commitments (or, at any time after
the Closing Date, the percentage which the aggregate principal amount of such Lenderβs Term Loans then
outstanding constitutes of the aggregate principal amount of the Term Loans then outstanding).
Notwithstanding the foregoing, when a Defaulting Lender shall exist, (i) in the case of Section 2.21, the
Term Lendersβ Term Percentages shall be determined without regard to any Defaulting Lenderβs Term
Commitment and (ii) in the case of the defined term βTerm Extensions of Creditβ (other than as used in
Section 2.21(c)) and Section 2.4(a), Term Lendersβ Term Percentages shall be adjusted to give effect to
any reallocation effected pursuant to Section 2.21(c).
βTotal Revolving Commitmentsβ: at any time, the aggregate amount of the Revolving
Commitments then in effect.
βTotal Revolving Extensions of Creditβ: at any time, the aggregate amount of the
Revolving Extensions of Credit of the Revolving Lenders outstanding at such time.
βTransfereeβ: any Assignee or Participant.
βTypeβ: as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.
βUnited Statesβ: the United States of America.
βWeighted Average Life to Maturityβ: when applied to any Indebtedness at any date, the
number of years obtained by dividing:
(a) the sum of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of principal, including
payment at final maturity, in respect of the Indebtedness, by (ii) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment; by
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that any such Incremental Extensions of Credit are drawn in full and excluding the cash proceeds of
such Incremental Extension of Credit), the Consolidated Secured Leverage Ratio does not exceed
3.00 to 1.00 as of the end of the most recently ended fiscal quarter for which financial statements
have been delivered pursuant to Section 6.1(a) or 6.1(b) and (B) committed but undrawn amounts for
which the requirements in clause (A) are met when committed shall subsequently be available to be
drawn without a need to meet such requirements. The Incremental Term Loans shall rank pari passu
in right of payment and of security with the Term Loans. The Incremental Term Loans (i) shall not
mature earlier than the Revolving Termination Date and shall have a Weighted Average Life to
Maturity no shorter than the Weighted Average Life to Maturity of the Term Loans (except by virtue
of amortization of or prepayment of the Term Loans and prepayments of scheduled amortization prior
to such date of determination) and (i) except as set forth above and below, shall be treated
substantially the same as the Term Loans (in each case, including with respect to mandatory and
voluntary prepayments); provided that (x) the interest rates and amortization schedule (subject to
clause (i) above) applicable to the Incremental Term Loans shall be determined by the Borrower and
the lenders thereof and (y) to the extent such terms applicable to the Incremental Term Loans are not
consistent with the then existing Term Loans (except as permitted by the immediately preceding
clause (x)) such terms shall be mutually agreed to by the Borrower and the Administrative Agent.
(ii) Each notice from the Borrower pursuant to this Section shall set forth the requested
amount and proposed terms of the relevant Incremental Extension of Credit. The Borrower may arrange
for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in
its Term Commitment, an βIncreasing Term Lenderβ), or by one or more new banks, financial institutions
or other entities (each such new bank, financial institution or other entity, an βAugmenting Term
Lenderβ); provided that (i) each Augmenting Term Lender, shall be subject to the approval of the
Borrower and the Administrative Agent (such approval by the Administrative Agent not to be
unreasonably withheld) and (ii) (x) in the case of an Increasing Term Lender, the Borrower and such
Increasing Term Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the
case of an Augmenting Term Lender, the Borrower and such Augmenting Term Lender execute an
agreement substantially in the form of Exhibit H hereto. For the avoidance of doubt, no existing Lender
will be required to provide any Incremental Term Loans and the Borrower shall have no obligation to
offer any existing Lender the opportunity to provide any commitment for any Incremental Term Loans.
(iii) Commitments in respect of Incremental Term Loans shall become Commitments
under this Agreement pursuant to an amendment (an βIncremental Amendmentβ) to this Agreement and,
as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide
such Commitment, if any, each Increasing Term Lender, if any, each Augmenting Term Lender, if any,
and the Administrative Agent. The Incremental Amendment may, without the consent of any other
Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary
or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the
provisions of this Section; provided that any amendments included in any Incremental Amendment meant
to effect changes not relating to this Section 2.1(b) shall require the vote of the Lenders as described in
Section 10.1 hereof. The making of any loans pursuant to any Incremental Amendment shall not be
effective unless on the date thereof (each, an βIncremental Facility Closing Dateβ), after giving effect to
such Incremental Extension of Credit (i) the conditions set forth in Section 5.2 are satisfied; provided that
with respect to Incremental Term Loans used to finance an acquisition (or refinance, replace, modify,
repay, redeem, refund, renew or extend Indebtedness in connection therewith) or to refinance, replace,
modify, repay, redeem, refund, renew or extend Indebtedness permitted by this Agreement, as of the date
of consummation of such acquisition or refinancing, replacement, modification, repayment, redemption,
refunding, renewal or extension of such Indebtedness, (x) the only representations and warranties that are
required to be true as a condition to the borrowing of such Incremental Term Loans are the Limited
Conditionality Representations and (y) no payment Event of Default shall have occurred and be
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continuing, (ii) subject to Section 1.2(e), the Borrower shall be in compliance with Section 7.1, (iii) the
Administrative Agent shall have received documents consistent with those delivered on the Closing Date
under Section 5.1(f) as to the corporate power and authority of the Borrower to borrow hereunder after
giving effect to such increase, and (iv) such other conditions as the Borrower and the Lender(s) of
Incremental Term Loans may agree. The Borrower will use the proceeds of the Incremental Term Loans
for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any
Incremental Term Loans unless it so agrees.
2.2 Procedure for Term Loan Borrowing. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent
prior to 10:00 A.M., New York City time, three Business Days prior to the anticipated Closing Date)
requesting that the Term Lenders make the Term Loans on the Closing Date and specifying the amount to
be borrowed. The Term Loans made on the Closing Date shall initially be Eurodollar Loans. Upon
receipt of such notice the Administrative Agent shall promptly notify each Term Lender thereof. Not
later than 12:00 Noon, New York City time, on the Closing Date each Term Lender shall make available
to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the
Term Loan or Term Loans to be made by such Lender. The Administrative Agent shall credit the account
of the Borrower on the books of such office of the Administrative Agent with the aggregate of the
amounts made available to the Administrative Agent by the Term Lenders in immediately available
funds.
2.3 Repayment of Term Loans. The Term Loan of each Lender shall mature
in 16 consecutive quarterly installments (with the balance of the Term Loan of each Lender maturing on
the Term Loan Maturity Date), each of which shall be in an amount equal to such Lenderβs Term
Percentage multiplied by the amount set forth below opposite such installment:
Installment Principal Amount
September 30, 2016
December 31, 2016
March 31, 2017
June 30, 2017
September 30, 2017
December 31, 2017
March 31, 2018
June 30, 2018
September 30, 2018
December 31, 2018
March 31, 2019
June 30, 2019
September 30, 2019
December 31, 2019
March 31, 2020
June 30, 2020
Term Loan Maturity Date
$7,500,000
$7,500,000
$7,500,000
$7,500,000
$7,500,000
$7,500,000
$7,500,000
$7,500,000
$11,250,000
$11,250,000
$11,250,000
$11,250,000
$15,000,000
$15,000,000
$15,000,000
$15,000,000
$435,000,000
2.4 Revolving Commitments. (a) Subject to the terms and conditions
hereof, each Revolving Lender severally agrees to make revolving credit loans (βRevolving Loansβ) to
the Borrower in Dollars from time to time during the Revolving Commitment Period in an aggregate
principal amount at any one time outstanding which, when added to such Lenderβs Revolving Percentage
of the L/C Obligations then outstanding does not exceed the amount of such Lenderβs Revolving
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Commitment. During the Revolving Commitment Period the Borrower may use the Revolving
Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof. The Revolving Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent
in accordance with Sections 2.5 and 2.10.
(b) The Borrower may from time to time elect to increase the Revolving
Commitments (a βRevolving Commitment Increaseβ) in a minimum amount of $5,000,000 or such
lower amount if such amount represents all remaining availability under the limit set in this Section
2.4(b) so long as, after giving effect thereto, the aggregate amount of the Incremental Extensions of
Credit and Revolving Commitment Increases does not exceed (i) $500,000,000 plus (ii) an additional
unlimited amount, provided, that (A) at the time of incurrence (or the making of commitments if not
drawn in full when committed) on a Pro Forma Basis (assuming that any such Revolving
Commitment Increase is drawn in full and excluding the cash proceeds of such Revolving
Commitment Increase), the Consolidated Secured Leverage Ratio does not exceed 3.00 to 1.00 as of
the end of the most recently ended fiscal quarter for which financial statements have been delivered
pursuant to Section 6.1(a) or 6.1(b) and (B) committed but undrawn amounts for which the
requirements in clause (A) are met when committed shall subsequently be available to be drawn
without a need to meet such requirements. The Borrower may arrange for any such increase to be
provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving
Commitment, an βIncreasing Revolving Lenderβ), or by one or more new banks, financial institutions
or other entities (each such new bank, financial institution or other entity, an βAugmenting Revolving
Lenderβ), to increase their existing Revolving Commitments, or extend Revolving Commitments, as
the case may be, provided that (i) each Augmenting Revolving Lender, shall be subject to the
approval of the Borrower and the Administrative Agent (such approval by the Administrative Agent
not to be unreasonably withheld) and (ii) (x) in the case of an Increasing Revolving Lender, the
Borrower and such Increasing Revolving Lender execute an agreement substantially in the form of
Exhibit G hereto, and (y) in the case of an Augmenting Revolving Lender, the Borrower and such
Augmenting Revolving Lender execute an agreement substantially in the form of Exhibit H hereto.
Increases and new Revolving Commitments created pursuant to this clause shall become effective on
the date agreed by the Borrower, the Administrative Agent (such approval by the Administrative
Agent not to be unreasonably withheld) and the relevant Increasing Revolving Lenders or
Augmenting Revolving Lenders and the Administrative Agent shall notify each Revolving Lender
thereof. Notwithstanding the foregoing, no increase in the Revolving Commitments (or in the
Revolving Commitment of any Lender), shall become effective under this paragraph unless, (i) on the
proposed date of the effectiveness of such increase, the conditions set forth in paragraphs (a) and (b)
of Section 5.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent
shall have received a certificate to that effect dated such date and executed by a Responsible Officer
of the Borrower, (ii) after giving effect to such Revolving Commitment Increase, subject to Section
1.2(e), the Borrower shall be in compliance with Section 7.1, and (iii) the Administrative Agent shall
have received documents consistent with those delivered on the Closing Date under Section 5.1(f) as
to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such
increase. On the effective date of any increase in the Revolving Commitments, (i) each relevant
Increasing Revolving Lender and Augmenting Revolving Lender shall make available to the
Administrative Agent such amounts in immediately available funds as the Administrative Agent shall
determine, for the benefit of the other Revolving Lenders, as being required in order to cause, after
giving effect to such increase and the use of such amounts to make payments to such other Revolving
Lenders, each Revolving Lenderβs portion of the outstanding Revolving Loans of all the Revolving
Lenders to equal its Revolving Percentage of such outstanding Revolving Loans, and (ii) the
Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the
date of any increase in the Revolving Commitments (with such reborrowing to consist of the Types of
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Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the
Borrower in accordance with the requirements of Section 2.5). The deemed payments made pursuant
to clause (ii) of the immediately preceding sentence in respect of each Eurodollar Loan shall be
subject to indemnification by the Borrower pursuant to the provisions of Section 2.18 if the deemed
payment occurs other than on the last day of the related Interest Periods. For the avoidance of doubt,
no existing Lender will be required to provide any Revolving Commitment Increase and the Borrower
shall have no obligation to offer any existing Lender the opportunity to provide any commitment for
any Revolving Commitment Increase.
(c) The Borrower shall repay all outstanding Revolving Loans on the Revolving
Termination Date.
2.5 Procedure for Revolving Loan Borrowing. The Borrower may borrow
under the Revolving Commitments during the Revolving Commitment Period on any Business Day,
provided that the Borrower shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 12:00 Noon, New York City time, (a) three Business Days
prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (b) one Business Day prior to
the requested Borrowing Date, in the case of ABR Loans) (provided that any such notice of a borrowing
of ABR Loans under the Revolving Facility to finance payments required by Section 3.5 may be given
not later than 10:00 A.M., New York City time, on the date of the proposed borrowing), specifying (i) the
amount and Type of Revolving Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the
case of Eurodollar Loans, the respective amounts of each such Type of Loan and the respective lengths of
the initial Interest Period therefor. Any Revolving Loans made on the Closing Date shall initially be
ABR Loans. Each borrowing under the Revolving Commitments shall be in an amount equal to (x) in the
case of ABR Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate Available
Revolving Commitments are less than $1,000,000, such lesser amount) and (y) in the case of Eurodollar
Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice
from the Borrower, the Administrative Agent shall promptly notify each Revolving Lender thereof. Each
Revolving Lender will make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrower at the Funding Office prior to 12:00 Noon, New
York City time, on the Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the Revolving Lenders and in
like funds as received by the Administrative Agent.
2.6 Commitment Fees, etc. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee for the period from
and including the date hereof to the last day of the Revolving Commitment Period, computed at the
Commitment Fee Rate on the average daily amount of the Available Revolving Commitment of such
Lender during the period for which payment is made, payable quarterly in arrears on each Fee Payment
Date, commencing on the first such date to occur after the date hereof.
(b) The Borrower agrees to pay to the Administrative Agent the fees in the
amounts and on the dates as set forth in any fee agreements with the Administrative Agent and to
perform any other obligations contained therein.
2.7 Termination or Reduction of Revolving Commitments. The Borrower
shall have the right, upon not less than three Business Daysβ notice to the Administrative Agent, to
terminate the Revolving Commitments or, from time to time, to reduce the amount of the Revolving
Commitments; provided that no such termination or reduction of Revolving Commitments shall be
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permitted to the extent that, after giving effect thereto and to any prepayments of the Revolving Loans
made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total
Revolving Commitments. Any such reduction shall be in an amount equal to $5,000,000, or a whole
multiple thereof, and shall reduce permanently the Revolving Commitments then in effect.
2.8 Optional Prepayments. The Borrower may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered
to the Administrative Agent no later than 11:00 A.M., New York City time, three Business Days prior
thereto, in the case of Eurodollar Loans, and no later than 11:00 A.M., New York City time, one Business
Day prior thereto, in the case of ABR Loans, which notice shall specify the date and amount of
prepayment and whether the prepayment is of Eurodollar Loans or ABR Loans; provided, that if a
Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the
Borrower shall also pay any amounts owing pursuant to Section 2.18. Upon receipt of any such notice
the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date specified therein, together with
(except in the case of Revolving Loans that are ABR Loans) accrued interest to such date on the amount
prepaid. Amounts to be applied in connection with prepayments made pursuant to this Section 2.9 shall
be applied to the prepayment of the Term Loans in accordance with Section 2.15(b). Partial prepayments
of Term Loans and Revolving Loans shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof.
2.9 Mandatory Prepayments and Commitment Reductions. (a) If on any
date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event, and the
Consolidated Leverage Ratio of the Borrower for the most recently ended four fiscal quarters is greater
than 2.50 to 1.00, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount
equal to 50% of such Net Cash Proceeds shall be applied on such date to the prepayment of the Term
Loans as set forth in Section 2.9(b); provided that, notwithstanding the foregoing, on each Reinvestment
Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied to the prepayment of the Term Loans as set forth in Section 2.9(b).
(b) Amounts to be applied in connection with prepayments made pursuant to this
Section 2.9 shall be applied to the prepayment of the Term Loans in accordance with Section 2.15(b).
The application of any prepayment pursuant to this Section 2.9 shall be made on a pro rata basis to
the then outstanding Term Loans being repaid irrespective of whether such outstanding Term Loans
are ABR Loans or Eurodollar Loans. Each prepayment of the Loans under this Section 2.9 shall be
accompanied by accrued interest to the date of such prepayment on the amount prepaid.
2.10 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the Administrative Agent prior
irrevocable notice of such election no later than 11:00 A.M., New York City time, on the Business Day
preceding the proposed conversion date, provided that any such conversion of Eurodollar Loans may only
be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to
time to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent prior irrevocable
notice of such election no later than 11:00 A.M., New York City time, on the third Business Day
preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period
therefor), provided that no ABR Loan under a particular Facility may be converted into a Eurodollar Loan
when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority
Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit
such conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
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(b) Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Term Loans shall be made pro rata according to the respective
outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of
each principal prepayment of the Term Loans shall be applied to reduce the then remaining
installments of the Term Loans pro rata based upon the then remaining principal amounts thereof.
Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Revolving Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders.
(d) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the due date thereof to
the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received. If any payment hereunder (other than payments on
the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended
to the next succeeding Business Day unless the result of such extension would be to extend such
payment into another calendar month, in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of principal pursuant to the
preceding two sentences, interest thereon shall be payable at the then applicable rate during such
extension.
(e) Unless the Administrative Agent shall have been notified in writing by any
Lender prior to a borrowing that such Lender will not make the amount that would constitute its share
of such borrowing available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and
(ii) a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation, for the period until such Lender makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest
error. If such Lenderβs share of such borrowing is not made available to the Administrative Agent by
such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall
also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR
Loans under the relevant Facility, on demand, from the Borrower.
(f) Unless the Administrative Agent shall have been notified in writing by the
Borrower prior to the date of any payment due to be made by the Borrower hereunder that the
Borrower will not make such payment to the Administrative Agent, the Administrative Agent may
assume that the Borrower is making such payment, and the Administrative Agent may, but shall not
be required to, in reliance upon such assumption, make available to the Lenders their respective pro
rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by
the Borrower within three Business Days after such due date, the Administrative Agent shall be
entitled to recover, on demand, from each Lender to which any amount which was made available
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any change in the rate or basis of imposition of applicable taxes imposed on or measured by net
income, franchise taxes in lieu of such net income taxes and branch profits taxes.
(c) Notwithstanding anything herein to the contrary, (i) all requests, rules,
guidelines, requirements and directives promulgated by the Bank for International Settlements, the
Basel Committee on Banking Supervision (or any successor or similar authority) or by United States
or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Xxxx-Xxxxx Xxxx
Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and
directives thereunder or issued in connection therewith or in implementation thereof shall in each case
be deemed to be a change in a Requirement of Law, regardless of the date enacted, adopted, issued or
implemented; provided that the protection of this Section 2.16(c) shall be available to each Lender
regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been imposed, so long as it shall
be customary for Lenders affected thereby to comply therewith. No Lender shall be entitled to
compensation under this Section 2.16(c) with respect to any date unless it shall have notified the
Borrower that it will demand compensation pursuant to this Section 2.16(c) not more than 90 days
after the date on which it shall have become aware of such incurred costs or reductions.
Notwithstanding any other provision herein, no Lender shall demand compensation pursuant to this
Section 2.16(c) if it shall not at the time be the general policy or practice of such Lender to demand
such compensation in similar circumstances under comparable provisions of other credit agreements,
if any.
(d) A certificate as to any additional amounts payable pursuant to this Section
submitted by any Lender to the Borrower (with a copy to the Administrative Agent) shall set forth in
reasonable detail the calculation of such amounts and shall be conclusive in the absence of manifest
error. Notwithstanding anything to the contrary in this Section, the Borrower shall not be required to
compensate a Lender pursuant to this Section for any amounts incurred more than nine months prior
to the date that such Lender notifies the Borrower of such Lenderβs intention to claim compensation
therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then
such nine-month period shall be extended to include the period of such retroactive effect. The
obligations of the Borrower pursuant to this Section shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
2.17 Taxes. (a) All payments made by or on behalf of any Loan Party under
this Agreement or any other Loan Document shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, unless such taxes are required to be withheld from any amounts payable to the
Administrative Agent or any Lender, as determined in good faith by the applicable Withholding Agent, in
which case (i) such amounts shall be paid to the relevant Governmental Authority in accordance with
applicable law and (ii) if the taxes so withheld are any taxes other than net income taxes, branch profits
taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or
any Lender by the jurisdiction under the laws of which the Administrative Agent or such Lender is
organized or as a result of a present or former connection between the Administrative Agent or such
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 solely from the
Administrative Agent or such Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or any other Loan Document) (such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, the βNon-Excluded Taxesβ) or are
Other Taxes, the amounts payable by the applicable Loan Party to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender
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(after payment of all Non-Excluded Taxes and Other Taxes including any such taxes imposed on amounts
payable under this Section) interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement as if such withholding or deduction had not been made, provided
further, however, that the Borrower shall not be required to increase any such amounts payable to the
Administrative Agent or any Lender with respect to any Non-Excluded Taxes (i) that are attributable to
such Lenderβs failure to comply with the requirements of paragraph (d), (e), (f) or (i) of this Section, (ii)
that are United States withholding taxes imposed under FATCA or (iii) that are United States withholding
taxes resulting from any Requirement of Law in effect on the date the Administrative Agent or such
Lender becomes a party to this Agreement or designates a new lending office, except to the extent that the
Administrative Agent or such Lender (or its assignor (if any)) was entitled, immediately prior to such
designation of a new lending office or at the time of assignment, as applicable, to receive additional
amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the Administrative Agent for
its own account or for the account of the relevant Lender, as the case may be, a certified copy of an
original official receipt received by the Borrower showing payment thereof. If (i) the Borrower fails
to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority, (ii) the
Borrower fails to remit to the Administrative Agent the required receipts or other required
documentary evidence or (iii) any Non-Excluded Taxes or Other Taxes are imposed directly upon the
Administrative Agent or any Lender, the Borrower shall indemnify the Administrative Agent and the
Lenders for such amounts and any incremental taxes, interest or penalties that may become payable
by the Administrative Agent or any Lender as a result of any such failure, in the case of (i) and (ii), or
any such direct imposition, in the case of (iii); provided that the requirement to indemnify shall apply
only if the Borrower is required under this Section 2.17 to pay additional amounts with respect to
such Non-Excluded Taxes or Other Taxes.
(d) Each Lender (or Transferee) that is not a βUnited States Personβ as defined in
Section 7701(a)(30) of the Code (a βNon-U.S. Lenderβ) shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) (i) two copies of U.S. Internal Revenue Service (βIRSβ)
Form W-8BEN, Form W-8BEN-E, Form W-8ECI or Form W-8IMY (together with any applicable
underlying IRS forms), (ii) in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of βportfolio
interestβ, a statement substantially in the form of Exhibit F and the applicable IRS Form W-8, or any
subsequent versions thereof or successors thereto, properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S. federal withholding
tax on all payments by the Borrower under this Agreement and the other Loan Documents, or (iii) any
other form prescribed by applicable requirements of U.S. federal income tax law as a basis for
claiming exemption from or a reduction in U.S. federal withholding tax duly completed together with
such supplementary documentation as may be prescribed by applicable Requirements of Law to
permit the Borrower and the Administrative Agent to determine the withholding or deduction
required to be made. Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation) and from time to time thereafter upon the request of
the Borrower or the Administrative Agent. Notwithstanding any other provision of this Section, a
Non-U.S. Lender shall not be required to deliver any form pursuant to this Section that such Non-U.S.
Lender is not legally able to deliver.
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(e) A Lender that is entitled to an exemption from or reduction of non-U.S.
withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to
which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law
or reasonably requested by the Borrower or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable law as will permit such payments to be made
without withholding or at a reduced rate, provided that such Lender is legally entitled to complete,
execute and deliver such documentation and in such Lenderβs judgment such completion, execution
or submission would not materially prejudice the legal or commercial position of such Lender.
(f) The Administrative Agent and each Lender, in each case that is organized
under the laws of the United States or a state thereof, shall, on or before the date of any payment by
the Borrower under this Agreement or any other Loan Document to, or for the account of, such
Administrative Agent or Lender, deliver to the Borrower and the Administrative Agent (or, in the
case of a Participant, to the Lender from which the related participation shall have been purchased),
two duly completed copies of Internal Revenue Service Form W-9, or successor form, certifying that
such Administrative Agent or Lender is a βUnited States Personβ (as defined in Section 7701(a)(30)
of the Code) and that such Administrative Agent or Lender is entitled to a complete exemption from
United States backup withholding tax.
(g) If the Administrative Agent or any Lender determines, in its sole discretion,
that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been
indemnified by a Loan Party or with respect to which a Loan Party has paid additional amounts
pursuant to this Section 2.17, it shall pay over such refund to such Loan Party (but only to the extent
of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.17
with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all out-of-
pocket expenses of the Administrative Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund); provided, that such
Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative
Agent or such Lender is required to repay such refund to such Governmental Authority. This
paragraph shall not be construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes which it deems confidential) to any Loan
Party or any other Person.
(h) Each Lender shall indemnify the Administrative Agent, within 10 days after
demand therefor, for the full amount of (i) any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings or similar charges imposed by any Governmental Authority that are
attributable to such Lender and (ii) any taxes attributable to such Lender's failure to comply with the
provisions of Section 10.6(c) relating to the maintenance of a Participant Register, in each case, that
are payable or paid by the Administrative Agent, together with all interest, penalties, reasonable costs
and expenses arising therefrom or with respect thereto, as determined by the Administrative Agent in
good faith, whether or not such taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to any
Lender by the Administrative Agent shall be conclusive absent manifest error; provided that if it is
demonstrated to the reasonable satisfaction of the Administrative Agent that any Lender has overpaid
in respect of any such amounts due, the Administrative Agent shall reimburse such Lender for such
overpaid amount. Each Lender hereby authorizes the Administrative Agent to set off and apply any
and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by
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under such Letter of Credit in connection with such presentment are substantially in conformity with such
Letter of Credit.
3.8 Applications. To the extent that any provision of any Application related
to any Letter of Credit is inconsistent with the provisions of this Section 3, the provisions of this Section 3
shall apply.
3.9 Existing Letters of Credit. Subject to the terms and conditions hereof,
each Existing Letter of Credit that is outstanding on the Closing Date and listed on Schedule 3.9 shall,
effective as of the Closing Date and without any further action by the Borrower, be continued as a Letter
of Credit hereunder and from and after the Closing Date shall be deemed a Letter of Credit for all
purposes hereof and shall be subject to and governed by the terms and conditions hereof and shall cease to
be outstanding under the Existing Credit Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this Agreement and to
make the Loans and issue or participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
4.1 Financial Condition. The audited consolidated balance sheets of the
Borrower and its consolidated Subsidiaries as at December 31, 2013, December 31, 2014 and December
31, 2015, and the related consolidated statements of operations and of cash flows for the year ended
December 31, 2013, the year ended December 31, 2014, and the year ended December 31, 2015, reported
on by and accompanied by an unqualified report from KPMG LLP, present fairly, in all material respects,
the consolidated financial condition of the Borrower and its consolidated Subsidiaries as at such date, and
the consolidated results of its operations and its consolidated cash flows for the respective fiscal periods
then ended. All such financial statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods involved (except as
approved by the aforementioned firm of accountants and disclosed therein). No Group Member has any
material Guarantee Obligations, contingent liabilities and liabilities for taxes, or any long-term leases or
unusual forward or long-term commitments, including any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives that are not reflected in the most recent
financial statements referred to in this paragraph. During the period from December 31, 2013 to and
including the date hereof there has been no Disposition by any Group Member of any material part of its
business or property.
4.2 No Change. Since December 31, 2015, there has been no development
or event that has had or could reasonably be expected to have a Material Adverse Effect.
4.3 Existence; Compliance with Law. Each Group Member (a) is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b)
has the power and authority, and the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a
foreign corporation or other organization and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business requires such qualification and
(d) is in compliance with all Requirements of Law; except, in each case except clause (a) (only with
respect to the Borrower and the Subsidiary Guarantors), to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
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class of Capital Stock owned by any Loan Party and (b) there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock options, stock appreciation
rights or restricted stock units granted to employees, officers, consultants or directors or stock issued
pursuant to the Borrowerβs stock purchase plans to employees, officers, consultants or directors and
directorsβ qualifying shares) of any nature relating to any Capital Stock of any Subsidiary, except as
created by the Loan Documents.
4.16 Use of Proceeds. The proceeds of the Term Loans and Revolving Loans
shall be used to repay amounts outstanding under the Existing Credit Agreement (including to pay related
fees and expenses) and for working capital or general corporate purposes of the Borrower and its
Subsidiaries, including the financing of Permitted Acquisitions, capital expenditures and the repurchase of
shares to the extent permitted by this Agreement. The Letters of Credit shall be used for general
corporate purposes of the Borrower and its Subsidiaries.
4.17 Environmental Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:
(a) each Group Member is, and within the period of all applicable statutes of
limitation has been, in compliance with all applicable Environmental Laws;
(b) Materials of Environmental Concern have not been released and are not
present under circumstances that could be expected to result in a release at, on, under, in, or about any
real property now or formerly owned, leased or operated by the Borrower or at any other location
(including, to the knowledge of the Borrower, any location to which Materials of Environmental
Concern have been sent for re-use or recycling or for treatment, storage, or disposal) which could
reasonably be expected to give rise to liability of any Group Member under any applicable
Environmental Law;
(c) there is no judicial, administrative, or arbitral proceeding (including any
notice of violation or alleged violation) under or relating to any Environmental Law to which any
Group Member is, or to the knowledge of the Borrower will be, named as a party that is pending or,
to the knowledge of the Borrower, threatened;
(d) no Group Member has received any written request for information, or been
notified that it is a potentially responsible party under or relating to the federal Comprehensive
Environmental Response, Compensation, and Liability Act or any similar Environmental Law, or
with respect to any Materials of Environmental Concern;
(e) no Group Member has entered into or agreed to any consent decree, order, or
settlement or other agreement, nor is subject to any judgment, decree, or order or other agreement, in
any judicial, administrative, arbitral, or other forum, relating to compliance with or liability under any
Environmental Law; and
(f) no Group Member has entered into any agreement assuming any liabilities of
any other Person under or related to any Environmental Law.
4.18 Accuracy of Information, etc. No statement or information contained in
this Agreement, any other Loan Document, the Confidential Information Memorandum or any other
document, certificate or written statement furnished by or on behalf of any Loan Party to the
Administrative Agent or the Lenders, or any of them, for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, taken as a whole, contained as of the date
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such statement, information, document or certificate was so furnished (or, in the case of the Confidential
Information Memorandum, as of the date of this Agreement), any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements contained herein or therein not
misleading in light of the circumstances in which such information was provided. The projections and
pro forma financial information contained in the materials referenced above are based upon good faith
estimates and assumptions believed by management of the Borrower to be reasonable at the time made, it
being recognized by the Lenders that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by such financial information
may differ from the projected results set forth therein by a material amount. There is no fact known to
any Loan Party that could reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein (including the Schedules hereto), in the other Loan Documents, in the
Confidential Information Memorandum or in any other documents, certificates and statements furnished
to the Administrative Agent and the Lenders for use in connection with the transactions contemplated
hereby and by the other Loan Documents.
4.19 Solvency. Each Loan Party is, and after giving effect to the transactions
contemplated hereby and the incurrence of all Indebtedness and obligations being incurred in connection
herewith and therewith will be and will continue to be, Solvent.
4.20 Anti-Corruption Laws and Sanctions. The Borrower has implemented
and maintains in effect policies and procedures designed to promote compliance by the Borrower and its
Subsidiaries, and to the knowledge of the Borrower, their respective directors, officers, employees and
agents, with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and to the
knowledge of the Borrower, their respective officers, employees, directors and agents, are in compliance
with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower or
any Subsidiary or (b) to the knowledge of the Borrower, any director, officer, agent, employee or other
person acting on behalf of the Borrower or any Subsidiary, is a Sanctioned Person. No Loan or Letter of
Credit, use of proceeds or other transaction contemplated by the Credit Agreement will violate any Anti-
Corruption Law or applicable Sanctions.
4.21 Security Documents. The Guarantee and Collateral Agreement is
effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral and proceeds thereof. In the case of the Pledged
Stock, when stock certificates representing such Pledged Stock are delivered to the Administrative Agent
(together with a properly completed and signed stock power or endorsement), and in the case of the other
Collateral described in the Guarantee and Collateral Agreement, when the appropriate filings and
recordings specified on Schedule 4.21 are made in the offices specified on Schedule 4.21, the Guarantee
and Collateral Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations
(as defined in the Guarantee and Collateral Agreement), in each case prior and superior in right to any
other Person (except Liens permitted by Section 7.3).
4.22 EEA Financial Institutions. No Loan Party is an EEA Financial
Institution.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of each Lender
to make the initial extension of credit requested to be made by it is subject to the satisfaction, prior to or
concurrently with the making of such extension of credit on the Closing Date, of the following conditions
precedent:
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(a) Credit Agreement; Guarantee and Collateral Agreement. The Administrative
Agent shall have received (i) this Agreement, executed and delivered by the Administrative Agent,
the Borrower and each Person listed on Schedule 1.1A and (ii) the Guarantee and Collateral
Agreement, executed and delivered by the Borrower and each Subsidiary Guarantor.
(b) Financial Statements. The Lenders shall have received (i) audited
consolidated financial statements of the Borrower and its consolidated Subsidiaries for the 2013, 2014
and 2015 fiscal years and (ii) unaudited interim consolidated financial statements for each fiscal
quarter ended after the date of the latest applicable financial statements delivered pursuant to clause
(i) of this paragraph as to which such financial statements are available, and such financial statements
shall not, in the reasonable judgment of the Lenders, reflect any material adverse change in the
consolidated financial condition of the Borrower and its consolidated Subsidiaries, as reflected in the
financial statements or projections contained in the Confidential Information Memorandum.
(c) Approvals. All governmental and third party approvals necessary or, in the
reasonable discretion of the Administrative Agent, advisable in connection with the continuing
operations of the Group Members and the transactions contemplated hereby shall have been obtained
and be in full force and effect, and all applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority that would restrain, prevent or otherwise
impose adverse conditions on the financing contemplated hereby.
(d) Fees. The Lenders, the Administrative Agent, the arrangers and counsel to
the Administrative Agent and the arrangers shall have received all fees required to be paid, and all
expenses for which invoices have been presented at least three Business Days prior to the Closing
Date or such later time as may be reasonable under the circumstances, but at least one Business Day
prior to the Closing Date (including the reasonable fees and expenses of legal counsel), on or before
the Closing Date. All such amounts will be paid with proceeds of Loans made on the Closing Date
and will be reflected in the funding instructions given by the Borrower to the Administrative Agent
on or before the Closing Date.
(e) Closing Certificate; Certified Certificate of Incorporation; Good Standing
Certificates. The Administrative Agent shall have received (i) a certificate of each Loan Party, dated
the Closing Date, substantially in the form of Exhibit C, with appropriate insertions and attachments,
including the certificate of incorporation of each Loan Party that is a corporation certified by the
relevant authority of the jurisdiction of organization of such Loan Party, and (ii) a long form good
standing certificate for each Loan Party from its jurisdiction of organization.
(f) Lien Searches. The Administrative Agent shall have received the results of a
recent Lien search with respect to each Loan Party, and such search shall reveal no Liens on any of
the assets of the Loan Parties except for Liens permitted by Section 7.3 or discharged on or prior to
the Closing Date pursuant to documentation reasonably satisfactory to the Administrative Agent.
(g) Pledged Stock; Stock Powers; Pledged Notes. The Administrative Agent
shall have received (i) other than with respect to the certificated shares of Gartner Japan Limited and
Gartner Group (Thailand) Limited, the certificates representing the certificated shares of Pledged
Stock, together with an undated stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof and (ii) each promissory note (if any) pledged to the
Administrative Agent pursuant to the Guarantee and Collateral Agreement endorsed (without
recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
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(h) Filings, Registrations and Recordings. Each document (including any
Uniform Commercial Code financing statement) required by the Security Documents to be filed,
registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the
Lenders, a perfected Lien on the Collateral described therein, prior and superior in right to any other
Person (other than with respect to Liens permitted by Section 7.3), shall be in proper form for filing,
registration or recordation.
(i) Legal Opinions. The Administrative Agent shall have received the legal
opinion of Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and its Subsidiaries, substantially in
the form of Exhibit E.
(j) Existing Credit Agreement. The Administrative Agent shall have received
satisfactory evidence that the commitments under the Existing Credit Agreement shall have been
terminated and all amounts owing by the Borrower under the Existing Credit Agreement shall have
been paid in full.
(k) KYC. The Administrative Agent and the Lenders shall have received all
documentation and other information about the Borrower and the other Loan Parties as has been
reasonably requested at least five Business Days prior to the Closing Date that they reasonably
determine is required by regulatory authorities under applicable βknow your customerβ and anti-
money laundering rules and regulations, including the PATRIOT Act.
5.2 Conditions to Each Extension of Credit. The agreement of each Lender
to make any extension of credit requested to be made by it on any date (including its initial extension of
credit) is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and warranties
made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material
respects (unless such representations and warranties are already so qualified in which case, such
representations and warranties shall be true and correct in all respects) on and as of such date as if
made on and as of such date unless such representation relates solely to an earlier date, in which case
such representation shall be true and correct as of such date.
(b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the extensions of credit requested to be made on such
date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower hereunder shall constitute
a representation and warranty by the Borrower as of the date of such extension of credit that the
conditions contained in this Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in effect, any
Letter of Credit remains outstanding (other than Letters of Credit which have been cash collateralized or
backstopped in a manner reasonably acceptable to the Issuing Lender thereof) or any Loan or other
amount is owing to any Lender or the Administrative Agent hereunder (other than pursuant to any
Specified Cash Management Agreement), the Borrower shall and shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative Agent and each
Lender:
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outstanding the greater of (A) $175,000,000 and (B) 40.0% of Consolidated EBITDA for the period
of four consecutive fiscal quarters most recently ended at or prior to such time and for which financial
statements are available, calculated on a Pro Forma Basis;
(i) Indebtedness incurred by the Borrower or any of its Subsidiaries in respect of
bank guarantees issued in the ordinary course of business, including in respect of workers
compensation claims, health, disability or other employee benefits or property, casualty or liability
insurance or self insurance, or other Indebtedness with respect to reimbursement type obligations
regarding workers compensation claims; provided that any reimbursement obligations in respect
thereof are reimbursed within 30 days following the due date thereof;
(j) (i) Indebtedness in respect of netting services, overdraft protections,
automatic clearinghouse arrangements and similar arrangements in each case in connection with
deposit accounts and (ii) Indebtedness arising from the honoring of a bank or other financial
institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary
course of business; provided that any such Indebtedness is extinguished within 30 days of its
incurrence;
(k) customer deposits and advance payments received in the ordinary course of
business from customers for goods and services purchased in the ordinary course of business;
(l) Indebtedness consisting of promissory notes issued by any Loan Party to
current or former officers, directors and employees, their respective estates, spouses or former
spouses to finance the purchase or redemption of equity interests of the Borrower permitted by
Section 7.6;
(m) Indebtedness in respect of hedging obligations (to the extent constituting
Indebtedness) incurred in the ordinary course of business and not for speculative purposes;
(n) Indebtedness consisting of obligations of the Borrower or its Subsidiaries
under earnout obligations, purchase price adjustments, deferred consideration or other similar
arrangements incurred by such Person in connection with Permitted Acquisitions and any other
Investments permitted hereunder;
(o) Indebtedness in respect of Permitted Subordinated Debt and Permitted Senior
Unsecured Debt; provided that, subject to Section 1.2(e), the Borrower shall be in compliance on a
Pro Forma Basis with the covenants set forth in Section 7.1 after giving effect to the incurrence of any
such Permitted Subordinated Debt or such Permitted Senior Unsecured Debt, and any refinancing,
replacement, modification, repayment, redemption, refunding, renewal or extension of such
Indebtedness (including any associated costs, fees, expenses, premiums and accrued but unpaid
interest);
(p) Indebtedness of Foreign Subsidiaries, and any refinancing, replacement,
modification, repayment, redemption, refunding, renewal or extension thereof (including any
associated costs, fees, expenses, premiums and accrued but unpaid interest), in an aggregate amount
at any time outstanding not to exceed $20,000,000;
(q) Indebtedness in respect of the Permitted Senior Unsecured Notes, and any
refinancing, replacement, modification, repayment, redemption, refunding, renewal or extension
thereof (including any associated costs, fees, expenses, premiums and accrued but unpaid interest);
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(h) Liens in existence on the date hereof listed on Schedule 7.3(h), securing
Indebtedness permitted by Section 7.2(d), or any refinancing, replacement, modification, repayment,
redemption, refunding, renewal or extension of such Indebtedness, provided that (i) no such Lien is
spread to cover any additional property after the Closing Date other than (A) after-acquired property
that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness
permitted under Section 7.2(d), and (B) proceeds and products thereof and (ii) the refinancing,
replacement, modification, repayment, redemption, refunding, renewal or extension of the obligations
secured or benefited by such Liens, to the extent constituting Indebtedness, is permitted by Section
7.2(d);
(i) Liens securing Indebtedness of the Borrower or any other Subsidiary
incurred pursuant to Section 7.2(e) to finance the acquisition of fixed or capital assets or real or
personal property, provided that (i) such Liens shall be created within 270 days after the acquisition,
repair, replacement or improvement of such fixed or capital assets or real or personal property, (ii)
such Liens (other than in the case of Liens securing industrial development or similar bonds, or tax-
advantaged governmental or quasi-governmental financings, in which case Liens may encumber such
property as may be permitted under the terms of such financings) do not at any time encumber any
property other than the property financed by such Indebtedness, replacements, additions and
accessions thereto and the proceeds thereof and (iii) the amount of Indebtedness secured thereby is
not increased;
(j) any Lien existing on any property or asset prior to the acquisition thereof by
the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary or to secure
Indebtedness permitted pursuant to Section 7.2(g); provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the
case may be, (ii) such Lien shall not apply to any other property or assets of the Borrower or any
Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be, and any refinancing,
replacement, modification, repayment, redemption, refunding, renewal or extension thereof not to
exceed the outstanding principal amount thereof together with associated costs, fees, expenses,
premiums and accrued but unpaid interest;
(k) any judgment Lien not constituting an Event of Default under Section 8.1(h);
(l) any interest or title of a licensor or sublicensor of Intellectual Property or any
lessor or sublessor under any license or sublicense agreement (including software and other
technology licenses) or lease or sublease entered into by the Borrower or any other Subsidiary in the
ordinary course of its business;
(m) Liens not otherwise permitted by this Section so long as the aggregate
outstanding principal amount of the obligations secured thereby does not exceed $100,000,000 at any
one time;
(n) Liens granted by a Foreign Subsidiary (i) to the Borrower or any other
Subsidiary to secure Indebtedness owed by such Foreign Subsidiary to the Borrower or such other
Subsidiary and (ii) in respect of Indebtedness that was incurred in connection with the acquisition of
such Foreign Subsidiary pursuant to a Permitted Acquisition in an aggregate principal amount not to
exceed $50,000,000 at any one time outstanding, and any refinancing, replacement, modification,
repayment, redemption, refunding, renewal or extension thereof;
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(o) Liens arising from precautionary UCC (or other similar recording or notice
statutes) financing statement filings;
(p) Liens in favor of (i) a banking or other financial institution arising as a matter
of law or under customary general terms and conditions encumbering deposits (including the right of
set-off) incurred in the ordinary course of business or arising pursuant to such banking institutionsβ
general terms and conditions or (ii) a collection bank arising under Section 4-210 of the UCC on the
items in the course of collection;
(q) Liens (i) on cash advances in favor of the seller of any property to be
acquired in an Investment permitted pursuant to Section 7.8, or (ii) consisting of an agreement to
Dispose of any property in a Disposition permitted by Section 7.5, in each case, solely to the extent
such Investment or Disposition, as the case may be, would have been permitted on the date of the
creation of such Lien;
(r) Liens on property of any Foreign Subsidiary securing Indebtedness of such
Foreign Subsidiary to the extent such Indebtedness is permitted hereunder;
(s) Liens on cash or Cash Equivalents securing reimbursement obligations of the
Borrower under letters of credit in an aggregate amount of all such cash and Cash Equivalents not to
exceed $75,000,000;
(t) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or
any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a
transaction permitted under this Agreement and Liens in connection with escrow arrangements for the
proceeds of Indebtedness intended to finance a Permitted Acquisition (or refinance, replace, modify,
repay, redeem, refund, renew or extend Indebtedness in connection therewith) and related costs and
expenses (including any refinancing, replacement, modification, repayment, redemption, refunding,
renewal or extension thereof);
(u) Liens created pursuant to the Security Documents;
(v) Liens securing hedging obligations permitted by Section 7.2(m);
(w) ground leases in respect of real property on which facilities owned or leased
by the Borrower and any of its Subsidiaries are located;
(x) interest or title of a lessor or sublessor under leases or subleases entered into
by the Borrower or any of its Subsidiaries in the ordinary course of business;
(y) Liens that are contractual rights of set-off or rights of pledge or otherwise
attaching to the applicable deposit or pooled accounts (i) relating to the establishment of depository
relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled
deposit or sweep accounts of the Borrower or any of its Subsidiaries to permit satisfaction of
overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any of
its Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers
of the Borrower or any of its Subsidiaries in the ordinary course of business;
(z) Liens on insurance policies and the proceeds thereof securing the financing
of the premiums with respect thereto; and
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(i) the payment of dividends and distributions within sixty days after the
date of declaration thereof, if at the date of declaration of such payment, such payment would
have complied with the other provisions of this Section 7.6;
(ii) the Borrower may make Restricted Equity Payments constituting an
Investment permitted under Section 7.8 to any Subsidiary and any Subsidiary may make
Restricted Equity Payments to the Borrower or any other Subsidiary (and, in the case of a
Restricted Payment by a non-Wholly Owned Subsidiary, to the Borrower and any Subsidiary and
to each other owner of equity interests of such Subsidiary based on their relative ownership
interests);
(iii) the Borrower may make Restricted Equity Payments pursuant to and in
accordance with stock option plans or other benefit plans for management, employees consultants
or directors of the Borrower and its Subsidiaries and stock purchase plans with employees,
officers, consultants or directors;
(iv) the Borrower may pay cash dividends to holders of Permitted Preferred
Stock; provided that, in the case of any Restricted Equity Payment made pursuant to this clause
(d), (x) no Default or Event of Default shall have occurred or be continuing after giving effect to
any such Restricted Equity Payment and (y) the Borrower shall be in pro forma compliance with
the covenants set forth in Section 7.1 after giving effect to any such Restricted Equity Payment
and the incurrence of any Indebtedness in connection therewith;
(v) repurchases of equity interests of the Borrower deemed to occur upon the
non-cash exercise of stock options, warrants, stock appreciation rights and restricted stock units;
(vi) the Borrower may make Restricted Equity Payments with any cash
proceeds contributed to its common equity and from the Net Cash Proceeds of any permitted
equity issuance, so long as, with respect to any such Restricted Payments, no Event of Default
shall have occurred or be continuing after giving effect to any such Restricted Equity Payment;
(vii) the Borrower may repurchase, retire or otherwise acquire stock
appreciation rights, restricted stock units or other equity securities of the Borrower from directors,
officers or employees of the Borrower or any Subsidiary Guarantor (or their estate, family
members, spouse and/or former spouse);
(viii) the Borrower or any Subsidiary Guarantor may honor any conversion
request by a holder of convertible Indebtedness and make cash payments in lieu of fractional
shares in connection with any such conversion and may make payments on convertible
Indebtedness in accordance with its terms;
(ix) purchases of fractional shares of equity interests of the Borrower arising
out of stock dividends, splits or combinations or business combinations;
(x) the Borrower and any Subsidiary may declare and make dividend
payments or other Restricted Equity Payments payable solely in the equity interests of such
Person; and
(xi) the Borrower may make other Restricted Equity Payments not otherwise
permitted by this Section 7.6 in an amount not exceeding (A) $25,000,000, when aggregated with
any Restricted Debt Payments made pursuant to Section 7.6(b)(iii)(A) below, plus (ii) any
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69
expenses), (ii) in connection with such Personβs purchase of equity interests of the Borrower, in an
aggregate amount not to exceed $20,000,000 at any one time outstanding and (iii) relating to
indemnification of any officers, directors or employees in respect of liabilities relating to their serving
in any such capacity, and any reimbursement of any such officer, director or employee of expenses
relating to the claims giving rise to such indemnification;
(e) Investments in existence on the date hereof listed on Schedule 7.8(e) and any
modification, replacement, renewal or extension thereof;
(f) intercompany Investments by any Group Member in the Borrower or any
Person that, prior to, or after giving effect to, such investment, is a Wholly Owned Subsidiary
Guarantor;
(g) intercompany Investments by any Group Member in a Subsidiary that is not
a Wholly Owned Subsidiary Guarantor; provided that the aggregate amount of such Investments
(excluding all such Investments otherwise permitted pursuant to this Section 7.8), less any cash return
on Investments received after the date hereof, shall not at the time of the making of any such
Investment exceed the greater of (i) $200,000,000 and (ii) 45.0% of Consolidated EBITDA for the
period of four consecutive fiscal quarters most recently ended on or prior to such time for which
financial statements are available, calculated on a Pro Forma Basis;
(h) Investments consisting of deposit or securities accounts maintained in the
ordinary course of business;
(i) any acquisition of any assets or capital stock of another Person (including as
a result of merger or otherwise); provided that (i) subject to Section 1.2(e), the Borrower shall be in
pro forma compliance with the covenants in Section 7.1 after giving effect to such acquisition for
which financial statements are available as if such acquisition occurred immediately prior to the first
day of the period of four consecutive fiscal quarters most recently ended prior to such acquisition; and
(ii) if such acquisition would require the Borrower to provide pro forma financial information
regarding such acquisition in a current report on Form 8-K, quarterly report on Form 10-Q, or annual
report on Form 10-K filed with the SEC, the Borrower shall have delivered a certificate of a
Responsible Officer certifying the Borrowerβs pro forma compliance described in clause (i) above and
containing all information and calculations necessary for determining such compliance;
(j) Investments (including debt obligations and equity interests) received in
connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and
disputes with, customers and suppliers, in each case in the ordinary course of business;
(k) Investments in exchange for, or made with the proceeds (within 180 days of
receipt) of, existing Investments which are of at least equivalent market value (as reasonably
determined by the Borrowerβs chief financial officer, chief executive officer, corporate controller or
president as at the time of exchange or disposition) as such existing Investments and are of the same
type and nature as such existing Investment;
(l) Investments by the Borrower or any Domestic Subsidiary in any Foreign
Subsidiary in connection with any Permitted Acquisition or Investment permitted by this Section 7.8;
provided that the proceeds of such Investments shall be used directly or indirectly through one or
more Subsidiaries solely for the purpose of paying the consideration and transaction costs related to
such Permitted Acquisition or Investment permitted by this Section 7.8;
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occurred and be continuing with respect to Indebtedness the outstanding principal amount of which
exceeds in the aggregate $50,000,000; or
(f) (i) the Borrower or any Material Subsidiary shall commence any case,
proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial part of its assets, or the
Borrower or any Material Subsidiary shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against the Borrower or any Material Subsidiary any case,
proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against the Borrower or any
Material Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of its assets that results in the
entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the Borrower or any Material Subsidiary
shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any the Borrower or any Material
Subsidiary shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) any Person shall engage in any βprohibited transactionβ (as defined in
Section 406 of ERISA or Section 4975 of the Code, and not exempt under Section 408 of ERISA and
the regulations thereunder) involving any Plan, (ii) any failure to meet the minimum funding
standards (as defined in Section 412 of the Code and Section 302 of ERISA), whether or not waived,
shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the
assets of any Group Member or any Commonly Controlled Entity, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is likely to result in the termination of
such Plan for purposes of Title IV of ERISA, or any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall be determined to be in βat riskβ
status (with the meaning of Section 430 of the Code or Section 303 of ERISA), or (v) any Group
Member or any Commonly Controlled Entity shall incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer Plan or determination that such
Multiemployer Plan is in βendangeredβ or βcriticalβ status (within the meaning of Section 432 of the
Code or Section 305 of ERISA); and in each case in clauses (i) through (v) above, such event or
condition could reasonably be expected to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against any Group
Member involving in the aggregate a liability (not paid or fully covered by insurance as to which the
relevant insurance company has acknowledged coverage) of $50,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal
within 60 days from the entry thereof; or
(i) any of the Security Documents shall cease, for any reason, to be in full force
and effect in all material respects (other than in accordance with its terms or the terms hereof), or any
Loan Party or any Affiliate of any Loan Party shall so assert, or any Lien created by any of the
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79
Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or
extend the scheduled date of any payment thereof, or increase the amount or extend the expiration date of
any Lenderβs Revolving Commitment, in each case without the written consent of each Lender directly
affected thereby; (ii) eliminate or reduce the voting rights of any Lender under this Section 10.1 without
the written consent of such Lender; (iii) reduce any percentage specified in the definition of βRequired
Lenders,β consent to the assignment or transfer by the Borrower of any of its rights and obligations under
this Agreement and the other Loan Documents, or release or limit the Borrower or any Subsidiary
Guarantor that is a Material Subsidiary from its obligations under the Guarantee and Collateral
Agreement (other than pursuant to Section 10.14 hereof), in each case without the written consent of all
Lenders; (iv) amend, modify or waive any provision of Section 2.15 without the written consent of all
Lenders under each Facility adversely affected thereby; (v) reduce the amount of Net Cash Proceeds
required to be applied to prepay Loans under this Agreement without the written consent of the Majority
Facility Lenders with respect to each Facility; (vi) reduce the percentage specified in the definition of
βMajority Facility Lendersβ with respect to any Facility without the written consent of all Lenders under
such Facility; (vii) amend, modify or waive any provision of Section 9 or any other provision of any Loan
Document that affects the Administrative Agent without the written consent of the Administrative Agent;
(viii) amend, modify or waive any provision of Section 3 without the written consent of the Issuing
Lender or (ix) amend, modify or waive any provision of Section 2.21 without the written consent of the
Issuing Lender and the Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Administrative Agent and all future holders of the Loans. In the case of any waiver, the
Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall
be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other
Default or Event of Default, or impair any right consequent thereon.
Notwithstanding this Section 10.1, the Commitments of any Defaulting Lender shall be
disregarded for all purposes of any determination of whether the Required Lenders have taken or may
take any action hereunder (including any consent to any waiver, amendment, supplement or modification
pursuant to this Section 10.1); provided that any waiver, amendment, supplement or modification of the
type described in clause (i) of this Section 10.1 shall require the consent of any Defaulting Lender.
Notwithstanding the foregoing, this Agreement may be amended (or amended and
restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (a)
to add one or more additional credit facilities to this Agreement and to permit the extensions of credit
from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share
ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and
Revolving Extensions of Credit and the accrued interest and fees in respect thereof and (b) to include
appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and
Majority Facility Lenders.
In addition, notwithstanding the foregoing, this Agreement may be amended with the
written consent of the Administrative Agent, the Borrower and the Lenders providing the relevant
Replacement Term Loans (as defined below) to permit the refinancing, replacement, modification,
repayment, redemption, refunding, renewal or extension of all or a portion of the outstanding Term Loans
having the same terms (βReplaced Term Loansβ) with a replacement term loan tranche hereunder
(βReplacement Term Loansβ), provided that (a) the aggregate principal amount of such Replacement
Term Loans shall not exceed the aggregate principal amount of such Replaced Term Loans and (b) the
Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the
Weighted Average Life to Maturity of such Replaced Term Loans at the time of such refinancing,
replacement, modification, repayment, redemption, refunding, renewal or extension.
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Credit (including any refusal by the Issuing Lender to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit) or the violation of, noncompliance with or liability under, any Environmental
Law applicable to any Group Member including with respect to any property at any time owned, leased,
or used by any Group Member, or any orders, requirements or demands of Governmental Authorities
related thereto or any actual or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether or not such claim, litigation, investigation or proceeding is brought by the
Borrower or any other Loan Party or their respective equity holders, Affiliates, creditors or any other third
Person and whether based on contract, tort or any other theory and regardless of whether any Indemnitee
is a party thereto, and the reasonable and documented fees and expenses of legal counsel (limited to one
counsel for all Indemnitees taken as a whole and, if reasonably necessary, a single local counsel for all
Indemnitees taken as a whole in each relevant jurisdiction and, solely in the case of a conflict of interest,
one additional counsel (and, if reasonably necessary, one firm of local counsel in each relevant
jurisdiction) to each group of affected Indemnitees similarly situated taken as a whole) and other
reasonable and documented out-of-pocket expenses incurred in connection with investigating or
defending any of the foregoing in connection with claims, actions or proceedings by any Indemnitee
against any Loan Party under any Loan Document (all the foregoing in this clause (d), collectively, the
βIndemnified Liabilitiesβ), provided, that the Borrower shall have no obligation hereunder to any
Indemnitee with respect to Indemnified Liabilities (i) to the extent such Indemnified Liabilities are found
by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnitee, (ii) to the extent they are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted from a material breach of the
obligations of such Indemnitee under any Loan Document and (iii) to the extent arising from any dispute
solely among Indemnitees other than against any Indemnitee in its capacity or in fulfilling its role as
Administrative Agent or arranger or any similar role under this Agreement and other than any claims
arising out of any act or omission on the part of the Borrower or its Affiliates (as determined by a final
and nonappealable decision of a court of competent jurisdiction). Without limiting the foregoing, and to
the extent permitted by applicable law, the Borrower agrees not to assert and to cause its Subsidiaries not
to assert, and hereby waives and agrees to cause its Subsidiaries to waive, all rights for contribution or
any other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that
any of them might have by statute or otherwise against any Indemnitee. The Borrower shall not be liable
for any settlement of any action effected without the Borrowerβs consent (which consent shall not be
unreasonably withheld, conditioned or delayed), but if settled with the Borrowerβs written consent or if
there is a final judgment in any such actions, the Borrower agrees to indemnify and hold harmless each
Indemnitee from and against any and all losses, claims, damages, liabilities and expenses by reason of
such settlement or judgment in accordance with this Section. Notwithstanding the immediately preceding
sentence, if at any time an Indemnitee shall have requested confirmation of the Borrowerβs obligation to
indemnify such indemnified person in accordance with this Agreement, the Borrower shall be liable for
any settlement or other action referred to in the immediately preceding sentence effected without the
Borrowerβs consent if (a) such settlement or other action is entered into more than 30 days after receipt by
the Borrower of such request for confirmation and (b) the Borrower shall not have provided such
confirmation in accordance with such request prior to the date of such settlement or other action. The
Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be
unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened
actions in respect of which indemnity could have been sought hereunder by such Indemnitee unless such
settlement (a) includes an unconditional release of such Indemnitee in form and substance reasonably
satisfactory to such Indemnitee (which approval shall not be unreasonably withheld, conditioned or
delayed) from all liability on claims that are the subject matter of such actions and (b) does not include
any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such
Indemnitee. Notwithstanding the foregoing, each Indemnitee shall be obligated to refund or return
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assigning Lender subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 (or, in the case of the Term Facility, $1,000,000) unless each of the
Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of
the Borrower shall be required if an Event of Default under Section 8.1(a) or (f) has occurred and
is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Affiliates
or Approved Funds, if any;
(B) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500;
and
(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an administrative questionnaire.
For the purposes of this Section 10.6, βApproved Fundβ means any Person (other than a
natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages
a Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
below, from and after the effective date specified in each Assignment and Assumption the
Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lenderβs rights and
obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.16, 2.17, 2.18 and 10.5). Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply with this Section
10.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amount (and stated interest) of the Loans and L/C Obligations
owing to, each Lender pursuant to the terms hereof from time to time (the βRegisterβ). The
entries in the Register shall be conclusive absent manifest error, and the Borrower, the
Administrative Agent, the Issuing Lender and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Assignee, the Assigneeβs completed administrative
questionnaire (unless the Assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such
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Assignment and Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities (other than any natural
person or Disqualified Institutions (except to the extent the Borrower has consented to such
participation to a Disqualified Institution, it being understood that the list of Disqualified Institutions
shall be available to all Lenders and may be provided to Lenders through electronic communication));
provided that, notwithstanding anything to the contrary, the Administrative Agent shall not have any
obligation to determine whether any potential participant is a Disqualified Institution or any liability
with respect to any participation sold to a Disqualified Institution) (a βParticipantβ) in all or a portion
of such Lenderβs rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such Lenderβs obligations under this
Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the Administrative
Agent, the Issuing Lender and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lenderβs rights and obligations under this Agreement. Any
agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement may provide that such Lender will
not, without the consent of the Participant, agree to any amendment, modification or waiver that (1)
requires the consent of each Lender directly affected thereby pursuant to the proviso to the second
sentence of Section 10.1 and (2) directly affects such Participant. Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the benefits of, and subject to
the limitations of, Sections 2.16, 2.17 and 2.18 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section (subject to the
requirements under Section 2.17(d), (e) and (f)). To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 10.7(b) as though it were a Lender, provided such
Participant shall be subject to Section 10.7(a) as though it were a Lender. Each Lender that sells a
participation, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a
register on which it enters the name and address of each Participant and the principal amounts (and
stated interest) of each Participantβs interest in the Loans or other obligations under this Agreement
(the βParticipant Registerβ); provided that no Lender shall have any obligation to disclose all or any
portion of the Participant Register to any Person (including the identity of any Participant or any
information relating to a Participantβs interest in any Commitments, Loans, Letters of Credit or its
other obligations under any Loan Document) except to the extent that such disclosure is necessary to
establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under
Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register
shall be conclusive absent manifest error, and such Lender, each Loan Party and the Administrative
Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms
hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice
to the contrary.
(ii) A Participant shall not be entitled to receive any greater payment under
Section 2.16 or 2.17 than the applicable Lender would have been entitled to receive with respect
to the participation sold to such Participant, unless the sale of the participation to such Participant
is made with the Borrowerβs prior written consent. No Participant shall be entitled to the benefits
of Section 2.17 unless such Participant complies with Section 2.17(d), (e) and (f) as if it were a
Lender.
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institution that may be issued to it or otherwise conferred on it, and that such shares or
other instruments of ownership will be accepted by it in lieu of any rights with respect to
any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise
of the Write-Down and Conversion Powers of any EEA Resolution Authority.
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Signature page to the Gartner, Inc. Credit Agreement
JPMORGAN CHASE BANK, N.A., as Administrative
Agent and as a Lender
By:
Name:
Title:
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Signature page to the Gartner, Inc. Credit Agreement
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agent and as a Lender
By:
Name:
Title:
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Signature page to the Gartner, Inc. Credit Agreement
CITIZENS BANK, N.A., as Co-Syndication Agent and
as a Lender
By:
Name:
Title:
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Signature page to the Gartner, Inc. Credit Agreement
TD BANK, N.A., as Co-Syndication Agent and as a
Lender
By:
Name:
Title:
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Signature page to the Gartner, Inc. Credit Agreement
US BANK NATIONAL ASSOCIATION, as Co-
Syndication Agent and as a Lender
By:
Name:
Title:
![Page 103](https://www.sec.gov/Archives/edgar/data/749251/000074925116000042/it06302016creditagreemen103.jpg)
Signature page to the Gartner, Inc. Credit Agreement
[Name of Co-Documentation Agent], as Co-
Documentation Agent and as a Lender
By:
Name:
Title:
![Page 104](https://www.sec.gov/Archives/edgar/data/749251/000074925116000042/it06302016creditagreemen104.jpg)
Signature page to the Gartner, Inc. Credit Agreement
[Name of Lender], as a Lender
By:
Name:
Title: