Contract
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Execution Version AMENDMENT NO. 3 to CREDIT AGREEMENT, dated as of June 23, 2023 (this “Amendment”), among Clean Harbors, Inc., a Massachusetts corporation (the “Borrower”) and Gold- man Sachs Lending Partners LLC, as administrative agent and collateral agent (in such capacity, the “Administrative Agent”), amends that certain Credit Agreement dated as of June 30, 2017 (as amended by the First Amendment, dated as of April 17, 2018, as amended by the Incremental Facility Amendment No. 1, dated as of July 19, 2018, as amended by the Incremental Facility Amendment No. 2, dated Octo- ber 8, 2021 and as amended, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”), by and among the Borrower, the other Loan Parties, the lenders from time to time party thereto and the Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement. W I T N E S S E T H: WHEREAS, certain Loans under the Credit Agreement incur or are permitted to incur in- terest, fees, commissions or other amounts based on the London Interbank Offered Rate as administered by the ICE Benchmark Administration (“LIBOR”) in accordance with the terms of the Credit Agreement; WHEREAS, LIBOR has been or will be replaced with a Term SOFR based rate in ac- cordance with Section 2.14(b)(ii) of the Credit Agreement and, in connection therewith, the Administra- tive Agent is exercising its right to make certain conforming changes in connection with the implementa- tion of such benchmark replacement as set forth herein. NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the sufficiency and receipt of all of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: SECTION 1. Amendments to the Credit Agreement. Effective as of the Amendment No. 3 Effective Date (as defined below), the Credit Agreement is hereby amended as follows: (a) The Credit Agreement is, effective as of the Amendment No. 3 Effective Date, hereby amended to delete the stricken text (indicated textually in the same manner as the following ex- ample: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Amended Credit Agree- ment attached as Exhibit A hereto (the Credit Agreement as amended hereby, the “Amended Credit Agreement”). (b) The exhibits to the Credit Agreement are, effective as of the Amendment No. 3 Effective Date, hereby amended to amend and restate (i) Exhibit E, the Form of Borrowing Request, in the form attached as Exhibit B hereto, (ii) Exhibit F, the Form of Term Loan Note, in the form attached as Exhibit C hereto and (iii) Exhibit G, the Form of Conversion or Continuation Notice, in the form at- tached as Exhibit D hereto. (c) Notwithstanding the foregoing, (i) all outstanding Loans that are Eurocurrency Rate Term Loans denominated in Dollars immediately prior to the effectiveness of this Amendment (the “Existing Eurocurrency Rate Term Loans”) shall continue at the Eurocurrency Rate applicable to each such Existing Eurocurrency Rate Term Loan until the last day of the Interest Period applicable to each such Existing Eurocurrency Rate Term Loan as of the date hereof, and thereafter, all interest rates and Interest Periods for outstanding Loans shall be selected in accordance with the Amended Credit Agreement and (ii) the terms of the Credit Agreement (as in effect immediately prior to the ef- fectiveness of this Amendment) in respect of the calculation, payment and administration of the Exist- ing Eurocurrency Rate Term Loans shall remain in effect from and after the date hereof, in each case,
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3 Agent or any Secured Party, any Electronic Signature shall be promptly followed by a manually executed, original counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time. SECTION 5. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. SECTION 6. Headings Descriptive. The headings of the several Sections and sub- sections of this Amendment are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Amendment. [SIGNATURE PAGES FOLLOW]
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Exhibit A Amended Credit Agreement [See attached.]
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Exhibit ACREDIT AGREEMENTDated as of June 30, 2017As amended by the First Amendment on April 17, 2018,As further amended by the Incremental Facility Amendment No. 1 on July 19, 2018 and,As further amended by the Incremental Facility Amendment No. 2 on October 8, 2021 andAs further amended by Amendment No. 3 on June 23, 2023AmongTHE FINANCIAL INSTITUTIONS PARTY HERETO,as LendersandGOLDMAN SACHS LENDING PARTNERS LLC,as Administrative Agent and Collateral AgentandCLEAN HARBORS, INC.,as BorrowerandTHE LOAN GUARANTORS FROM TIME TO TIME PARTY HERETO___________GOLDMAN SACHS LENDING PARTNERS LLC,XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED,andJPMORGAN CHASE BANK, N.A.,as Joint Lead Arrangers and Joint BookrunnersBARCLAYS BANK PLC,XXXXXX X. XXXXX & CO. INCORPORATED,KEYBANC CAPITAL MARKETS INC.,MACQUARIE CAPITAL (USA) INC.,XXXXXXX & COMPANY, LLC,
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XXXXXXXXXXX & CO. INC.,XXXXXX, XXXXXXXX & COMPANY, INCORPORATED, andRAYMOND XXXXX & ASSOCIATES,as Co-ManagersBANK OF AMERICA, N.A.,as Syndication AgentJPMORGAN CHASE BANK, N.A.,as Documentation Agent-2-
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PageSECTION 3.04 Financial Condition; No Material Adverse Change 7270SECTION 3.05 Properties 7371SECTION 3.06 Litigation and Environmental Matters 7371SECTION 3.07 Compliance with Laws and Agreements; Licenses and Permits 7472SECTION 3.08 Investment Company Status 7472SECTION 3.09 Taxes 7472SECTION 3.10 [Reserved] 7472SECTION 3.11 [Reserved] 7472SECTION 3.12 ERISA 7573SECTION 3.13 Disclosure 7573SECTION 3.14 Material Agreements 7573SECTION 3.15 Solvency 7573SECTION 3.16 Insurance 7674SECTION 3.17 Capitalization and Subsidiaries 7674SECTION 3.18 Security Interest in Collateral 7674SECTION 3.19 Labor Disputes 7674SECTION 3.20 Federal Reserve Regulations 7775SECTION 3.21 Anti-Corruption and Sanctions Laws 7775SECTION 3.22 Intellectual Property; Licenses, Etc 7775ARTICLE IVCONDITIONSSECTION 4.01 Conditions Precedent to Effectiveness 7876SECTION 4.02 Conditions Precedent to Each Term Loan 8078ARTICLE VAFFIRMATIVE COVENANTSSECTION 5.01 Financial Statements and Other Information 8078SECTION 5.02 Notices of Material Events 8380SECTION 5.03 Existence; Conduct of Business 8381SECTION 5.04 Payment of Taxes 8381SECTION 5.05 Maintenance of Properties 8381SECTION 5.06 Books and Records; Inspection Rights 8481SECTION 5.07 Maintenance of Ratings 8482SECTION 5.08 Compliance with Laws 8482SECTION 5.09 Use of Proceeds 8482SECTION 5.10 Insurance 8582SECTION 5.11 Additional Collateral; Further Assurances; Negative Pledge 8583SECTION 5.12 Post-Closing Requirements 8785SECTION 5.13 Compliance with Environmental Laws 8785-ii-
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PageARTICLE VINEGATIVE COVENANTSSECTION 6.01 Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock andPreferred Stock 8885SECTION 6.02 Limitation on Liens 9693SECTION 6.03 Merger, Consolidation or Sale of All or Substantially All Assets 9693SECTION 6.04 Limitation on Restricted Payments 9896SECTION 6.05 Limitations on Transactions with Affiliates 10198SECTION 6.06 Dispositions 103100SECTION 6.07 Limitation on Investments and Designation of Unrestricted Subsidiaries 104102SECTION 6.08 Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries 105102SECTION 6.09 Amendments to Junior Indebtedness or Organizational Documents 107104SECTION 6.10 [Reserved] 107104SECTION 6.11 Business of the Borrower and Restricted Subsidiaries 107104SECTION 6.12 Fiscal Year 107104ARTICLE VIIEVENTS OF DEFAULTSECTION 7.01 Events of Default 107105SECTION 7.02 Remedies upon Event of Default 109107ARTICLE VIIITHE AGENTSECTION 8.01 The Agent 110107SECTION 8.02 Credit Bidding 112110SECTION 8.03 Withholding Taxes 113111ARTICLE IXMISCELLANEOUSSECTION 9.01 Notices 114111SECTION 9.02 Waivers; Amendments 116113SECTION 9.03 Expenses; Indemnity; Damage Waiver 118115SECTION 9.04 Successors and Assigns 119116SECTION 9.05 Survival 123120SECTION 9.06 Counterparts; Integration; Effectiveness; Electronic Execution 123120SECTION 9.07 Severability 123120SECTION 9.08 Right of Setoff 123120SECTION 9.09 Governing Law; Jurisdiction 124121SECTION 9.10 Waiver of Jury Trial 125122SECTION 9.11 Headings 125122SECTION 9.12 Confidentiality 125122SECTION 9.13 Several Obligations; Nonreliance; Violation of Law 126122-iii-
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PageSECTION 9.14 USA PATRIOT Act 126123SECTION 9.15 Disclosure 126123SECTION 9.16 Interest Rate Limitation 126123SECTION 9.17 Material Non-Public Information 126123SECTION 9.18 No Fiduciary Duty, etc 127124SECTION 9.19 Keepwell 128125SECTION 9.20 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 128125SECTION 9.21 Certain ERISA Matters 128125SECTION 9.22 Acknowledgment Regarding any Supported QFCs 130127ARTICLE XLOAN GUARANTYSECTION 10.01 Guaranty 131128SECTION 10.02 Guaranty of Payment 132128SECTION 10.03 No Discharge or Diminishment of Loan Guaranty 132129SECTION 10.04 Defenses Waived 132129SECTION 10.05 Rights of Subrogation 133130SECTION 10.06 Reinstatement; Stay of Acceleration 133130SECTION 10.07 Information 133130SECTION 10.08 [Reserved] 133130SECTION 10.09 Maximum Liability 133130SECTION 10.10 Contribution 134130SECTION 10.11 Liability Cumulative 134131SECTION 10.12 Release of Loan Guarantors 134131-iv-
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SCHEDULES:Schedule I — Term CommitmentsSchedule 1.01(a) — Unrestricted SubsidiariesSchedule 1.01(b) — Mortgaged PropertiesSchedule 3.05(a) — Principal Place of Business and Chief Executive OfficeSchedule 3.05(f) — Intellectual PropertySchedule 3.17 — Capitalization and SubsidiariesSchedule 3.19 — Labor DisputesSchedule 4.01(b) — Local CounselSchedule 5.12 — Post-Closing RequirementsSchedule 6.01 — Existing IndebtednessSchedule 6.02 — Existing LiensSchedule 6.04 — Restricted PaymentsSchedule 6.05 — Existing Affiliate TransactionsSchedule 6.07 — Existing InvestmentsSchedule 9.01 — Borrower’s Website for Electronic DeliveryEXHIBITS:Exhibit A — Form of Administrative QuestionnaireExhibit B — Form of Assignment and AssumptionExhibit C — Form of Compliance CertificateExhibit D — Joinder AgreementExhibit E — Form of Borrowing RequestExhibit F — Form of Term Loan NoteExhibit G — Form of Conversion or Continuation NoticeExhibit H — [Reserved]Exhibit I — [Reserved]Exhibit J — Form of ABL Intercreditor AgreementExhibit K-1 — Form of U.S. Tax Compliance CertificateExhibit K-2 — Form of U.S. Tax Compliance CertificateExhibit K-3 — Form of U.S. Tax Compliance CertificateExhibit K-4 — Form of U.S. Tax Compliance Certificate-v-
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“2021 Incremental Term Commitments” has the meaning set forth in IncrementalFacility Amendment No. 2. The amount of the 2021 Incremental Term Loan Commitments as of theIncremental Amendment No. 2 Effective Date is $1,000,000,000.“2021 Incremental Term Lender” means each Lender that has a 2021 Incremental TermCommitment or that is a holder of 2021 Incremental Term Loans.“2021 Incremental Term Loan Facility” means the 2021 Incremental Term LoanCommitment and the 2021 Incremental Term Loans made thereunder. “2021 Incremental Term Loans” means the Incremental Term Loans incurred under theIncremental Facility Amendment No. 2.“2021 Incremental Term Loan Maturity Date” means October 8, 2028.“2021 Senior Notes” means $845.0 million aggregate principal amount of theBorrower’s 5.125% senior notes due 2021.“2021 Senior Notes Indenture” means the indenture dated as of December 7, 2012among Clean Harbors, Inc., the guarantors party thereto and U.S. Bank National Association, relating tothe 2021 Senior Notes.“ABL Credit Agreement” means the Fifth Amended and Restated Credit Agreementdated as of November 1, 2016 by and among the Borrower, each of the other borrower and guarantorparties thereto, each of the lenders and issuing banks party thereto and Bank of America, N.A., asadministrative agent and collateral agent (as amended, amended and restated or otherwise modified fromtime to time). “ABL Intercreditor Agreement” means that certain Intercreditor Agreement dated as ofthe Closing Date in the form of Exhibit J hereto.“ABR Term SOFR Determination Day” has the meaning assigned to such term in thedefinition of “Term SOFR.”“Acquired Business” has the meaning set forth in Incremental Facility Amendment No.2. “Acquired Entity or Business” means any Person, property, business or asset acquiredby the Borrower or any Restricted Subsidiary, to the extent not subsequently sold, transferred orotherwise disposed by the Borrower or such Restricted Subsidiary.“Acquired Indebtedness” means, with respect to any specified Person, (a) Indebtednessof any other Person existing at the time such other Person is merged with or into or became a RestrictedSubsidiary of such specified Person, including Indebtedness incurred in connection with, or incontemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, suchspecified Person, and (b) Indebtedness secured by a Lien encumbering any asset acquired by suchspecified Person.“Acquisition” has the meaning set forth in Incremental Facility Amendment No. 2.-2-
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“Acquisition Agreement” has the meaning set forth in Incremental Facility AmendmentNo. 2. “Administrative Questionnaire” means an Administrative Questionnaire in the formsupplied by the Agent.“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UKFinancial Institution.“Affiliate” of any specified Person means any other Person directly or indirectlycontrolling or controlled by or under direct or indirect common control with such specified Person. Forpurposes of this Agreement, “control” (including, with correlative meanings, the terms “controlling,”“controlled by” and “under common control with”), as used with respect to any Person, means thepossession, directly or indirectly, of the power to direct or cause the direction of the management orpolicies of such Person, whether through the ownership of voting securities, by agreement or otherwise.“Affiliate Transaction” has the meaning assigned to such term in Section 6.05(a).“Agent” has the meaning assigned to such term in the recitals to this Agreement.“Agent’s Office” means the Agent’s address and, as appropriate, account as the Agentmay from time to time notify the Borrower and the Lenders.“Amendment No. 3” means that certain Amendment No. 3 to this Agreement, dated asof June 23, 2023, entered into by the Administrative Agent.“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdictionapplicable to the Borrower or any of its direct or indirect parent companies or subsidiaries from time totime concerning or relating to bribery or corruption.“Applicable Amount” means, at any time (the “Reference Time”), an amount equal to(a) the sum, without duplication, of:(i) $495.0 million, plus(ii) an amount equal to 50% of the Consolidated Net Income (excluding fromConsolidated Net Income, for this purpose only, any amount that otherwise increased theApplicable Amount pursuant to clause (v) or (vi) below) of the Borrower for the period (taken asone accounting period) from March 31, 2017 to the end of the Borrower’s most recently endedfiscal quarter for which financial statements have been delivered pursuant to Section 5.01 at theReference Time, or, in case such Consolidated Net Income for such period is a deficit, minus100% of such deficit, plus(iii) the amount of any capital contributions in cash, marketable securities orQualified Proceeds made to, or any proceeds in cash, marketable securities or QualifiedProceeds of an issuance of Equity Interests of the Borrower or any of its direct or indirect parentcompanies (or debt securities that have been converted or exchanged into Equity Interests of theBorrower or any of its direct or indirect parent companies (other than Disqualified Stock)) (ineach case, other than (w) Excluded Contributions, (x) proceeds from Equity Interests of anydirect or indirect parent company of the Borrower constituting the consideration for anInvestment made in reliance on clause (j) of the definition of “Permitted Investments,” (y) the-3-
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Designated Equity Amount and (z) the proceeds of Disqualified Stock of the Borrower andDesignated Preferred Stock) received by, the Borrower from and including the Business Dayimmediately following the Closing Date through and including the Reference Time, includingany such proceeds from the issuance of Equity Interests of any direct or indirect parent of theBorrower to the extent the cash proceeds thereof are contributed to the Borrower, plus(iv) to the extent not already reflected as an increase to Consolidated Net Income orreflected as a return of capital or deemed reduction in the amount of such Investment pursuant tosubclause (b)(ii) below, the amount of any distribution in cash, marketable securities orQualified Proceeds received in respect of any Investment made in reliance on clause (q) of thedefinition of “Permitted Investments” and any dividend in cash, marketable securities orQualified Proceeds received from an Unrestricted Subsidiary, in each case by the Borrower orany Restricted Subsidiary, plus(v) to the extent not already reflected as a return of capital or deemed reduction inthe amount of such Investment pursuant to subclause (b)(ii) below, the aggregate amountreceived in cash or marketable securities and the fair market value, as determined in good faithby the Borrower, of Qualified Proceeds received after the Closing Date by the Borrower and itsRestricted Subsidiaries by means of (1) the sale or other disposition (other than to the Borroweror a Subsidiary) of Investments made in reliance on clause (q) of the definition of “PermittedInvestments,” repurchases and redemptions of such Investments (other than by the Borrower orany Subsidiary) and repayments of loans or advances that constitute such Investments or (2) thesale (other than to the Borrower or a Subsidiary) of Equity Interests in an UnrestrictedSubsidiary (solely to the extent that such Investments in Unrestricted Subsidiaries wereoutstanding in reliance on clause (q) of the definition of “Permitted Investments”), plus(vi) to the extent not already reflected as a return of capital or deemed reduction inthe amount of such Investment pursuant to subclause (b)(ii) below, the excess, if any, of (x) thefair market value of any Unrestricted Subsidiary redesignated after the Closing Date as aRestricted Subsidiary (as determined by the Borrower in good faith or, if such fair market valueexceeded $150.0 million in writing by an Independent Financial Advisor) at the time of suchredesignation to the extent that any Investment in such Unrestricted Subsidiary by the Borroweror any Restricted Subsidiary was made in reliance on clause (q) of the definition of “PermittedInvestments” over (y) the aggregate actual amount of Investments in such UnrestrictedSubsidiary made in reliance on clause (q) of the definition of “Permitted Investments,”minus (b) the sum, without duplication, of:(i) the aggregate actual amount of Restricted Payments (other than any RestrictedPayments made pursuant to Section 6.04 (except clause (i) of Section 6.04)) since the ClosingDate and prior to the Reference Time; and(ii) the aggregate actual amount of Investments made in reliance on clause (q) of thedefinition of “Permitted Investments” (net of any return of capital in respect of such Investmentor deemed reduction in the amount of such Investment including, without limitation, upon theredesignation of any Unrestricted Subsidiary as a Restricted Subsidiary or the sale of any suchInvestment for cash or Qualified Proceeds).“Applicable Percentage” means, with respect to any Lender, the percentage of theaggregate outstanding Term Loans and Term Commitments represented by such Lender’s Term Loansand Term Commitments. If the Term Loans have been repaid and the Term Commitments have-4-
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terminated or expired, the Applicable Percentages shall be determined based upon the Term Loans andTerm Commitments most recently in effect, giving effect to any assignments.“Applicable Rate” means (i) with respect to the Initial Term Loans, a percentage perannum equal to (x) for Eurocurrency RateTerm SOFR Term Loans, 1.75%, and (y) for Base Rate TermLoans, 0.75% and (ii) with respect to the 2021 Incremental Term Loans, a percentage per annum equalto (x) for Eurocurrency RateTerm SOFR Term Loans, 2.00%, and (y) for Base Rate Term Loans, 1.00%.“Approved Electronic Communications” means each notice, demand, communication,information, document and other material that any Loan Party is obligated to, or otherwise chooses to,provide to the Agent pursuant to any Loan Document or the transactions contemplated therein, including(a) any supplement, joinder or amendment to the Collateral Documents and any other written contractualobligation delivered or required to be delivered in respect of any Loan Document or the transactionscontemplated therein and (b) any financial statement, financial and other report, notice, request,certificate and other information material.“Approved Electronic Platform” has the meaning assigned to that term in Section 8.01.“Approved Fund” has the meaning assigned to that term in Section 9.04(b).“Asset Sale Prepayment Event” means any Disposition of any business units, assets orother property of the Borrower or any of the Restricted Subsidiaries not in the ordinary course ofbusiness (including any Disposition of any Equity Interests of any Subsidiary of the Borrower owned bythe Borrower or a Restricted Subsidiary). Notwithstanding the foregoing, the term “Asset SalePrepayment Event” shall not include any transaction permitted (or not expressly prohibited) by Section6.06, other than transactions consummated in reliance on Section 6.06(i), (j), (k) or (n).“Assignment and Assumption” means an assignment and assumption entered into by aLender and an assignee (with the consent of any party whose consent is required by Section 9.04), andaccepted by the Agent, in the form of Exhibit B or any other form approved by the Agent.“Attributable Debt” in respect of a Sale and Lease-Back Transaction means, as at thetime of determination, the present value (discounted at the interest rate then borne by the Term Loansthat are Eurocurrency Rate Term SOFR Term Loans, compounded annually) of the total obligations ofthe lessee for rental payments during the remaining term of the lease included in such Sale and Lease-Back Transaction (including any period for which such lease has been extended); provided, however,that if such Sale and Lease-Back Transaction results in a Capitalized Lease Obligation, the amount ofIndebtedness represented thereby will be determined in accordance with the definition of “CapitalizedLease Obligation”.“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for suchBenchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, anypayment period for interest calculated with reference to such Benchmark, as applicable, pursuant to thisAgreement as of such date.“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by theapplicable Resolution Authority in respect of any liability of an Affected Financial Institution.“Bail-In Legislation” means, (a) with respect to any EEA Member Countryimplementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the-5-
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European Union, the implementing law, rule, regulation or requirement for such EEA Member Countryfrom time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to theUnited Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) andany other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsoundor failing banks, investment firms or other financial institutions or their affiliates (other than throughliquidation, administration or other insolvency proceedings).“Bankruptcy Event” means, with respect to any Person, such Person becomes thesubject 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 thereorganization or liquidation of its business appointed for it, or, in the good faith determination of theAgent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescencein, any such proceeding or appointment; provided that a Bankruptcy Event shall not result solely byvirtue of any ownership interest, or the acquisition of any ownership interest, in such Person by aGovernmental Authority or instrumentality thereof, unless such ownership interest results in or providessuch Person with immunity from the jurisdiction of courts within the United States or from theenforcement of judgments or writs of attachment on its assets or permit such Person (or suchGovernmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts oragreements made by such Person.“Base Rate” means, for any day, a rate per annum equal to the greater of (a) the PrimeRate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) theEurocurrency Rate Term SOFR for a one month Interest Period for loans in Dollars on such day (or ifsuch day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that, withrespect to the 2021 Incremental Term Loans, the Base Rate shall not be less than 1.00%; providedfurther that for the purpose of this definition, the Eurocurrency Rate for any day shall be based on theEurocurrency Screen Rate (or if the Eurocurrency Screen Rate is not available for such one monthInterest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Anychange in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the EurocurrencyRateTerm SOFR shall be effective from and including the effective date of such change in the PrimeRate, the NYFRB Rate or the Eurocurrency RateTerm SOFR, respectively.“Benchmark” means, initially, Eurocurrency Screen RateTerm SOFR; provided that if areplacement of the Benchmark has occurred pursuant to the Section 2.14(b)(ii), then “Benchmark”means the applicable Benchmark Replacement to the extent that such Benchmark Replacement hasreplaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, thepublished component used in the calculation thereof.“Benchmark Replacement” means, for any Available Tenor:(1) For purposes of clause (a) of this Section 2.14(b)(ii), the first alternative set forthbelow that can be determined by the Agent:(a) the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) xxxxx Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) xxxxx Available Tenor of three-months’ duration, and 0.42826% (42.826 basispoints) for an Available Tenor of six-months’ duration, or(b) the sum of: (i) Daily Simple SOFR and (ii) the spread adjustmentselected or recommended by the Relevant Governmental Body for thereplacement of the tenor of Eurocurrency Screen Rate with a SOFR-based ratehaving approximately the same length as the interest payment period specified inclause (a) of this Section; and -6-
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(2) For purposes of clause (b) of Section 2.14(b)(ii),“Benchmark Replacement” means,for any Available Tenor, the sum of (a) the alternate benchmark rate and (b) an adjustment (which maybe a positive or negative value or zero), in each case, that has been selected by the Agent and theBorrower as the replacement for such Available Tenor of such Benchmark giving due consideration toany evolving or then-prevailing market convention, including any applicable recommendations made bythe Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time;provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above wouldbe less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes ofthis Agreement and the other Loan Documents.“Benchmark Replacement Conforming Changes” means, with respect to any BenchmarkReplacement, any technical, administrative or operational changes (including changes to the definition of“Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities BusinessDay,” the definition of “Interest Period,” timing and frequency of determining rates and makingpayments of interest, timing of borrowing requests or prepayment, conversion or continuation notices,the applicability and length of lookback periods, the applicability of breakage provisions, and othertechnical, administrative or operational matters) that the Agent decides may be appropriate to reflect theadoption and implementation of such Benchmark Replacement and to permit the administration thereofby the Agent in a manner substantially consistent with market practice (or, if the Agent decides thatadoption of any portion of such market practice is not administratively feasible or if the Agentdetermines that no market practice for the administration of such Benchmark Replacement exists, in suchother manner of administration as the Agent decides is reasonably necessary in connection with theadministration of this Agreement and the other Loan Documents).“Benchmark Transition Event” means, with respect to any then-current Benchmarkother than Eurocurrency Screen Rate, the occurrence of a public statement or publication of informationby or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for theadministrator of such Benchmark, the Board of Governors of the Federal Reserve System, the FederalReserve Bank of New York, an insolvency official with jurisdiction over the administrator for suchBenchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or acourt or an entity with similar insolvency or resolution authority over the administrator for suchBenchmark, announcing or stating that (a) such administrator has ceased or will cease on a specifieddate to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, atthe time of such statement or publication, there is no successor administrator that will continue toprovide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are orwill no longer be representative of the underlying market and economic reality that such Benchmark isintended to measure and that representativeness will not be restored.“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) thatis subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Personwhose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I ofERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.“Board” means the Board of Governors of the Federal Reserve System of the UnitedStates of America.“Board of Directors” means (a) with respect to a corporation, the board of directors ofthe corporation, (b) with respect to a partnership, the board of directors of the general partner of the-7-
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partnership and (c) with respect to any other Person, the board or committee of such Person serving asimilar function.“Board Resolution” means, with respect to the Borrower, a duly adopted resolution ofthe Board of Directors of the Borrower or any committee thereof.“Borrower” has the meaning assigned to such term in the preamble to this Agreement.“Borrower Guaranteed Obligations” has the meaning assigned to such term inSection 10.01(b).“Borrowing” means any Term Loans of the same Class and Type made, converted orcontinued on the same date and, in the case of Eurocurrency RateTerm SOFR Term Loans, as to which asingle Interest Period is in effect.“Borrowing Request” means a request by the Borrower for a Borrowing in accordancewith Section 2.02 and substantially in the form attached hereto as Exhibit E, or such other form as shallbe approved by the Agent.“Business Day” means any day that is not a Saturday, Sunday or other day on whichcommercial banks in New York City are authorized or required by law to remain closed and, if theapplicable Business Day relates to notices, determinations, fundings and payments in connection withthe Eurocurrency Rate for any Eurocurrency Rate Term Loan, on which banks are open for generalbusiness in London.“Capital Expenditures” means, for any period, the aggregate, without duplication, of (a)all expenditures (whether paid in cash or accrued as liabilities) by the Borrower and the RestrictedSubsidiaries during such period that, in conformity with GAAP, are or are required to be included asadditions during such period to property, plant or equipment reflected in the consolidated balance sheetof the Borrower and the Restricted Subsidiaries; (b) the capitalized amount of any Capitalized LeaseObligations incurred by the Borrower and its Restricted Subsidiaries during such period; and (c)expenditures made for client contract investments and included as additions during the period to otherassets reflected in the consolidated balance sheet of the Borrower and the Restricted Subsidiaries.“Capital Stock” means (a) in the case of a corporation, corporate stock, (b) in the case ofan association or business entity, any and all shares, interests, participations, rights or other equivalents(however designated) of corporate stock, (c) in the case of a partnership or limited liability company,partnership or membership interests (whether general or limited) and (d) any other interest orparticipation that confers on a Person the right to receive a share of the profits and losses of, ordistributions of assets of, the issuing Person.“Capitalized Lease Obligation” means, subject to Section 1.08, at the time anydetermination thereof is to be made, the amount of the liability in respect of a capital lease that would atsuch time be required to be capitalized and reflected as a liability on a balance sheet (excluding thefootnotes thereto) in accordance with GAAP.“Cash Equivalents” means:(a) Dollars; -8-
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(b) in the case of any Foreign Subsidiary, such local currencies held by it from timeto time in the ordinary course of business;(c) securities issued or directly and fully and unconditionally guaranteed or insuredby the government of the United States of America or any agency or instrumentality thereof thesecurities of which are unconditionally guaranteed as a full faith and credit obligation of suchgovernment with maturities of 24 months or less from the date of acquisition;(d) certificates of deposit, time deposits and eurodollar time deposits with maturitiesof one year or less from the date of acquisition, bankers’ acceptances with maturities notexceeding one year and overnight bank deposits, in each case with any commercial bank havingcapital and surplus in excess of $250.0 million;(e) repurchase obligations for underlying securities of the types described inclauses (c) and (d) above entered into with any financial institution meeting the qualificationsspecified in clause (d) above;(f) commercial paper rated at least “P-1” by Moody’s or at least “A-1” by S&P andin each case maturing within 12 months after the date of issuance thereof;(g) investment funds investing at least 95% of their assets in securities of the typesdescribed in clauses (a) through (f) above;(h) readily marketable direct obligations issued by any state of the United States ofAmerica or any political subdivision thereof having one of the two highest rating categoriesobtainable from either Moody’s or S&P with maturities of 24 months or less from the date ofacquisition;(i) Indebtedness or Preferred Stock issued by Persons with a rating of “A” or higherfrom S&P or “A2” or higher from Moody’s with maturities of 12 months or less from the date ofacquisition; and(j) in the case of any Foreign Subsidiary, investments of comparable tenure andcredit quality to those described in the foregoing clauses (a) through (i) or other high qualityshort-term investments, in each case, customarily utilized in countries in which such ForeignSubsidiary operates for short-term cash management purposes.Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated incurrencies other than those set forth in clauses (a) and (b) above, provided that such amounts areconverted into one or more of the currencies set forth in clauses (a) and (b) above as promptly aspracticable and in any event within ten (10) Business Days following the receipt of such amounts.“Cash Management Agreement” means any agreement or arrangement to provide cashmanagement services, including treasury, depository, overdraft, credit or debit card, purchase card,electronic funds transfer, bilateral letters of credit and other cash management arrangements.“Casualty Event” means, with respect to any equipment, fixed assets or real property(including any improvements thereon) of the Borrower or any Restricted Subsidiary, any loss of ordamage to, or any condemnation or other taking by a Governmental Authority of, such property, the dateon which the Borrower or any of the Restricted Subsidiaries receives insurance proceeds, or proceeds of-9-
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a condemnation award or other compensation to replace or repair such property, in each case, in excessof $10 million with respect to any such event.“CFC” means a Foreign Subsidiary that is a “controlled foreign corporation” within themeaning of Section 957 of the Code.“Change in Law” means the occurrence after the date of this Agreement of any of thefollowing: (a) the adoption or taking effect of any law, rule, regulation or treaty; (b) any change in anylaw, rule, regulation or treaty or in the administration, interpretation or application thereof by anyGovernmental Authority; or (c) compliance by the Lender (or, for purposes of Section 2.14(c)(ii), by anylending office of the Lender or by the Lender’s holding company, if any) with any request, guideline,requirement or directive (whether or not having the force of law) of any Governmental Authority madeor issued after the date of this Agreement; provided that notwithstanding anything herein to the contrary,(x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines,requirements or directives thereunder or issued in connection therewith or in the implementation thereof,and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank forInternational Settlements, the Basel Committee on Banking Supervision (or any successor or similarauthority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shallin each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted, issued orimplemented, but only to the extent such rules, regulations, or published interpretations or directives areapplied to the Borrower and its Subsidiaries by the Agent or any Lender in substantially the samemanner as applied to another similarly situated borrower under comparable syndicated credit facilities.“Change of Control” means the earliest to occur of:(a) the sale, lease or transfer, in one or a series of related transactions, of all orsubstantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, to anyPerson other than a Permitted Holder;(b) the acquisition by any Person or group, including any group acting for thepurpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1)under the Exchange Act as in effect on the Closing Date), other than the Permitted Holders, in asingle transaction or in a series of related transactions, by way of merger, consolidation or otherbusiness combination or purchase of beneficial ownership of 50% or more of the total votingpower of the Voting Stock of the Borrower or any of its direct or indirect parent companies; or(c) the occurrence of any “Change of Control” (or any comparable term) in anydocument pertaining to the 2020 Senior Notes, the 2021 Senior Notes or the ABL CreditAgreement, in each case, including any refinancings thereof.For purposes of this definition, including other defined terms used herein in connectionwith this definition, (i) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under theExchange Act as in effect on the date hereof and (ii) the phrase Person or group is within the meaning ofSection 13(d) or 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person orgroup or its subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary oradministrator of any such plan.Notwithstanding anything to the contrary in this definition or any provision of Section13d-3 of the Exchange Act, a Person or group shall not be deemed to beneficially own Equity Intereststo be acquired by such Person or group pursuant to a stock or asset purchase agreement, merger-10-
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agreement, option agreement, warrant agreement or similar agreement until the consummation of theacquisition of the Equity Interests in connection with the transactions contemplated by such agreement.“Class” when used (a) in reference to any Term Loan or Borrowing, refers to whethersuch Term Loan, or the Term Loans comprising such Borrowing, are Initial Term Loans, 2021Incremental Term Loans, New Term Loans of any Series or Extended Term Loans of any ExtensionSeries, (b) in reference to any Term Commitment refers to whether such Term Commitment is an InitialTerm Commitment, 2021 Incremental Term Commitment or New Term Commitment (with respect to aSeries of New Term Loans) and (c) in reference to any Lender, refers to whether such Lender is anInitial Term Lender, 2021 Increment Term Lender or Lender with a New Term Commitment or holdingNew Term Loans or Extended Term Loans of any other Class. For the avoidance of doubt, (i) the 2018Incremental Term Loans incurred under the Incremental Facility Amendment No. 1 shall constitute thesame Class with the Initial Term Loans and the 2018 Incremental Term Commitments under theIncremental Facility Amendment No. 1 shall constitute an “Initial Term Commitment” and (ii) the 2021Incremental Term Loans incurred under the Incremental Facility Amendment No. 2 shall constitute aseparate Class and Series from the Initial Term Loans.“Closing Date” means June 30, 2017.“Code” means the Internal Revenue Code of 1986, as amended from time to time.“Collateral” means any “Collateral” as defined in the Security Agreement, MortgagedProperty and any and all property owned, leased or operated by a Person from time to time subject to asecurity interest or Lien in favor of the Agent for the benefit of the Secured Parties under the CollateralDocuments. “Collateral Documents” means, collectively, the Security Agreement, the Mortgages andany other documents granting (or purporting to grant) a Lien upon the Collateral as security for paymentof the Obligations.“Co-Managers” means Barclays Bank PLC, Xxxxxx X. Xxxx &Co. Incorporated,Keybanc Capital Markets Inc., Macquarie Capital (USA) Inc., Xxxxxxx & Company, LLC,Xxxxxxxxxxx & Co, Inc., Xxxxxx, Xxxxxxxx & Company, Incorporated and Xxxxxxx Xxxxx & Associates.“Commitments Schedule” means Schedule I.“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 etseq.), as amended from time to time, and any successor statute.“Compliance Certificate” means a certificate of the Borrower substantially in the formof Exhibit C. “Consolidated Depreciation and Amortization Expense” means with respect to anyPerson for any period, the total amount of depreciation and amortization expense of such Person and itsRestricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordancewith GAAP. “Consolidated First Lien Debt Ratio” as of any date of determination means the ratio of(a) the excess of (i) Consolidated Total Indebtedness that is secured by any Lien on any assets orproperty of the Borrower or any of its Subsidiaries; provided that such Indebtedness (A) is not expresslysubordinated pursuant to a written agreement in right of payment to the Obligations or (B) is not secured-11-
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by Liens on the Collateral that are expressly junior to the Liens securing the Obligations (it beingunderstood that any Indebtedness under the ABL Credit Agreement and any Refinancing Indebtedness inrespect thereof shall be included in the calculation of the Consolidated First Lien Debt Ratio) as of theend of the most recent fiscal quarter for which financial statements have been delivered pursuant toSection 5.01 over (ii) an amount equal to the amount of cash and Cash Equivalents of the Borrower andits Restricted Subsidiaries on such date that are free and clear of any Lien (other than non-consensualPermitted Liens and Permitted Liens of the type set forth in clauses (u) through (x) of the definition of“Permitted Liens”) to (b) EBITDA of the Borrower for the period of the most recently ended TestPeriod, in each case with such pro forma adjustments to Consolidated Total Indebtedness and EBITDA,mutatis mutandis, as are set forth in the definition of “Interest Coverage Ratio”.“Consolidated Interest Expense” means, with respect to any Person for any period, thesum, without duplication, of (a) consolidated interest expense of such Person and its RestrictedSubsidiaries for such period, to the extent such expense was deducted in computing Consolidated NetIncome (including (i) amortization of original issue discount resulting from the issuance of Indebtednessat less than par, (ii) all commissions, discounts and other fees and charges owed with respect to letters ofcredit or bankers’ acceptances, (iii) noncash interest payments (but excluding any noncash interestexpense attributable to the movement in the mark-to-market valuation of Hedging Obligations or otherderivative instruments pursuant to GAAP), (iv) the interest component of Capitalized Lease Obligations,(v) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness and(vi) all commissions, discounts, yield and other fees and charges in the nature of interest expense relatedto any Receivables Facility, and excluding (A) amortization of deferred financing fees, debt issuancecosts, commissions, fees and expenses, (B) any expensing of bridge, commitment and other financingfees and (C) any redemption premiums paid in connection with the redemption of any Indebtedness, plus(b) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period,whether paid or accrued, less (c) interest income for such period. For purposes of this definition, intereston a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined bysuch Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance withGAAP. “Consolidated Leverage Ratio” with respect to any Person as of any date ofdetermination, means the ratio of (a) the excess of Consolidated Total Indebtedness of such Person as ofthe end of the most recent fiscal quarter for which financial statements have been delivered pursuant toSection 5.01 over the amount of cash and Cash Equivalents of the Borrower and its RestrictedSubsidiaries on such date that are free and clear of any Lien (other than non-consensual Permitted Liensand Permitted Liens of the type set forth in clauses (u) through (x) of the definition of “Permitted Liens”)to (b) the aggregate amount of EBITDA of such Person for the period of the most recently ended TestPeriod, in each case with such pro forma adjustments to Consolidated Total Indebtedness and EBITDAas are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of“Interest Coverage Ratio”.“Consolidated Net Income” means, with respect to any Person for any period, theaggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on aconsolidated basis, and otherwise determined in accordance with GAAP; provided that, withoutduplication: (a) any net after tax extraordinary, non-recurring or unusual gains or losses (less allfees and expenses relating thereto) or expenses (including relating to severance, relocation,unusual contract terminations, one time compensation charges, warrants or options to purchaseCapital Stock of a direct or indirect parent of the Borrower) shall be excluded,-12-
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(b) the Net Income for such period shall not include the cumulative effect of achange in accounting principles during such period in accordance with GAAP,(c) any net after-tax income (loss) from disposed or discontinued operations andany net after-tax gains or losses on disposal of disposed or discontinued operations shall beexcluded,(d) any net after-tax gains or losses (less all fees and expenses relating thereto)attributable to asset dispositions or the sale or other disposition of any Capital Stock of anyPerson other than in the ordinary course of business, as determined in good faith by theBorrower, shall be excluded,(e) the Net Income for such period of any Person that is not a Restricted Subsidiary,or that is accounted for by the equity method of accounting, shall be excluded; provided thatConsolidated Net Income of the Borrower shall be increased by the amount of dividends ordistributions or other payments that are actually paid in cash (or to the extent converted intocash) to the Borrower or a Restricted Subsidiary thereof in respect of such period (subject in thecase of dividends, distributions or other payments made to a Restricted Subsidiary to thelimitations contained in clause (f) below),(f) solely for the purpose of determining the Applicable Amount and Excess CashFlow, the Net Income for such period of any Restricted Subsidiary (other than any SubsidiaryGuarantor) shall be excluded if the declaration or payment of dividends or similar distributionsby that Restricted Subsidiary of its Net Income is not at the date of determination whollypermitted without any prior governmental approval (which has not been obtained) or, directly orindirectly, by the operation of the terms of its charter or any agreement, instrument, judgment,decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary orits stockholders, unless such restriction with respect to the payment of dividends or similardistributions has been legally waived; provided that Consolidated Net Income of the Borrowerwill be increased by the amount of dividends or other distributions or other payments actuallypaid in cash (or to the extent converted into cash) to the Borrower or a Restricted Subsidiarythereof in respect of such period, to the extent not already included therein,(g) any increase in amortization or depreciation or other noncash charges resultingfrom the application of purchase accounting in relation to any acquisition that is consummatedbefore or after the Closing Date, net of taxes, shall be excluded,(h) any net after-tax income (loss) from the early extinguishment of Indebtedness orHedging Obligations or other derivative instruments shall be excluded,(i) any impairment charge or asset write-off, in each case pursuant to GAAP, andthe amortization of intangibles arising pursuant to GAAP shall be excluded, and(j) any noncash compensation expense resulting from the application ofAccounting Standards Codification 718 or any deferred compensation charges net of any cashpayments made under such deferred compensation plans during such period to officers,directors, managers, consultants or employees (or their estates, Controlled Investment Affiliatesor Immediate Family Members) shall be excluded.“Consolidated Secured Debt Ratio” as of any date of determination means the ratio of(a) the excess of (i) Consolidated Total Indebtedness that is secured by any Lien as of the end of the-13-
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most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.01over (ii) an amount equal to the amount of cash and Cash Equivalents of the Borrower and its RestrictedSubsidiaries on such date that are free and clear of any Lien (other than non-consensual Permitted Liensand Permitted Liens of the type set forth in clauses (u) through (x) of the definition of “Permitted Liens”)to (b) EBITDA of the Borrower for the period of the most recently ended Test Period, in each case withsuch pro forma adjustments to Consolidated Total Indebtedness and EBITDA, mutatis mutandis, as areset forth in the definition of “Interest Coverage Ratio”.“Consolidated Total Indebtedness” means, as at any date of determination, an amountequal to the sum of (a) the aggregate amount of all outstanding Indebtedness of the Borrower and theRestricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money,obligations in respect of Capitalized Lease Obligations, Attributable Debt in respect of Sale and Lease-Back Transactions and debt obligations evidenced by bonds, notes, debentures or similar instruments orletters of credit or bankers’ acceptances (and excluding any undrawn letters of credit), (b) the aggregateamount of all outstanding Disqualified Stock of the Borrower and all Disqualified Stock and PreferredStock of the Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Stockand Preferred Stock equal to the greater of their respective voluntary or involuntary liquidationpreferences and Maximum Fixed Repurchase Prices and (c) the aggregate outstanding amount ofadvances under any Receivables Facility of the Borrower or any of its Restricted Subsidiaries, in eachcase determined on a consolidated basis in accordance with GAAP. For purposes of this definition, the“Maximum Fixed Repurchase Price” of any Disqualified Stock or Preferred Stock that does not have afixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock orPreferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on whichConsolidated Total Indebtedness shall be required to be determined pursuant to this Agreement, and ifsuch price is based upon, or measured by, the fair market value of such Disqualified Stock or PreferredStock, such fair market value shall be determined reasonably and in good faith by the Borrower.“Consolidated Working Capital” means, at any date, the excess of (a) the sum of allamounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forthopposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of theBorrower and its Restricted Subsidiaries at such date over (b) the sum of all amounts that would, inconformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption)on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries on such date, includingdeferred revenue but excluding, without duplication, (i) the current portion of any Funded Debt, (ii) thecurrent portion of accrued interest and (iii) the current portion of current and deferred income taxes;provided that for the purposes of calculating increases or decreases of Consolidated Working Capital inthe definition of “Excess Cash Flow”, any changes in current assets or current liabilities shall beexcluded to the extent arising as a result of (x) the effect of fluctuations in the amount of recognizedassets or liabilities under Hedge Agreements, (y) any reclassification of assets or liabilities betweencurrent and noncurrent in accordance with GAAP (other than as a result of the passage of time) and (z)the effects of acquisition method accounting.“Contingent Obligations” means, with respect to any Person, any obligation of suchPerson guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (the“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly orindirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any suchprimary obligation or any property constituting direct or indirect security therefor, (b) to advance orsupply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain workingcapital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of theprimary obligor, or (c) to purchase property, securities or services primarily for the purpose of assuring-14-
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the owner of any such primary obligation of the ability of the primary obligor to make payment of suchprimary obligation against loss in respect thereof.“Controlled Investment Affiliate” means, as to any Person, any other Person whichdirectly or indirectly is in control of, is controlled by, or is under common control with such Person andis organized by such Person (or any Person controlling such Person) primarily for making direct orindirect equity or debt investments in the Borrower and/or other companies.“Covered Party” has the meaning set forth in Section 9.22(a).“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate(which will include a lookback) being established by the Agent in accordance with the conventions forthis rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” forsyndicated business loans; provided, that if the Agent decides that any such convention is notadministratively feasible for the Agent, then the Agent may establish another convention in itsreasonable discretion.“Debt Incurrence Prepayment Event” means any issuance or incurrence by the Borroweror any of the Restricted Subsidiaries of (a) any Indebtedness (excluding any Indebtedness permitted tobe issued or incurred under Section 6.01 other than pursuant to Section 6.01(b)(iv) or Section6.01(b)(xxv)(A)) or (b) any Refinancing Term Loans.“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all otherliquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,arrangement, rearrangement, receivership, insolvency, reorganization, examinership or similar debtorrelief laws of the United States or other applicable jurisdictions from time to time in effect and affectingthe rights of creditors generally.“Default” means any event that is, or with the passage of time or the giving of notice orboth would be, an Event of Default.“Deferred Net Cash Proceeds” has the meaning assigned to such term in the definition of“Net Cash Proceeds”.“Derivative Transaction” means (a) an interest-rate transaction, including an interest-rateswap, basis swap, forward rate agreement, interest rate option (including a cap, collar, and floor), andany other instrument linked to interest rates that gives rise to similar credit risks (including when-issuedsecurities and forward deposits accepted), (b) an exchange-rate transaction, including a cross-currencyinterest-rate swap, a forward foreign-exchange contract, a currency option, and any other instrumentlinked to exchange rates that gives rise to similar credit risks and (c) a commodity (including preciousmetal) derivative transaction, including a commodity-linked swap, a commodity-linked option, a forwardcommodity-linked contract, and any other instrument linked to commodities that gives rise to similarcredit risks. “Designated Equity Amount” has the meaning assigned to such term in Section6.01(b)(xx). “Designated Noncash Consideration” means the fair market value of noncashconsideration received by the Borrower or a Restricted Subsidiary in connection with a Dispositionpursuant to Section 6.06(j) that is designated as Designated Noncash Consideration pursuant to acertificate of a Responsible Officer delivered to the Agent, setting forth the basis of such valuation-15-
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(which amount will be reduced by any cash proceeds subsequently received by the Borrower or anyRestricted Subsidiary (other than from the Borrower or a Restricted Subsidiary) in connection with anysubsequent repayment, redemption or Disposition of such noncash consideration).“Designated Preferred Stock” means Preferred Stock of the Borrower or any direct orindirect parent company thereof (in each case other than Disqualified Stock) that is issued for cash (otherthan to a Restricted Subsidiary) and is so designated as Designated Preferred Stock pursuant to anOfficers’ Certificate delivered to the Agent that is executed by a Responsible Officer of the Borrower onthe issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in thedefinition of “Applicable Amount”.“Discharge of Obligations” shall be deemed to have occurred on the first date that (a) allTerm Commitments shall have been terminated, and (b) all Obligations arising under the LoanDocuments (other than contingent obligations for unasserted claims) shall have been repaid in full. “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition(including any Sale and Lease-Back Transaction and any issuance or sale of Equity Interests of anySubsidiary) of any property of the Borrower or any of the Restricted Subsidiaries. “Disqualified Stock” means, with respect to any Person, any Capital Stock of suchPerson which, by its terms, or by the terms of any security into which it is convertible or for which it isconvertible or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable(other than solely for Capital Stock that is not Disqualified Stock), other than as a result of a change ofcontrol or asset sale, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option ofthe holder thereof (other than as a result of a change of control or asset sale to the extent the terms ofsuch Capital Stock provide that such Capital Stock shall not be required to be repurchased or redeemeduntil the Discharge of Obligations has occurred or such repurchase or redemption is otherwise permittedby this Agreement (including as a result of a waiver hereunder)), in whole or in part, in each case prior tothe date that is ninety-one (91) days after the earlier of the Latest Maturity Date at the time of issuancethereof and the Discharge of Obligations; provided that if such Capital Stock is issued to any plan for thebenefit of employees of the Borrower or its Subsidiaries or by any such plan to such employees, suchCapital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchasedby the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations;provided, further, that any Capital Stock held by any future, present or former employee, director,manager or consultant (or their respective estates, Controlled Investment Affiliates or Immediate FamilyMembers), of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies’ orany other entity in which the Borrower or a Restricted Subsidiary has an Investment and is designated ingood faith as an “affiliate” by the Board of Directors of the Borrower (or the Compensation Committeethereof), in each case pursuant to any stockholders’ agreement, management equity plan or stockincentive plan or any other management or employee benefit plan or agreement shall not constituteDisqualified Stock solely because it may be required to be repurchased by the Borrower or itsSubsidiaries following the termination of employment of any such employee, director, manager orconsultant with the Borrower or its Subsidiaries.“Documentation Agent” means JPMorgan Chase Bank, N.A.“Dollars” and the sign “$” each mean the lawful money of the United States of America.“Domestic Subsidiary” means, with respect to any Person, any Restricted Subsidiary ofsuch Person other than a Foreign Subsidiary. -16-
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“Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, thesixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders,so long as the Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) BusinessDay after the date notice of such Early Opt-in Election is provided to the Lenders, written notice ofobjection to such Early Opt-in Election from Lenders comprising the Required Lenders.“Early Opt-in Election” means the occurrence of:(1) a notification by the Agent to (or the request by the Borrower to the Agent to notify) each of theother parties hereto that at least five currently outstanding U.S. dollar-denominated syndicatedcredit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmarkrate (and such syndicated credit facilities are identified in such notice and are publicly availablefor review), and(2) the joint election by the Agent and the Borrower to trigger a fallback from EurocurrencyScreen Rate and the provision by the Agent of written notice of such election to the Lenders.“ECF Percentage” means, with respect to the prepayment required by Section 2.09(a)with respect to any fiscal year of the Borrower, if the Consolidated Secured Debt Ratio (prior to givingeffect to the applicable prepayment pursuant to Section 2.09(a), but after giving effect to any voluntaryprepayments made pursuant to such Section prior to the date of such prepayment) as of the end of suchfiscal year is (a) greater than 2.50 to 1.00, 50% of Excess Cash Flow for such fiscal year, (b) less than orequal to 2.50 to 1.00 but greater than 1.50 to 1.00, 25% of Excess Cash Flow for such fiscal year and (c)equal to or less than 1.50 to 1.00, 0% of Excess Cash Flow for such fiscal year.“EBITDA” means, with respect to any Person for any period, the Consolidated NetIncome of such Person for such period,(a) increased by (without duplication):(i) provision for taxes based on income or profits, plus franchise or similartaxes, for such period deducted in computing Consolidated Net Income for such period,plus (ii) consolidated Interest Charges for such period to the extent the same wasdeducted in calculating Consolidated Net Income for such period, plus(iii) Consolidated Depreciation and Amortization Expense for such period tothe extent such depreciation and amortization were deducted in computing ConsolidatedNet Income for such period, plus(iv) any expenses or charges related to the Refinancing Transactions, anyEquity Offering, Permitted Investment, acquisition, disposition, recapitalization or theincurrence of Indebtedness permitted to be incurred hereunder including a refinancingthereof (whether or not successful and including any such transaction prior to theClosing Date) and any amendment or modification to the terms of any such transactions,including all fees, expenses or charges deducted in computing Consolidated Net Incomefor such period, plus(v) the amount of any restructuring charge or reserve deducted in suchperiod in computing Consolidated Net Income for such period, including any one-timecosts incurred in connection with (A) acquisitions whether consummated before or after-17-
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the Closing Date or (B) the closing or consolidation of facilities whether before or afterthe Closing Date, plus(vi) any write-offs, write-downs or other noncash charges reducingConsolidated Net Income for such period, excluding any such charge that represents anaccrual or reserve for a cash expenditure for a future period, plus(vii) the amount of any non-controlling interest expense deducted incalculating Consolidated Net Income for such period, plus(viii) the amount of net cost savings projected by the Borrower in good faithto be realized during such period (calculated on a pro forma basis as though such costsavings had been realized on the first day of such period) as a result of actions taken orto be taken in connection with any acquisition or disposition by the Borrower or anyRestricted Subsidiary, net of the amount of actual benefits realized during such periodfrom such actions; provided that (A) such cost savings are reasonably identifiable andfactually supportable, (B) such actions are taken or expected to be taken within 18months after the date of such acquisition or disposition and (C) the aggregate amount ofcost savings added pursuant to this clause (viii) shall not exceed 20% of EBITDA of theBorrower for the most recently ended Test Period prior to the determination date(calculated before giving effect to any adjustments pursuant to this clause (viii)) for anyTest Period (which adjustments may be incremental to pro forma adjustments madepursuant to the second paragraph of the definition of “Interest Coverage Ratio”), plus(ix) any costs or expenses incurred by the Borrower or a RestrictedSubsidiary pursuant to any management equity plan or stock option plan or any othermanagement or employee benefit plan or agreement or any stock subscription orstockholders agreement, to the extent that such costs or expenses are funded with cashproceeds contributed to the capital of the Borrower or net cash proceeds of issuance ofEquity Interests of the Borrower (other than Disqualified Stock) in each case, solely tothe extent that such cash proceeds are excluded from the calculation of the ApplicableAmount, plus(x) any net after-tax non-recurring or unusual gains or losses (less all feesand expenses relating thereto) or expenses (including relating to severance, relocation,unusual contract terminations or one-time compensation charges, warrants or options topurchase Capital Stock of any direct or indirect parent), plus(xi) to the extent covered by insurance and actually reimbursed, or, so longas the Borrower has made a determination that there exists reasonable evidence that suchamount will in fact be reimbursed by the insurer and only to the extent that such amountis (A) not denied by the applicable carrier in writing within 180 days and (B) in factreimbursed within 365 days of the date of such evidence (with a deduction for anyamount so added back to the extent not so reimbursed within such 365 days), expenseswith respect to liability or casualty events or business interruption;(b) decreased by (without duplication) noncash gains included in Consolidated NetIncome of such Person for such period, excluding any noncash gains that represent the reversalof any accrual of, or cash reserve for, anticipated cash charges in any prior period (other than-18-
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such cash charges that have been added back to Consolidated Net Income in calculatingEBITDA in accordance with this definition); and(c) increased (by losses) or decreased (by gains), as applicable, by (withoutduplication) (i) any net noncash gain or loss resulting in such period from Hedging Obligationsand the application of Financial Accounting Codification 815 and (ii) any net noncash gain orloss resulting in such period from currency translation gains or losses related to currencyremeasurements of Indebtedness and (iii) revaluations of intercompany balances.“EEA Financial Institution” means (a) any credit institution or investment firmestablished in any EEA Member Country which is subject to the supervision of an EEA ResolutionAuthority, (b) any entity established in an EEA Member Country which is a parent of an institutiondescribed in clause (a) of this definition, or (c) any financial institution established in an EEA MemberCountry which is a subsidiary of an institution described in clause (a) or (b) of this definition and issubject to consolidated supervision with its parent.“EEA Member Country” means any of the member states of the European Union,Iceland, Liechtenstein, and Norway.“EEA Resolution Authority” means any public administrative authority or any Personentrusted with public administrative authority of any EEA Member Country (including any delegee)having responsibility for the resolution of any EEA Financial Institution.“Effective Yield” for any Indebtedness on any date of determination will be determinedby the Borrower in good faith in consultation with the Agent and consistent with generally acceptedfinancial practices utilizing (a) if applicable, any “Eurocurrency RateTerm SOFR floor” applicable tosuch Indebtedness on such date, (b) the interest margin for such Indebtedness on such date and (c) theissue price of such Indebtedness (after giving effect to any original issue discount (with original issuediscount being equated to interest based on an assumed four-year average life to maturity on a straight-line basis)) or upfront fees (which shall be deemed to constitute like amounts of original issue discount),in each case, incurred or payable to the lenders of such Indebtedness but excluding arrangement,underwriting, commitment, structuring, ticking, unused line, amendment fees and other similar fees notpaid generally to all lenders in the primary syndication of such Indebtedness; provided that with respectto any Indebtedness that includes a “Eurocurrency RateTerm SOFR floor,” (i) to the extent that theEurocurrency RateTerm SOFR (without giving effect to any floors in such definitions), as applicable, onthe date that the Effective Yield is being calculated is less than such floor, the amount of such differenceshall be deemed added to the interest rate margin for such Indebtedness and (ii) to the extent that theEurocurrency RateTerm SOFR (without giving effect to any floors in such definitions), as applicable, onsuch date is greater than such floor, then the floor shall be disregarded.“Electronic Signature” means an electronic sound, symbol, or process attached to, orassociated with, a contract or other record and adopted by a person with the intent to sign, authenticate oraccept such contract or record.“Electronic System” means any electronic system, including e-mail, e-fax, Intralinks®,ClearPar®, Debt Domain, Syndtrak and any other Internet or extranet-based site, whether suchelectronic system is owned, operated or hosted by the Agent and any of its Related Parties or any otherPerson, providing for access to data protected by passcodes or other security system.-19-
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“Environment” means ambient air, indoor air, surface water, groundwater, drinkingwater, land surface, sediments, and subsurface strata & natural resources such as wetlands, flora andfauna. “Environmental Laws” means all laws (including the common law), rules, regulations,codes, ordinances, orders, decrees, judgments, injunctions or legally binding agreements issued,promulgated or entered into by any Governmental Authority, relating in any way to the protection of theEnvironment, preservation or reclamation of natural resources, the management, Release or threatenedRelease of, or exposure to, any Hazardous Material or to worker health and safety matters.“Environmental Liability” means any liability or obligation, contingent or otherwise(including, without limitation, any liability for damages, costs of environmental investigation,remediation, restoration or monitoring, fines, penalties or indemnities), of the Borrower or any RestrictedSubsidiary directly or indirectly resulting from or based upon (a) an actual or alleged violation of orliability under any Environmental Law or any permit, license or approval issued thereunder, (b) thegeneration, use, handling, transportation, storage, treatment of any Hazardous Materials, (c) exposure toany Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into theEnvironment or (e) any contract, agreement or other legally binding consensual arrangement pursuant towhich liability is assumed or imposed with respect to any of the foregoing.“Environmental Permit” means any permit, approval, identification number, license orother authorization required under any Environmental Law.“Equity Interests” means Capital Stock and all warrants, options or other rights toacquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for,Capital Stock. “Equity Offering” means any public or private sale of common stock or Preferred Stockof the Borrower or any of its direct or indirect parent companies (excluding Disqualified Stock), otherthan (a) public offerings with respect to the Borrower’s or any direct or indirect parent company’scommon stock registered on Form S-4 or Form S-8, (b) any such public or private sale that constitutes anExcluded Contribution and (c) an issuance to any direct or indirect parent company of the Borrower, orany Subsidiary of the Borrower.“ERISA” means the Employee Retirement Income Security Act of 1974, as amendedfrom time to time.“ERISA Affiliate” means any trade or business (whether or not incorporated) that,together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or,solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employerunder Section 414 of the Code.“ERISA Event” means (a) any “reportable event,” as defined in Section 4043 of ERISAor the regulations issued thereunder with respect to a Plan (other than an event for which the 30-daynotice period is waived); (b) with respect to any Plan, a failure to satisfy the minimum funding standardunder Section 412 of the Code or Section 302 of ERISA, whether or not waived or a failure to make arequired contribution to a Multiemployer Plan; (c) the filing pursuant to Section 412(c) of the Code orSection 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect toany Plan; (d) a determination that any Plan is in “at-risk” status, within the meaning of Section 430(i)(4)of the Code or Section 303(i)(4) of ERISA; (e) the incurrence by the Borrower or any of its ERISAAffiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (f) an-20-
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event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or theappointment of a trustee to administer, any Plan or Multiemployer Plan; (g) the receipt by the Borroweror any ERISA Affiliate from the PBGC or a plan administrator of any notice of an intent to terminateany Plan or Plans or to appoint a trustee to administer any Plan; (h) the incurrence by the Borrower orany of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal(including under Section 4062(e) of ERISA) from any Plan or Multiemployer Plan; or (i) the receipt bythe Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from theBorrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or adetermination that a Multiemployer Plan is insolvent, within the meaning of Title IV of ERISA or is in“endangered” or “critical” status, within the meaning of Section 432 of the Code or Section 305 ofERISA. “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedulepublished by the Loan Market Association (or any successor Person), as in effect from time to time.“Eurocurrency Liabilities” has the meaning assigned to such term in Regulation D of theFederal Reserve Board.“Eurocurrency Rate” means, in relation to any Term Loan for any Interest Period, therate obtained by dividing (i) the Eurocurrency Screen Rate at approximately 11:00 a.m., London time,two Business Days prior to commencement of the Interest Period; provided that if the EurocurrencyScreen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”)with respect to the applicable currency then the Eurocurrency Rate shall be the Interpolated Rate twoBusiness Days prior to commencement of the Interest Period by (ii) a percentage equal to 1 minus thestated maximum rate (stated as a decimal) of all reserves, if any, required to be maintained againstEurocurrency Liabilities (including any marginal, emergency, special or supplemental reserves);provided that the Eurocurrency Rate shall not be less than 0.00%.“Eurocurrency Screen Rate” means, for any day and time, in relation to any Term Loanfor any Interest Period, the London interbank offered rate as administered by ICE BenchmarkAdministration (or any other Person that takes over the administration of such rate for Dollars for aperiod equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 orLIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on aReuters page or screen, on any successor or substitute page on such screen that displays such rate, or onthe appropriate page of such other information service that publishes such rate from time to time asselected by the Agent in its reasonable discretion)).“Event of Default” has the meaning assigned to such term in Section 7.01.“Excess Cash Flow” means, for any Excess Cash Flow Period, an amount equal to theexcess of: (a) the sum, without duplication, of:(i) Consolidated Net Income of the Borrower for such period,(ii) an amount equal to the amount of all noncash charges to the extentdeducted in arriving at such Consolidated Net Income,-21-
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(iii) decreases in Consolidated Working Capital and long-term accountreceivables for such period (other than any such decreases arising from acquisitions bythe Borrower and its Restricted Subsidiaries completed during such period), and(iv) an amount equal to the aggregate net noncash loss on the sale, lease,transfer or other disposition of assets by the Borrower and its Restricted Subsidiariesduring such period (other than sales in the ordinary course of business) to the extentdeducted in arriving at such Consolidated Net Income; over(b) the sum, without duplication, of:(i) an amount equal to the amount of all noncash credits included inarriving at such Consolidated Net Income and cash charges described in clauses (a)through (j) of the definition of “Consolidated Net Income” and included in arriving atsuch Consolidated Net Income,(ii) without duplication of amounts deducted in arriving at suchConsolidated Net Income or pursuant to subclause (b)(xi) below in prior periods, theamount of Capital Expenditures made in cash during such period, except to the extentthat such Capital Expenditures were not financed with Internally Generated Funds,(iii) the aggregate amount of all principal payments of Indebtedness of theBorrower and its Restricted Subsidiaries (including (x) the principal component ofpayments in respect of Capitalized Lease Obligations and (y) the amount of anyprepayment of Term Loans pursuant to Section 2.06 or, to the extent made with theproceeds of a Disposition that resulted in an increase to Consolidated Net Income andnot in excess of the amount of such increase, Section 2.09(b) but excluding all otherprepayments of the Term Loans) made during such period (other than in respect of anyrevolving credit facility to the extent there is not an equivalent permanent reduction incommitments thereunder), except to the extent financed with the proceeds of otherIndebtedness of the Borrower or its Restricted Subsidiaries (other than under anyrevolving credit facility),(iv) an amount equal to the aggregate net noncash gain on the sale, lease,transfer or other disposition of assets by the Borrower and its Restricted Subsidiariesduring such period (other than sales in the ordinary course of business) to the extentincluded in arriving at such Consolidated Net Income,(v) increases in Consolidated Working Capital and long-term accountreceivables for such period (other than any such increases arising from acquisitions of aPerson or business unit by the Borrower and its Restricted Subsidiaries during suchperiod),(vi) cash payments by the Borrower and the Restricted Subsidiaries duringsuch period in respect of long-term liabilities of the Borrower and the RestrictedSubsidiaries other than Indebtedness,(vii) without duplication of amounts deducted pursuant to subclause (b)(xi)below in prior periods, the amount of Investments and acquisitions made during suchperiod to the extent permitted under Section 6.07 (excluding Investments in (x) CashEquivalents, (y) Investment Grade Securities and (z) the Borrower or any of its-22-
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Restricted Subsidiaries), to the extent that such Investments and acquisitions werefinanced with Internally Generated Funds,(viii) the amount of Restricted Payments made in cash during such period tothe extent permitted under clauses (i), (iii), (v), (vii), (ix), (xi), (xii), (xiv) and (xvii) ofSection 6.04, to the extent that such Restricted Payments were financed with InternallyGenerated Funds,(ix) the aggregate amount of expenditures actually made by the Borrowerand the Restricted Subsidiaries in cash during such period (including expenditures forthe payment of financing fees) to the extent that such expenditures are not expensedduring such period,(x) the aggregate amount of any premium, make-whole or penalty paymentsactually paid in cash by the Borrower and the Restricted Subsidiaries during such periodthat are required to be made in connection with any prepayment of Indebtedness,(xi) without duplication of amounts deducted in arriving at suchConsolidated Net Income or deducted from Excess Cash Flow in prior periods, (A) theaggregate consideration required to be paid in cash by the Borrower or any of itsRestricted Subsidiaries pursuant to binding contracts, letters of intent or purchase orders(the “Contract Consideration”) entered into prior to or during such period relating toacquisitions or Capital Expenditures and (B) to the extent set forth in a certificate of aFinancial Officer delivered to the Agent prior to the relevant Excess Cash FlowApplication Date, the aggregate amount of cash that is reasonably expected to be paid inrespect of planned cash Capital Expenditures by the Borrower or any of its RestrictedSubsidiaries (“Planned Capital Expenditures”), in each case to be consummated or madeduring the period of four consecutive fiscal quarters of the Borrower following the endof such period; provided that to the extent the aggregate amount of Internally GeneratedFunds actually utilized to finance such acquisitions, Capital Expenditures or PlannedCapital Expenditures during such period of four consecutive fiscal quarters is less thanthe Contract Consideration or Planned Capital Expenditures, the amount of suchshortfall shall be added to the calculation of Excess Cash Flow at the end of such periodof four consecutive fiscal quarters,(xii) the amount of cash taxes paid in such period to the extent they exceedthe amount of tax expense deducted in determining Consolidated Net Income for suchperiod, and(xiii) an amount equal to the aggregate net cash losses on the sale, lease,transfer or other disposition of assets by the Borrower and its Restricted Subsidiariesduring such period (other than sales in the ordinary course of business) to the extentdeducted in determining Consolidated Net Income.“Excess Cash Flow Period” means each fiscal year of the Borrower, commencing withthe fiscal year ending December 31, 2018.“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rulesand regulations of the SEC promulgated thereunder.-23-
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“Excluded Property” has the meaning assigned to such term in the Security Agreement.“Excluded Contribution” means net cash proceeds, marketable securities or QualifiedProceeds received by the Borrower from (a) contributions to its common equity capital (other than fromthe proceeds of Designated Preferred Stock or Disqualified Stock) and (b) the sale (other than to aSubsidiary of the Borrower or to any management equity plan or stock option plan or any othermanagement or employee benefit plan or agreement of the Borrower) of Capital Stock (other thanDisqualified Stock or Designated Preferred Stock) of the Borrower, in each case designated as ExcludedContributions pursuant to an Officers’ Certificate executed by an executive vice president and theprincipal financial officer of the Borrower on the date such capital contributions are made or the datesuch Equity Interests are sold, as the case may be, which are excluded from the calculation of theApplicable Amount, not used to incur Indebtedness in reliance on Section 6.01(b)(xx)(B) or used tomake Restricted Payments in reliance on Section 6.04(a)(iii).“Excluded Subsidiary” means any Domestic Subsidiary that is (a) not a Wholly-OwnedSubsidiary, (b) an Unrestricted Subsidiary, (c) a FSHCO, (d) a Subsidiary of a Foreign Subsidiary that isa CFC, (e) a Receivables Subsidiary, (f) [reserved], (g) regulated as an insurance company, (h) organizedas a not-for-profit organization or (i) prohibited by any agreement binding on such Subsidiary at the timesuch Domestic Subsidiary became a Subsidiary and not created in contemplation thereof from becominga Subsidiary Guarantor (for so long as such prohibition remains in effect).“Excluded Swap Obligation” means, with respect to any Loan Party, any SwapObligation if, and to the extent that, all or a portion of the guarantee of such Loan Party of, or the grantby such Loan Party of a security interest to secure, such Swap Obligation (or any guarantee thereof) is orbecomes illegal under the Commodity Exchange Act or any rule, regulation or order of the CommodityFutures Trading Commission (or the application or official interpretation of any thereof) by virtue ofsuch Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in theCommodity Exchange Act at the time the guarantee of such Loan Party becomes effective with respectto such related Swap Obligation.“Excluded Taxes” means, with respect to any Agent, Lender or any other recipient ofany payment to be made by or on account of any obligation of the Borrower or any other Loan Partyhereunder, (a) Taxes imposed on (or measured by) its net income (however denominated), or franchisetaxes imposed in lieu thereof, in each case, by a jurisdiction as a result of such recipient being organizedor having its principal office or, in the case of any Lender, having its applicable lending office, in suchjurisdiction, (b) any branch profits Taxes under Section 884 of the Code, or any similar Tax, imposed bya jurisdiction described in clause (a), (c) in the case of a Lender (other than an assignee pursuant to arequest by the Borrower under Section 2.17(b)), any U.S. federal withholding Tax that is imposed onamounts payable to such Lender pursuant to a law in effect on the date such Lender becomes a party tothis Agreement (or designates a new lending office), except to the extent such Lender (or its assignor, ifany) was entitled, at the time of designation of a new lending office (or assignment), to receiveadditional amounts from the Borrower or any other Loan Party with respect to such withholding Taxpursuant to Section 2.15(a) or (e), (d) any Taxes imposed under FATCA, and (e) in the case of a Lender,any withholding Tax that is attributable to such Lender’s failure to comply with Section 2.15(f).“Existing Class” has the meaning assigned to such term in Section 2.19(e).“Extended Term Loans” has the meaning assigned to such term in Section 2.19(e).“Extending Lender” has the meaning assigned to such term in Section 2.19(e).-24-
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“Extension Election” has the meaning assigned to such term in Section 2.19(e).“Extension Request” has the meaning assigned to such term in Section 2.19(e).“Extension Series” means all Extended Term Loans that are established pursuant to thesame supplement pursuant to Section 2.19 (except to the extent such supplement expressly provides thatthe Extended Term Loans provided for therein are intended to be a part of any previously establishedClass of Term Loans) and that provide for the same interest margins, extension fees and amortizationschedule. “FATCA” means Sections 1471 through 1474 of the Code, as of the date of thisAgreement (or any amended or successor version that is substantively comparable and not materiallymore onerous to comply with), any current or future regulations or official interpretations thereof andany agreement entered into pursuant to Section 1471(b)(1) of the Code as of the date of this Agreement(or any amended or successor version described above), and any intergovernmental agreements (togetherwith any related laws, rules, legislation or official administrative guidance) implementing the foregoing.“FEMA” means the Federal Emergency Management Agency.“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRBbased on such day’s federal funds transactions by depositary institutions, as determined in such manneras the NYFRB shall set forth on its public website from time to time, and published on the nextsucceeding Business Day by the NYFRB as the federal funds effective rate; provided that if the FederalFunds Effective Rate shall be less than 0.00%, such rate shall be deemed 0.00% for the purposes of thisAgreement. “Fees” means all amounts payable pursuant to or referred to in Section 2.10.“Financial Officer” means the chief financial officer, treasurer or controller of theBorrower. “First Amendment” means that certain First Amendment to this Agreement, dated as ofApril 17, 2018, among the Borrower, the Agent, the Lenders party thereto and the Purchasing TermLender. “First Amendment Effective Date” means April 17, 2018.“First Lien Intercreditor Agreement” shall mean an intercreditor agreement in customaryform reasonably acceptable to the Agent and the Borrower.“Flood Insurance Laws” means, collectively, (i) National Flood Insurance Reform Actof 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the FloodDisaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) theFlood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and(iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or anysuccessor statute thereto.“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (asof the execution of this Agreement, the modification, amendment (including, for the avoidance of doubt,-25-
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Amendment No. 3) or renewal of this Agreement or otherwise) with respect to Eurocurrency ScreenRateTerm SOFR.“Foreign Subsidiary” means, with respect to any Person, any Restricted Subsidiary ofsuch Person that is not organized under the laws of the United States of America, any state thereof or theDistrict of Columbia.“FSHCO” means any Domestic Subsidiary that has no material assets other than CapitalStock of one or more CFCs.“Funded Debt” means all Indebtedness of the Borrower and its Restricted Subsidiariesfor borrowed money that matures more than one year from the date of its creation or matures within oneyear from such date that is renewable or extendable, at the option of such Person, to a date more than oneyear from such date or arises under a revolving credit or similar agreement that obligates the lender orlenders to extend credit during a period of more than one year from such date, including Indebtedness inrespect of the Term Loans.“GAAP” means generally accepted accounting principles in the United States ofAmerica as in effect, subject to Section 1.08, from time to time.“Governmental Authority” means the government of the United States of America, anyother nation, sovereign or government, any state, province or territory or any political subdivisionthereof, and any agency, authority, instrumentality, regulatory body, court, central bank or other entityexercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of orpertaining to government.“guarantee” means a guarantee (other than by endorsement of negotiable instruments forcollection in the ordinary course of business), direct or indirect, in any manner (including letters of creditand reimbursement agreements in respect thereof), of all or any part of any Indebtedness or otherobligations, and, when used as a verb, shall have a corresponding meaning.“Guaranteed Obligations” has the meaning assigned to such term in Section 10.01(a).“Guarantor Percentage” has the meaning assigned to such term in Section 10.10.“Hazardous Materials” means all explosive or radioactive substances or wastes and allother substances, wastes, materials, pollutants or contaminants, of any nature, regulated pursuant to anyEnvironmental Law, including petroleum products, by-products or petroleum distillates, asbestos orasbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes.“Hedge Agreement” means any agreement with respect to any Derivative Transactionbetween the Borrower or any Restricted Subsidiary and any other Person.“Hedging Obligations” means, with respect to any Person, the obligations of suchPerson under any Hedge Agreement. “Immediate Family Members” means with respect to any individual, such individual’xxxxxx, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, formerspouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law(including adoptive relationships) and any trust, partnership or other bona fide estate-planning vehiclethe only beneficiaries of which are any of the foregoing individuals or any private foundation or fund-26-
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that is controlled by any of the foregoing individuals or any donor-advised fund of which any suchindividual is the donor.“Impacted Interest Period” has the meaning assigned to such term in the definition of“Eurocurrency Rate”.“Increased Amount Date” has the meaning assigned to such term in Section 2.19(a).“Incremental Amendment No. 1 Effective Date” means the date on which the conditionsprecedent set forth in Section 5 of the Incremental Facility Amendment No. 1 were satisfied or waived inaccordance therewith.“Incremental Amendment No. 2 Effective Date” has the meaning set forth inIncremental Facility Amendment No. 2.“Incremental Facility Amendment No. 1” means that certain Incremental FacilityAmendment No. 1 to Credit Agreement dated as of July 19, 2018, among the Borrower, the other LoanParties thereto, the Agent and the Lenders party thereto.“Incremental Facility Amendment No. 2” means that certain Incremental FacilityAmendment No. 2 to Credit Agreement dated as of October 8, 2021, among the Borrower, the otherLoan Parties thereto, the Agent and the Lenders party thereto.“Incremental Term Loan” means any New Term Loans made after the Closing Date(including, for the avoidance of doubt, the 2018 Incremental Term Loans and the 2021 Incremental TermLoans). “incur” has the meaning assigned to such term in Section 6.01(a).“incurrence” has the meaning assigned to such term in Section 6.01(a).“Indebtedness” means, with respect to any Person, (a) any indebtedness (includingprincipal and premium) of such Person, whether or not contingent (i) in respect of borrowed money, (ii)evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances(or, without duplication, reimbursement agreements in respect thereof), (iii) representing the balancedeferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations),except any such balance that constitutes a trade payable or similar obligation to a trade creditor, in eachcase accrued in the ordinary course of business, (iv) advances under, or in respect of ReceivablesFacilities or (v) representing any Hedging Obligations, if and to the extent that any of the foregoingIndebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon abalance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; (b) tothe extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor,guarantor or otherwise, on the obligations of the type referred to in clause (a) of another Person (whetheror not such items would appear upon the balance sheet of such obligor or guarantor), other than byendorsement of negotiable instruments for collection in the ordinary course of business; (c) to the extentnot otherwise included, the obligations of the type referred to in clause (a) of another Person secured bya Lien on any asset owned by such Person, whether or not such obligations are assumed by such Personand whether or not such obligations would appear upon the balance sheet of such Person; provided thatthe amount of such Indebtedness will be the lesser of the fair market value of such asset at the date ofdetermination and the amount of Indebtedness so secured; and (d) Attributable Debt in respect of Saleand Lease-Back Transactions; provided, however, that notwithstanding the foregoing, Indebtedness will-27-
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be deemed not to include Contingent Obligations incurred in the ordinary course of business with respectto obligations not constituting Indebtedness of a type described in any of clauses (a) through (d) above.“Indemnified Taxes” means (a) all Taxes, other than Excluded Taxes, imposed on orwith respect to any payment made by or on account of any obligation of any Loan Party under any LoanDocument and (b) to the extent not otherwise described in (a), all Other Taxes.“Independent Financial Advisor” means an accounting, appraisal, investment bankingfirm or consultant of nationally recognized standing that is, in the good faith judgment of the Borrower,qualified to perform the task for which it has been engaged and that is independent of the Borrower andits Affiliates. “Ineligible Institution” has the meaning assigned to such term in Section 9.04(b).“Information” has the meaning assigned to such term in Section 3.13(a) except, forpurposes of Section 9.12, in Section 9.12.“Information Memorandum” means the Confidential Information Memorandum datedJune 2017, relating to this Agreement.“Initial Term Commitment” means with respect to each Initial Term Lender, thecommitment of such Initial Term Lender to make Initial Term Loans in the aggregate principal amountset forth opposite such Initial Term Lender’s name on the Commitments Schedule under the heading“Initial Term Commitments” or on Schedule I to Incremental Facility Amendment No. 1, as applicable.“Initial Term Lender” means each Lender that has an Initial Term Commitment or that isa holder of Initial Term Loans. For the avoidance of doubt, each Lender making an Incremental TermLoan pursuant to Incremental Facility Amendment No. 1 shall constitute an “Initial Term Lender”hereunder. “Initial Term Loan” has the meaning assigned to such term in Section 2.01; providedthat, on and after the Incremental Amendment No. 1 Effective Date, Initial Term Loans shall include the2018 Incremental Term Loans incurred under the Incremental Facility Amendment No. 1.“Initial Term Loan Facility” means the provisions herein related to the Initial TermCommitments and Initial Term Loans.“Initial Term Loan Facility Consent or Termination Date” means the earliest of (i) thatdate that all Initial Term Lenders have consented to the 100% Lender Consent Amendments, (ii) the datethat the Initial Term Loan Facility is refinanced or otherwise replaced and each new Initial Term Lenderhas consented to the 100% Lender Consent Amendments or (iii) the date that all of the Initial TermLoans are no longer outstanding under this Agreement.“Initial Term Loan Maturity Date” means June 30, 2024.“Interest Charges” means, with respect to any Person for any period, the sum of (a)Consolidated Interest Expense of such Person for such period, (b) the consolidated amount of all cashdividend payments (excluding items eliminated in consolidation) on any series of Preferred Stock(including any dividends paid to any direct or indirect parent company of the Borrower in order topermit the payment of dividends by such parent company on its Designated Preferred Stock) paid bysuch Person and its Restricted Subsidiaries during such period and (c) the consolidated amount of all-28-
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cash dividend payments (excluding items eliminated in consolidation) by such Person and its RestrictedSubsidiaries on any series of Disqualified Stock made during such period.“Interest Coverage Ratio” means, with respect to any Person for any period, the ratio ofEBITDA of such Person for such period to the Interest Charges of such Person for such period. In theevent that the Borrower or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires orextinguishes any Indebtedness (other than Indebtedness incurred under any revolving credit facilityunless such revolving credit facility has been permanently repaid and has not been replaced) or issues orredeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period for whichthe Interest Coverage Ratio is being calculated but prior to or simultaneously with the event for whichthe calculation of the Interest Coverage Ratio is made (the “Calculation Date”), then the InterestCoverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee,redemption, retirement or extinguishing of Indebtedness, or such issuance or redemption of DisqualifiedStock or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarterperiod (the “reference period”).For purposes of making the computation referred to above, Investments, acquisitions,Dispositions, mergers, consolidations and disposed operations (as determined in accordance with GAAP)that have been made by the Borrower or any Restricted Subsidiary during the applicable reference periodor subsequent to such reference period and on or prior to or simultaneously with the Calculation Dateshall be calculated on a pro forma basis assuming that all such Investments, acquisitions, Dispositions,mergers, consolidations and disposed operations (and the change in any associated Interest Charges andthe change in EBITDA resulting therefrom) had occurred on the first day of the reference period;provided that, at the option of the Borrower, no such pro forma adjustment to EBITDA shall be made inrespect of any such transaction to the extent the aggregate consideration with respect to any suchtransaction was less than $25.0 million for the reference period. If since the beginning of such periodany Person (that subsequently became a Restricted Subsidiary or was merged with or into the Borroweror any Restricted Subsidiary since the beginning of such period) shall have made any Investment,acquisition, Disposition, merger, consolidation or disposed operation that would have requiredadjustment pursuant to this definition, then the Interest Coverage Ratio shall be calculated giving proforma effect thereto for such period as if such Investment, acquisition, Disposition, merger,consolidation or disposed operation had occurred at the beginning of the reference period (subject to thethreshold specified in the previous sentence).For purposes of this definition, whenever pro forma effect is to be given to a transaction,the pro forma calculations shall be made in good faith by a responsible financial or accounting officer ofthe Borrower. 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 Calculation Date hadbeen the applicable rate for the entire period (taking into account any Hedging Obligations applicable tosuch Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interestrate reasonably determined by a Financial Officer of the Borrower in accordance with GAAP. Forpurposes of making the computation referred to above, interest on any Indebtedness under a revolvingcredit facility computed on a pro forma basis shall be computed based upon the average daily balance ofsuch Indebtedness during the applicable period. Interest on Indebtedness that may optionally bedetermined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbankoffered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none,then based upon such optional rate chosen as the Borrower may designate.“Interest Election Request” means a request by the Borrower to convert or continue aBorrowing in accordance with Section 2.12. -29-
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“Interest Period” means with respect to any Eurocurrency RateTerm SOFR Borrowing,the period commencing on the date of such Borrowing and ending on the numerically corresponding dayin the calendar month that is one, two, three or six months (or, to the extent agreed to by the Agent andeach Lender making such Eurocurrency Rate Borrowing, twelve months or any shorter period)thereafter, as the Borrower may elect; provided that (a) if any Interest Period would end on a day otherthan a Business Day, such Interest Period shall be extended to the next succeeding Business Day unlesssuch next succeeding Business Day would fall in the next calendar month, in which case such InterestPeriod shall end on the next preceding Business Day, (b) any Interest Period that commences on the lastBusiness Day of a calendar month (or on a day for which there is no numerically corresponding day inthe last calendar month of such Interest Period) shall end on the last Business Day of the last calendarmonth of such Interest Period and (c) no Interest Period for any Eurocurrency RateTerm SOFR TermLoans shall end after the stated maturity date of such Term Loans.“Internally Generated Funds” means any amount expended by the Borrower and itsRestricted Subsidiaries and not representing (a) a reinvestment by the Borrower or any RestrictedSubsidiaries of the Net Cash Proceeds of any Disposition outside the ordinary course of business orCasualty Event, (b) the proceeds of any issuance of Indebtedness of the Borrower or any RestrictedSubsidiary (other than Indebtedness under any revolving credit facility) or (c) any credit received by theBorrower or any Restricted Subsidiary with respect to any trade in of property for substantially similarproperty or any “like kind exchange” of assets.“Interpolated Rate” means, at any time, for any Interest Period, the rate per annum(rounded to the same number of decimal places as the Eurocurrency Screen Rate) determined by theAgent (which determination shall be conclusive and binding absent manifest error) to be equal to the ratethat results from interpolating on a linear basis between: (a) the Eurocurrency Screen Rate for thelongest period (for which the Eurocurrency Screen Rate is available for the Dollars) that is shorter thanthe Impacted Interest Period; and (b) the Eurocurrency Screen Rate for the shortest period (for whichthat Eurocurrency Screen Rate is available for Dollars) that exceeds the Impacted Interest Period, in eachcase, two Business Days prior to the commencement of the Interest Period.“Investment Grade Securities” means (a) securities issued or directly and fullyguaranteed or insured by the government of the United States of America or any agency orinstrumentality thereof (other than Cash Equivalents), (b) debt securities or debt instruments with arating of BBB- or higher by S&P or Baa3 or higher by Moody’s or the equivalent of such rating by suchrating organization, or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by anyother nationally recognized securities rating agency, but excluding any debt securities or instrumentsconstituting loans or advances among the Borrower and its subsidiaries, (c) investments in any fund thatinvests exclusively in investments of the type described in clauses (a) and (b), which fund may also holdimmaterial amounts of cash pending investment or distribution and (d) corresponding instruments incountries other than the United States of America customarily utilized for high quality investments, ineach case, consistent with the Borrower’s cash management and investment practices.“Investments” means, with respect to any Person, all investments by such Person inother Persons (including Affiliates) in the form of guarantees, loans or advances of money or capitalcontributions to such Person (but excluding any such loan, advance or capital contribution arising in theordinary course of business and having a term not exceeding 364 days and furthermore excluding, forthe avoidance of doubt, any extensions of trade credit in the ordinary course of business) or purchases orother acquisitions of stocks, bonds, debentures, notes or similar securities or equity interests issued bysuch Person. For purposes of the definition of “Unrestricted Subsidiary” and Section 6.07, (a)“Investments” shall include the portion (proportionate to the Borrower’s equity interest in suchSubsidiary) of the fair market value of the net assets of a Subsidiary of the Borrower at the time that such-30-
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Subsidiary is designated an Unrestricted Subsidiary; provided that upon a redesignation of suchUnrestricted Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have apermanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (i) theBorrower’s “Investment” in such Subsidiary at the time of such redesignation, less (ii) the portion(proportionate to the Borrower’s equity interest in such Subsidiary) of the fair market value of the netassets of such Subsidiary at the time of such redesignation, and (b) any property transferred to or from anUnrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each caseas determined in good faith by the Borrower. For the avoidance of doubt, a guarantee by a specifiedPerson of the obligations of another Person (the “primary obligor”) shall be deemed to be an Investmentby such specified Person in the primary obligor to the extent of such guarantee except that any guaranteeby any Loan Party of the obligations of a primary obligor in favor of a Loan Party shall be deemed to bean Investment by a Loan Party in another Loan Party.“IRS” means the U.S. Internal Revenue Service.“Joinder Agreement” has the meaning assigned to such term in Section 5.11(a).“Joint Lead Arrangers” means (x) Xxxxxxx Xxxxx Lending Partners LLC, MerrillLynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (or any other registered broker-dealer wholly-owned byBank of America Corporation to which all or substantially all of Bank of America Corporation’s or anyof its subsidiaries’ investment banking, commercial lending services or related businesses may betransferred following the date of this Agreement) and XX Xxxxxx Xxxxx Bank, N.A and (y) the 2021Incremental Amendment Lead Arrangers.“Junior Indebtedness” means any Material Indebtedness of the Borrower or anySubsidiary Guarantor (other than Indebtedness owing to the Borrower or a Restricted Subsidiary) that iseither (x) by its terms expressly subordinated to the obligations of the Borrower or such SubsidiaryGuarantor under this Agreement with respect to the Obligations or (y) secured by a Lien on Collateralthat is junior to the Liens securing the Obligations.“Junior Lien Intercreditor Agreement” means an intercreditor agreement in customaryform reasonably acceptable to the Agent and the Borrower.“Latest Maturity Date” means, at any time, the latest final maturity date then in effectfor any Class of Term Loans outstanding under this Agreement.“LCT Election” has the meaning assigned to such term in Section 1.08.“LCT Test Date” has the meaning assigned to such term in Section 1.08.“Lending Office” means, with respect to any Lender, the office of such Lender specifiedas its “Lending Office” in its Administrative Questionnaire or such other office of such Lender as suchLender may from time to time specify to the Borrower and the Agent.“Lender Parent” means, with respect to any Lender, any Person as to which such Lenderis, directly or indirectly, a subsidiary.“Lenders” means the lenders having Term Commitments or Term Loans from time totime or at any time and, as the context requires, includes their respective successors and assigns aspermitted hereunder and any other Person that shall have become a party hereto pursuant to Section 2.19or an Assignment and Assumption (including the Purchasing Term Lender), other than any such Person-31-
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that ceases to be a party hereto pursuant to an Assignment and Assumption. For the avoidance of doubt,each Lender making an Incremental Term Loan pursuant to (i) the Incremental Facility Amendment No.1 shall constitute a “Lender” hereunder and, after the Incremental Amendment No. 1 Effective Date, theAgent shall update and/or modify the Register to give effect to the Incremental Amendment No. 1Effective Date and the transactions contemplated by the Incremental Facility Amendment No. 1 and (ii)the Incremental Facility Amendment No. 2 shall constitute a “Lender” hereunder and, after theIncremental Amendment No. 2 Effective Date, the Agent shall update and/or modify the Register to giveeffect to the Incremental Amendment No. 2 Effective Date and the transactions contemplated by theIncremental Facility Amendment No. 2.“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, securityinterest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwiseperfected under applicable law, including any conditional sale or other title retention agreement, anylease in the nature thereof, any option or other agreement to sell or give a security interest in and anyfiling of or agreement to give any financing statement under the UCC (or equivalent statutes) of anyjurisdiction; provided that in no event shall an operating lease or license be deemed to constitute a Lien.“Limited Condition Acquisition” means any acquisition of an Acquired Entity orBusiness by the Borrower or any Restricted Subsidiary the consummation of which is not conditioned onthe availability of financing.“Loan Documents” means this Agreement, any promissory notes issued pursuant to thisAgreement, the Collateral Documents, the ABL Intercreditor Agreement, any First Lien IntercreditorAgreement, any Junior Lien Intercreditor Agreement, the First Amendment, the Incremental FacilityAmendment No. 1, the Incremental Facility Amendment No. 2, Amendment No. 3 and any otheragreement, document or instrument to which any Loan Party is a party and which is designated as aLoan Document. Any reference in this Agreement or any other Loan Document to a Loan Documentshall include all appendices, exhibits or schedules thereto, and all amendments, restatements,supplements or other modifications thereto.“Loan Guarantor” means each Loan Party (other than the Borrower).“Loan Guaranty” means Article X of this Agreement.“Loan Parties” means the Borrower, each of the Domestic Subsidiaries of the Borrowerthat is a party to this Agreement as a Loan Guarantor on the Closing Date or that becomes a party to thisAgreement as a Loan Guarantor pursuant to a Joinder Agreement, and their respective successors andassigns except for any such Domestic Subsidiary that has been released as a Loan Guarantor inaccordance herewith.“Management Stockholders” means the members of management (and their ControlledInvestment Affiliates and Immediate Family Members) of the Borrower or its direct or indirect parentwho are holders of Equity Interests of any direct or indirect parent company of the Borrower on theClosing Date. “Margin Stock” has the meaning assigned to such term in Regulation U.“Material Adverse Effect” means a material adverse effect on (a) the business, assets,operations or financial condition of the Borrower and the Restricted Subsidiaries taken as a whole, (b)the ability of the Borrower and the other Loan Parties (taken as a whole) to perform their payment-32-
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obligations under the Loan Documents or (c) the rights of, or remedies available to, the Agent or theLenders under the Loan Documents.“Material Indebtedness” means Indebtedness (other than the Term Loans), or obligationsin respect of one or more Hedge Agreements, of any one or more of the Borrower and the RestrictedSubsidiaries in an aggregate principal amount exceeding $50.0 million. For purposes of determiningMaterial Indebtedness, the “obligations” of the Borrower or any Restricted Subsidiary in respect of anyHedge Agreement at any time shall be the maximum aggregate amount (giving effect to any nettingagreements) that the Borrower or such Restricted Subsidiary would be required to pay if such HedgeAgreement were terminated at such time.“Maximum Incremental Amount” means, at any time, the sum of (a) the greater of(i) $400.0 million and (ii) 100% of EBITDA of the Borrower for the most recently ended Test Periodminus the aggregate principal amount of New Term Loans and Permitted Alternative IncrementalFacilities Debt previously established or incurred in reliance on this clause (a), plus (b) the aggregateprincipal amount of Term Loans outstanding on the Closing Date (or established pursuant to clause (a)above) that are optionally prepaid or optionally reduced (other than with the proceeds of long-termIndebtedness (other than borrowings under any revolving credit facility)) following the Closing Date andon or prior to such time (and, in the case of any prepayment of Term Loans pursuant to Section 2.08(d),based on the amount expended by the Borrower pursuant to such Section 2.08(d) and not the principalamount), plus (c) an unlimited amount so long as, in the case of this clause (c) only, on a pro forma basis(including the application of proceeds therefrom but excluding any increase in cash and cash equivalentsand treating all Permitted Alternative Incremental Facilities Debt incurred pursuant to this clause (c) assecured by pari passu Liens on the Collateral whether or not actually secured (but without giving effectto any substantially simultaneous incurrence of any New Term Loans or Permitted AlternativeIncremental Facilities Debt made pursuant to the foregoing clauses (a) and (b))), the Consolidated FirstLien Debt Ratio would not exceed 2.00 to 1.00 (it being understood that the Borrower shall be deemed tohave used amounts under clause (c) (to the extent compliant herewith) prior to utilization of amountsunder clause (a) or (b)).“Maximum Liability” has the meaning assigned to such term in Section 10.09.“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor to its ratingagency business.“Mortgaged Property” means, initially, each owned real property of the Loan Partiesspecified on Schedule 1.01(b), and shall include each other parcel of real property and improvementsthereto with respect to which a Mortgage is granted pursuant to Section 5.11.“Mortgage” means any mortgage, deed of trust or other agreement which conveys orevidences a Lien in favor of the Agent, for the benefit of the Agent and the other Secured Parties, on fee-owned real property of a Loan Party, including any amendment, modification or supplement thereto.“Multiemployer Plan” means a multiemployer plan as defined in Section 3(37) or4001(a)(3) of ERISA.“Net Cash Proceeds” means, with respect to any Prepayment Event, (a) the gross cashproceeds (including payments from time to time in respect of installment obligations, if applicable) asand when actually received by or freely transferable for the account of the Borrower or any of theRestricted Subsidiaries in respect of such Prepayment Event, less (b) the sum of:-33-
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(i) the amount, if any, of all taxes paid or estimated to be payable by the Borroweror any of the Restricted Subsidiaries in connection with such Prepayment Event; provided thatany estimated taxes not actually paid shall be deemed to be Net Cash Proceeds of suchPrepayment Event,(ii) the amount of any reasonable reserve established in accordance with GAAP inrespect of (A) the sale price of the assets that are the subject of an Asset Sale Prepayment Event(including in respect of working capital adjustments or an evaluation of such assets) or (B) anyliabilities (other than any taxes deducted pursuant to clause (i) above) (x) associated with theassets that are the subject of such Prepayment Event and (y) retained by the Borrower or any ofthe Restricted Subsidiaries, including pension and other post-employment benefit liabilities andliabilities related to environmental matters or against any indemnification obligations associatedwith such transaction; provided that the amount of any subsequent reduction of such reserve(other than in connection with a payment in respect of any purchase price adjustments or suchliability) shall be deemed to be Net Cash Proceeds of such Prepayment Event occurring on thedate of such reduction,(iii) the principal amount, premium or penalty, if any, interest and other amountspayable on or in respect of any Indebtedness secured by a Lien on the assets that are the subjectof such Prepayment Event (other than Indebtedness under this Agreement and Indebtednesssecured on a pari passu basis with or junior priority basis to the Obligations) to the extent thatsuch Indebtedness is, or under the instrument creating or evidencing such Indebtedness, isrequired to be repaid upon consummation of such Prepayment Event,(iv) in the case of any Asset Sale Prepayment Event or Casualty Event, the amountof any proceeds of such Prepayment Event that the Borrower or any Restricted Subsidiary hasreinvested (or intends to reinvest within the Reinvestment Period) in the business of theBorrower or any of the Restricted Subsidiaries; provided that any portion of such proceeds thathas not been so reinvested within such Reinvestment Period (with respect to such PrepaymentEvent, the “Deferred Net Cash Proceeds”) shall (x) be deemed to be Net Cash Proceeds of anAsset Sale Prepayment Event or Casualty Event occurring on the last day of such ReinvestmentPeriod, and (y) be applied to the repayment of Term Loans in accordance with Section 2.09(b)and (v) the reasonable out-of-pocket fees and expenses actually incurred in connectionwith such Prepayment Event.“Net Income” means, with respect to any Person, the net income (loss) of such Person,determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.“New Term Commitments” has the meaning assigned thereto in Section 2.19(a).“New Term Loan” has the meaning assigned thereto in Section 2.19(c).“New Term Loan Lender” means each Lender providing a New Term Commitment.“Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(e).“Non-Funding Lender” has the meaning assigned to such term in Section 2.02(d).-34-
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“Non-Paying Guarantor” has the meaning assigned to such term in Section 10.10.“Non-U.S. Lender” means a Lender that is not a “United States person” within themeaning of Section 7701(a)(30) of the Code.“NYFRB” means the Federal Reserve Bank of New York.“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Ratein effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day thatis not a Business Day, for the immediately preceding Business Day); provided that if none of such ratesis published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federalfunds transaction quoted at 11:00 a.m. on such day received by the Agent from a federal funds broker ofrecognized standing selected by it; provided, further, that if any of the aforesaid rates shall be less thanzero, such rate shall be deemed to be zero for purposes of this Agreement.“Obligated Party” has the meaning assigned to such term in Section 10.02.“Obligations” means all unpaid principal of and accrued and unpaid interest on the TermLoans made to the Borrower, all accrued and unpaid fees (including pursuant to Section 2.10 of thisAgreement) and all expenses, reimbursements, indemnities and other obligations of the Loan Parties tothe Lenders or to any Lender, the Agent or any indemnified party arising under the Loan Documents(including interest and fees accruing after commencement of any bankruptcy or insolvency proceedingagainst any Loan Party, whether or not allowed in such proceeding).“Officer” means the Chairman of the Board, the Chief Executive Officer, the President,the Chief Financial Officer, the Treasurer, any Executive Vice President, Senior Vice President or VicePresident or the Secretary of the Borrower.“Officers’ Certificate” means a certificate signed on behalf of the Borrower by anOfficer of the Borrower.“Other Information” has the meaning assigned to such term in Section 3.13(b).“Other Taxes” means all present or future stamp, registration, court or documentary,intangible, recording, filing or similar Taxes arising from any payment made or required to be madeunder, from the execution, delivery, performance, enforcement or registration of, from the receipt orperfection of a security interest under, or otherwise with respect to, this Agreement or any other LoanDocument. “Overnight Bank Funding Rate” means, for any day, the rate comprised of bothovernight federal funds and overnight eurodollar borrowings by U.S.-managed banking offices ofdepository institutions, as such composite rate shall be determined by the NYFRB as set forth on itspublic website from time to time, and published on the next succeeding Business Day by the NYFRB asan overnight bank funding rate (from and after such date as the NYFRB shall commence to publish suchcomposite rate). “Participant” has the meaning assigned to such term in Section 9.04(c).“Participant Register” has the meaning assigned to such term in Section 9.04(c).-35-
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“Paying Guarantor” has the meaning assigned to such term in Section 10.10.“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined inERISA and any successor entity performing similar functions.“Perfection Certificate” means a certificate in the form of Exhibit B to the SecurityAgreement or any other form approved by the Agent.“Periodic Term SOFR Determination Day” has the meaning assigned to such term in thedefinition of “Term SOFR.”“Permitted Alternative Incremental Facilities Debt” has the meaning assigned to suchterm in Section 6.01(b)(xxvii).“Permitted Business” means any business conducted by the Borrower or any of itsRestricted Subsidiaries that is not in contravention of Section 6.11.“Permitted Holder” means each of the Management Stockholders and any group (assuch term is used in the definition of “Change of Control”) of which any of the foregoing are members;provided that, in the case of such group and without giving effect to the existence of such group or anyother group, the Management Stockholders, collectively, have beneficial ownership of more than 50% ofthe total voting power of the Voting Stock of the Borrower or any of its direct or indirect parentcompanies. “Permitted Investments” means:(a) any Investment by the Borrower or any Restricted Subsidiary in the Borrower orany Restricted Subsidiary; provided that any Investments made pursuant to this clause (a) by anyLoan Party in any Restricted Subsidiary that is not a Loan Party, together with any Investmentsmade pursuant to clause (c) of this definition in any Restricted Subsidiary that is not or does notbecome a Loan Party, shall not exceed in the aggregate the greater of (x) $200.0 million and(y) 50% of EBITDA of the Borrower for the most recently ended Test Period for which financialstatements have been delivered;(b) any Investment in cash and Cash Equivalents or Investment Grade Securities;(c) (i) any Investment by the Borrower or any Restricted Subsidiary in any Person(or in exchange for the Equity Interests of such Person) if as a result of such Investment (A) suchPerson becomes a Restricted Subsidiary or (B) such Person, in one transaction or a series ofrelated transactions, is merged, consolidated or amalgamated with or into, or transfers orconveys substantially all of its assets to, or is liquidated into, the Borrower or a RestrictedSubsidiary; (ii) any Investment held by such Person and not acquired by such Person incontemplation of such acquisition, merger, consolidation or transfer; and (iii) any Investment bythe Borrower or any Restricted Subsidiary in exchange for all or any portion of a business if, asa result of such Investment, the assets acquired thereby become owned by the Borrower or anyRestricted Subsidiary; provided that any Investments made pursuant to this subclause (c)(i) andsubclause (c)(iii) in any Restricted Subsidiary that is not or does not become a Loan Partytogether with any Investments made pursuant to clause (a) of this definition by any Loan Partyin a Restricted Subsidiary that is not a Loan Party shall not exceed, in the aggregate, the greater-36-
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of (x) $200.0 million and (y) 50.0% of EBITDA of the Borrower for the most recently endedTest Period for which financial statements have been delivered;(d) any Investment in securities or other assets not constituting cash, CashEquivalents or Investment Grade Securities and received in connection with a Disposition madepursuant to Section 6.06;(e) any Investment existing on the Closing Date or made pursuant to legally bindingwritten commitments in existence on the Closing Date; provided that such Investment shall beset forth on Schedule 6.07;(f) loans and advances to, and guarantees of Indebtedness of, employees not inexcess of $15.0 million outstanding at any one time, in the aggregate;(g) any Investment acquired by the Borrower or any Restricted Subsidiary (i) inexchange for any other Investment or accounts receivable held by the Borrower or any suchRestricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganizationor recapitalization of the Person in which such other Investment is made or which is the obligorwith respect to such accounts receivable, (ii) in satisfaction of judgments against other Personsor (iii) as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect toany secured Investment or other transfer of title with respect to any Investment in default;(h) Hedging Obligations permitted under Section 6.01(b)(xii);(i) loans and advances to officers, directors and employees (i) for business-relatedtravel expenses, moving expenses and other similar expenses, in each case incurred in theordinary course of business or consistent with past practice or (ii) to fund such Person’spurchase of Equity Interests of the Borrower or any direct or indirect parent company thereofunder compensation plans approved by the Board of Directors of the Borrower or thecompensation committee thereof in good faith; provided that to the extent that the net proceedsof any such purchase is made to any direct or indirect parent of the Borrower, such net proceedsare contributed to the Borrower;(j) Investments the payment for which consists of Equity Interests of the Borrower;(k) (i) performance guarantees in the ordinary course of business, (ii) guaranteesexpressly permitted under Section 6.01(b)(xiv) provided that guarantees by Loan Parties inrespect of Indebtedness or other obligations of Restricted Subsidiaries that are not Loan Partiesshall be subject to clause (a) of this definition and (iii) guarantees of obligations of the Borroweror any Restricted Subsidiary to any employee benefit plan of the Borrower and its RestrictedSubsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary of any suchplan; (l) Investments consisting of purchases and acquisitions of inventory, supplies,material or equipment or the licensing or contribution of intellectual property pursuant to jointmarketing arrangements with other Persons in the ordinary course of business;(m) Investments consisting of purchases and acquisitions of assets or services in theordinary course of business; -37-
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(n) Investments made in the ordinary course of business in connection withobtaining, maintaining or renewing client contracts;(o) [reserved];(p) customary Investments relating to a Receivables Facility;(q) Investments out of the Applicable Amount; provided that, at the time theInvestment is made and after giving pro forma effect to such Investment (x) no Default or Eventof Default has occurred and is continuing and (y) the Borrower would be permitted to incur atleast $1.00 of Indebtedness pursuant to Section 6.01(a);(r) Investments out of Excluded Contributions that have not otherwise been appliedto make Restricted Payments;(s) any transaction to the extent it constitutes an Investment that is permitted underSection 6.04 (other than by reference to this definition) or is made in accordance with theprovisions of Section 6.05(b) (other than any transaction set forth in subclauses (i), (ii), (v), (vii)and (xiv) of Section 6.05(b));(t) additional Investments having an aggregate fair market value, taken togetherwith all other Investments made pursuant to this clause (t) that are at that time outstanding, notto exceed an amount equal to the greater of (x) $200.0 million and (y) 50.0% of EBITDA of theBorrower for the most recently ended Test Period, as of such time any such Investment is made(with the fair market value of each Investment being measured at the time made and withoutgiving effect to subsequent changes in value but net of any actual return on capital in respect ofsuch Investment);(u) Investments in an amount (when taken together with all Restricted Paymentsmade in reliance on Section 6.04(xii) and net of any actual return on capital in respect of suchInvestment) not to exceed the greater of (x) $200.0 million and (y) 50.0% of EBITDA of theBorrower for the most recently ended Test Period as of such time any such Investment is made(with the fair market value of each Investment being measured at the time made and withoutgiving effect to subsequent changes in value but net of any actual return on capital in respect ofsuch Investment); and(v) additional Investments; provided that (x) as of the last day of the most recentlyended Test Period prior to the date of such Investment, after giving pro forma effect to suchInvestment (including the application of the net proceeds therefrom) the Consolidated LeverageRatio at such time does not exceed 3.00:1.00 and (y) after giving pro forma effect to suchInvestment no Default or Event of Default has occurred and is continuing.“Permitted Liens” means, with respect to any Person:(a) (i) Liens on accounts, payment intangibles and related assets to secure anyReceivables Facility and (ii) Liens arising under the Loan Documents;(b) pledges or deposits by such Person under workmen’s compensation laws,unemployment insurance laws or similar legislation, or good faith deposits to secure bids,tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person isa party, or deposits to secure public or statutory obligations of such Person or deposits of cash or-38-
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(k) Liens on specific items of inventory or other goods and proceeds of any Personsecuring such Person’s obligations in respect of bankers’ acceptances issued or created for theaccount of such Person to facilitate the purchase, shipment or storage of such inventory or othergoods; (l) leases, subleases, licenses and sublicenses granted to others in the ordinarycourse of business which do not materially interfere with the ordinary conduct of the business ofthe Borrower or any of the Restricted Subsidiaries and do not secure any Indebtedness;(m) Liens arising from financing statement filings under the UCC or similar state orprovincial laws regarding operating leases entered into by the Borrower and its RestrictedSubsidiaries in the ordinary course of business;(n) Liens in favor of the Borrower or any Subsidiary Guarantor;(o) Liens on inventory or equipment of the Borrower or any Restricted Subsidiarygranted in the ordinary course of business to the Borrower’s or such Restricted Subsidiary’sclient at which such inventory or equipment is located;(p) Liens to secure any refinancing, refunding, extension, renewal or replacement(or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or inpart, of any Indebtedness secured by any Lien referred to in clauses (g), (h), (i) and (q) of thisdefinition; provided that (x) such new Lien shall be limited to all or part of the same propertythat secured the original Lien (plus improvements on such property), and (y) the Indebtednesssecured by such Lien at such time is not increased to any amount greater than the sum of (A) theoutstanding principal amount or, if greater, committed amount of the Indebtedness describedunder clauses (g), (h), (i) and (q) of this definition at the time the original Lien became aPermitted Lien pursuant to this Agreement, and (B) an amount necessary to pay any fees andexpenses, including premiums, related to such refinancing, refunding, extension, renewal orreplacement;(q) Liens securing Indebtedness permitted to be incurred pursuant toSection 6.01(a), 6.01(b)(vi), (b)(xvi) and (b)(xxi); provided that (A) Liens securing Indebtednesspermitted to be incurred pursuant to Section 6.01(a) shall, in the case of Liens on Collateral(including real property required to become Collateral pursuant to Section 5.11(h)) be securedon a junior priority basis relative to the Secured Obligations and such Indebtedness shall besubject to a Junior Lien Intercreditor Agreement, (B) Liens securing Indebtedness permitted tobe incurred pursuant to Section 6.01(b)(vi) do not at any time encumber any property other thanthe property financed by such Indebtedness and the proceeds and the products thereof, (C) Lienssecuring Indebtedness permitted to be incurred pursuant to Section 6.01(b)(xvi)(x) shall, in thecase of Liens on Collateral, be secured on a junior priority basis relative to the SecuredObligations and such Indebtedness shall be subject to a Junior Lien Intercreditor Agreement,(D) Liens securing Indebtedness permitted to be incurred pursuant to Section 6.01(b)(xvi)(y)shall be solely on acquired property or the assets (including any acquired Equity Interests) of theAcquired Entity or Business and such Liens were not created or incurred in connection with, xxxx contemplation of, such acquisition, as the case may be; and (E) Liens securing Indebtednesspermitted to be incurred pursuant to Section 6.01(b)(xxi) shall only extend to the propertyDisposed of in the applicable Sale and Lease-Back Transaction;-40-
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(r) deposits in the ordinary course of business to secure liability to insurancecarriers;(s) Liens securing judgments for the payment of money not constituting an Event ofDefault under clause (h) of Section 7.01, so long as such Liens are adequately bonded and anyappropriate legal proceedings that may have been duly initiated for the review of such judgmentand have not been finally terminated or the period within which such proceedings may beinitiated has not expired;(t) Liens in favor of customs and revenue authorities arising as a matter of law tosecure payment of customs duties in connection with the importation of goods in the ordinarycourse of business;(u) Liens (i) of a collection bank arising under Section 4-210 of the UCC on itemsin the course of collection, (ii) attaching to commodity trading accounts or other commoditybrokerage accounts incurred in the ordinary course of business and (iii) in favor of bankinginstitutions arising as a matter of law encumbering deposits (including the right of setoff) andwhich are within the general parameters customary in the banking industry;(v) Liens that are contractual rights of setoff (i) relating to the establishment ofdepository 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 RestrictedSubsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinarycourse of business of the Borrower and its Restricted Subsidiaries or (iii) relating to purchaseorders and other agreements entered into with customers of the Borrower or any of its RestrictedSubsidiaries in the ordinary course of business;(w) Liens encumbering reasonable customary initial deposits and margin depositsand similar Liens attaching to commodity trading accounts or other brokerage accounts incurredin the ordinary course of business and not for speculative purposes;(x) Liens deemed to exist in connection with Investments in repurchase agreementspermitted under Section 6.01; provided that such Liens do not extend to any assets other thanthose assets that are the subject of such repurchase agreement;(y) Liens on the assets of any Foreign Subsidiary securing Indebtedness permittedto be incurred pursuant to Section 6.01(b);(z) other Liens securing obligations in an aggregate amount not to exceed thegreater of (x) $100.0 million and (y) 25% of EBITDA of the Borrower for the most recentlyended Test Period as of such time any such Lien is incurred; and(aa) Liens on the Collateral (or any portion thereof) securing Indebtedness issuedpursuant to Section 6.01(b)(xxv) and Section 6.01(b)(xxvii), so long as at the time of theincurrence of such Indebtedness the holders of such Indebtedness (or a representative thereof onbehalf of such holders) shall have entered into a First Lien Intercreditor Agreement or JuniorLien Intercreditor Agreement with the Agent agreeing that such Liens are subject to the termsthereof. “Permitted Refinancing Notes” means senior secured notes, senior unsecured or seniorsubordinated debt securities of the Borrower (or of a Subsidiary Guarantor which are guaranteed by the-41-
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Borrower) incurred after the Closing Date (a) the terms of which do not provide for any scheduledprincipal repayment, mandatory redemption or sinking fund obligations prior to the Latest Maturity Dateon the date such debt securities are issued (other than customary offers to repurchase upon a change ofcontrol, asset sale or event of loss and customary acceleration rights after an event of default), (b) thecovenants, events of default, guarantees, collateral and other terms of which (other than interest rate, callprotection and redemption premiums), taken as a whole, are not more restrictive to the Borrower and theSubsidiaries than those set forth in this Agreement; provided that a certificate of a Financial Officer ofthe Borrower delivered to the Agent in good faith at least three Business Days (or such shorter period asthe Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonablydetailed description of the material terms and conditions of such Indebtedness or drafts of thedocumentation relating thereto, stating that the Borrower has determined in good faith that such termsand conditions satisfy the foregoing requirement shall be conclusive evidence that such terms andconditions satisfy the foregoing requirement, (c) of which no Subsidiary of the Borrower is an issuer orguarantor other than any Loan Party and (d) which are not secured by any Liens on any assets of theBorrower or any of its Subsidiaries other than assets of the Loan Parties that constitute Collateral.“Person” means any individual, corporation, limited liability company, partnership, jointventure, association, joint stock company, trust, unincorporated organization, company, government orany agency or political subdivision thereof or any other entity.“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, andin respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, wouldunder Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.“Platform” means Debt Domain, Intralinks, Syndtrak or a substantially similar electronictransmission system.“Preferred Stock” means any Equity Interest with preferential rights of payment ofdividends or upon liquidation, dissolution, or winding-up.“Prepayment Event” means any Asset Sale Prepayment Event, Debt IncurrencePrepayment Event or Casualty Event.“Prime Rate” means the rate of interest per annum publicly announced from time to timeby the Agent as its prime rate in effect at its principal office located in New York, New York; eachchange in the Prime Rate shall be effective from and including the date such change is publiclyannounced as being effective.“Projections” means the projections of the Borrower and the Restricted Subsidiariesincluded in the Information Memorandum and any other projections and any forward-looking statementsof such entities furnished to the Lenders or the Agent by or on behalf of the Borrower or any of theSubsidiaries prior to the Closing Date.“PTE” means a prohibited transaction class exemption issued by the U.S. Department ofLabor, as any such exemption may be amended from time to time.“Public-Sider” means a Lender whose representatives may trade in securities of theBorrower or its controlling person or any of its Subsidiaries while in possession of the financialstatements provided by the Borrower under the terms of this Agreement.-42-
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“Purchasing Term Lender” has the meaning set forth in the First Amendment.“QFC Credit Support” has the meaning set forth in Section 9.22.“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each LoanGuarantor that has total assets exceeding $10,000,000 at the time the relevant guarantee under thisAgreement or grant of the relevant security interest becomes effective with respect to such SwapObligation or that otherwise constitutes an “eligible contract participant” under the CommodityExchange Act or any regulations promulgated thereunder and can cause another person to qualify as an“eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) ofthe Commodity Exchange Act.“Qualified Proceeds” means assets that are used or useful in a Permitted Business;provided that the fair market value of any such assets shall be determined by the Borrower in good faith.“Ratable Portion” means, with respect to any Lender under any Term Loan Facility, thepercentage obtained by dividing the amount of Term Loans held by such Lender under such Term LoanFacility by the aggregate amount of Term Loans of all Lenders under such Term Loan Facility.“Receivables Facility” means one or more receivables financing facilities, in each case,as amended, supplemented, modified, extended, increased, renewed, restated, refunded, replaced orrefinanced from time to time, the Indebtedness of which is non-recourse (except for StandardReceivables Facility Undertakings) to the Borrower and its Restricted Subsidiaries, other than anyReceivables Subsidiary, pursuant to which the Borrower or any of its Restricted Subsidiaries sells itsaccounts, payment intangibles and related assets to either (a) a Person that is not a Restricted Subsidiaryor (b) a Receivables Subsidiary that in turn sells its accounts, payment intangibles and related assets to aPerson that is not a Restricted Subsidiary.“Receivables Facility Repurchase Obligation” means any obligation of the Borrower ora Restricted Subsidiary that is a seller of assets in a Receivables Facility to repurchase the assets it soldthereunder as a result of a breach of a representation, warranty or covenant or otherwise, including as aresult of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset orcounterclaim of any kind as a result of any action taken by, any failure to take action by or any otherevent relating to the seller.“Receivables Fees” means distributions or payments made directly or by means ofdiscounts with respect to any participation interest issued or sold in connection with, and other fees paidto a Person that is not a Restricted Subsidiary in connection with, any Receivables Facility.“Receivables Subsidiary” means any Subsidiary formed solely for the purpose ofengaging, and that engages only, in one or more Receivables Facilities.“Redeemed Notes” has the meaning assigned to such term in the recitals to thisAgreement. “Refinancing Indebtedness” has the meaning assigned to such term inSection 6.01(b)(xv). -43-
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“Refinancing Term Loan” means any New Term Loan that is designated as a“Refinancing Term Loan” in the applicable supplement creating such New Term Loan in accordancewith Section 2.19.“Refinancing Transactions” has the meaning assigned to such term in the recitals to thisAgreement. “Register” has the meaning assigned to such term in Section 9.04(b)(iv).“Regulation T” means Regulation T of the Board as from time to time in effect and allofficial rulings and interpretations thereunder or thereof, and any successor provision thereto.“Regulation U” means Regulation U of the Board as from time to time in effect and allofficial rulings and interpretations thereunder or thereof, and any successor provision thereto.“Regulation X” means Regulation X of the Board as from time to time in effect and allofficial rulings and interpretations thereunder or thereof, and any successor provision thereto.“Reinvestment Period” means 15 months following the date of an Asset SalePrepayment Event or Casualty Event (or, if later, 180 days after the date the Borrower or a RestrictedSubsidiary has entered into a binding commitment to reinvest the proceeds of any such Asset SalePrepayment Event or Casualty Event prior to the expiration of such 15 months).“Related Parties” means, with respect to any specified Person, such Person’s Affiliatesand the respective directors, officers, trustees, employees, agents and advisors of such Person and suchPerson’s Affiliates.“Release” means any release, spill, emission, leaking, dumping, injection, pouring,deposit, disposal, discharge, dispersal, leaching or migration into or through the Environment or within,from or into any building, structure, facility or fixture.“Relevant Governmental Body” means the Board of Governors of the Federal ReserveSystem or the Federal Reserve Bank of New York, or a committee officially endorsed or convened bythe Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or anysuccessor thereto.“Repricing Transaction” means, other than in connection with a transaction constitutinga Change of Control or Transformative Acquisition, (i) any prepayment or repayment of any 2021Incremental Term Loan with the proceeds of, or any conversion of any 2021 Incremental Term Loaninto, any new or replacement Indebtedness constituting term loans with an Effective Yield less than theEffective Yield applicable to the 2021 Incremental Term Loans and (ii) any amendment to thisAgreement which reduces the Effective Yield applicable to any 2021 Incremental Term Loan and, in thecase of each of clauses (i) and (ii), which was for the primary purpose of reducing the Effective Yield onthe 2021 Incremental Term Loans.“Repurchased Notes” has the meaning assigned to such term in the recitals to thisAgreement. “Required Additional Debt Terms” has the meaning assigned to such term in Section6.01(b)(xxvii). -44-
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“Required Class Lenders” means with respect to any Term Loan Facility, Lendersholding more than 50% of the Term Commitments and Term Loans under such Term Loan Facility.“Required Lenders” means, collectively, Lenders having more than 50% of theaggregate principal amount of all Term Loans then outstanding.“Requirement of Law” means, as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule, officialadministrative pronouncement, executive order or regulation or determination of an arbitrator or a courtor other Governmental Authority, in each case applicable to or binding upon such Person or any of itsproperty or to which such Person or any of its property is subject.“Resolution Authority” means an EEA Resolution Authority or, with respect to any UKFinancial Institution, a UK Resolution Authority.“Responsible Officer” of any Person means the chief executive officer, the president,any vice president, any director, the chief operating officer or any financial officer of such Person andany other officer or similar official thereof responsible for the administration of the obligations of suchPerson in respect of this Agreement, and, as to any document delivered on the Closing Date (but subjectto the express requirements set forth in Section 4.01), shall include any secretary or assistant secretary ofa Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a LoanParty shall be conclusively presumed to have been authorized by all necessary corporate, partnershipand/or other action on the part of such Loan Party and such Responsible Officer shall be conclusivelypresumed to have acted on behalf of such Loan Party.“Restricted Equity Payment” means a Restricted Payment of the type described inclauses (x) and (y) of the definition of “Restricted Payment” set forth in the first paragraph of Section6.4. “Restricted Junior Debt Payment” means a Restricted Payment of the type described inclause (z) of the definition of “Restricted Payment” set forth in the first paragraph of Section 6.4.“Restricted Payments” has the meaning assigned to such term in the first paragraph ofSection 6.04. “Restricted Subsidiary” means, at any time, any direct or indirect Subsidiary of theBorrower (including any Foreign Subsidiary) that is not then an Unrestricted Subsidiary; provided thatupon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, suchSubsidiary shall be included in the definition of “Restricted Subsidiary”.“Rule 144A Securities” means any then outstanding securities issued by the Borrower orany of its Subsidiaries eligible for trading in compliance with Rule 144A under the Securities Act.“Sale and Lease-Back Transaction” means any arrangement with any Person providingfor the leasing by the Borrower or any Restricted Subsidiary of any real or tangible personal property,which property has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary tosuch Person in contemplation of such leasing.“S&P” means Standard & Poor’s Financial Services LLC, a division of the XxXxxx-Xxxx Companies, Inc., and any successor to its rating agency business.-45-
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“Sanctioned Country” means, at any time, a country, region or territory which is orwhose government is the subject or target of country-wide Sanctions (as of the Closing Date, Cuba, Iran,North Korea, Sudan, Syria and Crimea).“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-relatedlist of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department ofthe Treasury, the U.S. Department of State, or by the United Nations Security Council, Her Majesty’sTreasury, the Office of the Superintendent of Financial Institutions or the European Union, (b) anyPerson located, operating, organized or resident in a Sanctioned Country or (c) any Person that is 50% ormore owned by a Person or Persons described in (a) or (b) of this definition.“Sanctions” means economic or financial sanctions or trade embargoes imposed,administered or enforced from time to time by (a) the U.S. government, including those administered bythe Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department ofState, or (b) the United Nations Security Council, Her Majesty’s Treasury, the Office of theSuperintendent of Financial Institutions or the European Union.“SEC” means the Securities and Exchange Commission, or any Governmental Authoritysucceeding to any or all of its functions.“Secured Cash Management Obligations” means all obligations owing by the Borroweror any Restricted Subsidiary to the Agent, a Joint Lead Arranger, the Documentation Agent, theSyndication Agent, any Affiliate of any of the foregoing or a Person that was a Lender or an Affiliate ofa Lender on the Closing Date or at the time the Cash Management Agreement giving rise to suchobligations was entered into.“Secured Hedging Obligations” means all Hedging Obligations owing by the Borroweror any Restricted Subsidiary to the Agent, a Joint Lead Arranger, the Documentation Agent, theSyndication Agent, any Affiliate of any of the foregoing or a Person that was a Lender or an Affiliate ofa Lender on the Closing Date or at the time the Hedge Agreement giving rise to such HedgingObligations was entered into.“Secured Indebtedness” means any Indebtedness secured by a Lien.“Secured Obligations” means all Obligations, together with all Secured HedgingObligations and Secured Cash Management Obligations, excluding, with respect to any Loan Party,Excluded Swap Obligations of such Loan Party.“Secured Parties” has the meaning assigned to such term in the Security Agreement.“Securities Act” means the Securities Act of 1933, as amended, and the rules andregulations of the SEC promulgated thereunder.“Security Agreement” means that certain U.S. Pledge and Security Agreement, dated asof the Closing Date, between the Loan Parties and the Agent, for the benefit of the Agent and the otherSecured Parties.“Series” has the meaning assigned to such term in Section 2.19(a).“Significant Subsidiary” means any Subsidiary (or group of Subsidiaries as to which anycondition specified in clause (f) or (g) of Section 7.01 applies) of the Borrower that would be a-46-
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“significant subsidiary” as defined in Article I, Rule 2-02 of Regulation S-X, promulgated pursuant tothe Securities Act, as such regulation is in effect on the date hereof.“SOFR” means a rate per annum equal to the secured overnight financing rate for suchBusiness Day published by the Federal Reserve Bank of New York (or a successor administrator of thesecured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently athttp://xxx.xxxxxxxxxx.xxx (or any successor source for the secured overnight financing rate identified assuch by the administrator of the secured overnight financing rate from time to time).“SOFR Adjustment” means, with respect to Term SOFR, 0.11448% (11.448 basis points)for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor ofthree-months’ duration, and 0.42826% (42.826 basis points) for an Available Tenor of six-months’duration. “Specified Acquisition Agreement Representations” means the representations andwarranties made by or on behalf of, or with respect to, the Acquired Business in the AcquisitionAgreement as are material to the interests of the 2021 Incremental Term Lenders and the 2021Incremental Amendment Lead Arrangers (but only to the extent that the Borrower or its Affiliates havethe right not to consummate the Acquisition, or to terminate its obligations (or otherwise not have anobligation to close), under the Acquisition Agreement as a result of the breach of such representations inthe Acquisition Agreement.“Specified Representations” means mean the representations and warranties set forth inSections 3.01(a) (as it pertains to the Loan Parties), 3.02 (as it relates to the organizational power andauthority of the Loan Parties in each case to enter into and perform its obligations under the LoanDocuments and the due execution, delivery and enforceability of the Loan Documents), 3.03(c) (as itpertains to the execution, delivery, and performance by the Loan Parties of the Loan Documents,incurrence of the 2021 Incremental Term Loans and the granting of the guarantees and the securityinterests in respect thereof not conflicting with the organizational documents of the Loan Parties), 3.08,3.15 (after giving effect to the transactions contemplated by Incremental Facility Amendment No. 2),3.18, 3.20 and 3.21 of this Agreement and 3.2(a) of the Security Agreement.“Standard Receivables Facility Undertakings” means representations, warranties,covenants and indemnities entered into by the Borrower or any Restricted Subsidiary of the Borrowerthat the Borrower has determined in good faith to be customary in financings similar to a ReceivablesFacility, including, without limitation, those relating to the servicing of the assets of a ReceivablesSubsidiary, it being understood that any Receivables Facility Repurchase Obligation shall be deemed tobe a Standard Receivables Facility Undertaking.“Subsequent Transaction” has the meaning assigned to such term in Section 1.08.“Subsidiary” means, with respect to any Person, (a) any corporation, association, orother business entity (other than a partnership, joint venture, limited liability company or similar entity)of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard tothe occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is atthe time of determination owned or controlled, directly or indirectly, by such Person or one or more ofthe other subsidiaries of that Person or a combination thereof and (b) any partnership, joint venture,limited liability company or similar entity of which (i) more than 50% of the capital accounts,distribution rights, total equity and voting interests or general or limited partnership interests, asapplicable, are owned or controlled, directly or indirectly, by such Person or one or more of the othersubsidiaries of that Person or a combination thereof whether in the form of membership, general, special-47-
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or limited partnership or otherwise, and (ii) such Person or any subsidiary of such Person is a controllinggeneral partner or otherwise controls such entity.“Subsidiary Guarantor” means each Restricted Subsidiary of the Borrower that executesthis Agreement as a Loan Guarantor on the Closing Date and each other Restricted Subsidiary of theBorrower that thereafter becomes a Subsidiary Guarantor pursuant to a Joinder Agreement except forany Restricted Subsidiary that has been released as a Subsidiary Guarantor in accordance with the termsof this Agreement.“Successor Borrower” has the meaning assigned to such term in Section 6.03(a)(i).“Successor Person” has the meaning assigned to such term in Section 6.03(b)(i).“Supported QFC” has the meaning assigned to such term in Section 9.22.“Swap Obligation” means, with respect to any Loan Party, any obligation to pay orperform under any agreement, contract or transaction that constitutes a “swap” within the meaning ofsection 1a(47) of the Commodity Exchange Act.“Syndication Agent” means Bank of America, N.A.“Target” has the meaning set forth in Incremental Facility Amendment No. 2.“Taxes” means all present or future taxes, levies, imposts, duties, deductions,withholdings (including backup withholding), assessments, fees or other charges imposed by anyGovernmental Authority, including any interest, penalties or additions to tax applicable thereto.“Tender Offer” has the meaning assigned to such term in the recitals to this Agreement.“Term Commitments” means each of the Initial Term Commitments, the 2021Incremental Term Commitments and, if applicable, New Term Commitments with respect to any Series.“Term Loan” means each of the Initial Term Loans, 2021 Incremental Term Loans and,if applicable, New Term Loans with respect to any Series and any Extended Term Loans.“Term Loan Borrowing” means a Borrowing consisting of Term Loans under aparticular Term Loan Facility.“Term Loan Facility” means, as the context requires, the Initial Term Loan Facility, the2021 Incremental Term Loan Facility, each Extension Series of Extended Term Loans and each otherSeries of New Term Loans.“Term Loan Note” means a promissory note of the Borrower substantially in the form ofExhibit F. “Term SOFR” means,(a) for any calculation with respect to a Term SOFR Term Loan, the Term SOFRReference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the“Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities BusinessDays prior to the first day of such Interest Period, as such rate is published by the Term SOFRAdministrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic-48-
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Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has notbeen published by the Term SOFR Administrator, then Term SOFR will be the Term SOFRReference Rate for such tenor as published by the Term SOFR Administrator on the firstpreceding U.S. Government Securities Business Day for which such Term SOFR Reference Ratefor such tenor was published by the Term SOFR Administrator so long as such first precedingU.S. Government Securities Business Day is not more than three (3) U.S. Government SecuritiesBusiness Days prior to such Periodic Term SOFR Determination Day, in each case, plus theSOFR Adjustment for such term, and(b) for any calculation with respect to a Base Rate Term Loan on any day, the TermSOFR Reference Rate for a tenor of one month on the day (such day, the “ABR Term SOFRDetermination Day”) that is two (2) U.S. Government Securities Business Days prior to xxxxxxx, as such rate is published by the Term SOFR Administrator; provided, however, that if as of5:00 p.m. (New York City time) on any ABR Term SOFR Determination Day the Term SOFRReference Rate for the applicable tenor has not been published by the Term SOFRAdministrator, then Term SOFR will be the Term SOFR Reference Rate for such tenor aspublished by the Term SOFR Administrator on the first preceding U.S. Government SecuritiesBusiness Day for which such Term SOFR Reference Rate for such tenor was published by theTerm SOFR Administrator so long as such first preceding U.S. Government Securities BusinessDay is not more than three (3) U.S. Government Securities Business Days prior to such ABRTerm SOFR Determination Day, in each case, plus the SOFR Adjustment for such term.provided, further, that if Term SOFR determined as provided above (including pursuantto the proviso under clause (a) or clause (b) above) shall ever be less than zero, then Term SOFR shall bedeemed to be zero for the purposes of this Agreement.“Term SOFR Administrator” means CME Group Benchmark Administration Limited(CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the AdministrativeAgent in its reasonable discretion).“Term SOFR” means, for the applicable corresponding tenor, Reference Rate” meansthe forward-looking term rate based on SOFR that has been selected or recommended by the RelevantGovernmental Body.“Test Period” means, at any date of determination, the most recently completed fourconsecutive fiscal quarters of the Borrower ending on or prior to such date for which financial statementshave been (or were required to have been) delivered pursuant to Section 5.01; provided that prior to thefirst date financial statements have been delivered pursuant to 5.01, the Test Period in effect shall be theperiod of four consecutive fiscal quarters of the Borrower ended March 31, 2017.“Total Assets” means the total amount of all assets of the Borrower and the RestrictedSubsidiaries, determined on a consolidated basis in accordance with GAAP as shown on the most recentbalance sheet of the Borrower.“Transaction Costs” has the meaning assigned to such term in the recitals to thisAgreement. “Transactions” has the meaning assigned to such term in the recitals to this Agreement.“Transformative Acquisition” means any acquisition of an Acquired Entity or Businessby the Borrower or any Restricted Subsidiary or other similar Investment that is either (a) not permitted-49-
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hereunder immediately prior to the consummation of such transaction or (b) if permitted hereunderimmediately prior to the consummation of such transaction, this Agreement would not provide theBorrower and its Restricted Subsidiaries with adequate flexibility for the continuation or expansion oftheir combined operations following such consummation, as reasonably determined by the Borroweracting in good faith.“Type,” when used in reference to any Term Loan or Borrowing, refers to whether therate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference tothe Eurocurrency RateTerm SOFR or the Base Rate.“UCC” means the Uniform Commercial Code as in effect from time to time in the stateof New York or any other state the laws of which are required to be applied in connection with the issueof perfection of security interests.“UK Financial Institution” means any BRRD Undertaking (as such term is definedunder the PRA Rulebook (as amended form time to time) promulgated by the United KingdomPrudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (asamended from time to time) promulgated by the United Kingdom Financial Conduct Authority, whichincludes certain credit institutions and investment firms, and certain affiliates of such credit institutionsor investment firms.“UK Resolution Authority” means the Bank of England or any other publicadministrative authority having responsibility for the resolution of any UK Financial Institution.“Unrestricted Subsidiary” means (a) any Subsidiary of the Borrower that at the time ofdetermination is an Unrestricted Subsidiary (as designated by the Borrower, as provided below) and (b)any Subsidiary of an Unrestricted Subsidiary. The Unrestricted Subsidiaries as of the Closing Date arelisted in Schedule 1.01(a).So long as no Default has occurred and is continuing, the Borrower may designate anyRestricted Subsidiary of the Borrower (including any existing Restricted Subsidiary and any newlyacquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any ofits Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on, anyproperty of, the Borrower or any Subsidiary of the Borrower (other than any Subsidiary of theSubsidiary to be so designated); provided that (i) any Unrestricted Subsidiary must be an entity of whichshares of the capital stock or other equity interests (including partnership interests) entitled to cast atleast a majority of the votes that may be cast by all shares or equity interests having ordinary votingpower for the election of directors or other governing body are owned, directly or indirectly, by theBorrower, (ii) such designation complies with Section 6.07 and (iii) each of (A) the Subsidiary to be sodesignated and (B) its Subsidiaries has not at the time of designation, and does not thereafter, create,incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to anyIndebtedness pursuant to which the lender has recourse to any of the assets of the Borrower or anyRestricted Subsidiary.The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;provided that, immediately after giving effect to such designation no Default shall have occurred and becontinuing and the Borrower could incur at least $1.00 of additional Indebtedness pursuant to the InterestCoverage Ratio test described in Section 6.01(a).Any such designation by the Borrower shall be notified by the Borrower to the Agent bypromptly delivering to the Agent a copy of any applicable Board Resolution giving effect to such-50-
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designation and an Officers’ Certificate certifying that such designation complied with the foregoingprovisions. Notwithstanding the foregoing, as of the Closing Date, all of the Subsidiaries of theBorrower will, except as listed on Schedule 1.01(a), be Restricted Subsidiaries.“USA PATRIOT Act” means The Uniting and Strengthening America by ProvidingAppropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. X.Xx. 107-56 (signed into law October 26, 2001)), as amended from time to time.“U.S. Government Securities Business Day” means any Business Day, except anyBusiness Day on which any of the Securities Industry and Financial Markets Association, the New YorkStock Exchange or the Federal Reserve Bank of New York is not open for business because such day is alegal holiday under the federal laws of the United States or the laws of the State of New York, asapplicable. “U.S. Special Resolution Regimes” has the meaning set forth in Section 9.22.“U.S. Tax Compliance Certificate” has the meaning assigned to such term inSection 2.15(f). “Voting Stock” of any Person as of any date means the Capital Stock of such Person thatis at the time entitled to vote in the election of the Board of Directors of such Person.“Weighted Average Life to Maturity” means, when applied to any Indebtedness,Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing(1) the sum of the products of the number of years from the date of determination to the date of eachsuccessive scheduled principal payment of such Indebtedness or redemption or similar payment withrespect to such Disqualified Stock or Preferred Stock multiplied by the amount of such payment, by (2)the sum of all such payments.“Wholly-Owned Subsidiary” of any Person means a Restricted Subsidiary of suchPerson, 100% of the outstanding Capital Stock or other ownership interests of which (other thandirectors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a completeor partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E ofTitle IV of ERISA.“Write-Down and Conversion Powers” means, (a) with respect to any EEA ResolutionAuthority, the write-down and conversion powers of such EEA Resolution Authority from time to timeunder the Bail-In Legislation for the applicable EEA Member Country, which write-down andconversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to theUnited Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation tocancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contractor instrument under which that liability arises, to convert all or part of that liability into shares, securitiesor obligations of that person or any other person, to provide that any such contract or instrument is tohave effect as if a right had been exercised under it or to suspend any obligation in respect of thatliability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of thosepowers. -51-
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above; provided that if financial statements for one or more subsequent fiscal periods shall have becomeavailable, the Borrower may elect, in its sole discretion, to redetermine all such ratios, tests or baskets onthe basis of such financial statements, in which case, such date of redetermination shall thereafter bedeemed to be the applicable LCT Test Date. For the avoidance of doubt, if the Borrower has made anLCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as ofthe LCT Test Date would have failed to have been complied with as a result of fluctuations in any suchratio, test or basket, including due to fluctuations in EBITDA or Total Assets of the Borrower or thePerson subject to such Limited Condition Acquisition, at or prior to the consummation of the relevanttransaction or any Default or Event of Default has occurred and is continuing or any such representationor warranty in any Loan Document is not correct on the date of such Limited Condition Acquisition,such baskets, tests or ratios or requirement will not be deemed to have failed to have been complied withas a result of such circumstance; however, if any ratios improve or baskets increase as a result of suchfluctuations, such improved ratios or baskets may be utilized. If the Borrower has made an LCTElection for any Limited Condition Acquisition, then in connection with any calculation of any ratio, testor basket availability with respect to any transaction permitted hereunder (each, a “SubsequentTransaction”) following the relevant LCT Test Date and prior to the earlier of the date on which suchLimited Condition Acquisition is consummated or the date that the definitive agreement for such LimitedCondition Acquisition is terminated or expires without consummation of such Limited ConditionAcquisition, for purposes of determining whether such Subsequent Transaction is permitted under thisAgreement, any such ratio, test or basket shall be required to be satisfied on a pro forma basis assumingsuch Limited Condition Acquisition and other transactions in connection therewith (including anyincurrence of Indebtedness and the use of proceeds thereof) have been consummated.-54-
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amount of cash expended), other than prepayments funded with the proceeds of the incurrence of long-term Indebtedness (other than under any revolving credit facility).(b) On each occasion that a Prepayment Event occurs, the Borrower shall withinfive Business Days after the occurrence of such Prepayment Event (or, in the case of Deferred Net CashProceeds, within five Business Days after the last day of the Reinvestment Period relating to suchPrepayment Event), prepay, in accordance with clause (c) below, a principal amount of Term Loansequal to 100% of the Net Cash Proceeds from such Prepayment Event; provided that with respect to theNet Cash Proceeds of an Asset Sale Prepayment Event or Casualty Event, the Borrower may (i) use aportion of such Net Cash Proceeds to prepay or repurchase other Indebtedness (other than Term Loansand loans and commitments under the ABL Credit Agreement or any permitted RefinancingIndebtedness in respect thereof) secured on a pari passu basis with the Obligations (and, in the case ofany revolving Indebtedness, to correspondingly reduce commitments) to the extent the Borrower isrequired to prepay such other Indebtedness as a result of such Prepayment Event, in each case in anamount not to exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) afraction, the numerator of which is the outstanding principal amount of such other Indebtedness and thedenominator of which is the sum of the outstanding principal amount of such other Indebtedness and theoutstanding principal amount of Term Loans or (ii) use such Net Cash Proceeds in respect of AccountsCollateral (as such term is defined in the ABL Credit Agreement as in effect on the date hereof) toprepay Indebtedness (and correspondingly reduce commitments) under the ABL Credit Agreement orany permitted Refinancing Indebtedness in respect thereof to the extent the Borrower is required to repaysuch other Indebtedness as a result of such Prepayment Event in an amount not to exceed the Net CashProceeds in respect of such Accounts Collateral.(c) The Borrower shall deliver to the Agent, at the time of each prepaymentrequired under Section 2.09(a) or (b), (i) a certificate signed by a Financial Officer of the Borrowersetting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extentpracticable, at least three (3) Business Days prior written notice of such prepayment. Amounts requiredto be applied to the prepayment of Term Loans in accordance with clauses (a) and (b) above shall beapplied pro rata to prepay Term Loans under the Term Loan Facilities and shall be applied to scheduledamortization of such Term Loans as directed by the Borrower; provided that notwithstanding theforegoing, the Borrower may elect in its sole discretion to apply the Net Cash Proceeds from any DebtIncurrence Prepayment Event to prepay any Class of Term Loans selected by the Borrower. Each noticeof prepayment shall specify the prepayment date, the Type of each Term Loan being prepaid and theprincipal amount of each Term Loan (or portion thereof) to be prepaid. Prepayments shall beaccompanied by accrued interest as required by Section 2.11. All prepayments of Borrowings under thisSection 2.09 shall be subject to Section 2.14 (and, in the case of a Repricing Transaction, Section2.08(c)), but shall otherwise be without premium or penalty.(d) [Reserved].(e) Notwithstanding any other provisions of this Section 2.09, (A) to the extent thatany of or all the Net Cash Proceeds of any Asset Sale Prepayment Event by a Foreign Subsidiary givingrise to a prepayment pursuant to Section 2.09(b) (a “Foreign Prepayment Event”) or Excess Cash Flowattributable to a Foreign Subsidiary are prohibited or delayed by any Requirement of Law from beingrepatriated to the Borrower with respect to Term Loans in an aggregate principal amount equal to theECF Percentage for the Excess Cash Flow Period then ended, an amount equal to the portion of such NetCash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loansat the times provided in this Section 2.09, as the case may be, so long, but only so long, as the applicableRequirement of Law will not permit repatriation to the Borrower (the Borrower hereby agreeing to causethe applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable-59-
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affected Term Loan Facility notify the Agent that the Eurocurrency RateTerm SOFR for anyInterest Period will not adequately reflect the cost to the Lenders of making or maintaining suchTerm Loans for such Interest Period, the Agent shall forthwith so notify the Borrower and theLenders, whereupon each affected Eurocurrency RateTerm SOFR Term Loan shallautomatically, on the last day of the current Interest Period for such Term Loan, convert into aBase Rate Term Loan and the obligations of the Lenders to make Eurocurrency RateTerm SOFRTerm Loans or to convert Base Rate Term Loans into Eurocurrency Rate Term SOFR TermLoans shall be suspended until the Agent shall notify the Borrower that the Required ClassLenders under the affected Term Loan Facility have determined that the circumstances causingsuch suspension no longer exist.(ii) From and after the Initial Term Loan Facility Consent or Termination Date(notwithstanding anything to the contrary herein or in any other Loan Document):(A) Replacing Eurocurrency Screen Rate. On March 5, 2021 the Financial ConductAuthority (“FCA”), the regulatory supervisor of Eurocurrency Screen Rate’s administrator(“IBA”), announced in a public statement the future cessation or loss of representativeness ofovernight/Spot Next, 1-month, 2-month, 3-month, 6-month and 12-month Eurocurrency ScreenRate tenor settings. On the earlier of (i) the date that all Available Tenors of EurocurrencyScreen Rate have either permanently or indefinitely ceased to be provided by IBA or have beenannounced by the FCA pursuant to public statement or publication of information to be nolonger representative and (ii) the Early Opt-in Effective Date, if the then-current Benchmark isEurocurrency Screen Rate, the Benchmark Replacement will replace such Benchmark for allpurposes hereunder and under any Loan Document in respect of any setting of such Benchmarkon such day and all subsequent settings without any amendment to, or further action or consentof any other party to this Agreement or any other Loan Document. If the BenchmarkReplacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.(A) [Reserved].(B) Replacing Future Benchmarks. Upon the occurrence of a Benchmark TransitionEvent, the Benchmark Replacement will replace the then-current Benchmark for all purposeshereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement isprovided to the Lenders without any amendment to, or further action or consent of any otherparty to, this Agreement or any other Loan Document so long as the Agent has not received, bysuch time, written notice of objection to such Benchmark Replacement from Lenders comprisingthe Required Class Lenders. At any time that the administrator of the then-current Benchmarkhas permanently or indefinitely ceased to provide such Benchmark or such Benchmark has beenannounced by the regulatory supervisor for the administrator of such Benchmark pursuant topublic statement or publication of information to be no longer representative of the underlyingmarket and economic reality that such Benchmark is intended to measure and thatrepresentativeness will not be restored, the Borrower may revoke any request for a borrowing of,conversion to or continuation of Loans to be made, converted or continued that would bearinterest by reference to such Benchmark until the Borrower’s receipt of notice from the Agentthat a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrowerwill be deemed to have converted any such request into a request for a borrowing of orconversion to Base Rate Term Loans. During the period referenced in the foregoing sentence,the component of Base Rate based upon the Benchmark will not be used in any determination ofthe Base Rate. -63-
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the capital of such Xxxxxx’s holding company, if any, as a consequence of this Agreement or the TermLoans made by such Lender to a level below that which such Person or such Person’s holding companycould have achieved but for such Change in Law (taking into consideration such Person’s policies andthe policies of such Person’s holding company with respect to capital adequacy and liquidity), then fromtime to time following delivery of the certificate contemplated by subclause (iii) of this clause (c) of thisSection 2.14 the Borrower will pay to such Lender in accordance with subclause (iii) such additionalamount or amounts as will compensate such Person or such Person’s holding company for any suchreduction suffered, as reasonably determined by such Lender (which determination shall be made ingood faith (and not on an arbitrary or capricious basis)) and in a manner consistent with similarlysituated borrowers of such Lender, under agreements having provisions similar to this Section 2.14.(iii) A certificate of a Lender setting forth the amount or amounts necessary tocompensate such Lender or its holding company as specified in subclause (i) or (ii) of this clause (c) andsetting forth in reasonable detail the manner in which such amount or amounts were determined shall bedelivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay suchLender the amount shown as due on any such certificate within ten (10) days after receipt thereof.(iv) Failure or delay on the part of any Lender to demand compensation pursuant tothis clause (c) shall not constitute a waiver of such Person’s right to demand such compensation;provided that the Borrower shall not be required to compensate a Lender pursuant to this clause (c) forany increased costs or reductions incurred more than 180 days prior to the date that such Lender notifiesthe Borrower of the Change in Law giving rise to such increased costs or reductions and of suchPerson’s intention to claim compensation therefor; provided, further, that, if the Change in Law givingrise to such increased costs or reductions is retroactive, then the 180-day period referred to above shallbe extended to include the period of retroactive effect thereof.(d) Illegality. Notwithstanding any other provision of this Agreement, if anyLender determines that the introduction of, or any change in or in the interpretation of, any law, treaty orgovernmental rule, regulation or order after the date of this Agreement shall make it unlawful, or anycentral bank or other Governmental Authority shall assert that it is unlawful, for such Lender or itsapplicable Lending Office to make Eurocurrency RateTerm SOFR Term Loans or to continue to fund ormaintain Eurocurrency Rate Term SOFR Term Loans, then, on notice thereof and demand therefor bysuch Lender to the Borrower through the Agent, (i) the obligation of such Lender to make or to continueEurocurrency RateTerm SOFR Term Loans and to convert Base Rate Term Loans into EurocurrencyRate Term SOFR Term Loans shall be suspended, and each such Lender shall make a Base Rate TermLoan as part of any requested Borrowing of Eurocurrency RateTerm SOFR Term Loans, and (ii) if anyaffected Term Loans are then outstanding as Eurocurrency RateTerm SOFR Term Loans, the Borrowershall immediately convert each such Term Loan into Base Rate Term Loans. If, at any time after aLender gives notice under this clause (d), such Lender determines that it may lawfully makeEurocurrency RateTerm SOFR Term Loans, such Lender shall promptly give notice of thatdetermination to the Borrower and the Agent, and the Agent shall promptly transmit the notice to eachother Lender. The Borrower’s right to request, and such Lender’s obligation, if any, to makeEurocurrency RateTerm SOFR Term Loans, shall thereupon be restored.(e) Breakage Costs. In addition to all amounts required to be paid by the Borrowerpursuant to Section 2.11, the Borrower shall compensate each Lender that has made a Term Loan to theBorrower, upon written request in accordance with this clause (e), for all losses, expenses and liabilities(including any loss or expense incurred by reason of the liquidation or reemployment of deposits orother funds acquired by such Lender to fund or maintain such Lender’s Eurocurrency RateTerm SOFRTerm Loans or to the Borrower but excluding any loss of the Applicable Rate on the relevant TermLoans) that such Lender may sustain (i) if for any reason (other than by reason of such Lender being a-65-
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(e) The Borrower and each other Loan Party shall, jointly and severally, indemnifythe Agent and each Lender, within ten (10) days after written demand therefor, for the full amount of anyIndemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amountspayable under this Section 2.15) payable or paid by such Agent or Lender and any reasonable expensesarising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly orlegally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount ofsuch payment or liability delivered to the Borrower by a Lender, or by the Agent on its own behalf or onbehalf of any Lender, shall be conclusive absent manifest error.(f) As soon as practicable after any payment of any Taxes by the Borrower or otherLoan Party to a Governmental Authority pursuant to this Section 2.15, the Borrower or other Loan Partyshall deliver to the Agent the original or a certified copy of a receipt issued by such GovernmentalAuthority evidencing such payment, a copy of the return reporting such payment or other evidence ofsuch payment reasonably satisfactory to the Agent.(i) Each Lender that is legally entitled to an exemption from or reductionof withholding tax with respect to any payments made under any Loan Document shalldeliver to the Borrower and the Agent, at the time or times reasonably requested by theBorrower or the Agent, such properly completed and executed documentationreasonably requested by the Borrower or the Agent as will permit such payments to bemade without withholding or at a reduced rate of withholding. In addition, any Lender,if reasonably requested by the Borrower or the Agent, shall deliver such otherdocumentation prescribed by applicable Requirements of Law or reasonably requestedby the Borrower or the Agent as will enable the Borrower or the Agent to determinewhether or not such Lender is subject to backup withholding or information reportingrequirements. Each Lender agrees that if any documentation it previously deliveredexpires or becomes obsolete or inaccurate in any respect, it shall deliver to the Borrowerand the Agent updated or other appropriate documentation (including any newdocumentation reasonably requested by the Borrower or the Agent) or promptly notifythe Borrower and the Agent in writing of its legal ineligibility to do so.(ii) Without limiting the generality of Section 2.15(f)(i) above:(A) Each Lender that is a United States Person shall deliver to the Borrower and theAgent, on or prior to the date on which such Lender becomes a Lender under this Agreement(and from time to time thereafter upon the reasonable request of the Borrower or the Agent), twoduly completed and executed originals of IRS Form W-9 (or successor form) certifying that suchLender is exempt from U.S. federal backup withholding tax.(B) Each Non-U.S. Lender, shall deliver to the Borrower and the Agent on or priorto the date on which such Lender becomes a Lender under this Agreement (and from time totime thereafter upon the reasonable request of the Borrower or the Agent), two duly completedand executed originals of whichever of the following is applicable:(I) In the case of a Non-U.S. Lender claiming the benefits of an income taxtreaty to which the United States is a party, IRS Form W-8BEN or W-8BEN-E (or anysuccessor thereto) establishing an exemption from, or reduction of, U.S. federalwithholding tax pursuant to such treaty, IRS Form W-8ECI (or any successor thereto);(II) In the case of a Non-U.S. Lender claiming the benefits of the exemptionfor portfolio interest under Section 871(h) or 881(c) of the Code, (x) a certificate-67-
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substantially in the form of Exhibit K-1 to the effect that such Non-U.S. Lender is not a“bank” as defined in Section 881(c)(3)(A) of the Code, a “10-percent shareholder” ofthe Borrower within the meaning of Section 881(c) (3)(B) of the Code, or a “controlledforeign corporation” described in Section 881(c)(3)(C) of the Code and that the interestpayments in respect of the Term Loans are not effectively connected with such Non-U.S. Lender’s conduct of a U.S. trade or business (a “U.S. Tax Compliance Certificate”)and (y) IRS Form W-8BEN or W-8BEN-E (or any successor thereto); or(III) To the extent a Non-U.S. Lender is not the beneficial owner, IRS FormW–8IMY, accompanied by a copy of IRS Form W–8ECI, IRS Form W–8BEN, IRSForm W–8BEN–E, a U.S. Tax Compliance Certificate substantially in the form ofExhibit K-2 or Exhibit K-3, IRS Form W–9, and/or other certification documents fromeach beneficial owner, as applicable; provided that if the Non-U.S. Lender is apartnership (and not a participating Lender) and one or more direct or indirect partnersof such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S.Lender may provide a U.S. Tax Compliance Certificate substantially in the form ofExhibit K-4 on behalf of such direct and indirect partner(s); and(IV) Each Non-U.S. Lender shall deliver to the Borrower and the Agent (insuch number of copies as shall be requested by the recipient) such other duly completedand executed documentation prescribed by applicable Requirement of Law as a basis forclaiming exemption from, or reduction in, U.S. federal withholding Tax, together withsuch supplementary documentation as may be prescribed by applicable Requirement ofLaw to permit the Borrower or the Agent to determine the withholding or deductionrequired to be made; and(C) Each Lender shall deliver to the Borrower and the Agent at the time or timesprescribed by law and at such time or times reasonably requested by the Borrower or the Agentsuch documentation prescribed by applicable Requirement of Law (including as prescribed bySection 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requestedby the Borrower or the Agent as may be necessary for the Borrower and the Agent to complywith their obligations under FATCA and to determine whether such Xxxxxx has complied withsuch Lender's obligations under FATCA or to determine the amount, if any, to deduct andwithhold from such payment. Solely for purposes of this subclause (C), “FATCA” shall includeany amendments made to FATCA after the date of this Agreement.(iii) Notwithstanding anything to the contrary in this Section 2.15(g), noLender shall be required to provide any documentation that such Lender is not legallyeligible to provide.(iv) Each Lender hereby authorizes the Agent to deliver to the Borrower andother Loan Parties and to any successor Agent any documentation provided by suchLender to the Agent pursuant to this Section 2.15(f).(g) If the Agent or a Lender determines, in its sole discretion exercised in goodfaith, that it has received and retained a refund of any Indemnified Taxes as to which it has beenindemnified by the Borrower or other Loan Party or with respect to which the Borrower or such LoanParty has paid additional amounts pursuant to this Section 2.15, it shall pay over such refund to theBorrower or such Loan Party (but only to the extent of indemnity payments made, or additional amountspaid, by the Borrower or such Loan Party under this Section 2.15 with respect to the Taxes giving rise tosuch refund), net of all out-of-pocket expenses (including Taxes) of the Agent or such Lender as is-68-
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any existing Class of Term Loans (the “New Term Commitments”) in an amount at any time not toexceed (other than in the case of any New Term Commitments with respect to Refinancing Term Loans)the Maximum Incremental Amount at such time and not less than $25.0 million individually (or suchlesser amount which shall be approved by the Agent or such lesser amount that shall constitute the entireremaining availability hereunder). Each such notice shall specify the date (each, an “Increased AmountDate”) on which the Borrower proposes that the New Term Commitments shall be effective, which shallbe a date not less than five Business Days after the date on which such notice is delivered to the Agent(or such shorter period as may be agreed by the Agent); provided that any Lender offered or approachedto provide all or a portion of the New Term Commitments may elect or decline, in its sole discretion, toprovide a New Term Commitment. Such New Term Commitments shall become effective, as of suchIncreased Amount Date; provided that (i) subject to Section 1.08, no Default or Event of Default shallexist on such Increased Amount Date before or after giving effect to such New Term Commitments, asapplicable; (ii) subject to Section 1.08, both before and after giving effect to the making of any NewTerm Loans, each of the conditions set forth in Section 4.02 shall be satisfied; and (iii) the New TermCommitments shall be effected pursuant to one or more supplements or amendments to this Agreementexecuted and delivered by the Loan Parties, the New Lenders and the Agent. Any New Term Loans(other than any New Term Loans which are designated as an increase in the amount of any previouslyestablished Class of Term Loans) made on an Increased Amount Date shall be designated a separateseries (a “Series”) of New Term Loans for all purposes of this Agreement. In connection with theobtaining of any New Term Commitments pursuant to this Section 2.19(a), the Borrower shall, or shallcause the other applicable Loan Parties to, make such amendments to the Collateral Documents and takesuch other customary actions, if any, as the Agent may reasonably request in order to preserve andprotect the Liens on the Collateral securing the Obligations.(b) [Reserved](c) On any Increased Amount Date on which any New Term Commitments of anyClass are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender witha New Term Commitment (each, a “New Term Loan Lender”) of any Class shall make a Term Loan tothe Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such Class, and(ii) each New Term Loan Lender of any Class shall become a Lender hereunder with respect to the NewTerm Commitment of such Class and the New Term Loans of such Class made pursuant thereto.(d) The terms and provisions of the New Term Loans and New Term Commitmentsshall be, except as otherwise set forth herein or in the applicable supplement or amendment relatingthereto, identical to the existing Term Loans; provided that (i) the final maturity date of the New TermLoans shall be no earlier than (x) in the case of Refinancing Term Loans, the Term Loans refinancedtherewith and (y) in the case of any other New Term Loans, the Latest Maturity Date, and, in the case ofall New Term Loans, the mandatory prepayment provisions applicable to the New Term Loans shall notrequire that any mandatory prepayment pursuant to Section 2.09 apply to such New Term Loans on agreater basis than ratable basis then outstanding Term Loans, (ii) the optional prepayment provisions,rate of interest and the amortization schedule applicable to any New Term Loans of each Series shall bedetermined by the Borrower and the applicable new Lenders and shall be set forth in the applicablesupplement relating thereto; provided that (A) the Weighted Average Life to Maturity of any New TermLoans will be no shorter than (x) in the case of Refinancing Term Loans, the Weighted Average Life toMaturity of the Term Loans refinanced, and (y) in the case of any other New Term Loans, the thenremaining Weighted Average Life to Maturity of any Class of Term Loans and (B) if the Effective Yieldof any New Term Loans (other than Refinancing Term Loans) established on any Increased AmountDate occurring on or prior to the six (6) month anniversary of the Incremental Amendment No. 2Effective Date exceeds the Effective Yield of the 2021 Incremental Term Loans by more than 100 basispoints, the Applicable Rates for the 2021 Incremental Term Loans shall be increased to the extent-71-
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necessary so that, after giving effect to such increase, the Effective Yield of the 2021 Incremental TermLoans is equal to the Effective Yield of such New Term Loans minus 100 basis points, (iii) New TermLoans shall not be guaranteed by any Subsidiary of the Borrower that is not a Loan Party and shall besecured only by Collateral on a pari passu basis with the other Obligations pursuant to the CollateralDocuments and (iv) all other terms applicable to the New Term Loans of each Series that differ from theexisting Term Loans shall be no more favorable to the Lenders providing such New Term Loans thanthose applicable to the Term Loans (taken as a whole) (except for covenants or other provisionsapplicable only to periods after the Latest Maturity Date); provided that if any financial maintenancecovenant is added for the benefit of any New Term Loans, such provisions shall also be applicable to theTerm Loans (except to the extent such financial covenant applies only to periods after the LatestMaturity Date). (e) (i) The Borrower may at any time and from time to time request that all or aportion of the Term Loans under any Term Loan Facility (an “Existing Class”) be converted to extendthe scheduled maturity date(s) of any payment of principal with respect to all or a portion of anyprincipal amount of such Term Loans and/or amended to lower the Effective Yield thereof (any suchTerm Loans which have been so converted and/or extended, “Extended Term Loans”) and to provide forother terms consistent with this Section 2.19(e). In order to establish any Extended Term Loans, theBorrower shall provide a notice to the Agent (who shall provide a copy of such notice to each of theLenders of the applicable Existing Class) (an “Extension Request”) setting forth the proposed terms ofthe Extended Term Loans to be established, which shall be identical to the Term Loans of the ExistingClass from which they are to be converted except (w) all or any of the scheduled amortization paymentsof principal of the Extended Term Loans may be delayed to later dates than the scheduled amortizationof principal of the Term Loans of such Existing Class, (x) (A) the interest rate and fee provisions withrespect to the Extended Term Loans may be different from those applicable to the Term Loans of suchExisting Class (and Extended Term Loans may provide for prepayment protection that is different fromthose applicable to such Existing Class) and/or (B) additional fees may be payable to the Lendersproviding such Extended Term Loans in addition to or in lieu of any increased margins contemplated bythe preceding subclause (A), (y) the amendment or supplement to this Agreement providing for suchExtended Term Loans may provide for other terms applicable to such Extended Term Loans so long aseither (A) such additional terms do not apply until all Term Loans and Term Commitments outstandingimmediately prior to the establishment of such Extended Term Loans have been repaid, terminated orreturned as applicable, (B) such additional terms are less favorable to the holders of the Extended TermLoans than the corresponding Existing Class or (C) such additional terms have been approved by theRequired Lenders and (z) the mandatory prepayment rights of the Extended Term Loans and suchExisting Class may be different so long as the proportion (if any) of the proceeds thereof to which suchExtended Term Loans are entitled is no greater on a proportionate basis than the portion of suchproceeds to which the Existing Class is entitled to receive.(ii) The Borrower shall provide the applicable Extension Request at least five (5)Business Days prior to the date on which Lenders under the Existing Class are requested to respond (orsuch shorter period as may be agreed by the Agent). Any Lender (an “Extending Lender”) wishing tohave all or a portion of its Term Loans of the Existing Class subject to such Extension Request convertedinto Extended Term Loans shall notify the Agent (an “Extension Election”) on or prior to the datespecified in such Extension Request of the amount of its Term Loans of the Existing Class which it haselected to convert into Extended Term Loans. In the event that the aggregate amount of Term Loans ofthe Existing Class subject to Extension Elections exceeds the amount of Extended Term Loans requestedpursuant to the Extension Request, Term Loans subject to Extension Elections shall be converted toExtended Term Loans on a pro rata basis based on the amount of Term Loans included in each suchExtension Election (subject to such rounding as the Agent deems expedient). Any Extended Term Loansshall be established on the date set forth in the amendment or supplement to this Agreement entered into-72-
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(d) Closing Certificates; Certified Certificate of Incorporation; Good StandingCertificates. The Agent shall have received (i) a certificate of each Loan Party, dated theClosing Date and executed by its Secretary, Assistant Secretary or director, which shall(A) certify the resolutions of its Board of Directors, members or other body authorizing theexecution, delivery and performance of the Loan Documents to which it is a party, (B) identifyby name and title and bear the signatures of the other officers of such Loan Party authorized tosign the Loan Documents to which it is a party, (C) contain appropriate attachments, includingthe certificate or articles of incorporation or organization of each such Loan Party (and in thecase of any such Loan Party, certified by the relevant authority of the jurisdiction oforganization of such Loan Party), and a true and correct copy of its by-laws, memorandum andarticles of incorporation or operating, management, partnership or equivalent agreement to theextent applicable, and (ii) a good standing certificate for each Loan Party from its jurisdiction oforganization to the extent such concept exists in such jurisdiction and (D) either (1) attach copiesof all consents, licenses and approvals required in connection with the consummation by suchLoan Party of the Transactions and certify that such consents, licenses and approvals are in fullforce and effect, or (2) state that no such consents, licenses or approvals are so required.(e) Fees. The Lenders and the Agent shall have received all fees required to bepaid, and all expenses for which invoices have been presented by three (3) Business Days priorto the Closing Date (including the reasonable documented fees and expenses of legal counsel),on or before the Closing Date.(f) Lien and Judgment Searches. The Agent shall have received the results ofrecent lien and judgment searches in each of the jurisdictions reasonably requested by it.(g) Solvency. The Agent shall have received a customary certificate from the chieffinancial officer of the Borrower certifying that the Borrower and its Subsidiaries, on aconsolidated basis after giving effect to the Transactions to occur on the Closing Date, aresolvent (within the meaning of Section 3.15).(h) Pledged Stock; Stock Powers; Pledged Notes. The Agent shall have received(i) the certificates representing the shares of Capital Stock of each Subsidiary pledged pursuantto the Security Agreement, together with an undated stock power for each such certificateexecuted in blank by a duly authorized officer of the pledgor thereof, and (ii) each promissorynote and other instrument (if any) pledged to the Agent pursuant to the Security Agreement (tothe extent required thereby) endorsed (without recourse) in blank (or accompanied by anexecuted transfer form in blank) by the pledgor thereof.(i) Perfection Certificate; Filings, Registrations and Recordings; Insurance. TheAgent shall have received (i) a completed Perfection Certificate dated the Closing Date andsigned by a Responsible Officer of the Borrower, together with all attachments contemplatedthereby, (ii) each document (including any UCC financing statement) reasonably requested bythe Agent to be filed, registered or recorded in order to create in favor of the Agent, for thebenefit of the Secured Parties, a perfected Lien on the Collateral and (iii) evidence that allproperty and liability insurance required to be maintained pursuant to the Loan Documents hasbeen obtained and is in effect.(j) Refinancing Transactions. The Agent shall be reasonably satisfied with thearrangements to consummate the Refinancing Transactions, including (k) the purchase throughthe Tender Offer of the Repurchased Notes on the Closing Date and (l) delivery on the Closing-80-
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ARTICLE VAFFIRMATIVE COVENANTSUntil the Discharge of Obligations, each Loan Party covenants and agrees, jointly andseverally with all of the Loan Parties, with the Lenders that:SECTION 5.01 Financial Statements and Other Information. The Borrower willfurnish to the Agent (which will promptly furnish such information to the Lenders in accordance with itscustomary practice):(a) within ninety (90) days after the end of each fiscal year of the Borrower,commencing with the fiscal year ending December 31, 2017, its audited consolidated balancesheet and related statements of earnings, shareholders’ equity and cash flows as of the end of andfor such year, setting forth in each case in comparative form the figures for the previous fiscalyear, all reported on by Deloitte & Touche LLP or other independent public accountants ofrecognized national standing and reasonably acceptable to the Agent (without a “going concern”or like qualification or exception or exception as to the scope of such audit (other than a “goingconcern” qualification attributable solely to upcoming maturity under this Agreement)) to theeffect that such consolidated financial statements present fairly, in all material respects, thefinancial position and results of operations of the Borrower and its consolidated Subsidiaries ona consolidated basis in accordance with GAAP;(b) within forty-five (45) days after the end of each of the first three fiscal quartersof each fiscal year of the Borrower commencing with the fiscal quarter ending June 30, 2017, itsconsolidated balance sheet and related statements of earnings and cash flows as of the end of andfor such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case incomparative form the figures for the corresponding period or periods of (or, in the case of thebalance sheet, as of the end of) the previous fiscal year, all certified by one of its FinancialOfficers as presenting fairly, in all material respects, the financial position and results ofoperations of the Borrower and its consolidated Subsidiaries on a consolidated basis inaccordance with GAAP, subject to normal year-end audit adjustments;(c) concurrently with any delivery of financial statements under clause (a) or (b)above commencing with the financial statements for the fiscal quarter ending September 30,2017, a Compliance Certificate signed by a Financial Officer of the Borrower in substantially theform of Exhibit C (i) certifying that no Event of Default or Default has occurred or, if an Eventof Default or Default has occurred, specifying the details thereof and any action taken orproposed to be taken with respect thereto and (ii) setting forth, in the case of the financialstatements delivered under clause (a), commencing with the fiscal year ending on December 31,2017, the Borrower’s calculation of Excess Cash Flow for the Excess Cash Flow Period endingon the last day of such fiscal year;(d) concurrently with any delivery of consolidated financial statements under clause(a) or (b) above, the related unaudited consolidating financial information reflecting theadjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from suchconsolidated financial statements; -82-
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(e) within 90 days following the end of each fiscal year, commencing with thefiscal year ending December 31, 2017, a forecasted budget in reasonable detail of the Borrowerand the Restricted Subsidiaries for such fiscal year;(f) as soon as practicable upon the reasonable request of the Agent, deliver anupdated Perfection Certificate (or, to the extent such request relates to specified informationcontained in the Perfection Certificate, such information) reflecting all changes since the date ofthe information most recently received pursuant to this clause (f) or Section 5.11;(g) promptly after the same become publicly available, copies of all periodic andother reports, proxy statements and other materials publicly filed by the Borrower or anyRestricted Subsidiary with the SEC, or with any other securities exchange, or, distributed by theBorrower to its shareholders generally, as the case may be;(h) promptly following the Agent’s request therefor, all documentation and otherinformation that the Agent reasonably requests on its behalf or on behalf of any Lender in orderto comply with its ongoing obligations under applicable “know your customer” and anti-moneylaundering or terrorist financing rules and regulations, including the USA PATRIOT Act; and(i) as promptly as reasonably practicable from time to time following the Agent’srequest therefor, such other information regarding the operations, business affairs and financialcondition of the Borrower or any Restricted Subsidiary, or compliance with the terms of anyLoan Document, as the Agent may reasonably request (on behalf of itself or any Lender).Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 5.01may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishingthe Borrower’s (or any direct or indirect parent thereof), Form 10-K or 10-Q, as applicable, filed with theSEC; provided that, (i) to the extent such information relates to a parent entity, such information isaccompanied by consolidating information that explains in reasonable detail the differences between theinformation relating to such parent, on the one hand, and the information relating to the Borrower and itsSubsidiaries on a standalone basis, on the other hand and (ii) to the extent such information is in lieu ofinformation required to be provided under clause (a) of this Section 5.01, such materials areaccompanied by a report and opinion of Deloitte & Touche LLP or other independent public accountantsof recognized national standing and reasonably acceptable to the Agent, which report and opinion shallbe prepared in accordance with generally accepted auditing standards and shall not be subject to any“going concern” or like qualification or exception or any qualification or exception as to the scope ofsuch audit (other than a “going concern” attributable solely to an upcoming maturity under thisAgreement). The Borrower represents and warrants that it, its controlling Person and any Subsidiary,in each case, if any, either (i) has no registered or publicly traded securities outstanding, or (ii) files itsfinancial statements (or those of its controlling Person together with consolidating information withrespect to the Borrower) with the SEC and/or makes its financial statements (or those of its controllingPerson together with consolidating information with respect to the Borrower) available to potentialholders of its Rule 144A Securities, and, accordingly, the Borrower hereby (i) authorizes the Agent tomake the financial statements to be provided under Section 5.01(a) and (b) above, along with the LoanDocuments, available to Public-Xxxxxx and (ii) agrees that at the time such financial statements areprovided hereunder, they shall already have been made available to holders of its securities. TheBorrower will not request that any other material be posted to Public-Xxxxxx without expresslyrepresenting and warranting to the Agent in writing that such materials do not constitute material non-public information within the meaning of the federal securities laws or that the Borrower and each of its-83-
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Section 5.11 and the Security Agreement, the limitations with respect to real property set forth in clause(f) of this Section 5.11 and any other limitations set forth in the Security Agreement) of such Loan Party(other than Excluded Property), on such terms as may be required pursuant to the terms of the CollateralDocuments or otherwise constitute Excluded Property.(b) The Borrower and each Domestic Subsidiary that is a Loan Party will cause(i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries, other than(x) any FSHCO or (y) any CFC and (ii) (A) 65% of the issued and outstanding Equity Interests entitledto vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and (B) 100% of the issued andoutstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each case of subclause (b)(ii)(A) and (b)(ii)(B) above, of each CFC and FSHCO owneddirectly by the Borrower or any Subsidiary Guarantor to be subject at all times to a first priorityperfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents orother security documents as the Agent shall reasonably request; provided, however, that (1) thisclause (b) shall not require any Loan Party to grant a security interest in the Equity Interests of anyUnrestricted Subsidiary and (2) no pledge of any Equity Interests shall be required to the extent suchEquity Interests are excluded from the Collateral pursuant to the terms of the Security Agreement.(c) Without limiting the foregoing, the Borrower shall, and shall cause each LoanParty to, execute and deliver, or cause to be executed and delivered, to the Agent such documents,agreements and instruments, and will take or cause to be taken such further actions (including the filingand recording of financing statements, fixture filings, Mortgages and other documents and such otheractions or deliveries of the type required by Article IV, as applicable), which are required by law andwhich the Agent may, from time to time, reasonably request to carry out the terms and conditions of thisAgreement and the other Loan Documents and to ensure perfection and priority of the Liens created orintended to be created by the Collateral Documents (subject to the limitations with respect to EquityInterests set forth in clause (b) of this Section 5.11, the limitations with respect to real property set forthin clause (f) of this Section 5.11 and any other limitations set forth in the Security Agreement), all at theexpense of the Loan Parties.(d) Subject to the limitations set forth or referred to in this Section 5.11, if anymaterial assets (including any real property or improvements thereto or any interest therein) are acquiredby the Borrower or any Subsidiary that is a Loan Party after the Closing Date (other than (i) ExcludedProperty and (ii) assets constituting Collateral under the Security Agreement that become subject to theLien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lendersthereof, and the Borrower will cause such assets to be subjected to a Lien securing the Obligations andwill take, and cause the Loan Parties that are Subsidiaries to take, such actions (including, with respect toreal property, the deliverables listed on Schedule 5.12) as shall be necessary or reasonably requested bythe Agent to grant and perfect such Liens (in each case, to the extent required under clauses (a), (b) and(c) of this Section 5.11 above, clause (f) of this Section 5.11 below, Section 5.12 and by the SecurityAgreement), including actions described in clause (c) of this Section 5.11, all at the expense of the LoanParties. (e) [Reserved].(f) Notwithstanding anything to the contrary in this Section 5.11, real propertyrequired to be mortgaged under this Section 5.11 shall be limited to each real property located in theUnited States of America owned in fee by a Loan Party having a fair market value at the time of theacquisition thereof of $10.0 million or more and that does not otherwise constitute an Excluded Property(as defined in the Security Agreement) (and provided that the cost of perfecting such Lien is not-87-
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and undertake any cleanup, response or other corrective action necessary to address all HazardousMaterials at, on, under or emanating from any properties currently or formerly owned, leased or operatedby it as required by any applicable Environmental Laws; provided, however, that neither the Borrowernor any of its Subsidiaries shall be required to undertake any of the obligations above to the extent thatits obligation to do so is being contested in good faith and by proper proceedings and appropriatereserves are being maintained with respect to such circumstances in accordance with GAAP, or wherethe failure to undertake such obligation would not reasonably be expect to result in a Material AdverseEffect. ARTICLE VINEGATIVE COVENANTSUntil the Discharge of Obligations, the Loan Parties covenant and agree, jointly andseverally, with the Lenders that:SECTION 6.01 Limitation on Incurrence of Indebtedness and Issuance ofDisqualified Stock and Preferred Stock.(a) The Borrower will not, and will not permit any Restricted Subsidiary to, directlyor indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable,contingently or otherwise (collectively, “incur” and collectively, an “incurrence”), with respect to anyIndebtedness (including Acquired Indebtedness), and the Borrower will not issue any shares ofDisqualified Stock and will not permit any Restricted Subsidiary to issue any shares of DisqualifiedStock or Preferred Stock; provided that so long as no Event of Default has occurred and is continuing theBorrower may incur Indebtedness (including Acquired Indebtedness) or issue shares of DisqualifiedStock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), issueshares of Disqualified Stock or issue shares of Preferred Stock, if the Borrower’s Interest Coverage Ratiofor the Borrower’s most recently ended Test Period would have been at least 2.00 to 1.00, determined ona pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additionalIndebtedness had been incurred, or the Disqualified Stock or Preferred Stock had been issued, as the casemay be, and the application of the proceeds therefrom had occurred at the beginning of such Test Period;provided, further, that (x) such Indebtedness, Disqualified Stock or Preferred Stock complies with theRequired Additional Debt Terms and (y) any incurrence of Indebtedness or issuance of DisqualifiedStock or Preferred Stock by any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to thisclause (a) shall be subject to the limitations set forth in Section 6.01(g).(b) The limitations set forth in clause (a) of this Section 6.01 shall not apply to anyof the following items:(i) Indebtedness under any Receivables Facility; provided that any Indebtednessincurred under this subclause (i) shall reduce (for so long as, and to the extent that, theIndebtedness referred to in this subclause (i) remains outstanding) dollar-for-dollar the aggregateamount of Indebtedness permitted to be incurred under Section 6.01(b)(iii)(y);(ii) Indebtedness of the Borrower and any of its Restricted Subsidiaries under theLoan Documents;(iii) Indebtedness under the ABL Credit Agreement, when aggregated with the thenoutstanding amount of Indebtedness under subclause 6.01(b)(xv) incurred to refinanceIndebtedness permitted by this subclause (iii), in an amount not to exceed the greater of-89-
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(x) $500.0 million and (y) the Borrowing Base (as defined in the ABL Credit Agreement as ineffect on the date hereof); provided that (1) the aggregate principal amount of Indebtednesspermitted to be incurred pursuant to this subclause (iii)(y) shall be reduced dollar-for-dollar bythe amount of Indebtedness then outstanding under Section 6.01(b)(i) and (2) no DomesticSubsidiary other than a Loan Party shall at any time be an obligor under such Indebtedness;(iv) Indebtedness arising under (x) the 2021 Senior Notes in an aggregate principalamount, when aggregated with the then outstanding amount of Indebtedness undersubclause (b)(xv) incurred to refinance Indebtedness permitted by this subclause (b)(iv)(x), notto exceed $845.0 million and (y) the 2020 Senior Notes in an aggregate principal amount, whenaggregated with the then outstanding amount of Indebtedness under subclause (b)(xv) belowincurred to refinance Indebtedness permitted by this subclause (b)(iv)(y), in an aggregateprincipal amount not to exceed $400.0 million, provided that if the aggregate principal amountof the Repurchased Notes accepted for repurchase in the Tender Offer is less than $400.0million, the aggregate principal amount of the 2020 Senior Notes permitted by this subclause(b)(iv)(y) shall be increased by the aggregate principal amount of the Redeemed Notes called forredemption through the irrevocable notice delivered on the Closing Date under Section 4.01(j)until such Redeemed Notes are redeemed; provided, further, that, in each case, no Person otherthan a Loan Party shall at any time be an obligor under such Indebtedness;(v) Indebtedness (other than Indebtedness under the ABL Credit Agreement, the2020 Senior Notes and the 2021 Senior Notes) existing on the Closing Date; provided that anyIndebtedness which is in excess of (x) $5.0 million individually or (y) $25.0 million in theaggregate (when taken together with all other Indebtedness outstanding in reliance on thissubclause (b)(v) that is not set forth on Schedule 6.01)) shall only be permitted under thissubclause (b)(v) to the extent such Indebtedness is set forth on Schedule 6.01;(vi) Indebtedness (including Capitalized Lease Obligations), Disqualified Stock andPreferred Stock incurred by the Borrower or any of the Restricted Subsidiaries to finance thedevelopment, construction, purchase, lease (other than the lease, pursuant to Sale and Lease-Back Transactions, of property (real or personal), equipment or other fixed or capital assetsowned by the Borrower or any Restricted Subsidiary as of the Closing Date or acquired by theBorrower or any Restricted Subsidiary after the Closing Date in exchange for, or with theproceeds of the sale of, such assets owned by the Borrower or any Restricted Subsidiary as ofthe Closing Date), repairs, additions or improvement of property (real or personal), equipment orother fixed or capital assets; provided that at the time of incurrence of such Indebtedness orissuance of such Disqualified Stock or Preferred Stock, the aggregate amount of all outstandingIndebtedness, Disqualified Stock and Preferred Stock permitted by this subclause (b)(vi), whenaggregated with the then outstanding amount of Indebtedness under subclause (b)(xv) belowincurred to refinance Indebtedness permitted by this subclause (b)(vi), in an amount not toexceed the greater of (A) $150.0 million and (B) 35% of EBITDA of the Borrower for the mostrecently ended Test Period as of the time any such Indebtedness is incurred;(vii) Indebtedness incurred by the Borrower or any Restricted Subsidiary constitutingreimbursement obligations with respect to letters of credit or surety bonds issued in the ordinarycourse of business, including letters of credit in respect of workers’ compensation claims, orother Indebtedness with respect to reimbursement type obligations regarding workers’compensation claims; provided that, upon the drawing of such letters of credit or the incurrenceof such Indebtedness, such obligations are reimbursed within thirty (30) days following suchdrawing or incurrence; -90-
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(D) such Refinancing Indebtedness shall be in an aggregate principal amount (oraccreted value, if applicable) that does not exceed the principal amount (or accreted value, ifapplicable) of the Indebtedness, Disqualified Stock or Preferred Stock so modified, refinanced,refunded, renewed or extended except by an amount equal to unpaid accrued interest andpremium thereon plus other reasonable amounts paid, and fees and expenses reasonablyincurred, in connection with such extension, replacement, refunding, refinancing, renewal ordefeasance,(E) if such Indebtedness, Disqualified Stock or Preferred Stock being so extended,replaced, refunded, refinanced, renewed or defeased is secured by a Lien on the Collateral, theLien securing such Refinancing Indebtedness shall not be senior in priority to the Lien on theCollateral securing the Indebtedness, Disqualified Stock or Preferred Stock being so extended,replaced, refunded, refinanced, renewed or defeased unless otherwise permitted under thisAgreement and any such Liens shall be subject to a First Lien Intercreditor Agreement or JuniorLien Intercreditor Agreement, as applicable,(F) the terms and conditions (including, if applicable, as to collateral but excludingas to subordination, interest rate and redemption premium) of any such RefinancingIndebtedness, taken as a whole, are not materially less favorable to the lenders of suchRefinancing Indebtedness than the terms and conditions of the Indebtedness, Disqualified Stockor Preferred Stock being extended, replaced, refunded, refinanced, renewed or defeased, and(G) to the extent such Indebtedness, Disqualified Stock or Preferred Stock beingextended, replaced, refunded, refinanced, renewed or defeased is unsecured, such RefinancingIndebtedness is unsecured;provided, further, that any incurrence of Indebtedness or issuance of Disqualified Stock orPreferred Stock by any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to thissubclause (b)(xv) shall be subject to the limitations set forth in Section 6.01(g) to the sameextent as the Indebtedness refinanced;(xvi) Indebtedness, Disqualified Stock or Preferred Stock (x) of the Borrower or anyRestricted Subsidiary incurred to finance any Investment permitted by subclause (c)(i)(A) or (B)or (c)(iii) of the definition of “Permitted Investments” or (y) of Persons that are acquired by theBorrower or any Restricted Subsidiary or Persons that are merged into the Borrower or aRestricted Subsidiary in accordance with the terms of this Agreement or that is assumed by theBorrower or a Restricted Subsidiary in connection with such Investment; provided that (A) inthe case of subclauses (b)(xvi)(x) and (b)(xvi)(y) above, on a pro forma basis for the issuance orassumption of such Indebtedness, Disqualified Stock or Preferred Stock and the application ofproceeds therefrom, either (1) the Borrower would be permitted to incur at least $1.00 ofadditional Indebtedness pursuant to Section 6.01(a) or (2) the Interest Coverage Ratio of theBorrower for the Borrower’s most recently ended Test Period would be greater than immediatelyprior to such acquisition or merger, (B) such Indebtedness, Disqualified Stock or Preferred Stockis not incurred while an Event of Default exists and no Event of Default shall result therefrom,(C) in the case of subclause (b)(xvi)(x) above only, such Indebtedness, Disqualified Stock orPreferred Stock complies with the Required Additional Debt Terms and (D) in the case ofsubclause (b)(xvi)(y) above only, such Indebtedness, Disqualified Stock or Preferred Stock isnot incurred in contemplation of such acquisition or merger; provided, further, that anyincurrence of Indebtedness or issuance of Disqualified Stock or Preferred Stock by any-93-
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Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this subclause (b)(xvi) shallbe subject to the limitations set forth in Section 6.01(g);(xvii) Indebtedness arising from the honoring by a bank or other financial institutionof a check, draft or similar instrument drawn against insufficient funds in the ordinary course ofbusiness; provided that such Indebtedness is extinguished within ten (10) Business Days of itsincurrence;(xviii) [Reserved];(xix) Indebtedness incurred by a Foreign Subsidiary which, when aggregated with theprincipal amount of all other Indebtedness incurred pursuant to this subclause (b)(xix) and thenoutstanding, does not exceed the greater of (x) $150.0 million and (y) 35.0% of EBITDA of theBorrower for the most recently ended Test Period as of the time such Indebtedness is incurred;(xx) Indebtedness, Disqualified Stock and Preferred Stock of the Borrower or anyRestricted Subsidiary not otherwise permitted under this Section 6.01 in an aggregate principalamount or liquidation preference which, when aggregated with the principal amount andliquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock incurredpursuant to this subclause (b)(xx) and then outstanding (together with any RefinancingIndebtedness in respect of any such Indebtedness, Disqualified Stock or Preferred Stock which isthen outstanding in reliance on subclause (b)(xv) above), does not at any one time outstandingexceed the sum of (A) the greater of (1) $300.0 million and (2) 75% of EBITDA of the Borrowerfor the most recently ended Test Period as of the time such Indebtedness, Disqualified Stock orPreferred Stock is incurred (it being understood that any Indebtedness, Disqualified Stock andPreferred Stock incurred pursuant to this subclause (b)(xx) shall for purposes of this subclause(b)(xx) cease to be deemed incurred or outstanding under this subclause (b)(xx) but shall bedeemed incurred pursuant to Section 6.01(a) from and after the first date on which the Borroweror such Restricted Subsidiary, as applicable, could have incurred such Indebtedness,Disqualified Stock or Preferred Stock pursuant to Section 6.01(a) without reliance on thissubclause (b)(xx)(A)), plus (B) 100% of the net cash proceeds received by the Borrower sincethe Closing Date from the issue or sale of Equity Interests of the Borrower or cash contributed tothe capital of the Borrower (in each case, other than proceeds of Disqualified Stock, DesignatedPreferred Stock or sales of Equity Interests to the Borrower or any of its Subsidiaries) asdetermined in accordance with subclause (a)(iii) of the definition of “Applicable Amount” to theextent such net cash proceeds or cash has not been applied to make Restricted Payments or tomake Permitted Investments (such amount, the “Designated Equity Amount”);(xxi) Attributable Debt incurred by the Borrower or any Restricted Subsidiarypursuant to Sale and Lease-Back Transactions of property (real or personal), equipment or otherfixed or capital assets owned by the Borrower or any Restricted Subsidiary as of the ClosingDate or acquired by the Borrower or any Restricted Subsidiary after the Closing Date inexchange for, or with the proceeds of the sale of, such assets owned by the Borrower or anyRestricted Subsidiary as of the Closing Date; provided that the aggregate amount of AttributableDebt incurred under this subclause (b)(xxi) does not exceed the greater of (x) $100.0 million and(y) 25.0% of EBITDA of the Borrower for the most recently ended Test Period as of the timesuch Attributable Debt is incurred;(xxii) [Reserved]; -94-
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(xxiii) Indebtedness, Disqualified Stock and Preferred Stock of the Borrower issued toformer, future and current employees, officers, managers, directors or consultants, (or theirrespective estates, Controlled Investment Affiliates or Immediate Family Members) of theBorrower, any of its Subsidiaries or any direct or indirect parent company of the Borrower ineach case to finance the purchase or redemption of Equity Interests of the Borrower or any director indirect parent company of the Borrower permitted by Section 6.04(iii);(xxiv) [Reserved];(xxv) Indebtedness of the Loan Parties in respect of Permitted Refinancing Notes (A)issued for cash consideration to the extent that the Net Cash Proceeds therefrom are applied topermanently repay Term Loans in accordance with Section 2.09, (B) issued in exchange for xxxxx any portion of the Term Loans under any Term Loan Facility (and with a principal amountnot to exceed the principal amount of Term Loans received by the Borrower in exchangetherefor) pursuant to an exchange offer by the Borrower conducted pursuant to exchangeprocedures satisfactory to the Agent and the Borrower (including, without limitation, withrespect to compliance with United States Federal and State securities laws) for all or any portionof the Term Loans outstanding under any Term Loan Facility (or, in the case of an exchangeoffer of Permitted Refinancing Notes that have not been registered under the Securities Act, forall or any portion of such Term Loans that are held by Lenders that are “qualified institutionalbuyers” (as defined in Rule 144A promulgated pursuant to the Securities Act)), it beingunderstood and agreed that no Lender shall be required to participate in any such exchangeoffer; provided that any Term Loans acquired by the Borrower in connection with any such offershall be deemed to have been repaid immediately upon the acquisition thereof by the Borrowerand (C) any refinancing, refunding, renewal or extension of any Indebtedness specified insubclause (A) or (B) above; provided that (x) the principal amount of any such Indebtedness isnot increased above the principal amount thereof outstanding immediately prior to suchrefinancing, refunding, renewal or extension (except for any original issue discount thereon,accrued and unpaid interest and the amount of fees, expenses and premium in connection withsuch refinancing) and (y) such refinancing, refunding, renewal or extension meets therequirements set forth in the definition of “Permitted Refinancing Notes”; and(xxvi) [Reserved];(xxvii) (A) Indebtedness (in the form of senior secured, senior unsecured, seniorsubordinated, or subordinated notes or junior lien or unsecured loans) incurred by the Borrowerin an aggregate principal amount not to exceed the then remaining Maximum IncrementalAmount, which Indebtedness shall be deemed to have been incurred in reliance on Section 2.19;provided that (1) such Indebtedness shall not mature earlier than the Latest Maturity Date ineffect at such time, (2) as of the date of the incurrence of such Indebtedness, the WeightedAverage Life to Maturity of such Indebtedness shall be no shorter than that of the WeightedAverage Life to Maturity of the existing Term Loans under any Term Loan Facility, (3) noRestricted Subsidiary is a borrower or guarantor with respect to such Indebtedness other thanany Loan Party, (4) the covenants, events of default, guarantees, collateral and other terms ofsuch Indebtedness (other than pricing and optional prepayment or redemption terms), taken as awhole, are not more materially restrictive to the Borrower and the Restricted Subsidiaries, asreasonably determined by the Borrower, than those set forth in this Agreement; (5) if secured,such indebtedness shall only be secured by Collateral and, at the time of incurrence the holdersof such Indebtedness (or a representative thereof on behalf of such holders) shall have enteredinto a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement with the Agentagreeing that any Liens securing such Indebtedness are subject to the terms thereof (provided-95-
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that, for the avoidance of doubt, such Liens shall be pari passu with or junior to the Lienssecuring the Obligations) and (6) the Borrower has delivered to the Agent a certificate of aResponsible Officer of the Borrower, together with a reasonably detailed description of thematerial terms and conditions of such Indebtedness or drafts of the documentation relatingthereto, stating that the Borrower has determined in good faith that such terms and conditionssatisfy the foregoing requirements set forth in subclauses (1)-(4) (and which shall be conclusiveevidence that such terms and conditions satisfy the foregoing requirement) (such Indebtednessincurred pursuant to this subclause (b)(xxvii) being referred to as “Permitted AlternativeIncremental Facilities Debt” and the requirements set forth in this proviso being referred to asthe “Required Additional Debt Terms”) and (B) any refinancing, refunding, renewal orextension of any Indebtedness specified in subclause (A) above; provided that (x) the principalamount of any such Indebtedness is not increased above the principal amount thereofoutstanding immediately prior to such refinancing, refunding, renewal or extension (except forany original issue discount thereon, accrued and unpaid interest and the amount of fees,expenses and premium in connection with such refinancing) and (y) such refinancing, refunding,renewal or extension meets the requirements set forth in subclauses (b)(xxvii)(A)(1) through (b)(xxvii)(A)(6) above.(c) For purposes of determining compliance with this Section 6.01, in the event thatan item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) at any time meetsthe criteria of more than one of the categories described in subclauses (i) through (xxvii) ofSection 6.01(b) or is entitled to be incurred pursuant to clause (a) of Section 6.01, the Borrower, in itssole discretion, shall classify or reclassify, or later divide, classify or reclassify, such item ofIndebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) and shall only be requiredto include the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock in one ormore of the above clauses at such time; provided that (w) all Indebtedness outstanding under the LoanDocuments shall at all times be deemed to have been incurred in reliance on the exception insubclause (ii) of Section 6.01(b), (x) Indebtedness incurred pursuant to Section 2.19 in reliance on theMaximum Incremental Amount may not be later reclassified among the clauses set forth in suchdefinition, (y) all Indebtedness outstanding under any Receivables Facility shall at all times be deemedto have been incurred in reliance on the exception in subclause (i) of Section 6.01(b), and (z) allIndebtedness outstanding under the ABL Credit Agreement and any Refinancing Indebtedness in respectthereof will at all times be deemed to have been incurred in reliance on the exception in subclause (b)(iii)of Section 6.01. (d) The accrual of interest, the accretion of accreted value and the payment ofinterest in the form of additional Indebtedness, Disqualified Stock or Preferred Stock shall not bedeemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred Stock for purposes of thisSection 6.01. (e) For purposes of determining compliance with any restriction on the incurrenceof Indebtedness, the dollar equivalent principal amount of Indebtedness denominated in a foreigncurrency shall be calculated based on the relevant currency exchange rate in effect on the date suchIndebtedness was incurred, in the case of term debt, or first committed, in the case of revolving creditdebt; provided that, if such Indebtedness is incurred to extend, replace, refund, refinance, renew ordefease other Indebtedness denominated in a foreign currency, and such extension, replacement,refunding, refinancing, renewal or defeasance would cause the applicable restriction to be exceeded ifcalculated at the relevant currency exchange rate in effect on the date of such extension, replacement,refunding, refinancing, renewal or defeasance, such restriction shall be deemed not to have been-96-
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supplements to the Loan Documents or other documents or instruments in form reasonablysatisfactory to the Agent;(iii) immediately after such transaction, no Default exists;(iv) immediately after giving pro forma effect to such transaction, as if suchtransaction had occurred at the beginning of the most recently ended Test Period, the SuccessorBorrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to theInterest Coverage Ratio test set forth in Section 6.01(a);(v) each Loan Guarantor, unless it is the other party to the transactions describedabove and is not the Successor Borrower, shall have by supplement to the Loan Documentsconfirmed that its guarantee of the Obligations shall apply to such Successor Borrower’sobligations under the Loan Documents and the Term Loans; and(vi) the Borrower shall have delivered to the Agent an Officers’ Certificate and anopinion of counsel, each stating that such consolidation, merger or transfer and suchsupplements to the Loan Documents, if any, comply with this Agreement and the other LoanDocuments;provided that the Borrower shall promptly notify the Agent of any such transaction and shall take allrequired actions either prior to or within 30 days following such transaction (or such longer period as towhich the Agent may consent) in order to preserve and protect the Liens on the Collateral securing theObligations; provided, further, the Borrower shall, promptly following a request by the Agent (on behalfof itself or any Lender), provide all reasonable documentation and other information that the Agent orsuch Lender reasonably requests with respect to such Successor Borrower that is a Requirement of Lawin order to comply with its ongoing obligations under applicable “know your customer” and anti-moneylaundering rules and regulations, including the USA PATRIOT Act.Upon compliance with the foregoing requirements, the Successor Borrower shallsucceed to, and be substituted for, the Borrower under this Agreement and the other Loan Documentsand, except in the case of a lease transaction, the predecessor Borrower will be released from itsobligations hereunder and thereunder. Notwithstanding subclauses (a)(iii) and (a)(iv) of thisSection 6.03, (i) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of itsproperties and assets to, the Borrower, and (ii) the Borrower may merge with an Affiliate of theBorrower incorporated solely for the purpose of reincorporating the Borrower in another state of theUnited States of America so long as the amount of Indebtedness of the Borrower and the RestrictedSubsidiaries is not increased thereby.(b) Subject to Section 10.12, no Subsidiary Guarantor shall, and the Borrower shallnot permit any Subsidiary Guarantor to, consolidate or merge with or into or wind up into (whether ornot such Subsidiary Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey orotherwise dispose of all or substantially all of its properties or assets in one or more related transactionsto, any Person unless:(i) (A) such Subsidiary Guarantor is the surviving corporation or the Person formedby or surviving any such consolidation or merger (if other than such Subsidiary Guarantor) or towhich such sale, assignment, transfer, lease, conveyance or other disposition shall have beenmade is a corporation, partnership, limited partnership, limited liability company or trustorganized or existing under the laws of the United States of America, any state thereof or theDistrict of Columbia (such Subsidiary Guarantor or such Person, as the case may be, being-98-
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otherwise acquire or retire for value any Equity Interests of the Borrower or any direct or indirect parentof the Borrower, including in connection with any merger or consolidation, or (z) make any principalpayment on, or redeem, repurchase, defease or otherwise acquire or retire for value in each case, prior toany scheduled repayment, sinking fund payment or maturity, any Junior Indebtedness (other than thepurchase, repurchase or other acquisition of Junior Indebtedness purchased in anticipation of satisfying asinking fund obligation, principal installment or final maturity, in each case due within one year of thedate of purchase, repurchase or acquisition) (all such payments and other actions set forth in clauses (x)through (z) above being collectively referred to as “Restricted Payments”), other than:(i) Restricted Payments in an amount not to exceed the Applicable Amount;provided that at the time any such Restricted Payment is made and after giving pro forma effectto such Restricted Payment (x) no Default or Event of Default has occurred and is continuingand (y) the Borrower would be permitted to incur at least $1.00 of Indebtedness pursuant toSection 6.01(a);(ii) the defeasance, redemption, repurchase or other acquisition or retirement ofJunior Indebtedness of the Borrower or a Subsidiary Guarantor made by exchange for, or out ofthe proceeds of the substantially concurrent sale of, Refinancing Indebtedness of such Personthat is incurred in compliance with Section 6.01(b)(xv);(iii) a Restricted Payment to pay for the repurchase, retirement or other acquisitionor retirement for value of Equity Interests in any direct or indirect parent companies of theBorrower held by any future, present or former employee, director, manager or consultant (ortheir respective estates, Controlled Investment Affiliates or Immediate Family Members) of theBorrower, any of its Subsidiaries or any of its direct or indirect parent companies or any otherentity in which the Borrower or a Restricted Subsidiary has an Investment and that is designatedin good faith as an “affiliate” by the Board of Directors of the Borrower (or the compensationcommittee thereof), in each case pursuant to any stockholders’ agreement, any managementequity plan or stock incentive plan or any other management or employee benefit plan oragreement; provided that the aggregate Restricted Payments made under this clause (iii) do notexceed $20.0 million in any fiscal year (with unused amounts in any fiscal year being carriedover to succeeding fiscal years subject to a maximum (without giving effect to the followingproviso) of $30.0 million in any fiscal year; provided, further, that such amount in any fiscalyear may be increased by an amount not to exceed the (A) cash proceeds of key man lifeinsurance policies received by the Borrower and the Restricted Subsidiaries after the ClosingDate, plus (B) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock)of the Borrower and, to the extent contributed to the Borrower, Equity Interest of any of theBorrower’s direct or indirect parent companies, in each case to members of management,directors, managers or consultants (or their respective estates, Controlled Investment Affiliatesor Immediate Family Members), of the Borrower, any of its Subsidiaries or any of its direct orindirect parent companies that occurs after the Closing Date, to the extent the cash proceedsfrom the sale of such Equity Interests have not otherwise been applied to the incurrence ofIndebtedness in reliance on Section 6.01(b)(xx)(B), the payment of Restricted Payments inreliance on clause (i) of this Section 6.04 or the making of Investments in reliance on clause (q)of the definition of Permitted Investments, less (C) the amount of any Restricted Paymentspreviously made pursuant to clauses (A) and (B) of this clause (iii); and provided, further, thatcancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from membersof management, directors, managers or consultants (or their respective estates, ControlledInvestment Affiliates or Immediate Family Members), of the Borrower, any of its direct orindirect parent companies or any Restricted Subsidiary in connection with a repurchase ofEquity Interests of any of the Borrower’s direct or indirect parent companies shall not be deemed-100-
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to constitute a Restricted Payment for purposes of this Section 6.04 or any other provision of thisAgreement;(iv) Restricted Payments that are made with Excluded Contributions that have nototherwise been applied to make Investments;(v) the declaration and payment of dividends by the Borrower to, or the making ofloans to, its direct or indirect parent company in amounts required for the Borrower’s direct orindirect parent companies to pay, in each case without duplication, (A) franchise taxes, and otherfees and expenses, required to maintain their corporate existence, (B) for any period in which theBorrower is a member of a group filing consolidated, combined or unitary income tax returns forwhich a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), to paythe foreign, federal, state and/or local income taxes (as applicable) of such Tax Group for suchtaxable period, to the extent such income taxes are attributable to the income of the Borrowerand its Restricted Subsidiaries and, to the extent of the amount actually received from itsUnrestricted Subsidiaries for such purpose, income taxes to the extent attributable to the incomeof such Unrestricted Subsidiaries; provided that in each case the amount of such payments forany taxable period does not exceed the amount that the Borrower, its applicable RestrictedSubsidiaries and its applicable Unrestricted Subsidiaries (to the extent described above) wouldbe required to pay in respect of such foreign, federal, state and/or local income taxes (asapplicable) for such taxable period were the Borrower, such Restricted Subsidiaries and suchUnrestricted Subsidiaries (to the extent described above) to pay such taxes as a stand-aloneperson or a stand-alone group (as applicable), less any such taxes payable directly by theBorrower or its Restricted Subsidiaries, (C) customary salary, bonus and other benefits payableto officers and employees of any direct or indirect parent company of the Borrower to the extentsuch salaries, bonuses and other benefits are attributable to the ownership or operation of theBorrower and the Restricted Subsidiaries, (D) general corporate overhead expenses of any director indirect parent company of the Borrower to the extent such expenses are attributable to theownership or operation of the Borrower and its Restricted Subsidiaries, and (E) reasonable feesand expenses incurred in connection with any unsuccessful debt or equity offering by such director indirect parent company of the Borrower;(vi) [Reserved];(vii) distributions or payments of Receivables Fees;(viii) the redemption, repurchase, retirement or other acquisition of any EquityInterests of the Borrower or any Equity Interests of any direct or indirect parent company of theBorrower, in exchange for, or out of the proceeds of the substantially concurrent sale (other thanto a Subsidiary) of, Equity Interests of the Borrower (other than any Disqualified Stock) or, tothe extent the proceeds thereof have actually been contributed to the Borrower, Equity Interestsof any direct or indirect parent company of the Borrower;(ix) the payment of any dividend or distribution within 60 days after the date ofdeclaration thereof, if at the date of declaration such payment would have complied with theprovisions of this Agreement;(x) repurchases of Equity Interests deemed to occur upon exercise of stock optionsor warrants if such Equity Interests represent a portion of the exercise price of such options orwarrants; -101-
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(i) transfers of property subject to Casualty Events upon receipt of the Net CashProceeds of such Casualty Event;(j) Dispositions of property (other than any disposition of assets in connection witha securitization transaction) not otherwise permitted under this Section 6.06; provided that (i) atthe time of such Disposition (other than any such Disposition made pursuant to a legally bindingcommitment entered into at a time when no Default exists), no Default or Event of Default shallexist or would result from such Disposition and (ii) with respect to any Disposition pursuant tothis clause (j) with an aggregate fair market value in excess of $50.0 million, the Borrower or aRestricted Subsidiary shall receive not less than 75% of such consideration in the form of cashor Cash Equivalents (in each case, free and clear of all Liens at the time received, other thannonconsensual Liens permitted by Section 7.02); provided, however, that for the purposes of thissubclause (j)(ii), (A) any liabilities (as shown on the most recent consolidated balance sheet ofthe Borrower provided hereunder or in the footnotes thereto) of the Borrower or such RestrictedSubsidiary, other than with respect to Indebtedness that is not secured by the assets disposed of,that are assumed by the transferee with respect to the applicable Disposition and for which theBorrower and all of the Restricted Subsidiaries shall have been validly released by all applicablecreditors, (B) any securities received by the Borrower or such Restricted Subsidiary from suchtransferee that are converted by the Borrower or such Restricted Subsidiary into cash (to theextent of the cash received) within 180 days following the closing of the applicable Dispositionand (C) any Designated Noncash Consideration received by the Borrower or such RestrictedSubsidiary in respect of such Disposition having an aggregate fair market value, taken togetherwith all other Designated Noncash Consideration received pursuant to this subclause (C) that isat that time outstanding, not in excess of the greater of (x) $150.0 million and (y) 35.0% ofEBITDA of the Borrower for the most recently ended Test Period at the time of the receipt ofsuch Designated Noncash Consideration, with the fair market value of each item of DesignatedNoncash Consideration being measured at the time received and without giving effect tosubsequent changes in value, shall in each case of subclauses (A), (B) and (C) be deemed to becash; (k) any issuance or sale of Equity Interests in, or Indebtedness or other securities of,an Unrestricted Subsidiary;(l) to the extent allowable under Section 1031 of the Code (or comparable orsuccessor provision), any exchange of like property (excluding any boot thereon permitted bysuch provision) for use in a Permitted Business;(m) the unwinding of any Hedging Obligations;(n) Dispositions in connection with Sale and Lease-Back Transactions permitted bySection 6.01(b)(xxi);(o) Dispositions of Investments in joint ventures to the extent required by, or madepursuant to customary buy/sell arrangements between, the joint venture parties set forth in jointventure arrangements and similar binding arrangements; and(p) any Disposition to the extent not involving property (when taken together withany related Disposition or series of Dispositions) with a fair market value in excess of $25.0million; -105-
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(iii) purchase money obligations for property acquired in the ordinary course ofbusiness and Capitalized Lease Obligations that impose restrictions of the nature described insubclause (a)(iii) of this Section 6.08 on the property so acquired;(iv) applicable law or any applicable rule, regulation or order;(v) any agreement or other instrument of a Person acquired by the Borrower or anyRestricted Subsidiary in existence at the time of such acquisition (but not created in connectiontherewith or in contemplation thereof), which encumbrance or restriction is not applicable to anyPerson, or the properties or assets of any Person, other than the Person, or the property or assetsof the Person, so acquired;(vi) contracts for the sale of assets, including customary restrictions with respect to aRestricted Subsidiary pursuant to an agreement that has been entered into for the sale ordisposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary;(vii) Secured Indebtedness otherwise permitted to be incurred pursuant to Sections6.01 and 6.02 that limit the right of the debtor to dispose of the assets securing suchIndebtedness;(viii) restrictions on cash or other deposits or net worth imposed by customers undercontracts entered into in the ordinary course of business;(ix) other Indebtedness, Disqualified Stock or Preferred Stock of ForeignSubsidiaries permitted to be incurred after the Closing Date pursuant to Section 6.01;(x) customary provisions in joint venture agreements and other similar agreements;(xi) customary provisions contained in leases and other agreements entered into inthe ordinary course of business;(xii) restrictions created in connection with any Receivables Facility; provided that, ifsuch restrictions are necessary or advisable, in the good faith determination of the Borrower, toeffect such Receivables Facility;(xiii) restrictions or conditions contained in any trading, netting, operating,construction, service, supply, purchase or other agreement to which the Borrower or any of itsRestricted Subsidiaries is a party entered into in the ordinary course of business; provided thatsuch agreement prohibits the encumbrance of solely the property or assets of the Borrower orsuch Restricted Subsidiary that are the subject of such agreement, the payment rights arisingthereunder or the proceeds thereof and does not extend to any other asset or property of theBorrower or such Restricted Subsidiary or the assets or property of any other RestrictedSubsidiary; and(xiv) encumbrances or restrictions contained in Indebtedness permitted to be incurredpursuant to Section 6.01(b)(xvi)(y) that apply only to the Person or assets acquired with theproceeds of such Indebtedness;(xv) restrictions on cash or other deposits or net worth imposed by customers undercontracts entered into in the ordinary course of business; and-107-
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of the Lenders as shall be necessary under the circumstances as provided in Section 9.02), and (c) exceptas expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall notbe liable for the failure to disclose, any information relating to any Loan Party or any of its Subsidiariesthat is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacity.The Agent shall not be liable for any action taken or not taken by it with the consent or at the request ofthe Required Lenders (or such other number or percentage of the Lenders as shall be necessary under thecircumstances as provided in Section 9.02) or in the absence of its own gross negligence or willfulmisconduct as determined by a court of competent jurisdiction by a final and nonappealable judgment.The Agent shall be deemed not to have knowledge of any Default unless and until written notice thereofis given to the Agent by the Borrower or a Lender, and the Agent shall not be responsible for or haveany duty to ascertain or inquire into (i) any statement, warranty or representation made in or inconnection with any Loan Document, (ii) the contents of any certificate, report or other documentdelivered hereunder or in connection with any Loan Document, (iii) the performance or observance ofany of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) thevalidity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement,instrument or document, (v) the value or sufficiency of the Collateral or the creation, perfection orpriority of Liens on the Collateral or the existence of the Collateral, or (vi) the satisfaction of anycondition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt ofitems expressly required to be delivered to the Agent.The Agent shall be entitled to rely upon, and shall not incur any liability for relyingupon, any notice, request, certificate, consent, statement, instrument, document or other writing believedby it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely uponany statement made to it orally or by telephone and believed by it to be made by the proper Person, andshall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may becounsel for the Loan Parties), independent accountants and other experts selected by it, and shall not beliable for any action taken or not taken by it in accordance with the advice of any such counsel,accountants or experts.The Agent may perform any and all its duties and exercise its rights and powers by orthrough any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent mayperform any and all its duties and exercise its rights and powers through their respective Related Parties.The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to theRelated Parties of the Agent and any such sub-agent, and shall apply to their respective activities inconnection with the syndication of the credit facilities provided for herein as well as activities as Agent.Each of the Lenders and the Loan Parties agree that the Agent may, but shall not beobligated to, make the Approved Electronic Communications available to the Lenders by posting suchApproved Electronic Communications on IntraLinks™ or a substantially similar electronic platformchosen by the Agent to be its electronic transmission system (the “Approved Electronic Platform”).Although the Approved Electronic Platform and its primary web portal are secured withgenerally-applicable security procedures and policies implemented or modified by the Agent from timeto time (including, as of the Closing Date, a dual firewall and a User ID/Password Authorization System)and the Approved Electronic Platform is secured through a single-user-per-deal authorization methodwhereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each ofthe Lenders and the Loan Parties acknowledge and agree that the distribution of material through anelectronic medium is not necessarily secure and that there are confidentiality and other risks associatedwith such distribution. In consideration for the convenience and other benefits afforded by suchdistribution and for the other consideration provided hereunder, the receipt and sufficiency of which xxxxxxxx acknowledged, each of the Lenders and the Loan Parties hereby approves distribution of the-112-
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Approved Electronic Communications through the Approved Electronic Platform and understands andassumes the risks of such distribution.The Approved Electronic Communications and the Approved Electronic Platform areprovided “as is” and “as available”. None of the Agent or any of its Affiliates or any of their respectiveofficers, directors, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant theaccuracy, adequacy or completeness of the Approved Electronic Communications and the ApprovedElectronic Platform and each expressly disclaims liability for errors or omissions in the ApprovedElectronic Communications and the Approved Electronic Platform. No warranty of any kind, express,implied or statutory (including, without limitation, any warranty of merchantability, fitness for aparticular purpose, noninfringement of third party rights or freedom from viruses or other code defects)is made by the Agent Affiliates in connection with the approved electronic communications or theapproved electronic platform.Each of the Lenders and the Loan Parties agrees that the Agent may, but (except as maybe required by applicable law) shall not be obligated to, store the Approved Electronic Communicationson the Approved Electronic Platform in accordance with the Agent’s generally-applicable documentretention procedures and policies.Subject to the appointment and acceptance of a successor Agent as provided in thisparagraph, the Agent may resign at any time by notifying the Lenders and the Borrower. Upon any suchresignation, the Required Lenders shall have the right, with the consent (not to be unreasonably withheldor delayed) of the Borrower, to appoint a successor; provided that, during the existence and continuationof an Event of Default, no consent of the Borrower shall be required. If no successor shall have been soappointed by the Required Lenders and shall have accepted such appointment within thirty (30) daysafter the retiring Agent gives notice of its resignation, then the retiring Agent may on behalf of theLenders appoint a successor Agent which shall be a commercial bank or an Affiliate of any suchcommercial bank reasonably acceptable to the Borrower. Upon the acceptance of its appointment asAgent hereunder by a successor, such successor shall succeed to and become vested with all the rights,powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from itsduties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be thesame as those payable to its predecessor unless otherwise agreed between the Borrower and suchsuccessor. After the Agent’s resignation hereunder, the provisions of this Article VIII and Section 9.03shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective RelatedParties in respect of any actions taken or omitted to be taken by any of them while it was acting asAgent. Each Lender acknowledges that it has, independently and without reliance upon theAgent, any Joint Lead Arranger, any Co-Manager, the Documentation Agent, the Syndication Agent orany other Lender or a Related Party of any of the foregoing and based on such documents andinformation as it has deemed appropriate, made its own credit analysis and decision to enter into thisAgreement. Each Lender also acknowledges that it will, independently and without reliance upon theAgent, any Joint Lead Arranger, any Co-Manager, the Documentation Agent, the Syndication Agent orany other Lender or a Related Party of any of the foregoing and based on such documents andinformation as it shall from time to time deem appropriate, continue to make its own decisions in takingor not taking action under or based upon this Agreement, any other Loan Document or related agreementor any document furnished hereunder or thereunder.-113-
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if to the Agent, to it at:Xxxxxxx Xxxxx Lending Partners LLC200 West Street, 16th FloorNew York, NY 10282Attention: SBD OperationsFacsimile No: (212) 428-9270E-Mail Address for Borrowing Requests and Interest Election Requests:xx-xxxxxxxxx-xxxxxxxxxxxxxx@xx.xxxxx.xx.xxxxx to any other Lender, to it at its address or facsimile number set forth in itsAdministrative Questionnaire.All such notices and other communications (i) sent by hand or overnight courier service, or mailed bycertified or registered mail, shall be deemed to have been given when received or (ii) sent by facsimileshall be deemed to have been given when sent and when receipt has been confirmed by telephone;provided that if not given during normal business hours for the recipient, shall be deemed to have beengiven at the opening of business on the next Business Day for the recipient.(b) Notices and other communications to the Lenders hereunder may be deliveredor furnished by using Electronic Systems pursuant to procedures approved by the Agent; provided thatthe foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Agent andthe applicable Lender. The Agent or the Borrower (on behalf of the Loan Parties) may, in its discretion,agree to accept notices and other communications to it hereunder by electronic communications pursuantto procedures approved by it; provided that approval of such procedures may be limited to particularnotices or communications.Unless the Agent otherwise prescribes, (i) notices and other communications sent to ane-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from theintended recipient (such as by the “return receipt requested” function, as available, return e-mail or otherwritten acknowledgement), and (ii) notices or communications posted to an Internet or intranet websiteshall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address asdescribed in the foregoing clause (i), of notification that such notice or communication is available andidentifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice,email or other communication is not sent during the normal business hours of the recipient, such noticeor communication shall be deemed to have been sent at the opening of business on the next BusinessDay for the recipient.(c) Any party hereto may change its address or facsimile number for notices andother communications hereunder by notice to the other parties hereto.(d) Electronic Systems.(i) Each Loan Party agrees that the Agent may, but shall not be obligated to, makeCommunications (as defined below) available to the Lenders by posting the Communications on DebtDomain, Intralinks, Syndtrak, ClearPar or a substantially similar Electronic System.(ii) Any Electronic System used by the Agent is provided “as is” and “as available”.The Agent Parties (as defined below) do not warrant the adequacy of such Electronic Systems andexpressly disclaim liability for errors or omissions in the Communications. No warranty of any kind,express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose,-116-
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Lenders” or any other provision of any Loan Document specifying the number or percentage of Lendersrequired to waive, amend or modify any rights thereunder or make any determination or grant anyconsent thereunder, without the written consent of each Lender adversely affected thereby, (F) release xxxxx substantially all of the Subsidiary Guarantors from their obligation under their Loan Guaranty (exceptas otherwise permitted herein or in the other Loan Documents), without the written consent of eachLender, (G) except as provided in clauses (c) and (d) of this Section 9.02 or in any Collateral Document,release all or substantially all of the Collateral, without the written consent of each Lender or (H) amendthe definition of “Secured Obligations,” “Secured Hedge Obligations,” or “Secured Cash ManagementObligations” without the written consent of each Lender adversely affected thereby; provided, further,that no such agreement shall amend, modify or otherwise (x) affect the rights or duties of the Agenthereunder without the prior written consent of the Agent or (y) make any change to the documents thatby its terms affects the rights of any Class of Lenders to receive payments in any manner different thanany other Class of Lenders without the written consent of the Required Class Lenders of such Class.(c) The Lenders hereby irrevocably agree that the Liens granted to the Agent by theLoan Parties on any Collateral shall be automatically released (i) upon the Discharge of Obligations, (ii)upon the sale or other disposition of the property constituting such Collateral (including as part of or inconnection with any other sale or other disposition permitted hereunder) to any Person other thananother Loan Party, to the extent such sale or other disposition is made in compliance with the terms ofthis Agreement (and the Agent may rely conclusively on a certificate to that effect provided to it by anyLoan Party upon its reasonable request without further inquiry), (iii) subject to clause (b) of thisSection 9.02, if the release of such Lien is approved, authorized or ratified in writing by the RequiredLenders, (iv) to the extent the property constituting such Collateral is owned by any Loan Guarantor,upon the release of such Loan Guarantor from its obligations under its Loan Guaranty in accordancewith the provisions of this Agreement or (v) as required to effect any sale or other disposition of suchCollateral in connection with any exercise of remedies of the Agent and the Lenders pursuant to theCollateral Documents. Any such release shall not in any manner discharge, affect, or impair theObligations or any Liens (other than those expressly being released) upon (or obligations of the LoanParties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all ofwhich shall continue to constitute part of the Collateral to the extent required under the provisions of theLoan Documents. The Lenders irrevocably authorize the Agent to release or subordinate any Xxxx xxxxx property granted to or held by the Agent or the Collateral Agent under any Loan Document to theholder of any Lien on such property that is permitted by paragraph (q) of the definition of PermittedLiens (solely as it relates to Indebtedness permitted to be incurred pursuant to Sections 6.01(b)(vi) or(b)(xxi)) (in each case, to the extent required by the terms of the obligations secured by such Liens)pursuant to documents reasonably acceptable to the Agent).(d) Notwithstanding anything to the contrary contained in this Section 9.02, anywaiver, amendment or modification of this Agreement that by its terms affects the rights or duties underthis Agreement of Lenders holding Term Loans or Term Commitments of a particular Class (but not theLenders holding Term Loans or Term Commitments of any other Class) and is not adverse in anymaterial respect to any other Class may be effected by an agreement or agreements in writing enteredinto solely by the Borrower, the Agent and the requisite percentage in interest of the affected Class ofLenders that would be required to consent thereto under this Section if such Class of Lenders were theonly Class of Lenders hereunder at that time.(e) If, in connection with any proposed amendment, waiver or consent requiring theconsent of “each Lender” or “each Lender directly affected thereby,” the consent of the RequiredLenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whoseconsent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then theBorrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement (or to-118-
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as permitted by Section 6.03 or the definition of “Change of Control,” the Borrower may not assign orotherwise transfer any of its rights or obligations hereunder without the prior written consent of eachLender (and any attempted assignment or transfer by the Borrower without such consent shall be nulland void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder exceptin accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed toconfer upon any Person (other than the parties hereto, their respective successors and assigns permittedhereby, Participants (to the extent provided in clause (c) of this Section 9.04) and, to the extent expresslycontemplated hereby, the Related Parties of each of the Agent and the Lenders) any legal or equitableright, remedy or claim under or by reason of this Agreement.(b) (i) Subject to the conditions set forth in subclause (b)(ii) below, any Lendermay assign to one or more Persons (other than an Ineligible Institution) all or a portion of its rights andobligations under this Agreement (including all or a portion of its Term Commitment and the TermLoans at the time owing to it) with the prior written consent (such consent not to be unreasonablywithheld or delayed) of:(A) the Borrower; provided that the Borrower shall be deemed to have consented xxxx assignment of Term Loans unless it shall have objected thereto by written notice to the Agentwithin ten (10) Business Days after having received notice thereof; provided, further, that noconsent of the Borrower shall be required for an assignment to a Lender, an Affiliate of aLender, an Approved Fund or, if an Event of Default specified in clause (a), (f) or (g) of Section7.01 has occurred and is continuing, any other assignee; and(B) the Agent; provided that no consent of the Agent shall be required for anassignment of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or anApproved Fund.(ii) Assignments shall be subject to the following additional conditions:(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or anassignment of the entire remaining amount of the assigning Xxxxxx’s Term Commitment orTerm Loans of any Class, the amount of the Term Commitment or Term Loans of the assigningLender subject to each such assignment (determined as of the date the Assignment andAssumption with respect to such assignment is delivered to the Agent) shall not be less than$250,000 or an integral multiple of $250,000 in excess thereof, unless each of the Borrower andthe Agent otherwise consents; provided that no such consent of the Borrower shall be required ifan Event of Default specified in clause (a), (f), or (g) of Section 7.01 has occurred and iscontinuing;(B) each partial assignment shall be made as an assignment of a proportionate partof all the assigning Lender’s rights and obligations under this Agreement; provided that thissubclause (ii)(B) shall not be construed to prohibit the assignment of a proportionate part of allthe assigning Lender’s rights and obligations in respect of one Class of Term Commitments orTerm Loans;(C) the parties to each assignment shall execute and deliver to the Agent (x) anAssignment and Assumption or (y) to the extent applicable, an agreement incorporating anAssignment and Assumption by reference pursuant to a Platform as to which the Agent and theparties to the Assignment and Assumption are participants), together with a processing andrecordation fee of $3,500; provided that, notwithstanding the foregoing, no Assignment and-121-
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Assumption shall be required in connection with any purchase and sale of any Term Loans heldby any Non-Consenting Lender pursuant to Section 9.02(e); and(D) the assignee, if it shall not be a Lender, shall deliver to the Agent anAdministrative Questionnaire in which the assignee designates one or more credit contacts towhom all syndicate-level information (which may contain material non-public information aboutthe Loan Parties and their related parties or their respective securities) will be made availableand who may receive such information in accordance with the assignee’s compliance proceduresand applicable laws, including Federal and state securities laws.For the purposes of this Section 9.04(b), the terms “Approved Fund” and “IneligibleInstitution” have the following meanings:“Approved Fund” means any Person (other than a natural person) that is engaged inmaking, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinarycourse 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.“Ineligible Institution” means (a) a natural person, (b) a holding company, investmentvehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s)thereof or (c) the Borrower or any of its Affiliates; provided that, with respect to clause (b), such holdingcompany, investment vehicle or trust shall not constitute an Ineligible Institution if it (x) has not beenestablished for the primary purpose of acquiring any Term Loans or Term Commitments, (y) is managedby a professional advisor, who is not such natural person or a relative thereof, having significantexperience in the business of making or purchasing commercial loans, and (z) has assets greater than$25,000,000 and a significant part of its activities consist of making or purchasing commercial loans andsimilar extensions of credit in the ordinary course of its business.(iii) Subject to acceptance and recording thereof pursuant to subclause (b)(iv) of thisSection 9.04, from and after the effective date specified in each Assignment and Assumption theassignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignmentand Assumption, have the rights and obligations of a Lender under this Agreement, and the assigningLender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, bereleased from its obligations under this Agreement (and, in the case of an Assignment and Assumptioncovering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shallcease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.15 and 9.03with respect to facts and circumstances occurring on or prior to the effective date of such assignment).Any assignment or transfer by a Lender of rights or obligations under this Agreement that does notcomply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender ofa participation in such rights and obligations in accordance with clause (c) of this Section 9.04.(iv) The Agent, acting for this purpose as a non-fiduciary agent of the Borrower,shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and aregister for the recordation of the names and addresses of the Lenders, and the Term Commitment of,and principal amount (and related interest) of the Term Loans owing to, each Lender pursuant to theterms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absentmanifest error, and the Borrower, the Agent and the Lenders shall treat each Person whose name isrecorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of thisAgreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the-122-
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Borrower, and solely with respect to its own interests, any Lender, at any reasonable time and from timeto time upon reasonable prior notice.(v) Upon its receipt of (x) a duly completed Assignment and Assumption executedby an assigning Lender and an assignee or (y) to the extent applicable, an agreement incorporating anAssignment and Assumption by reference pursuant to a Platform as to which the Agent and the parties tothe Assignment and Assumption are participants), the assignee’s completed AdministrativeQuestionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordationfee referred to in clause (b) of this Section 9.04 and any written consent to such assignment required byclause (b) of this Section, the Agent shall accept such Assignment and Assumption and record theinformation contained therein in the Register; provided that if either the assigning Lender or the assigneeshall have failed to make any payment required to be made by it pursuant to Section 2.02, 2.16(b) or9.03(c), the Agent shall have no obligation to accept such Assignment and Assumption and record theinformation therein in the Register unless and until such payment shall have been made in full, togetherwith all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unlessit has been recorded in the Register as provided in this subclause (b)(v).(c) Any Lender may, without the consent of the Borrower or the Agent, sellparticipations to one or more banks or other entities (a “Participant”), other than an Ineligible Institution,in all or a portion of such Lender’s rights and obligations under this Agreement (including all or aportion of its Term Commitment and the Term Loans owing to it); provided that (i) such Lender’sobligations under this Agreement shall remain unchanged; (ii) such Lender shall remain solelyresponsible to the other parties hereto for the performance of such obligations; and (iii) the Borrower, theAgent and the other Lenders shall continue to deal solely and directly with such Lender in connectionwith such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuantto which a Lender sells such a participation shall provide that such Lender shall retain the sole right toenforce this Agreement and to approve any amendment, modification or waiver of any provision of thisAgreement; provided that such agreement or instrument may provide that such Lender will not, withoutthe consent of the Participant, agree to any amendment, modification or waiver described in subclauses(A), (B), (C), (D), (F) and (G) of the first proviso to Section 9.02(b) that affects such Participant. TheBorrower agrees that each Participant shall be entitled to the benefits of Sections 2.14 and 2.15 (subjectto the requirements and limitations of such Sections, it being understood and agreed that thedocumentation required under Section 2.15(g) shall be delivered solely to the participating Lender) tothe same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b)of this Section 9.04; provided that such Participant shall not be entitled to receive any greater paymentunder Section 2.14 or 2.15, with respect to any participation, than its participating Lender would havebeen entitled to receive, except to the extent such entitlement to receive a greater payment results from aChange in Law that occurs after the Participant acquired the applicable participation. To the extentpermitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it werea Lender; provided that such Participant shall be subject to Section 2.16(c) as though it were a Lender.Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of theBorrower, maintain a register on which it enters the name and address of each Participant and theprincipal amounts (and related interest) of each Participant’s interest in the applicable Term Loans orother obligations under the Loan Documents (the “Participant Register”); provided that no Lender shallhave any obligation to disclose all or any portion of the Participant Register (including the identity ofany Participant or any information relating to a Participant’s interest in any Term Commitments, TermLoans or its other obligations under any Loan Document) to any Person except to the extent that suchdisclosure is necessary to establish that such Term Commitment, Term Loan or other obligation is inregistered form under Section 5f.103-1(c) of the U.S. Treasury Regulations. The entries in theParticipant Register shall be conclusive absent manifest error, and such Lender shall treat each Personwhose name is recorded in the Participant Register as the owner of such participation for all purposes of-123-
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benefit of the Borrower or any other Loan Party, that:(i) none of the Agent or the Joint Lead Arrangers or Bookrunners or any of theirrespective Affiliates is a fiduciary with respect to the assets of such Lender (including inconnection with the reservation or exercise of any rights by the Agent under this Agreement, orany of the other Loan Documents),(ii) the Person making the investment decision on behalf of such Lender withrespect to the entrance into, participation in, administration of and performance of the TermLoans and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is abank, an insurance carrier, a registered investment adviser, a registered broker-dealer or otherperson that has under management or control, total assets of at least $50 million, in each case asdescribed in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),(iii) the Person making the investment decision on behalf of such Lender withrespect to the entrance into, participation in, administration of and performance of the TermLoans and this Agreement is capable of evaluating investment risks independently, both ingeneral and with regard to particular transactions and investment strategies,(iv) the Person making the investment decision on behalf of such Lender withrespect to the entrance into, participation in, administration of and performance of the TermLoans and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to theTerm Loans and this Agreement and is responsible for exercising independent judgment inevaluating the transactions hereunder, and(v) no fee or other compensation is being paid directly to the Agent or the JointLead Arrangers or Bookrunners or any of their respective Affiliates for investment advice (asopposed to other services) in connection with the Term Loans or this Agreement.(c) The Agent and the Joint Lead Arrangers hereby informs the Lenders that eachsuch Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciarycapacity, in connection with the transactions contemplated hereby, and that such Person has a financialinterest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) mayreceive interest or other payments with respect to the Term Loans and this Agreement, (ii) mayrecognize a gain if it extended the Term Loans for an amount less than the amount being paid for aninterest in the Term Loans by such Lender or (iii) may receive fees or other payments in connection withthe transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees,commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agencyfees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of creditfees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term outpremiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to theforegoing. SECTION 9.22 Acknowledgment Regarding any Supported QFCs. To the extentthat the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract orany other agreement or instrument that is a QFC (such support, “QFC Credit Support,” and each suchQFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolutionpower of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title IIof the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (together with the regulationspromulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC andQFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents-131-
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Exhibit B Form of Borrowing Request [See attached.]
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EXHIBIT E [FORM OF] BORROWING REQUEST XXXXXXX XXXXX LENDING PARTNERS LLC as Agent for the Lenders referred to below, [ ] [ ] Attention: [ ] [Date]1 Ladies and Gentlemen: Reference is made to the Credit Agreement dated as of June 30, 2017 (as may be amended, supplemented or otherwise modified from time to time) among CLEAN HARBORS, INC., a Massachusetts corporation (the “Borrower”), each Subsidiary of the Borrower that, from time to time, becomes a party thereto, the Lenders from time to time party thereto, and XXXXXXX XXXXX LENDING PARTNERS LLC, as administrative agent for the Lenders and collateral agent for the Secured Parties thereunder (in such capacities, together with its successors and assigns in such capacities, the “Agent”) and the other parties thereto from time to time. The undersigned hereby gives you notice pursuant to Section 2.02 of the Credit Agreement that it requests a Borrowing under the Credit Agreement, and in that connection sets forth below the terms on which such Borrowing is requested to be made: (A) Date of Borrowing (which shall be a Business Day) ______________________ (B) Aggregate Principal Amount of Borrowing ______________________ (C) Class of Borrowing2 ______________________ (D) Type of Borrowing3 ______________________ (E) Interest Period and the last day thereof4 ______________________ 1 Must be provided in writing by the applicable deadline set forth in Section 2.02(a) of the Credit Agreement. 2 Specify under which Term Facility the Borrowing will be made. 3 Specify whether any portion of the proposed Borrowing will be of Term SOFR Loans. 4 The initial Interest Period applicable to any Borrowings that are Term SOFR Loans shall be subject to the definition of “Interest Period”.
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(F) Account Number and Location ______________________ ______________________
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CLEAN HARBORS, INC. By: Name: Title:
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Exhibit C Form of Term Loan Note [See attached.]
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EXHIBIT F F-1 [FORM OF] TERM LOAN NOTE $[ ] New York, New York [ ], 20[ ] FOR VALUE RECEIVED, the undersigned, [INSERT NAME OF APPLICABLE BORROWER], a [ ] (the “Borrower”), hereby promises to pay to [ ] (the “Lender”) or its registered assigns, at the office of XXXXXXX XXXXX LENDING PARTNERS LLC (the “Agent”) at [ ], on the dates and in the amounts set forth in the Credit Agreement dated as of June 30, 2017 (as may be amended, supplemented or otherwise modified from time to time) among CLEAN HARBORS, INC., a Massachusetts corporation (the “Borrower”), each Subsidiary of the Borrower that, from time to time, becomes a party thereto, the Lenders from time to time party thereto, and XXXXXXX XXXXX LENDING PARTNERS LLC, as administrative agent for the Lenders and collateral agent for the Secured Parties thereunder (in such capacities, together with its successors and assigns in such capacities, the “Agent”) and the other parties thereto from time to time, in immediately available funds in Dollars, the aggregate unpaid principal amount of the [insert applicable class of Term Loans] made by the Lender to the Borrower pursuant to the Credit Agreement and to pay interest from the date of such [insert applicable class of Term Loans] on the principal amount thereof from time to time outstanding, in like funds, at said office, at the rate or rates per annum and payable on the dates provided in the Credit Agreement. Terms used but not defined herein shall have the meanings assigned to them in the Credit Agreement. The Borrower promises to pay interest, on demand, on any overdue principal and, to the extent permitted by law, overdue interest from the due dates at a rate or rates provided in the Credit Agreement. The Borrower hereby waives diligence, presentment, demand, protest and notice of any kind whatsoever. The nonexercise by the holder hereof of any of its rights hereunder in any particular instance shall not constitute a waiver thereof in that or any subsequent instance. All borrowings evidenced by this promissory note and all payments and prepayments of the principal hereof and interest hereon and the respective dates thereof shall be endorsed by the holder hereof on the schedules attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof, or otherwise recorded by such holder in its internal records; provided, however, that the failure of the holder hereof to make such a notation or any error in such notation shall not affect the obligations of the Borrower under this Note. This promissory note is one of the promissory notes referred to in the Credit Agreement that, among other things, contains provisions for the acceleration of the maturity hereof upon the happening of certain events, for optional and mandatory prepayment of the principal hereof prior to the maturity hereof and for the amendment or waiver of certain provisions of the Credit Agreement, all upon the terms and conditions therein specified. This promissory note is entitled to the benefit of the Credit Agreement and is guaranteed and secured as provided therein and in the other Loan Documents referred to in the Credit Agreement. THIS PROMISSORY NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. CLEAN HARBORS, INC. By: Name: Title:
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F-2 Schedule A to Note LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE TERM LOANS Date Amount of Base Rate Term Loans Amount Converted to Base Rate Term Loans Amount of Principal of Base Rate Term Loans Repaid Amount of Base Rate Term Loans Converted to Term SOFR Term Loans Unpaid Principal Balance of Base Rate Term Loans Notation Made By
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F-2 Schedule B to Note LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF TERM SOFR RATE TERM LOANS Date Amount of Term SOFR Term Loans Amount Converted to Term SOFR Term Loans Interest Period and Term SOFR with Respect Thereto Amount of Principal of Term SOFR Term Loans Repaid Amount of Term SOFR Term Loans Converted to Base Rate Term Loans Unpaid Principal Balance of Term SOFR Term Loans Notation Made By
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Exhibit D Form of Conversion or Continuation Notice [See attached.]
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EXHIBIT G F-2 [FORM OF] CONVERSION OR CONTINUATION NOTICE Xxxxxxx Xxxxx Lending Partners LLC as Administrative Agent [ ] [ ] Attention: [ ] [Date] Re: Clean Harbors, Inc. Ladies and Gentlemen: This Continuation and Conversion Notice is delivered to you pursuant to Section 2.12 of the Credit Agreement dated as of June 30, 2017 (as may be amended, supplemented or otherwise modified from time to time) among CLEAN HARBORS, INC., a Massachusetts corporation (the “Borrower”), each Subsidiary of the Borrower that, from time to time, becomes a party thereto, the Lenders from time to time party thereto, and XXXXXXX XXXXX LENDING PARTNERS LLC, as administrative agent for the Lenders and collateral agent for the Secured Parties thereunder (in such capacities, together with its successors and assigns in such capacities, the “Agent”) and the other parties thereto from time to time. The Borrower hereby requests that on [__________]1 (the “Conversion or Continuation Date”), 1. $[__________] of the presently outstanding principal amount of the [insert applicable Class of Term Loans] originally made on [__________], 2. and all presently being maintained as [Base Rate Term Loans] [Term SOFR Term Loans], 3. be [converted into] [continued as], 4. [Term SOFR Term Loans having an Interest Period of [one/three/six months]] [Base Rate Term Loans]]. The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the proposed Conversion or Continuation Date, both before and after giving effect thereto and to the application of the proceeds therefrom: 1 Shall be a Business Day that is three Business Days following the date hereof to the extent this Conversion or Continuation Notice is delivered to the Agent prior to 12:00 noon (New York City time) on the date hereof, otherwise the fourth Business Day following the date of delivery hereof.
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(a) the foregoing [conversion] [continuation] complies with the terms and conditions of the Credit Agreement (including, without limitation, Section 2.12 of the Credit Agreement); (b) no Default has occurred and is continuing, or would result from such proposed [conversion] [continuation]. [Signature Page Follows]
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The Borrower has caused this Conversion or Continuation Notice to be executed and delivered by its duly authorized officer as of the date first written above. CLEAN HARBORS, INC. By: Name: Title: