requested in the Borrowing Notice referred to in Section 5(j), and upon receipt thereof the Administrative Agent shall make the same available, in immediately available funds, to the U.K. Borrower. The parties hereto agree that the provisions of...
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Exhibit 10 EXECUTION VERSION FOURTH AMENDMENT dated as of April 7, 2020 (this “Amendment”), among NSM INSURANCE GROUP, LLC, a Delaware limited liability company (the “U.S. Borrower”), NSM INSURANCE HOLDCO, LLC, a Delaware limited liability company (“Holdings”), NSM UK HOLDINGS LTD, a company incorporated in England and Wales with registered number 12498389 and having its registered office at Xxxxx 00, 00 Xx Xxxx Xxx, Xxxxxx, XX0X 0XX (the “U.K. Borrower”), the other LOAN PARTIES party hereto, ARES CAPITAL CORPORATION, a Maryland corporation (“Ares”), as administrative agent (in such capacity, the “Administrative Agent”), and the LENDERS party hereto. WHEREAS, reference is made to the Credit Agreement, dated as of May 11, 2018, as amended by the First Amendment dated as of December 3, 2018, the Second Amendment dated as of April 1, 2019, and the Third Amendment dated as of June 28, 2019 (as so amended, the “Existing Credit Agreement”), among the U.S. Borrower, Holdings, the Lenders party thereto (the “Existing Lenders”), the L/C Issuers party thereto and the Administrative Agent. WHEREAS, reference is also made to the Sale and Purchase Agreement dated as of 21 March 2020 (the “Kingsbridge Acquisition Agreement”), among, inter alia, the U.K. Borrower, and the management shareholders and institutional shareholders party thereto, pursuant to which the U.K. Borrower will acquire shares in Kingsbridge Group Limited, a private limited company incorporated in England and Wales with company number 9948075 and having its registered office at 0 Xxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx Business Park, Xxxxxxxxxx, Xxxxxxxxxxxxxxx XX00 0XX as set forth therein (the “Kingsbridge Acquisition”). WHEREAS, in connection with the Kingsbridge Acquisition, the U.S. Borrower and, with respect to clause (c) below, the U.K. Borrower have requested that, on the Fourth Amendment Effective Date (as defined below): (a) each Existing Lender that holds any Initial Term Loans, any Delayed Draw Term Loans, any First Amendment Incremental Term Loans, any Second Amendment Incremental Term Loans or any Third Amendment Incremental Term Loans (collectively, the “Existing Dollar Term Loans”, and such Existing Lenders being collectively referred to as the “Existing Dollar Term Loan Lenders”) agree to convert the entire principal amount of its Existing Dollar Term Loans into a term loan denominated in Dollars in a like principal amount (such term loans being collectively referred to as the “Dollar Term Loans” and such conversion being referred to as the “Conversion”), which Dollar Term Loans will have the terms set forth with respect thereto in the Amended Credit Agreement (as defined below); (b) the aggregate amount of the Revolving Credit Commitments be increased by $5,000,000; (c) the U.K. Borrower become a party to the Credit Agreement and the Sterling Term Loan Lenders (as defined below) provide to the U.K. Borrower term loans denominated in Sterling in an aggregate principal amount of £42,500,000 (the “Sterling Term Loans”), which will have the terms and conditions set forth in the Amended Credit Agreement and the proceeds of which shall be used to finance a portion of the consideration payable for the Kingsbridge Acquisition and to pay fees and expenses in connection with the Kingsbridge Acquisition and this Amendment; and [[5332992]]
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(d) the Existing Credit Agreement be amended as set forth in this Amendment (the Existing Credit Agreement, as so amended, being referred to as the “Amended Credit Agreement”; the Existing Credit Agreement and the Amended Credit Agreement are sometimes referred to as the “Credit Agreement”). The transactions described in clauses (a) though (d) above are collectively referred to as the “Fourth Amendment Transactions”). WHEREAS, (a) each Existing Dollar Term Loan Lender is willing to participate in the Conversion with respect to the entire principal amount of its Existing Dollar Term Loans, (b) each Person whose name is set forth on Schedule I hereto under the heading “Incremental Revolving Credit Commitments” (each such Person, an “Incremental Revolving Credit Lender”) is willing to increase its Revolving Credit Commitment by, or extend a new Revolving Credit Commitment equal to, the amount set forth opposite its name on Schedule I hereto under such heading, (c) each Person whose name is set forth on Schedule I hereto under the heading “Sterling Term Loan Commitments” (each such Person, a “Sterling Term Loan Lender”) is willing to extend a commitment to make a Sterling Term Loan to the U.K. Borrower in an aggregate principal amount not to exceed the amount set forth opposite its name on Schedule I hereto under such heading (such commitment being, with respect to any Sterling Term Loan Lender, its “Sterling Term Loan Commitment”) and (d) the Administrative Agent, the Existing Dollar Term Loan Lenders, the Incremental Revolving Credit Lenders and the Sterling Term Loan Lenders hereby agree to amend the Existing Credit Agreement as set forth herein, in each case, on the terms and subject to the conditions set forth herein. WHEREAS, capitalized terms used and not defined herein shall have such meanings ascribed thereto in the Existing Credit Agreement or the Amended Credit Agreement, as the context implies. NOW, THEREFORE, the parties hereto agree as follows: SECTION 1. Dollar Term Loans. (a) Subject to the terms and conditions set forth herein, the U.S. Borrower and each Existing Dollar Term Loan Lender agree that, on the Fourth Amendment Effective Date, the entire aggregate principal amount of the Existing Dollar Term Loan of such Existing Dollar Term Loan Lender shall convert into a Dollar Term Loan in a like principal amount (and, upon such conversion, shall cease to be outstanding as an Initial Term Loan, a Delayed Draw Term Loan, a First Amendment Incremental Term Loan, a Second Amendment Incremental Term Loan or a Third Amendment Incremental Term Loans, as applicable, under the Amended Credit Agreement), and shall continue to be outstanding under the Amended Credit Agreement as a Dollar Term Loan on the terms and conditions set forth therein. Each Converting Term Lender agrees that the transactions contemplated by this Section 1(a) shall not be subject to Section 2.16(a) of the Credit Agreement. (b) The terms of the Dollar Term Loans to which the Existing Dollar Term Loans shall have been converted to pursuant to Section 1(a) above shall be as set forth in the Amended Credit Agreement. Notwithstanding anything to the contrary in the Credit Agreement, the Dollar Term Loans shall initially be Eurocurrency Rate Loans that have an Interest Period equal to the remaining duration of the Interest Period applicable to the Existing Dollar Term Loans on the Fourth Amendment Effective Date, and thereafter may be converted or continued as set forth in Section 2.10 of the Amended Credit Agreement. 2 [[5332992]]
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ARES CAPITAL CORPORATION, as Administrative Agent By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory [Fourth Amendment Signature Page] [[5207641]]
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AC AMERICAN FIXED INCOME IV, L.P. By: Ares Capital Management LLC, its investment manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory FEDERAL INSURANCE COMPANY By: Ares Capital Management LLC, its investment manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory SC ACM PRIVATE DEBT FUND L.P. By: Ares Capital Management LLC, its investment manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory SA REAL ASSETS 20 LIMITED By: Ares Management LLC, its investment manager By: Ares Capital Management LLC, as subadvisor By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory BLUE EAGLE 2016-1, LTD. By: Global Atlantic Financial Company, its collateral manager By: Ares Capital Management LLC, its investment manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory [Fourth Amendment Signature Page] [[5207641]]
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ARES ND CSF HOLDINGS LLC By: Ares Capital Management LLC, as servicer By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory BOWHEAD IMC LP By: Ares Capital Management LLC, its investment manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory ARES CENTRE STREET PARTNERSHIP, L.P. By: Ares Centre Street GP, Inc., as general partner By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory AN CREDIT STRATEGIES FUND, L.P. By: Ares Capital Management LLC, its investment manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory ADF I HOLDINGS LLC By: Ares Capital Management LLC, as servicer By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory [Fourth Amendment Signature Page]
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GREAT AMERICAN LIFE INSURANCE COMPANY By: Ares Capital Management LLC, its investment manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory GREAT AMERICAN INSURANCE COMPANY By: Ares Capital Management LLC, its investment manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory ARES CAPITAL CP FUNDING, LLC By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory ARES JASPER FUND HOLDINGS, LLC By: Ares Capital Management LLC, as servicer By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory DIVERSIFIED LOAN FUND - PRIVATE DEBT A S.A.R.L. By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory [Fourth Amendment Signature Page]
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NATIONWIDE LIFE INSURANCE COMPANY By: Ares Capital Management LLC, its investment manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory NATIONWIDE MUTUAL INSURANCE COMPANY By: Ares Capital Management LLC, its investment manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory ARES EUROPEAN CREDIT STRATEGIES FUND VIII (XXXX), L.P. By: Ares Management Limited, its investment manager By: Ares Capital Management LLC, its subadvisor By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory ARES CSIDF HOLDINGS, LLC By: Ares Capital Management LLC, as servicer By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory [Fourth Amendment Signature Page]
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DocuSign Envelope ID: 8822660A-D4B3-4BA4-9D2B-4786FF9B7039 CDPQ REVENU FIXE INC. By: Name: Xxxxxx Xxxxxxx Title: Managing Director, Corporate Credit By: Name: Xxxx-Xxxxxx Xxxxx Title: Managing Director [Signature Page to Fourth Amendment]
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DocuSign Envelope ID: C0DAB0FD-E301-4025-86E6-EE45DFB9B780 XXX XXXX MIDDLE MARKET CREDIT FUND IV, LTD. By: Xxx Xxxx Asset Management, L.P., as Portfolio Manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory XXX XXXX MIDDLE MARKET CREDIT FUND V, LTD. By: Xxx Xxxx Asset Management, L.P., as Portfolio Manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory XXX XXXX MIDDLE MARKET CREDIT FUND VII, LTD. By: Xxx Xxxx Asset Management, L.P., as Portfolio Manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory XXX XXXX MIDDLE MARKET CREDIT FUND VIII, LTD. By: Xxx Xxxx Asset Management, L.P., as Portfolio Manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory XXX XXXX MIDDLE MARKET CREDIT FUND XII, LTD. By: Xxx Xxxx Asset Management, L.P., as Asset Manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory [Fourth Amendment Signature Page, NSM] [[5207641]]
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DocuSign Envelope ID: C0DAB0FD-E301-4025-86E6-EE45DFB9B780 XXX XXXX MIDDLE MARKET CREDIT FUND XIV, LTD. By: Xxx Xxxx Asset Management, L.P., as Portfolio Manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory FEDERAL INSURANCE COMPANY By: Xxx Xxxx Asset Management, L.P., its investment manager By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory [Fourth Amendment Signature Page, NSM]
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SCHEDULE I Incremental Revolving Credit Commitments Incremental Revolving Credit Lender Incremental Revolving Credit Commitment LAKE FOREST BANK & TRUST COMPANY, $5,000,000 N.A. TOTAL $5,000,000 Total Revolving Credit Commitments Revolving Credit Lender Revolving Credit Commitment LAKE FOREST BANK & TRUST COMPANY, $15,000,000 N.A. TOTAL $15,000,000 Sterling Term Loan Commitments Sterling Term Loan Lender Sterling Term Loan Commitment CDPQ REVENU FIXE INC. £42,500,000 TOTAL £42,500,000 [[5332992]]
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SCHEDULE II Addresses for Notices Administrative Agent and/or L/C Issuer Ares Capital Corporation 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx X. Xxxxxx Tel: (000) 000-0000 Email: xxxxxx@xxxxxxxx.xxx with a copy of notices (that will not constitute notice) to: Proskauer Rose LLP Xxxxxx Xxxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxx Xxxxx, Esq. Telecopy: (000) 000-0000 Telephone: (000) 000-0000 L/C Issuer and/or Swingline Lender Lake Forest Bank & Trust Company, N.A. 000 X. Xxxx Xxxx Xxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxxxxxxxxxx Xxxxx Telecopy: 000-000-0000 Telephone: 000-000-0000 and Xxxxx Xxxxxx Telecopy: 000-000-0000 Telephone: 000-000-0000 with a copy (that will not constitute notice) to: Proskauer Rose LLP Xxxxxx Xxxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxx Xxxxx, Esq. Telecopy: (000) 000-0000 Telephone: (000) 000-0000 CDPQ Revenu Fixe Inc. CDPQ Revenu Fixe Inc. 0000 Xxxx Xxxx Xxxxxxxx XX, Xxxxxxxx, Xxxxxx X0X 0X0 Attention: Xxxxxxxx Xxxxxxx Tel: 000 000-0000 [[5332992]]
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Email: xxxxxxxxxx@xxxx.xxx; xxxxxxxxxxxxxxxxxx@xxxx.xxx with a copy of notices (that will not constitute notice) to: Proskauer Rose LLP Xxxxxx Xxxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxx Xxxxx, Esq. Telecopy: (000) 000-0000 Telephone: (000) 000-0000 U.S. Borrower NSM Insurance Group, LLC 000 Xxxxx Xx. Xxxxx 0000 Xxxxxxxxxxxx, XX 00000 Attention: Xxxxx XxXxxxx, CFO Fax: 000-000-0000 XXXxXxxxx@xxxxxx.xxx with a copy to: White Mountains Catskill Holdings, Inc. 00 Xxxxx Xxxx Xxxxxx Xxxxxxx, XX 00000 Attention: General Counsel Facsimile: (000) 000-0000 E-mail: xxxxxxx@xxxxxxxxxxxxxx.xxx; xxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx xxxxxxxxxx@xxxxxxxxxxxxxx.xxx xxxxx@xxxxxxxxxxxxxx.xxx [[5332992]]
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SCHEDULE III Subsidiary Guarantors Subsidiary Guarantors Jurisdiction of Organization American Collectors Insurance LLC Delaware Cleverland Holdings LLC Ohio Embrace Pet Insurance Agency, LLC Ohio Embrace Pet Management, LLC Illinois NSM Insurance Services, LLC Texas [[5332992]]
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SCHEDULE IV Post-Closing Obligations 1. Within 60 days after the Fourth Amendment Effective Date (or such later date as the Administrative Agent may reasonably agree), each of Xxxxxx Bidco Limited, Xxxxxx Midco Limited, Dinghy Limited, Dinghy Tech Limited, Dinghy UK Limited, Kingsbridge Group Limited, KRS Lion Bidco Limited, Xxxxxx Xxxxx Group Limited and Soar Newco Limited shall deliver to the Administrative Agent (i) an executed counterpart to a Supplement (as defined in the Guaranty Agreement) and (ii) an executed counterpart to a Security Accession Deed (as defined in the U.K. Debenture). [[5332992]]
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EXHIBIT A Amendments to the Credit Agreement [Attached] [[5332992]]
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EXHIBIT A PROPOSED AMENDMENTS REFLECTING FOURTH AMENDMENT ADDED TEXT SHOWN UNDERSCORED, DELETED TEXT SHOWN STRIKETHROUGH BASED ON COMPOSITE COPY REFLECTING THE FIRST AMENDMENT DATED AS OF DECEMBER 3, 2018, THE SECOND AMENDMENT DATED AS OF APRIL 1, 2019 AND THE THIRD AMENDMENT DATED AS OF JUNE 28, 2019 CREDIT AGREEMENT Dateddated as of May 11, 2018, among NSM INSURANCE GROUP, LLC, as the U.S. Borrower, NSM UK HOLDINGS LTD, as the U.K. Borrower, NSM INSURANCE HOLDCO, LLC, as Holdings, ARES CAPITAL CORPORATION, as Administrative Agent, and THE LENDERS AND L/C ISSUERS PARTY HERETO FROM TIME TO TIME ♦ ♦ ♦ ARES CAPITAL MANAGEMENT LLC, as Sole Bookrunner and Sole Lead Arranger and LAKE FOREST BANK & TRUST COMPANY, N.A., as Documentation Agent [[5286738]]
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TABLE OF CONTENTS Page ARTICLE 1 DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS 1 SectionSECTION 1.1 Defined Terms 1 SectionSECTION 1.2 UCC Terms 4954 SectionSECTION 1.3 Accounting Terms and Principles 4954 SectionSECTION 1.4 Payments 5156 SectionSECTION 1.5 Interpretation 5156 SectionSECTION 1.6 Currency Equivalents Generally 5258 Section 1.7 Effectuation of Transactions 53 SECTION 1.7 Divisions 58 ARTICLE 2 THE FACILITIES 5358 SectionSECTION 2.1 The Commitments 5358 SectionSECTION 2.2 Borrowing Procedures 5358 SectionSECTION 2.3 Swingline Loans 5560 SectionSECTION 2.4 Letters of Credit 5661 SectionSECTION 2.5 Reduction and Termination of the Commitments 5864 SectionSECTION 2.6 Repayment of Loans 5964 SectionSECTION 2.7 Optional Prepayments 5964 SectionSECTION 2.8 Mandatory Prepayments 5965 SectionSECTION 2.9 Interest 6368 SectionSECTION 2.10 Conversion and Continuation Options 6469 SectionSECTION 2.11 Fees 6469 SectionSECTION 2.12 Application of Payments 6570 SectionSECTION 2.13 Payments and Computations 6772 SectionSECTION 2.14 Evidence of Debt 6874 SectionSECTION 2.15 Suspension of EurodollarEurocurrency Rate Option 6975 SectionSECTION 2.16 Breakage Costs; Increased Costs; Capital Requirements 7076 SectionSECTION 2.17 Taxes 7278 SectionSECTION 2.18 Substitution of Lenders 7684 SectionSECTION 2.19 Incremental Facilities 7785 i [[5286738]]
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ARTICLE 5 FINANCIAL COVENANT 9399 SectionSECTION 5.1 Maximum Consolidated Total Leverage Ratio 9399 SectionSECTION 5.2 Borrower’s Right to Cure 9499 ARTICLE 6 REPORTING COVENANTS 95100 SectionSECTION 6.1 Financial Statements 95100 SectionSECTION 6.2 Other Events 97102 SectionSECTION 6.3 Copies of Notices and Reports 97102 Section 6.4 Taxes 97 Section 6.5 Labor Matters 97 Section 6.6 ERISA Matters 98 Section 6.7 Environmental Matters 98 Section 6.8 SECTION 6.4 Other Information 98102 ARTICLE 7 AFFIRMATIVE COVENANTS 99102 SectionSECTION 7.1 Maintenance of Corporate Existence 99102 SectionSECTION 7.2 Compliance with Laws, Etc. 99103 SectionSECTION 7.3 Payment of Obligations 99103 SectionSECTION 7.4 Maintenance of Property 99 and Rights 103 SectionSECTION 7.5 Maintenance of Insurance 99103 SectionSECTION 7.6 Keeping of Books 100103 SectionSECTION 7.7 Access to Books and Property 100104 SectionSECTION 7.8 Environmental 100104 SectionSECTION 7.9 Use of Proceeds 100104 SectionSECTION 7.10 Additional Collateral and Guaranties 101105 SectionSECTION 7.11 Deposit Accounts 103107 Section 7.12 Post Closing Matters 000 Xxxxxxx XXXXXXX 7.12 PSC Register 107 SECTION 7.13 OFAC/Patriot Act 103108 SectionSECTION 7.14 Designation of Subsidiaries 104108 iii [[5286738]]
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ARTICLE 8 NEGATIVE COVENANTS 104109 SectionSECTION 8.1 Indebtedness 104109 SectionSECTION 8.2 Liens 108112 SectionSECTION 8.3 Investments 111115 SectionSECTION 8.4 Asset Sales 115120 SectionSECTION 8.5 Restricted Payments 117122 SectionSECTION 8.6 Prepayment of Junior Financing 120124 SectionSECTION 8.7 Fundamental Changes 121126 SectionSECTION 8.8 Change in Nature of Business 122127 SectionSECTION 8.9 Transactions with Affiliates 124129 SectionSECTION 8.10 Third-Party Restrictions on Liens or Restricted Payments 126131 SectionSECTION 8.11 Modification of Certain Documents 127132 SectionSECTION 8.12 Accounting Changes; Fiscal Year 127132 SectionSECTION 8.13 Margin Regulations 128133 Section 8.14 Compliance with ERISA 128 ARTICLE 9 EVENTS OF DEFAULT 128133 SectionSECTION 9.1 Definition 128133 SectionSECTION 9.2 Remedies 130135 SectionSECTION 9.3 Actions in Respect of Letters of Credit 130135 ARTICLE 10 THE ADMINISTRATIVE AGENT 130135 SectionSECTION 10.1 Appointment and Duties 130135 SectionSECTION 10.2 Binding Effect 131136 SectionSECTION 10.3 Use of Discretion 132137 SectionSECTION 10.4 Delegation of Rights and Duties 132137 SectionSECTION 10.5 Reliance and Liability 132137 SectionSECTION 10.6 Administrative Agent Individually 133138 SectionSECTION 10.7 Lender Credit Decision 133138 SectionSECTION 10.8 Expenses; Indemnities 134139 SectionSECTION 10.9 Resignation of Administrative Agent or L/C Issuer 134140 SectionSECTION 10.10 Release of Collateral or Guarantors 135140 iv [[5286738]]
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SCHEDULES AND EXHIBITS Schedule I - Commitments Schedule II - Addresses for Notices Schedule 2.4 - Existing Letters of Credit Schedule 3.1(a) - Other Collateral Documents Schedule 4.2 - Permits, Filings, Consents and Notices Schedule 4.3 - Ownership of Group Members; Subsidiaries; Capitalization Schedule 4.12 - Labor Matters Schedule 4.14 - Environmental Matters Schedule 4.16 - Real Property Schedule 7.12 - Post-Closing Matters Schedule 8.1 - Indebtedness Schedule 8.2 - Liens Schedule 8.3 - Investments Schedule 8.9 - Affiliate Transactions Exhibit A - Form of Assignment Exhibit B - Form of [Revolving Loan][Dollar Term Loan][Sterling Term Loan] Note Exhibit C - Form of Notice of Borrowing Exhibit D - Form of Swingline Loan Request Exhibit E - Form of L/C Request Exhibit F - Form of Notice of Conversion or Continuation Exhibit G - Form of Compliance Certificate Exhibit H - Form of Guaranty and Security Agreement[Reserved] Exhibit I - Form of Affiliated Lender Assignment and Assumption Exhibit J - Form of Solvency Certificate vi [[5286738]]
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Administrative Agent in good faith) governing arrangements for the sharing and/or subordination of Liens and/or arrangements relating to the distribution of payments, as applicable, at the time the relevant intercreditor or subordination agreement or arrangement is proposed to be established in light of the type of Indebtedness subject thereto or (ii) any other intercreditor or subordination agreement or arrangement (which may take the form of a “waterfall” or similar provision), as applicable, the terms of which are reasonably acceptable to the U.S. Borrower and the Administrative Agent. “Acquisition” has the meaning specified in the recitals.means the purchase or other acquisition (in one transaction or a series of transactions, including pursuant to any merger or consolidation) by the U.S. Borrower or any Restricted Subsidiary of (a) Stock in a Person if, as a result of the consummation thereof, such Person will become a Restricted Subsidiary of the U.S. Borrower or (b) all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, brand, program or product line or line of business of), any Person. “Acquisition Agreement” means the Unit Purchase Agreement, dated as of March 31, 2018, by and among the Sellers, Holdings, the Buyer, Parent and ABRY Partners VIII, L.P., a Delaware limited partnership, solely in its capacity as the Seller Representative (as defined therein). “Acquisition Agreement Representations” means the representations and warranties regarding Holdings set forth in Article 3 of the Acquisition Agreement a breach of which would be materially adverse to the interests of the Lenders. “Administrative Agent” has the meaning specified in the preamble hereto. “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any U.K. Financial Institution. “Affected Lender” has the meaning specified in Section 2.18(a). “Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person; provided, however, that none of the Administrative Agent nor any Lender shall be an Affiliate of theany Borrower (other than Affiliated Lenders in accordance with the terms hereof). For purpose of this definition, “control” means the power to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise. “Affiliated Debt Fund” means (a) any Affiliate of Parent that is a bona fide bank, debt fund, distressed asset fund, hedge fund, mutual fund, insurance company, financial institution or an investment vehicle that is engaged in the business of investing in, acquiring or trading commercial loans, bonds and similar extensions of credit in the ordinary course, in each case, that is not organized primarily for the purpose of making equity investments, and (b) any investment fund or account of an Affiliate of Parent managed by third parties (including by way of a managed account, a fund or an index fund in which an Affiliate of Parent has invested) that is not organized or used primarily for the purpose of making equity investments, in the case of each of the preceding clauses (a) and (b), with respect to which neither Parent nor any Permitted Investor directly or indirectly possesses the power to direct or cause the direction of the investment policies of such entity. In no event shall Holdings or any of its Subsidiaries be deemed an Affiliated Debt Fund. “Affiliated Lender” means, at any time, any Lender that is Parent or any of its Affiliates (other than Holdings, theany Borrower or any of their respective Subsidiaries). 2 [[5286738]]
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“Affiliated Lender Assignment and Assumption” has the meaning specified in Section 11.2(g)(i)(A). “Agreement” means this Credit Agreement, as amended, restated, supplemented or otherwise modified from time to time. “Agreement Currency” has the meaning specified in Section 11.24(b). “AIG” means AIG Property Casualty U.S., Inc., a Delaware corporation. “AIG Renewal Rights” means the obligations of the Loan Parties under the Renewal Rights Agreement. “All-In Yield” means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, original issue discount, upfront fees, or interest rate floor (with such interest rate floor equated to interest margins for purposes of determining any increase to the Applicable Marginsubject to the proviso set forth below); provided that original issue discount and upfront fees shall be equated to interest rates in a manner consistent with generally accepted financial practice assuming a 4-year life to maturity (or, if less, the stated life to maturity at the time of its incurrence of the applicable Indebtedness); provided, further, that (a) if such Indebtedness includes any “LIBOR” floor and, at the time of determination, such floor is greater than the Eurocurrency Base Rate for the applicable currency for an Interest Period of three months on such date, such excess amount shall be equated to interest rate margins for purposes of calculating the All-In Yield with respect to such Indebtedness, (b) “All-In Yield” shall not include (i) bona fide arrangement fees, structuring fees, underwriting fees, commitment fees, ticking fees or any other fees similar to the foregoing (regardless of how such fees are computed and whether paid in whole or in part to any or all lenders) paid to arrangers or underwriting lenders for(or equivalent) in connection with such Indebtedness or commitments in respect thereof, and shall not include(ii) customary and bona fide consent fees paid generally to consenting lenders and (iii) any other fees that are not paid directly by the Borrowers or any of their Affiliates to the lenders of such Indebtedness and (c) if the Term Loans under any Term Loan Facility shall have been incurred with different amounts of original issue discount or upfront fees, then the All-In Yield with respect to the Term Loans under such Term Loan Facility will be determined on the basis of the weighted average of the amounts of the original issue discount and/or upfront fees with respect to all the Term Loans under such Term Loan Facility. “Applicable Creditor” has the meaning specified in Section 11.24(b). “Applicable Margin” means : (a) with respect to the InitialDollar Term Loans, First Amendment Incremental Term Loans, Second Amendment Incremental Term Loans, Third Amendment Incremental Term Loans, Delayed-Draw Term Loans,the Revolving Loans and the Swingline Loans, (i) from the ClosingFourth Amendment Effective Date until the third Business Day following the date of the delivery to the Administrative Agent of the consolidated financial statements pursuant to Section 6.1(b) for the Fiscal Quarter ending June 30, 2018March 31, 2021 and the related Compliance Certificate pursuant to Section 6.1(d), 4.505.75% per annum in the case of EurodollarEurocurrency Rate Loans and 3.504.75% in the case of Base Rate Loans and (ii) thereafter, the rate per annum as set forth in the table below, from and after under the caption “Applicable Margin for Eurocurrency Rate Loans ($)” or “Applicable Margin for Base Rate Loans”, as the case may be, based upon the Consolidated Total Leverage Ratio as of the last day of the most recently ended Test Period; 3 [[5286738]]
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(b) with respect to the Sterling Term Loans, (i) from the Fourth Amendment Effective Date until the third Business Day afterfollowing the date on whichof the delivery to the Administrative Agent shall have receivedof the applicableconsolidated financial statements pursuant to Section 6.1(b) for the Fiscal Quarter ending March 31, 2021 and the related Compliance Certificate pursuant to Section 6.1(d), 6.25% per annum and (ii) thereafter, the rate per annum as set forth in the table below under the caption “Applicable Margin for Eurocurrency Rate Loans (£)”, based upon the Consolidated Total Leverage Ratio as of the last day of the most recently ended Test Period; and (c) with respect to Loans under any other Facility, the rate per annum specified in the Incremental Amendment, the Extension/Modification Amendment or the amendment with respect to Replacement Loans, as the case may be, establishing Loans under such Facility; provided, in the case of clauses (a)(i) and (b)(i) above, that if the Consolidated Total Leverage Ratio as of the last day of the most recently ended Fiscal Quarter for which the consolidated financial statements pursuant to Section 6.1(b) or 6.1(c) and the related Compliance Certificate pursuant to Section 6.1(d) calculating the Consolidated Total Leverage Ratio with respect to the period of four consecutive Fiscal Quarters ended on the last day of such Fiscal Quarter and (b) with respect to Loans of any other tranche, the rate per annum specified in the Incremental Amendment, the Extension/Modification Amendment or in any amendment with respect to Replacement Loans, as the case may be, establishing Loans of such trancheshall have been delivered to the Administrative Agent shall be greater than 4.50:1.00, then, from and after the third Business Day after the date of the delivery thereof and until the third Business Day after the next such delivery, the Applicable Margin shall be determined in accordance with clause (a)(ii) or (b)(ii) above, as applicable, it being understood, however, that Pricing Level III set forth in the table below shall not be available until the expiration of the period referred to in clause (a)(i) or (b)(i) above, as applicable. Applicable Applicable Consolidated Applicable Margin for Margin for Margin for Pricing Total EurodollarEurocurrency Base Rate Eurocurrency Level Leverage Ratio Rate Loans ($) Loans Rate Loans (£) I > 4.50:1.00 4.75%6.00% 5.00% 3.75%6.50% II ≤ 4.50:1.00 5.75% 4.50%4.75% 3.50%6.25% but > 3.50:1.00 III ≤ 3.50:1.00 5.50% 4.25%4.50% 3.25%6.00% At any time the Borrower has not submitted toEach change in the Applicable Margin arising from a change in the Consolidated Total Leverage Ratio shall be effective from and after the third Business Day after the date on which the Administrative Agent the applicableshall have received the consolidated financial statements as and when required underpursuant to Section 6.1(b) andor 6.1(c) and the related Compliance Certificate as and when required underpursuant to Section 6.1(d), the Applicable Margin shall be determined based on the rates set forth in Pricing Level I. Within one Business Day of receipt of the applicable information underconsolidated financial statements and related Compliance Certificate pursuant to Section 6.1(b), 6.1(c) andor 6.1(d), as applicable, the Administrative Agent shall give theeach Borrower and each Lender facsimile or telephonic notice (confirmed in writing) of the Applicable Margin in effect from such date. 4 [[5286738]]
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If the U.S. Borrower has not delivered to the Administrative Agent the applicable consolidated financial statements as and when required pursuant to Section 6.1(b) or 6.1(c) or the Compliance Certificate as and when required pursuant to Section 6.1(d), the Applicable Margin shall be determined based on the rates set forth in Pricing Level I until such consolidated financial statements or such Compliance Certificate is delivered. In the event that any consolidated financial statement or Compliance Certificate delivered pursuant to Section 6.1(b), 6.1(c) or 6.1(d) is determined to be inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then, if such determination of inaccuracy occurs prior to the repayment in full of the Loans and termination of the Commitments, (x) the U.S. Borrower shall as promptly as reasonably practicable following such determination deliver to the Administrative Agent correct consolidated financial statements and the related Compliance Certificate required by Section 6.1(b), 6.1(c) andor 6.1(d), as applicable, for such Applicable Period, (y) the Applicable Margin for such Applicable Period shall be determined as if the Consolidated Total Leverage Ratio were determined based on the amounts set forth in such correct consolidated financial statements and certificatesuch Compliance Certificate and (z) the applicable Borrower shall promptly (and in any event within ten (10) Business Days) following delivery of such corrected consolidated financial statements and certificatesuch Compliance Certificate pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period. “Approved Fund” means, with respect to any Lender, any Person (other than a natural Personperson) that (a) is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and (b) is advised or managed by (i) such Lender, (ii) any Affiliate of such Lender or (iii) any Person (other than an individuala natural person) or any Affiliate of any Person (other than an individuala natural person) that administers or manages such Lender. “Ares” has the meaning set forth in the introductory paragraphpreamble hereto. “Ares Capital” means Ares Capital Management LLC, together with its managed funds and accounts. “Assignment” means an assignment agreement entered into by a Lender, as assignor, and any Person, as assignee, pursuant to the terms and provisions of Section 11.2 (with the consent of any party whose consent is required by Section 11.2), and accepted by the Administrative Agent in, which shall be substantially in the form of Exhibit A, or any other form approved by the Administrative Agent and, to the extent such other form adversely affects the interests of theany Borrower, by thesuch Borrower. “Available Excluded Contribution Amount” means, at any time, (a) the aggregate amount of any capital contribution in respect of Qualified Capital Stock or the aggregate proceeds of any issuance of Qualified Capital Stock received in cash or Cash Equivalents by the U.S. Borrower or any of its Restricted Subsidiaries, plus (b) the aggregate amount of the fair market value (as reasonably determined by the U.S. Borrower) of other property received by the U.S. Borrower or any Restricted Subsidiary as a capital contribution in respect of Qualified Capital Stock or in return for any issuance of Qualified Capital Stock (in each case of the foregoing clauses (a) and (b), to the extent not otherwise applied and other than any amounts (xi) constituting a Specified Equity Contribution or included as part of the Cumulative Available Amount or specified as excluded from the calculation of the Available Excluded Contribution Amount hereunder or (yii) received from the U.S. Borrower or any Restricted 5 [[5286738]]
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Subsidiary), in each case, during the period from and including the day immediately following the Closing Date through and including such time. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEAAffected Financial Institution. “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their Affiliates (other than through liquidation, administration or other insolvency proceedings). “Banking Services” means each and any of the following bank services: commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with cash management and deposit accounts. “Banking Services Obligations” means any and all obligations of any Loan PartyGroup Member, whether absolute or contingent and however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under any arrangement in connection with Banking Services (a) between any Loan PartyGroup Member and a counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or the Lead Arranger or (b) under any arrangement by any Loan PartyGroup Member with any counterparty that havehas been designated to the Administrative Agent in writing by the U.S. Borrower as being Banking Services Obligations for the purposes of the Loan Documents, it being understood that each counterparty thereto shall be deemed (Ai) to appoint the Administrative Agent as its agent under the applicable Loan Documents and (Bii) to agree to be bound by the provisions of Article 10, Section 11.3, Section 11.13, Section 11.14 and Section 11.15 and any Acceptable Intercreditor Agreement as if it were a Lender. “Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.), as amended and in effect from time to time and the regulations issued from time to time thereunder. “Base Rate” means, for any day, a rate per annum equal to the highest of (a) the rate last quoted by The Wall Street Journal as the “Prime Rate” in the United States (or, if The Wall Street Journal ceases quoting a prime rate of the type described, either (i) the per annum rate quoted as the base rate on such corporate loans in a different nationally recognized financial publication as reasonably selected by the Administrative Agent in consultation with the U.S. Borrower or (ii) the highest per annum rate of interest published by the Federal Reserve Board in Federal Reserve statistical release H.15 (519) entitled “Selected Interest Rates” as the bank prime loan rate or its equivalent), (b) the sum of 0.5% per annum and the Federal Funds Rate and (c) the sum of (x) the EurodollarEurocurrency Base Rate calculated for each such day based onfor a deposit in Dollars for an Interest Period of three monthsone month, determined at 11:00 a.m. (London, England time,) two (2) Business Days prior to such day, plus 1.00%. For purposes of clause (c) above, the EurodollarEurocurrency Base Rate on any day shall be based on the Eurodollar Base Rate and theapplicable Screen Rate (or, if the applicable Screen Rate is 6 [[5286738]]
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not available for such one month maturity, the Interpolated Screen Rate, if available). Any change in the Base Rate due to a change in any of the foregoing shall be effective on the effective date of such change in the “Prime Rate”, the Federal Funds Rate or the Eurodollar Rate for an Interest Period of three monthsEurocurrency Base Rate. Notwithstanding the foregoing, in no event shall the Base Rate be less than (x) in the case of Dollar Term Loans, 2.25% per annum and (y) in the case of Revolving Loans, 2.00% per annum. “Base Rate Loan” means any Loan that bears interest based on the Base Rate. “Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA (whether governed by the laws of the United States or otherwise), other than a Multiemployer Plan, to which any Group Member incurs or otherwise has any obligation or liability, contingent or otherwise. “BHC Act Affiliate” means, with respect to any Person, an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. § 1841(k)) of such Person. “Borrower” has the meaning set forth in the introductory paragraph hereto.means the U.S. Borrower or the U.K. Borrower. “Borrower DTTP Filing” means an HM Revenue & Customs’ Form DTTP2, duly completed and filed by the U.K. Borrower within the applicable time limit, which contains the scheme reference number and jurisdiction of tax residence provided by the applicable Lender to the U.K. Borrower or the Administrative Agent. “Borrowing” means a borrowing consisting of Loans (other than Swingline Loans and Loans deemed made pursuant to Section 2.3 or 2.4) made inunder one Facility on the same day by the Lenders according to their respective Commitments under such Facility. “Borrowing Multiple” means (a) in the case of Loans denominated in Dollars, $100,000 and (b) in the case of Loans denominated in Sterling, £100,000. “Business Day” means any day of the year that is not a Saturday, Sunday or a day on which banks are required or authorized to closeremain closed in New York City and, when determined in connection with notices and determinations in respect of any Eurodollarthe Eurocurrency Rate or Eurodollarany Eurocurrency Rate Loan or any funding, conversion, continuation, Interest Period or payment of any EurodollarEurocurrency Rate Loan, that is also a day on which dealings in Dollar deposits in the applicable currency are carried on in the London interbank market. “Capital Expenditures” means, for any Person for any period, the aggregate of all expenditures, whether or not made through the incurrence of Indebtedness, by such Person and its Restricted Subsidiaries during such period for the acquisition, leasing (pursuant to a Capital Lease), construction, replacement, repair, substitution or improvement of fixed or capital assets or additions to equipment, in each case required to be capitalized under GAAP on a Consolidated balance sheet of such Person. “Capital Lease” means, with respect to any Person, and subject to Section 1.3, any lease of, or other arrangement conveying the right to use, any property (whether real, personal or mixed) by such Person as lessee that has been or should be accounted for as a capital lease on a balance sheet of such Person prepared in accordance with GAAP. 7 [[5286738]]
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“Capitalized Lease Obligations” means, at any time, with respect to any Capital Lease, the amount of all obligations of such Person that is required to be capitalized on a balance sheet of such Person prepared in accordance with GAAP. “Captive Insurance Subsidiary” means any Subsidiary of the U.S. Borrower that is subject to regulation as an insurance company (or any Subsidiary thereof). “Cash Collateral Account” means a deposit account or securities account in the name of a Group Member and under the sole control (as defined in the applicable UCC) of the Administrative Agent and (a) in the case of a deposit account, from which a Group Member may not make withdrawals except as permitted by the Administrative Agent and (b) in the case of a securities account, with respect to which the Administrative Agent shall be the entitlement holder and the only Person authorized to give entitlement orders with respect thereto. “Cash Equivalents” means: (a) any readily-marketable securities (i) issued by, or directly, unconditionally and fully guaranteed or insured by, the United States federal government or the United Kingdom government or (ii) issued by any agency of the United States federal government or the United Kingdom government, the obligations of which are fully backed by the full faith and credit of the United States federal government or the United Kingdom government; (b) any readily-marketable direct obligations issued by any other agency of the United States federal government or the United Kingdom government, any state or territory of the United States or the United Kingdom or any political subdivision of any such state or territory or any public instrumentality thereof, in each case having a rating of at least “A-2” from S&P or at least “P-2” from Xxxxx’x; (c) any commercial paper rated at least “A-2” by S&P or “P-2” by Xxxxx’x and issued by any Person organized under the laws of any state or territory of the United States or the United Kingdom; (d) any Dollar-denominated or eurodollar denominated time deposit, insured certificate of deposit, overnight bank deposit or bankers’ acceptance issued or accepted by (i) any Lender or (ii) any commercial bank that is (A) organized under the laws of the United States, the United Kingdom or any state or territory thereof or the District of Columbia, (B) “adequately capitalized” (as defined in the regulations of its primary federal banking regulators) and (C) has Tier 1 capital (as defined in such regulations) in excess of $100,000,000; (e) shares of any United States money market fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clause (a), (b), (c) or (d) above with maturities as set forth in the proviso below, (ii) has net assets in excess of $250,000,000 and (iii) has obtained from either S&P or Xxxxx’x the highest rating obtainable for money market funds in the United States or the United Kingdom; provided, however, that the maturities of all obligations specified in any of clauses (a), (b), (c), and (d) and (e) above shall not exceed 365 days; (f) instruments equivalent to those referred to in any of clauses (a), (b), (c), (d) and (e) above denominated in any foreign currency comparable in credit quality and tenor to Dollars and customarily used by corporations or other business entities for cash management purposes in 8 [[5286738]]
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any jurisdiction outside the United States or the United Kingdom to the extent required in connection with any business conducted by any Group Member in such jurisdiction; and (g) solely with respect to any Captive Insurance Subsidiary, any investment that such Captive Insurance Subsidiary is not prohibited to make in accordance with applicable law. “CERCLA” means the United States Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §§ 9601 et seq.). “CFC” means (a) any Person that is a “controlled foreign corporation” (within the meaning of Section 957), but only if a “United States person” (within the meaning of Section 7701(a)(30)) that is an Affiliate of a Loan Party is, with respect to such Person, a “United States shareholder” (within the meaning of Section 951(b)) described in Section 951(a)(1); and (b) each Subsidiary of any Person described in clause (a). For purposes of this definition, all Section references are to the Code. “CFC Holdco” means a Domestic Subsidiary that has no material assets other than the equity interests (or equity interests and indebtedness) of one or more Foreign Subsidiaries that are CFCs or other CFC Holdcos. “CFC Loan Party” means any Loan Party that is a CFC Holdco or a Domestic Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary. “Change of Control” means the occurrence of any of the following: (a) at any time prior to a Qualifying IPO, Parent ceases to be the beneficial owner, in the aggregate, directly or indirectly, of Stock of Holdings representing at least a majority of the aggregate total voting power represented byof all the issued and outstanding Voting Stock of Holdings; (b) at any time on or after a Qualifying IPO, any Person or Persons (in each case, other than Parent, any employee benefit plan of Holdings and its Subsidiaries, any person or entityPerson acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, and any other holder of Stock as of the Closing Date and their respective Affiliates) that together constitute a “group” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) shall become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934) of more than the greater of (i) 35% of the total voting power of all of the outstanding Voting Stock for the election of the directors of Holdings and (ii) the percentage of the total voting power of all of the outstanding Voting Stock of Holdings owned, directly or indirectly, beneficially by Parent; or (c) Holdings(i) the U.S. Borrower shall cease to own and control legally and beneficially all of the economic and voting rights associated with ownership of all outstanding Stock and Stock Equivalents of the Borrower (be a direct Wholly Owned Subsidiary of Holdings, subject to any transaction permitted by Section 8.7), or (ii) the U.K. Borrower shall cease to be a direct or indirect Wholly Owned Subsidiary of the U.S. Borrower. “Closing Date” means May 11, 2018. “Code” means the U.S. Internal Revenue Code of 1986, as amended. 9 [[5286738]]
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“Collateral” means all property and interests in property and proceeds thereof now owned or hereafter acquired by any Loan Party in or upon which a Lien is granted or purported to be granted pursuant to any Loan Document. “Collateral Documents” means, collectively, the Guaranty andU.S. Security Agreement, the U.K. Security Documents, the Mortgages, eachthe Control AgreementAgreements and all other security agreements, pledge agreements, intellectual property security agreements and other similar agreements, and all amendments, restatements, modifications or supplements thereof or thereto, by or between any one or more of pursuant to which any Loan Parties pledgingParty pledges or grantinggrants a Lien on any Collateral, and any Lender or to the Administrative Agent for the benefit of the Secured Parties now or hereafter delivered to the Lenders or the Administrative Agent pursuant to or in connection with the transactions contemplated herebyas security for all or any portion of the Obligations, in each case, solely to the extent, and for so long as, it is in effect in accordance with its terms, as any of the foregoing may be amended, restated and/, supplemented or otherwise modified from time to time. “Commitment” means, with respect to any Lender, such Lender’s Revolving Credit Commitment and Term Loan Commitment. “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.). “Compliance Certificate” means a certificate substantially in the form of Exhibit G, with such modifications to such form as may be reasonably agreed by the Administrative Agent and the U.S. Borrower. “Consolidated” means, with respect to any Person, the accounts of such Person and its Restricted Subsidiaries consolidated in accordance with GAAP. “Consolidated Current Assets” means, with respect to any Person at any date, the total Consolidated current assets of such Person and its Restricted Subsidiaries at such date other thanthat should be classified as current assets on a Consolidated balance sheet of such Person, provided that Consolidated Current Assets shall exclude (i) cash, and Cash Equivalents, (ii) current deferred tax assets and, (iii) any Indebtedness owing to such Person or any of its Restricted Subsidiaries by Affiliates of such Person and (iv) any premiums to the extent required to be remitted to insurance companies and, furthermore, excluding the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Related Transactions or any consummated acquisitionAcquisition. “Consolidated Current Liabilities” means, with respect to any Person at any date, all liabilities of such Person and its Restricted Subsidiaries at such date that should be classified as current liabilities on a Consolidated balance sheet of such Person;, provided, however, that “Consolidated Current Liabilities” shall exclude (i) the principal amount of the Loans then outstanding, (ii) obligations in respect of revolving loans under any working capital credit facility, (iii) the current portion of any Indebtedness (other than the Loans) of the U.S. Borrower and its Restricted Subsidiaries (and accrued interest thereon), (iv) current deferred tax liabilities and any current accrued interest and, (v) premiums payable to insurance companies and (vi) liabilities in respect of unpaid earn-outs or other similar deferred consideration payable in connection with Permitted Acquisitions or other Permitted Investments, and, furthermore, excluding the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Transaction or any consummated acquisitionAcquisition. 10 [[5286738]]
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“Consolidated First Lien Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured by a first priority Lien on any Collateral. “Consolidated First Lien Leverage Ratio” ofmeans, with respect to any Person as of any date means, the ratio of (a) Consolidated First Lien Debt of such Person outstanding as of the last day of the Test Period then most recently ended, less Unrestricted Cash as of such dateday, to (b) LTM EBITDA of such Person for such PersonTest Period. “Consolidated Interest Expense” means, for any Person for any period, without duplication, determined on a Consolidated basis, (a) Consolidated total interest expense of such Person and its Restricted Subsidiaries for such period and including, in any event, (i) interest capitalized during such period and net costs, (ii) the interest component of any payment under any Capital Lease (regardless of whether accounted for as interest expense under GAAP) of such Person or its Restricted Subsidiaries during such period, (iii) any costs associated with obtaining, or breakage costs in respect of, or any payment obligation arising under, any Interest Rate ContractsContract of such Person or its Restricted Subsidiaries and any non-cash interest expense attributable to any movement in the xxxx to market valuation of any obligation under any such Interest Rate Contract, in each case, for such period and, (iiiv) all periodic fees with respect to letters of credit and banker’s acceptances, and all fees payable to any administrative agent, collateral agent or similar Person in respect of any Indebtedness, payable by such Person and its Restricted Subsidiaries during such period minus (b) the sum of (i) Consolidated net gains of such Person and its Restricted Subsidiaries under Interest Rate Contracts for such period and (ii) Consolidated interest income of such Person and its Subsidiaries for such period plus (cand (v) any payments with respect to make-whole, prepayment or repayment premiums or other breakage costs of any Indebtedness, in each case, paid or incurred by such Person or its Restricted Subsidiaries during such period, plus (b) any cash dividendRestricted Payments paid or payable in respect of Disqualified Stock of such Person or its Restricted Subsidiaries during such period, other than to such Person or any Loan Partyof its Restricted Subsidiaries, plus (dc) any net losses, charges, expenses or obligations arising under any Interest Rate ContractsContract of such Person or its Restricted Subsidiaries for such period. For purposes of this definition, interest in respect of any Capital Lease shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capital Lease in accordance with GAAP. “Consolidated Net Income” means, with respect to any Person for any period, the Consolidated net income (or loss) of such Person and its Restricted Subsidiaries for such period; provided, however, that the following shall be excluded: (a) the net income (or loss) of any other Person that is not a majority-owned Subsidiary of such Person (which interest does not cause the net income of such other Person to be Consolidated into the net income ofPerson (other than such specified Person and its Restricted Subsidiaries), except, in the case of net income, to the extent of the amount of dividends or distributions paid to such specified Person or its Restricted SubsidiarySubsidiaries, (b) solely for purposes of calculating the Cumulative Available Amount, the net income of any Restricted Subsidiary (other than a Guarantor) of such PersonLoan Party) that is, on the last day of such period, subject to any restriction or limitation on the payment of dividends or the making of other distributions, to the extent of such restriction or limitation, (c) solely for purposes of calculating Excess Cash Flow, and subject to the pro forma adjustments set forth in the definition of LTM EBITDA, the net income (or loss) of any other Person arising prior to such other Person becoming a Restricted Subsidiary of such specified Person or merging or consolidating with or into such specified Person or its Restricted Subsidiaries and (d) any gain (or loss) resulting from any early extinguishment of Indebtedness (including any Permitted Loan Retirement) or early termination of any Hedging Agreement. 11 [[5286738]]
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“Consolidated Secured Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured by a Lien on any Collateralassets of such Person or its Restricted Subsidiaries. “Consolidated Secured Leverage Ratio” ofmeans, with respect to any Person as of any date means, the ratio of (a) Consolidated Secured Debt of such Person outstanding as of the last day of the Test Period then most recently ended, less Unrestricted Cash as of such dateday, to (b) LTM EBITDA of such Person for such PersonTest Period. “Consolidated Total Debt” of any Person as of any date means all Indebtedness of a type described in clause (a), (b), (d) or (f) of the definition thereof (it being understood that obligations in respect of Banking Services do not constitute Consolidated Total Debt) and all non-contingent reimbursement obligations with respect to draws on letters of credit, bank guaranties or bankers’ acceptances, in each case, of such Person and its Restricted Subsidiaries on a Consolidated basis as of such date, less unrestricted cash and Cash Equivalents of such Person and its Restricted Subsidiaries held in accounts located in the United States or the United Kingdom; provided that (a) the AIG Renewal Rights shall, to the extent it would otherwise be included herein, be excluded from Consolidated Total Debt for so long as Parent is providing a guarantee with respect thereto in form and substance reasonably satisfactory to the Administrative Agent (it being acknowledged that the guarantee in place as of the Closing Date is reasonably acceptable to the Administrative Agent) and (b); provided that “earn-outs” and other similar deferred consideration payable in connection with Permitted Acquisitions or other Permitted Investments shall be included in Consolidated Total Debt only to the extent such consideration is due and payable but has not yet been paid. Notwithstanding the foregoing, the amount of commissions held in trust accounts shall be deemed to be unrestricted cash. “Consolidated Total Leverage Ratio” ofmeans, with respect to any Person as of any date means, the ratio of (a) Consolidated Total Debt of such Person outstanding as of the last day of the Test Period then most recently ended, less Unrestricted Cash as of such dateday, to (b) LTM EBITDA of such Person for such PersonTest Period. “Constituent Documents” means, with respect to any Person, collectively and, in each case, together with any modification of any term thereof, (a) the articles of incorporation, certificate of incorporation, constitution or certificate of formation of such Person, (b) the bylaws, operating agreement or joint venture agreement of such Person, and (c) any other equivalent constitutive, organizationalorganization or governing document of such Person and (d) any other document setting forth the manner of election or duties of the directors, officers or managing members of such Person or the designation, amount or relative rights, limitations and preferences of any Stock of such Person. “Contractual Obligation” means, with respect to any Person, any provision of any Security issued by such Person or of any document or undertaking (other than a Loan Document) to which such Person is a party or by which it or any of its property is bound or to which any of its property is subject. “Control Agreement” means, with respect to any deposit account, any securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Administrative Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, entitlement or contract, effective to grant “control” (as defined under the applicable UCC) over such account, securities entitlement or commodity contract to the Administrative Agent. 12 [[5286738]]
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“Controlled Deposit Account” means each deposit account (including all funds on deposit therein) that is the subject of an effective Control Agreement. “Copyrights” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in copyrights and all mask work, database and design rights, whether or not registered or published, all registrations and recordations thereof and all applications in connection therewith. “Covered Party” has the meaning specified in Section 11.25(b). “CTA” means the United Kingdom Corporation Tax Xxx 0000. “Cumulative Available Amount” means, on any date of determination, the sum of (without duplication): (a) $5,000,000; plus (b) Excess Cash Flow for each Fiscal Year of the U.S. Borrower not required to be applied to prepay Term Loans pursuant to Section 2.8(a), commencing with the Fiscal Year of the U.S. Borrower ended December 31, 20192020; plus (c) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received by the U.S. Borrower or any Restricted Subsidiary in respect of any Investments made pursuant to Section 8.3(q); plus (d) Eligible Equity Proceeds (other than to the extent (i) used to fund Specified Equity Contributions or constituting an Available Excluded Contribution Amount or (ii) received from the U.S. Borrower or any Restricted Subsidiary); plus (e) an amount equal to the sum of (Ai) to the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment, the Investments of pursuant to Section 8.3(g) made by the U.S. Borrower and its Restricted Subsidiaries in any Unrestricted Subsidiary that has been re-designated as a Restricted Subsidiary or that has been merged or consolidated with or into the U.S. Borrower or any of its Restricted Subsidiaries (up to the fair market value (as determined in good faith by the U.S. Borrower) of the original Investments by the U.S. Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary) and (Bii) the fair market value (as determined in good faith by the U.S. Borrower) of the assets of any Unrestricted Subsidiary that have been transferred, conveyed or otherwise distributed to the U.S. Borrower or any of its Restricted Subsidiaries (up to the fair market value (as determined in good faith by the U.S. Borrower) of the original Investments by the U.S. Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary); plus (f) any amount of mandatory prepayments required to be prepaid pursuant to Section 2.8 that have been declined by Lenders pursuant to Section 2.8(h) and retained by the U.S. Borrower pursuant to Section 2.8(h); in each case, to the extent Not Otherwise Applied. “Customary Permitted Liens” means, with respect to any Person, any of the following: 13 [[5286738]]
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(a) Liens (i) with respect to the payment of taxes, assessments or other governmental charges or (ii) of suppliers, carriers, materialmen, warehousemen, workmen or mechanics and other similar Liens, in each case, imposed by law or arising in the ordinary course of business (and (x) for each of, in the case of Liens described in clause (i) above, for amounts that are not delinquent for more than thirty (30) days or (y), in the case of Liens described in clause (ii) above, for amounts that are not delinquent for more than ninety (90) days) or, in each case, that are being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP); (b) bankers liens orLiens (including rights or setoffof set-off) in favor of banks and other financial institutions arising as a matter of law or under customary general terms and conditions encumbering deposits or other funds maintained with a bank or other financial institution, in each case, incurred in the ordinary course of business, including Liens of a collection bank on items in the course of collection arising under Section 4-208 of the UCC as in effect in the State of New York or any similar section under any applicable UCC or any similar Requirement of Law of any foreign jurisdiction; (c) pledges or cash deposits madeLiens arising in the ordinary course of business (i) in connection with workers’ compensation, unemployment insurance or other types of social security benefits (other than any Lien imposed by ERISA), (ii) to secure the performance of bids, tenders, leases (other than Capital Leases), statutory obligations (other than taxes), licenses, sales or other trade contracts (other than for the repayment of borrowed money), (iii) within favor of the owner or lessor of premises leased by the U.S. Borrower or any of its Subsidiaries in the ordinary course of business of the Borrower and such Subsidiary to secure the performance of the U.S. Borrower’s or such Subsidiary’s obligations under the terms of the lease for such premises , in each case, incurred in the ordinary course of business or (iv) made in lieu of, or to secureconnection with the performance of, surety, customs, reclamation or performance bonds (in each case not related to judgments or litigation); (d) judgment liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings not constituting an Event of Default under Section 9.1(e) and pledges or cash deposits made in lieu of, or to secure the performance of, judgment or appeal bonds in respect of such judgments and proceedings; (e) Liens (i) arising by reason of zoning restrictions, easements, licenses, reservations, restrictions, covenants, rights-of-way, encroachments, minor defects or irregularities in title (including leasehold title) and other similar encumbrances on the use of real property or (ii) consisting of leases, licenses or subleases granted by a lessor, licensor or sublessor on its property (in each case other than Capital Leases) not prohibited by Section 8.4 that, for each of the Liens in clauses (i) and (ii) above, do not, in the aggregate, materially (x) impair the value or marketability of such real property or (y) interfere with the ordinary conduct of the business conducted and proposed to be conducted at such real property; (f) Liens of landlords and mortgagees of landlords (i) arising by statute or under any lease or related Contractual Obligation entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and (iv) for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP; 14 [[5286738]]
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(g) the title and interest of a lessor or sublessor in and to personal property leased or subleased (other than through a Capital Lease), in each case extending only to such personal property; (h) Liens in favor of any Governmental Authority securing, in whole or in part, Environmental Liabilities and with respect to which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP; (i) Liens on cash collateral posted in favor of insurance carriers to secure obligations under a Group Member’s insurance policies not to exceed one year’s cost of premiums thereunder; (j) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into in the ordinary course of business; (k) Liens deemed to exist in connection with Investments in repurchase agreements under Section 8.3 and reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts maintained in the ordinary course of business and not for speculative purposes; and (l) Liens imposed by law or incurred pursuant to customary reservations or retentions of title (including contractual Liens in favor of sellers and suppliers of goods) incurred in the ordinary course of business for sums not constituting borrowed money that are not overdue for a period of more than sixty (60) days or that are being contested in good faith by appropriated proceedings and for which adequate reserves have been established in accordance with GAAP (if so required).; “Deemed LTM EBITDA Adjustment Date” has the meaning specified in the definition of “LTM EBITDA”. “Deemed LTM EBITDA Amounts” has the meaning specified in the definition of “LTM EBITDA”. (m) Liens that are contractual rights of setoff or netting; (n) Liens arising out of receipt of customer deposits or advance payments from customers, or deposits required by suppliers, in each case, in the ordinary course of business; and (o) Liens securing obligations (other than obligations representing Indebtedness), which Liens are customary in the operation of the business of the U.S. Borrower and/or its Restricted Subsidiaries in the ordinary course. “Default” means any Event of Default and any event that, with the passing of time or the giving of notice or both, would, unless cured or waived, become an Event of Default. “Default Rate” means an interest rate equal to (a) in the case of any Loans, 2.0% per annum plus the rate otherwise applicable hereunder to such Loans and (b) in the case of any other Loan Document Obligations that are past due, (i) in the case of past due interest, the Default Rate applicable to the Loans giving rise to such interest and (ii) in the case of all other Loan Document Obligations, the Applicable Margin for Revolving Loans that are Base Rate Loans plus 2.0% per annum. 15 [[5286738]]
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“Default Right” has the meaning assigned to such term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “Defaulting Lender” shall mean (x) any Person, as determined by the Administrative Agent, that (a) has failed to fund any portion of its Loans or participations in Letters of Credit or Swingline Loans required to be funded by it hereunder within one (1) Business Day of the date required to be funded by it hereunder, (b) has notified the Administrative Agent, the L/C Issuer, the Swingline Lender, any Lender or theany Borrower in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements in which it commits to extend credit, (c) has failed, within two (2) Business Days after request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit or Swingline Loans, (d) has otherwise failed to pay over to the Administrative Agent, any L/C Issuer or any other Lender any other amount required to be paid by it hereunder within three (3) Business Days of the date when due or, (e) has become (or any parent company thereof has become) insolvent or been determined by any Governmental Authority having regulatory authority over such Person or its assets, to be insolvent, or the assets or management of which has been taken over by any Governmental Authority or (ef)(i) become (or any parent company thereof has become) either the subject of (A) a bankruptcy or insolvency proceeding or (B) a Bail-In Action, (ii) has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or (iii) has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment, unless in the case of any Person subject to this clause (ef), the U.S. Borrower and the Administrative Agent have each determined that such Person intends, and has all approvals required to enable it (in form and substance satisfactory to the U.S. Borrower and the Administrative Agent), to continue to perform its obligations hereunder; provided that no Person shall be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Stock in such LenderPerson or its parent by any Governmental Authority; provided that such action does not result in or provide such LenderPerson with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contract or agreement to which such Person is a party or (y) any L/C Issuer that has failed to honor any drawing under a Letter of Credit in accordance with its terms. “Delayed-Draw Commitment Fee” has the meaning specified in Section 2.11(c). “Delayed-Draw Commitment Termination Date” means July 1, 2018. “Delayed-Draw Effective Date” means any date on which the conditions set forth in Section 3.4 with respect to the Delayed-Draw Term Loans have been satisfied and a Delayed-Draw Term Loan is made. “Delayed-Draw Expiration Date” means the earliest of (i) the date on with the Delayed-Draw Term Loans Commitments are $0 and (ii) the Delayed-Draw Commitment Termination Date. “Delayed-Draw Term Loan” has the meaning specified in Section 2.1(c). “Delayed-Draw Term Loan Commitment” means (a) as to any Lender with a Delayed-Draw Term Loan Commitment, the commitment of such Lender to make its Pro Rata Share of the Delayed-Draw Term Loans, and (b) as to all Lenders with Delayed-Draw Term Loan Commitments, the 16 [[5286738]]
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aggregate commitment of all Lenders to make the Delayed-Draw Term Loans, which aggregate commitment shall be $51,000,000 on the Closing Date. “Delayed-Draw Term Loan Facility” means the Delayed-Draw Term Loan Commitments and the provisions herein related to the Delayed-Draw Term Loans. “Delayed-Draw Term Loan Lenders” means, as of any date of determination, Lenders having Delayed-Draw Term Loan Commitments. “Designated Non-Cash Consideration” means the fair market value (as determined by the U.S. Borrower in good faith) of non-cash consideration received by the U.S. Borrower or any Restricted Subsidiary in connection with any Sale pursuant to Section 8.4(e) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the U.S. Borrower, setting forth the basis of such valuation (which amount will be reduced by the amount of cash or Cash Equivalents received in connection with a subsequent sale or conversion of such Designated Non-Cash Consideration to cash or Cash Equivalents). “Disclosure Documents” means, collectively, all documents filed by any Group Member with the United States Securities and Exchange Commission. “Disqualified Lender” means (without retroactive application): (a) (1) the bona fide competitors of the U.S. Borrower and its Subsidiaries identified in writing by the U.S. Borrower or Parent to the Initial LendersLead Arranger on or prior to the ClosingFourth Amendment Effective Date, or from time to time after the ClosingFourth Amendment Effective Date to the Administrative Agent, (b) (2) those particular banks, financial institutions and other institutional lenders identified in writing by the U.S. Borrower or Parent to the Lead Arranger prior to the ClosingFourth Amendment Effective Date, and (c) (3) any Affiliate of the entities described in the preceding clauses (1a) or (2b), in each case, that are either reasonably identifiable as such on the basis of their name or are identified as such in writing by the U.S. Borrower or Parent to the Lead Arranger on or prior to the ClosingFourth Amendment Effective Date, or after the ClosingFourth Amendment Effective Date to the Administrative Agent from time to time; provided that (x) in no event shall any Affiliates that are banks, financial institutions, bona fide debt funds, investment vehicles, regulated banking entities or non-regulated lending entities, in each case, that are engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and/or similar extensions of credit in the ordinary course or business be a Disqualified Lender unless such Affiliate is identified under clause (2b) above and (y) any Person that is a Lender and subsequently becomes a Disqualified Lender (but was not a Disqualified Lender on the ClosingFourth Amendment Effective Date or at the time it became a Lender) shall be deemed to not be a Disqualified Lender hereunder. The list of Disqualified Lenders shall be made available to all Lenders by the Administrative Agent upon request. “Disqualified Stock” means any Stock or Stock Equivalents that, by its terms, or upon the happening of any event or condition, (a) mandatorily matures or is mandatorily redeemable, (b) is redeemable at the option of the holder thereof in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or 17 [[5286738]]
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any other equity interestsStock or Stock Equivalents, in each case prior to the date that is 90 days after the final maturity date of the Facilitieslatest Maturity Date; provided that the foregoing shall not apply to (i) a redemption, conversion or exchange into equity interestsStock or Stock Equivalents that do not themselves constitute Disqualified Stock, (ii) any offer to redeem or repurchase made in connection with a Change“change of Controlcontrol” or an “asset sale” or (iii) Stock or Stock Equivalents that are issued pursuant to a plan for the benefit of future, current or former employees, directors, or officers of Holdings, the U.S. Borrower or its Subsidiaries or by any such plan to such employees, directors or officers solely because they may be required to be repurchased by Holdings, the U.S. Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s, director’s or officer’s termination, death or disability. “Dollar Equivalent” means, on any date of determination, the amount in Dollars for any amount denominated in Dollars and the Equivalent Amount in Dollars at the time in effect of any amount denominated in any other currency. “Dollar Term Loan Facility” means the Dollar Term Loans and the provisions set forth herein relating to the Dollar Term Loans. “Dollar Term Loan Lender” means each Lender that holds a Dollar Term Loan. “Dollar Term Loans” has the meaning assigned to the term “Dollar Term Loans” in the Fourth Amendment. “Dollars” and the sign “$” each mean the lawful money of the United States of America. “Domestic Person” means any “United States person” under and as defined in Section 7701(a)(30) of the Code. “Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia. “E-Fax” means any system used to receive or transmit faxes electronically. “ECF Payment Date” has the meaning specified in Section 2.8(a). “EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway. “EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. 18 [[5286738]]
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“Environmental Liabilities” means all Liabilities (including costs of Remedial Actions, natural resource damages and costs and expenses of environmental investigation and feasibility studies) that may be imposed on, incurred by or asserted against any Group Member as a result of, or related to, any claim, suit, action, investigation, proceeding or demand by any Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law or otherwise, to the extent arising under any Environmental Law or in connection with any environmental condition or any health or safety condition arising from actual or potential exposure to Hazardous Materials or with any Release and resulting from the ownership, lease, sublease or other operation or occupation of property by any Group Member, whether on, prior or after the date hereof. “Equity Contribution” means the cash equity contribution made by Parent to the Buyer in an aggregate amount equal to, when combined with the fair market value of any capital contributions and investments by management and existing equity holders of Holdings rolled over or invested in connection with the Related Transactions (the “Rollover Equity”), not less than 40% (the “Minimum Equity Contribution”) of the sum of (i) the aggregate principal amount of the Initial Term Loans made on the Closing Date and (ii) the amount of the Equity Contribution and the Rollover Equity on the Closing Date. “Equivalent Amount” means, on any date of determination, with respect to obligations or valuations denominated in one currency (the “first currency”), the amount of another currency (the “second currency”) which would result from the conversion of the relevant amount of the first currency into the second currency, at the rate used by the Administrative Agent’s treasury function on such date or, if such date is not a Business Day, on the Business Day immediately preceding such date of determination, or at such other rate as may have been agreed in writing between the U.S. Borrower, as the case may be, and the Administrative Agent. “Equivalent Percentage” means, with respect to any dollar amount, suchthe percentage of Trailing EBITDA asthat such dollar amount represents of LTM EBITDA of Holdings, the Borrower and its Restricted Subsidiaries for the four quarters ended March 31, 2018, rounded to the nearest half-integral percentage. LTM EBITDA of Holdings, the Borrower and its Restricted Subsidiaries for the four quarters ended March 31, 2018 for such purpose shall be deemed to be equal to (i) prior to the consummation of the Xxx Acquisition, $26,000,000 and (ii) if the Xxx Acquisition is consummated, $31,500,000. “ERISA” means the United States Employee Retirement Income Security Act of 1974. “ERISA Affiliate” means, collectively, any Group Member, and any Person under common control, or treated as a single employer, with any Group Member, within the meaning of Section 414(b) or (c) of the Code or, solely for purposes of Section 412 of the Code, Section 414 (m) or (o) of the Code. “ERISA Event” means any of the following: (a) a reportable event described in Section 4043(c) of ERISA (unless the 30-day notice requirement has been duly waived under the applicable regulations) with respect to a Title IV Plan, (b) the withdrawal of any ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA, (c) the complete or partial withdrawal of any ERISA Affiliate from any Multiemployer Plan, (d) with respect to any Multiemployer Plan, the filing of a notice of reorganization, insolvency or termination (or treatment of a plan amendment as termination) under Section 4041A of ERISA, (e) the filing of a notice of intent to terminate a Title IV Plan (or treatment of a plan amendment as termination) under Section 4041 of ERISA, (f) the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make any required contribution to any Title IV Plan or Multiemployer Plan when due, (h) the imposition of a lien under 20 [[5286738]]
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Section 412 or 430(k) of the Code or Section 302, 303(k) or 4068 of ERISA on any property (or rights to property, whether real or personal) of any ERISA Affiliate or a violation of Section 436 of the Code with respect to a Title IV Plan, (i) the failure of a Benefit Plan or any trust thereunder intended to qualify for tax exempt status under Section 401 or 501 of the Code to qualify thereunder, and (j) any other event or condition that would reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or for the imposition of any liability upon any ERISA Affiliate under Title IV of ERISA other than for PBGC premiums due but not delinquent. “E-Signature” means the process of attaching to or logically associating with an Electronic Transmission an electronic symbol, encryption, digital signature or process (including the name or an abbreviation of the name of the party transmitting the Electronic Transmission) with the intent to sign, authenticate or accept such Electronic Transmission. “E-System” means any electronic system, including Intralinks® and ClearPar® and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent, any of its Related Persons or any other Person, providing for access to data protected by passcodes or other security system. “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. “EurodollarEurocurrency Base Rate” means, with respect to any Interest Period for any EurodollarEurocurrency Rate Loan, the greater of (i) (a) (i) with respect to the Dollar Term Loans and the Sterling Term Loans, 1.001.25% per annum and (bii) with respect to the Revolving Loans, 0.001.00% per annum and (iib) the offered rate per annum for deposits in Dollarsthe applicable currency in the London interbank market for the applicable Interest Period equal to the ICE LIBOR Rate, as published on the applicable Bloomberg screen page (or such other commercially available source providing quotations of ICE LIBOR as may be designated by the Administrative Agent from time to time) as of 11:00 a.m. (London, England time) on the day which is two Business Days prior to the first day of each Interest Period adjusted for reserve requirements (Quotation Day (the rate referred to in this clause (ii), the “Screen Rate”). If no Screen Rate shall be available for a particular period but Screen Rates shall be available for maturities both longer and shorter than such period, than the Screen Rate for such period shall be the Interpolated Screen Rate. If no such Screen Rate exists, such rate will be the rate of interest per annum, as determined by the Administrative Agent, at which deposits of Dollarsin the applicable currency in immediately available funds are offered at 11:00 a.m. (London, England time) two (2) Business Days prior to the first day of such Interest Periodon the Quotation Day by major financing institutions reasonably satisfactory to the Administrative Agent in the London interbank market for such Interest Period for an amount equal or comparable to the principal amount on such date of determination. “EurodollarEurocurrency Rate” means, with respect to any Interest Period and, (a) for any EurodollarEurocurrency Rate Loan denominated in Dollars, an interest rate per annum determined as the ratio of (ai) the EurodollarEurocurrency Base Rate with respect to such Interest Period for such EurodollarEurocurrency Rate Loan to (bii) the difference between the number one and the EurodollarEurocurrency Reserve Requirements with respect to such Interest Period and for such EurodollarEurocurrency Rate Loan and (b) for any Eurocurrency Rate Loan denominated in Sterling, an interest rate per annum equal to the Eurocurrency Base Rate with respect to such Interest Period for such Eurocurrency Rate Loan. 21 [[5286738]]
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“EurodollarEurocurrency Rate Loan” means any Revolving Loan or Term Loan (or any portion thereof) that bears interest based on the EurodollarEurocurrency Rate. “EurodollarEurocurrency Reserve Requirements” means, with respect to any Interest Period and for any EurodollarEurocurrency Rate Loan denominated in Dollars, a rate per annum equal to the aggregate, without duplication, of the maximum rates (expressed as a decimal number) of reserve requirements in effect two (2) Business Days prior to the first day of such Interest Period (including basic, supplemental, marginal and emergency reserves) under any regulations of the Federal Reserve Board or other Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “eurocurrency liabilities” in Regulation D of the Federal Reserve Board) maintained by a member bank of the United States Federal Reserve System. “Event of Default” has the meaning specified in Section 9.1. “Excess Cash Flow” means, for any Fiscal Year,: (a) LTM EBITDA of the U.S. Borrower for such Fiscal Year, minus (b) without duplication, (i) any cash principal payment on and cash payments of penalties, premiums, prepayment or closing fees in connection with the Loans (including pursuant to a Permitted Loan Retirement) during such Fiscal Year or prior to the ECF Payment Date (but only, in the case of payment in respect of Revolving Loans, to the extent that the Revolving Credit Commitments are permanently reduced by the amount of such payment) other than (x) any mandatory prepayment required pursuant to Section 2.8(a) because of the existence of Excess Cash Flow and (y) the amount of any voluntary prepayment which reduces the prepayment required under Section 2.8(a), (ii) any scheduled or other mandatory cash principal payment made by the U.S. Borrower or any of its Restricted Subsidiaries during such Fiscal Year or prior to the ECF Payment Date and cash payments of penalties, premiums or prepayment fees in connection with any Capitalized Lease Obligation or other Indebtedness (but only, if such Indebtedness may be reborrowed, to the extent such payment results in a permanent reduction in commitments thereof), (iii) any Capital Expenditure made by such Person or any of its Restricted Subsidiaries during such Fiscal Year or prior to the ECF Payment Date, excluding any such Capital Expenditure to the extent financed through the incurrence of Capitalized Lease Obligations or incurrence of any long-term Indebtedness (other than the Revolving Loans), (iv) the Consolidated Interest Expense of such Person for such Fiscal Year paid or payable in cash, (v) any cash losses from extraordinary items, (vi) any cash payment made during such Fiscal Year to satisfy obligations for income taxes or other taxes measured by net income and franchise taxes, 22 [[5286738]]
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(vii) any increase in the Working Capital of Holdingsthe U.S. Borrower during such Fiscal Year (measured as the excess of such Working Capital at the end of such periodFiscal Year over such Working Capital at the beginning of such Fiscal Year and measured without giving effect to any (A) Permitted Acquisitions or any other Acquisitions permitted hereunder, (B) extraordinary or non-recurring Sales outside the ordinary course of business, or (C) the effect of fluctuations in currency exchange rates), (viii) cash purchase price payments made in connection with Permitted Acquisitions or any other Acquisitions permitted hereunder during such Fiscal Year or prior to the ECF Payment Date, excluding any such Permitted Acquisition or other Acquisition to the extent financed through the incurrence of any long-term Indebtedness (other than the Revolving Loans), (ix) “earn outs” paid in cash in connection with any Permitted Acquisition or any other Acquisitions permitted hereunder during such Fiscal Year or prior to the ECF Payment Date, excluding any such payments to the extent financed through the incurrence of any long-term Indebtedness (other than the Revolving Loans), (x) any aggregate net loss on the Sale of property (other than accounts and inventory) outside the ordinary course of business, (xi) (x) Restricted Payments permitted by Section 8.5 paid in cash during such Fiscal Year or prior to the ECF Payment Date and (y) Investments permitted by Section 8.3 paid in cash during such Fiscal Year or prior to the ECF Payment Date, in each case excluding any such Restricted Payments and Investments to the extent financed through the incurrence of any long-term Indebtedness (other than the Revolving Loans), (xii) in each case, to the extent paid in cash during such Fiscal Year, amounts added back in determining LTM EBITDA pursuant to clauses (iii), (vii), (viii), (ix), (x), (xi), (xii), (xiii) and (xv) of the definition thereof, in each case, to the extent deducted in determining Consolidated Net Income, (xiii) without duplication of clause (xi), the amount of Investments made in reliance on Section 8.3(e)(iv) during such Fiscal Year or prior to the ECF Payment Date, but only to the extent such Investments are not made with proceeds of any long-term Indebtedness (other than Revolving Loans) or the sale of any Stock or Stock Equivalents or constitute Permitted Reinvestments, (xiv) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash during such Fiscal Year or prior to the ECF Payment Date that are required to be made in connection with any prepayment of Indebtedness, and (xv) (A) the amount of contingent revenue included in Consolidated Net Income in such Fiscal Year, less (B) the amount of cash received by a Loan Party in such Fiscal Year in respect of contingent revenue that was excluded from Excess Cash Flow pursuant to the preceding clause (A) in a prior Fiscal Year with respect to which a payment pursuant to Section 2.8(a) was required, plus (c) without duplication, 23 [[5286738]]
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(i) to the extent included in the calculation of LTM EBITDA pursuant to clause (b)(i) of the definition thereof, any provision for United States federal income taxes or other taxes measured by net income,[reserved], (ii) any decrease in the Working Capital of Holdingsthe U.S. Borrower during such Fiscal Year (measured as the excess of such Working Capital at the beginning of such Fiscal Year over such Working Capital at the end thereofof such Fiscal Year and measured without giving effect to (A) Permitted Acquisitions or any other Acquisitions permitted hereunder, (B) extraordinary and non-recurring Sales outside the ordinary course of business, or (C) the effect of fluctuations in currency exchange rates), and (iii) any aggregate net gain from the sale or other disposition of property (other than accounts receivable and inventory) out of the ordinary course of business,; (iv) (A) the amount of any contingent expenses included in Consolidated Net Income in such Fiscal Year, less (B) the amount of cash received by a Loan Party in such Fiscal Year in respect of contingent expenses that were excluded from Excess Cash Flow pursuant to the preceding clause (A) in a prior Fiscal Year with respect to which a payment pursuant to Section 2.8(a) was required. provided that, in the case of clauses (b)(i), (b)(ii), (b)(iii), (b)(viii), (b)(ix), (b)(xi), (b)(xiii) and (b)(xiv) above, (A) any amount committed to be paid or made within such time period that reduces Excess Cash Flow in such Fiscal Year pursuant to such clause will not be deducted again in the calculation of Excess Cash Flow for any subsequent Fiscal Year and (B) to the extent any such amount committed to be paid or made after the end of such Fiscal Year is not actually paid or made in cash within such time period, such unpaid amount will, to the extent applicable, be added to the calculation of Consolidated Excess Cash Flow for the immediately succeeding Fiscal Year. “Excluded Accounts” has the meaning specified in Section 7.11(a). “Excluded Subsidiary” means (a) any Subsidiary that is not a Wholly Owned Subsidiary of the U.S. Borrower or a Guarantor, (b) (i) any Foreign Subsidiary of the U.S. Borrower or of, except if any direct or indirect Domestic Subsidiary or Foreign SubsidiaryLoan Document Obligations of the U.K. Borrower shall be outstanding, (cii) any CFC Holdco, except if any Loan Document Obligations of the U.K. Borrower shall be outstanding, and (diii) any Domestic Subsidiary that is a direct or indirect Subsidiary of a direct or indirect Foreign Subsidiary (other than, for so long as any Loan Document Obligations of the U.K. Borrower that is a CFC,shall be outstanding, any U.K. Subsidiary) of the U.S. Borrower, (ec) any Subsidiary that is prohibited or restricted by applicable law (including in connection with any capital requirements) or by a binding contractual obligationContractual Obligation from providing a guaranty under the Loan Documents (provided that such contractual obligationContractual Obligation is not entered into by the U.S. Borrower or its Subsidiaries principally for the purpose of qualifying such Subsidiary as an “Excluded Subsidiary” under this definition) or if such guaranty would require governmental (including regulatory) or third party (other than a Loan Partythe U.S. Borrower or an Affiliateany of a Loan Partyits Affiliates) consent, approval, license or authorization, (fd) any special purpose securitization vehicle (or similar entity), (ge) any Subsidiary that is a not-for-profit organization, (hf) any Captive Insurance Subsidiary, (ig) Subsidiaries subject to regulation as a broker-dealer, (jh) any Subsidiary a guaranty by which under the Loan Documents would result in material adverse tax consequences to the U.S. Borrower and its Restricted Subsidiaries, as reasonably determined by the U.S. Borrower in consultation with the Administrative Agent, (ki) any Unrestricted Subsidiary, (lj) eachany Immaterial Subsidiary and (mk) any 24 [[5286738]]
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other Subsidiary to the extent the Administrative Agent and the U.S. Borrower mutually determine that the cost or burden of obtaining the guaranty thereof under the Loan Documents (including any adverse tax consequences) outweigh the benefit to the Lenders. Notwithstanding the foregoing or anything else herein to the contrary, the U.S. Borrower may, in its sole discretion, cause any Restricted Subsidiary that is not required to be a Subsidiary Guarantor to guarantee the Obligations by causing such Subsidiary to become a party to the Guaranty Agreement. “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the guaranty of such Guarantor or the grant of such security interest would otherwise have become effective with respect to such related Swap Obligation but for such Guarantor’s failure to constitute an “eligible contract participant” at such time. If any Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal. “Existing Credit Agreement” means the Credit Agreement, dated as of September 1, 2016, among the Borrower, Ares, as a Lender, L/C Issuer and the Administrative Agent, and the other Lenders and L/C Issuers from time to time party thereto. “Excluded U.K. Taxes” means Taxes imposed by the United Kingdom on interest (a) that would not have arisen if the Person beneficially entitled to the payment to which such Taxes relate had been a Qualifying U.K. Lender, but on the date on which the payment is made such recipient is not or has ceased to be a Qualifying U.K. Lender other than as a result of any change after the date such recipient became a Lender in (or in the interpretation, administration, or application of) any law or U.K. Treaty or any published practice or published concession of any relevant taxing authority, (b) in circumstances where an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to a payment to which such Taxes relate, and the payment could have been made to the recipient without any such Taxes if that Direction had not been made, or (iii) in circumstances where a Lender has not given a U.K. Tax Confirmation to the relevant U.K. Loan Party and the payment to which such Taxes relate could have been made without any such Taxes if such Lender had given a U.K. Tax Confirmation to the relevant U.K. Loan Party, on the basis that the U.K. Tax Confirmation would have enabled the U.K. Loan Party making such payment to have formed a reasonable belief that such payment was an “excepted payment” for the purpose of section 930 of the ITA. “Existing Letters of Credit Agreement” means the Letters of Creditthis Agreement as in effect immediately prior to the Fourth Amendment Effective Date. “Existing Dollar Term Loans” has the meaning specified in the Fourth Amendment. “Existing Letters of Credit” means the letters of credit specified on Schedule 2.4. “Extended/Modified Commitments” has the meaning specified in Section 2.20(a). 25 [[5286738]]
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“Extended/Modified Facility” means, collectively, any Extended/Modified Revolving Credit CommitmentsLoans and/or Extended/Modified Term Commitments, in each case, resulting from an Extension/Modification Offer with respect to any one Facility, and the provisions set forth herein related to such Extended/Modified Loans and/or Extended/Modified Commitments. “Extended/Modified Loans” means, collectively, Extended/Modified Revolving Loans and Extended/Modified Term Loans. “Extended/Modified Revolving Credit Commitments” means the Revolving Credit Commitments held by an Extending/Modifying Lender. “Extended/Modified Revolving Loans” meanshas the Revolving Loans made pursuant to Extended/Modified Revolving Credit Commitmentsmeaning specified in Section 2.20(a). “Extended/Modified Term CommitmentsLoans” means the Term Loan Commitments held by an Extending/Modifying LenderExtended/Modified Loans resulting from an Extension/Modification Offer with respect to any Term Loan Facility. “Extended/Modified Term Loans” means the Term Loans made pursuant to Extended/Modified Term Commitments. “Extending/Modifying Lender” means each Lender accepting an Extension/Modification Offer. “Extension/Modification” has the meaning specified in Section 2.20(a).Section 2.20(a). “Extension/Modification Amendment” has the meaning specified in Section 2.20(b). “Extension/Modification Facility” means any Extended/Modified Term Loans and/or Extended/Modified Revolving Loans and the provisions herein related to such Extended/Modified Term Loans and/or Extended/Modified Revolving Loans. “Extension/Modification Offer” has the meaning specified in Section 2.20(a). “Facilities” means (a) the InitialDollar Term Loan Facility, (b) the Delayed-DrawSterling Term Loan Facility, (c) the Revolving Credit Facility, (d) any Incremental Facility and (e) any Extension/ModificationExtended/Modified Facility. “FATCA” means Sections 1471 through 1474 of the Code, as in effect on the date hereof, and any current or future applicable United States Treasury regulations promulgated thereunder or published administrative guidance or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to such intergovernmental agreement. “FCA” means the Financial Conduct Authority acting in accordance with Part 6 of the UK Financial Services and Markets Xxx 0000. 26 [[5286738]]
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“Federal Funds Rate” means, for any periodday, a fluctuating interestthe rate per annum equal for each day during such period to the weighted average of the rates on overnightcalculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions with members of the Federal Reserve System arranged by federal funds brokersby depositary institutions, as determined byin such manner as the Administrative Agent in its sole discretionFederal Reserve Bank of New York shall set forth on its public website from time to time, and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day; provided further that the Federal Funds Rate shall be no less than 0.00%. “Federal Reserve Board” means the Board of Governors of the United States Federal Reserve System and any successor thereto. “Fee LetterLetters” means (a) the Fee Letter, dated as of May 11, 2018, among the BuyerU.S. Borrower and the Administrative Agent, as amended, restated, modified or supplemented from time to time in accordance with the terms thereof, and (b) the Fee Letter, dated April 7, 2020, among the U.S. Borrower and the Administrative Agent, as amended, restated, modified or supplemented from time to time in accordance with the terms thereof. “Financial Statement” means each financial statement described in or delivered pursuant to Section 4.4 or 6.1. “First Amendment” means the First Amendment dated as of December 3, 2018, to this Agreement, among Holdings, the Borrower, the other Loan Parties party thereto, the Administrative Agent and the Lenders party thereto. “First Amendment Effective Date” means December 3, 2018. “First Amendment Incremental Term Loans” means the Incremental Term Loans provided pursuant to the First Amendment. “Fiscal Month” means any of the monthly accounting periods of the U.S. Borrower. “Fiscal Quarter” means each period of three (3) Fiscal Month periodMonths ending on March 31, June 30, September 30 or December 31. “Fiscal Year” means the twelve-montheach period of twelve (12) months ending on December 31. “Fixed Amount” has the meaning specified in Section 1.1(d)(ii). “Fixed Incremental Amount” means (i) at any time prior to the consummation of the Xxx Acquisition, $26,000,000 and (ii) if the Xxx Acquisition is consummated, $31,500,000. “Foreign Subsidiary” means any Subsidiary of the U.S. Borrower that is not a Domestic Subsidiary. 27 [[5286738]]
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“Fourth Amendment” means the Fourth Amendment dated as of April 7, 2020, to this Agreement, among Holdings, the U.S. Borrower, the U.K. Borrower, the other Loan Parties party thereto, the Administrative Agent and the Lenders party thereto. “Fourth Amendment Effective Date” means April 7, 2020. “GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time, set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, in the statements and pronouncements of the Financial Accounting Standards Board and in such other statements by such other entity as may be in general use by significant segments of the accounting profession that are applicable to the circumstances as of the date of determination. Subject to Section 1.3, all references to “GAAP” shall be to GAAP applied consistently with the principles used in the preparation of the Financial Statements described in Section 4.4(a), including, without limitation, those qualifications to GAAP set forth on the disclosure schedules to the Acquisition Agreement. “Governmental Authority” means any nation, sovereign or government, any state or other political subdivision thereof, any agency, authority or instrumentality thereof and any entity or authority exercising executive, legislative, taxing, judicial, regulatory or administrative functions of or pertaining to government. “Gross Invested Equity Capital” means, at any time, the sum, without duplication, of (a) the cash proceeds received by the U.S. Borrower from any sale or issuance of any Stock or Stock Equivalents (other than Disqualified Stock) by the U.S. Borrower or from any equity contributions in respect of Stock or Stock Equivalents (other than Disqualified Stock) of the U.S. Borrower, plus (b) the fair market value (as reasonably determined by the U.S. Borrower) of other property received by the U.S. Borrower as a capital contribution in respect of any Stock or Stock Equivalents (other than Disqualified Stock) of the U.S. Borrower or in return for any issuance of Stock or Stock Equivalents (other than Disqualified Stock) of the U.S. Borrower, in each case, on or after the Closing Date and immediately prior to such time. The parties acknowledge that as of the Fourth Amendment Effective Date the amount of the Gross Invested Equity Capital is $509,300,000. “Gross Payment Direction” has the meaning specified in Section 2.17(l). “Group Members” means, collectively, the U.S. Borrower and its Restricted Subsidiaries. “Group Members’ Accountants” means Xxxxxx LLP or any other nationally- or regionally- recognized independent registered certified public accountants. “Guarantor” means Holdings, each Wholly Owned Subsidiary of the Borrower listed on Schedule 4.3 that is not an Excluded Subsidiary and each other Person that becomes a party to the Guaranty and Security Agreement pursuant to Section 7.10 after the Closing Date, provided that only Subsidiaries that are not Excluded Subsidiaries shall be required to become a party to the Guaranty and Security Agreement. For the avoidance of doubt, the Borrower may, in its sole discretion, cause any Domestic Subsidiary that is not required to be a Guarantor to guarantee the Obligations by causing such Subsidiary to become a party to the Guaranty and Security Agreement. “Guarantors” means Holdings, the U.S. Borrower and each of the Subsidiary Guarantors. 28 [[5286738]]
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“Guaranty and Security Agreement” means the guaranty and security agreement, in the form of Exhibit HGuaranty Agreement dated as of April 7, 2020, among Holdings, the Borrowers, the other Loan Parties and the Administrative Agent, the Borrower and Guarantorsas amended, restated, supplemented or otherwise modified from time to time party thereto, as amended. “Guaranty Obligation” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person for any Indebtedness, lease, dividend or other obligation (the “primary obligation”) of another Person (the “primary obligor”), if the purpose or intent of such Person in incurring such liability, or the economic effect thereof, is to guarantee such primary obligation or provide support, assurance or comfort to the holder of such primary obligation or to protect or indemnify such holder against loss with respect to such primary obligation, including (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of any primary obligation, (b) the incurrence of reimbursement obligations with respect to any letter of credit or bank guarantee in support of any primary obligation, (c) the existence of any Lien, or any right, contingent or otherwise, to receive a Lien, on the property of such Person securing any part of any primary obligation and (d) any liability of such Person for a primary obligation through any Contractual Obligation (contingent or otherwise) or other arrangement (i) to purchase, repurchase or otherwise acquire such primary obligation or any security therefor or to provide funds for the payment or discharge of such primary obligation (whether in the form of a loan, advance, stock purchase, capital contribution or otherwise), (ii) to maintain the solvency, working capital, equity capital or any balance sheet item, level of income or cash flow, liquidity or financial condition of anythe primary obligor for the purpose of enabling the primary obligor to satisfy such primary obligation or to protect the holder of such primary obligation against loss, (iii) to make take-or-pay or similar payments, if required, regardless of non-performance by any other party to any Contractual Obligation primarily for the purpose of enabling the primary obligor to satisfy such primary obligation or to protect the holder of such primary obligation against loss, (iv) to purchase, sell or lease (as lessor or lessee) any property, or to purchase or sell services, primarily for the purpose of enabling the primary obligor to satisfy such primary obligation or to protect the holder of such primary obligation against loss or (v) to supply funds to or in any other manner invest in, such the primary obligor (including to pay for property or services irrespective of whether such property is received or such services are rendered) primarily for the purpose of enabling the primary obligor to satisfy such primary obligation or to protect the holder of such primary obligation against loss; provided, however, that “Guaranty Obligations” shall not include (x) endorsements for collection or deposit in the ordinary course of business and, (y) product warranties given in the ordinary course of business and (z) bona fide and customary indemnity and similar obligations entered into in connection with any Acquisition, Sale or other transaction permitted under this Agreement (other than such obligations with respect to or constituting Indebtedness). The outstanding amount of any Guaranty Obligation shall equal the outstanding amount of the primary obligation so guaranteed or otherwise supported or, if lower, the stated maximum amount for which such Person may be liable under such Guaranty Obligation. “Hazardous Material” means any substance, material or waste regulated under Environmental Law or that is classified, regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant or a pollutant or by other words of similar meaning or regulatory effect, including petroleum or any fraction thereof, asbestos, polychlorinated biphenyls and radioactive substances. “Hedging Agreement” means any Interest Rate Contract, foreign exchange, swap, option or forward contract, spot, cap, floor or collar transaction, any other derivative instrument and any other 29 [[5286738]]
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similar speculative transaction and any other similar agreement or arrangement designed to alter the risks of any Person arising from fluctuations in any underlying variable. “HMRC DT Treaty Passport Scheme” means the Board of H.M. Revenue and Customs Double Taxation Treaty Passport scheme. “Holdings” has the meaning specified in the introductory paragraphpreamble hereto. “Immaterial Subsidiary” means, as of any date, any Subsidiary that (a) did not, as of the last day of the most recent fiscal quarter for which financial statements have been delivered, have assets with a value in excess of 5.0% of the consolidated total assets of the U.S. Borrower or revenues representing in excess of 5.0% of totalconsolidated revenues of the U.S. Borrower for the period of four consecutive fiscal quarters for which such financial statements have been delivered, in each case, as of the last day of or for the most recently ended Test Period, calculated on a consolidated basis in accordance with GAAP and (b) when combined with all other Immaterial Subsidiaries, satisfies the following conditions: (i) the aggregate amount of assets held by all Immaterial Subsidiaries shall not exceed 5.0% of the consolidated total assets of the U.S. Borrower and the aggregate amount of revenues of all Immaterial Subsidiaries shall not exceed 5.0% of the consolidated total assetsrevenues of the U.S. Borrower for the period of four consecutive fiscal quarters for which such financial statements have been delivered, in each case, as of the last day of or for the most recently ended Test Period, calculated on a consolidated basis in accordance with GAAP. “Incremental Amendment” shall havehas the meaning specified in Section 2.19(f). “Incremental Cap” means: (a) the Fixed Incremental Amount, plus (b) the sum of (i) the amount of any optional prepayment of any Term Loan in accordance with Section 2.7 and/or, the amount of any permanent reduction of any Revolving Credit Commitment and/or the amount of any permanent prepayment, redemption or repurchase of any Incremental Equivalent Debt, (ii) the amount of any optional prepayment, redemption or repurchase of any Replacement Loans previously applied to the permanent prepayment of any Term Loan, so long as no Incremental Facility was previously incurred in reliance on clause (b)(i) above as a result of such prepayment, and (iii) the amount paid in cash in respect of any reduction in the outstanding principal amount of any term loan that is secured on a pari passu basis with the Obligations, but Term Loan (excluding any Term Loan incurred under clause (c) below,) resulting from any assignment of such Term Loan to (and/or assignment and/or purchase of such Term Loan by) Holdings, the U.S. Borrower and/or any Restricted Subsidiary, provided that for each of clauses (i), (ii) and (iii), the relevant prepayment, redemption, repurchase or assignment and/or purchase was not funded with the proceeds of any long-term Indebtedness (other than revolving Indebtedness), plus (c) an unlimited amount so long as, in the case of this clause (c), on a Pro Forma Basis after giving effect to the incurrence of any suchthe applicable Incremental Facility or Incremental Term Loan, the effectiveness of any such Incremental Revolving Credit CommitmentEquivalent Debt (and after giving effect to any acquisitionAcquisition consummated simultaneously therewith and any other application of the proceeds thereof and assuming, in the case of any increase in theIncremental Revolving Credit CommitmentsFacility or Incremental Equivalent Debt in the form of a revolving credit facility, that all such 30 [[5286738]]
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Incremental Revolving Credit Commitments are fully utilized on such Incremental Facility Closing Date) or the issuance of anyor commitments with respect to such Incremental Equivalent Debt, as in the case may beform of a revolving credit facility thereunder are fully drawn), (i) if such Incremental Facility or Incremental Equivalent Debt is secured by a lien on the Collateral that is pari passu with the Lien securing the Obligations, the pro forma Consolidated First Lien Leverage Ratio as of the last day of the most recently ended Test Period shall be no greater than (1) with respect to Incremental Facilities or Incremental Equivalent Debt incurred to finance Permitted Acquisitions or other Permitted Investments, 4.75:1.00 or (2) with respect to all other Incremental Facilities or Incremental Equivalent Debt, 4.50:1.00, (ii) if such Incremental Facility or Incremental Equivalent Debt is secured by a lienLien on the Collateral that is junior to the lienLien securing the Obligations, the pro forma Consolidated Secured Leverage Ratio as of the last day of the most recently ended Test Period shall be no greater than (1) with respect to Incremental Facilities or Incremental Equivalent Debt incurred to finance Permitted Acquisitions or other Permitted Investments, 5.25:1.00 or (2) with respect to all other Incremental Facilities or Incremental Equivalent Debt, 5.00:1.00 and (iii) if such Incremental Facility or Incremental Equivalent Debt is unsecured or secured by assets that are not Collateral, the pro forma Consolidated Total Leverage Ratio as of the last day of the most recently ended Test Period shall be no greater than (1) with respect to Incremental Facilities or Incremental Equivalent Debt incurred to finance Permitted Acquisitions or other Permitted Investments, 5.25:1.00 or (2) with respect to all other Incremental Facilities or Incremental Equivalent Debt, 5.00:1.00; provided that: (i) any Incremental Facility and/or Incremental Equivalent Debt, or any portion thereof, may be incurred under one or more of clauses (a) through (c) of this definition, as selected by the U.S. Borrower in its sole discretion; and (ii) if any Incremental Facility or Incremental Equivalent Debt, or any portion thereof, is intended to be incurred under clause (c) of this definition and any other clause of this definition in a single transaction or series of related transactions, (A) the permissibility of the portion of such Incremental Facility or Incremental Equivalent Debt to be incurred or implemented under clause (c) of this definition shall first be determined without giving effect to any Incremental Facilities or Incremental Equivalent Debt to be incurred or implemented under any other clause of this definition, but giving full pro forma effectPro Forma Effect to the use of proceeds of the entire amount of such Incremental Facility or Incremental Equivalent Debt and the related transactions, and (B) the permissibility of the portion of such Incremental Facility or Incremental Equivalent Debt to be incurred or implemented under the other applicable clauses of this definition shall be determined thereafter. It is understood that if, for purposes of determining capacity under this definition, the entire committed amount of any Indebtedness with respect to which Incremental Cap is being determined has been tested, such committed amount may thereafter be borrowed and, in the case of any revolving credit Indebtedness, reborrowed, in whole or in part, from time to time, without any further testing under this definition. Any portion of any Incremental Facility or Incremental Equivalent Debt that is incurred under clauses (a) and (b) of this definition will, unless the U.S. Borrower otherwise elects, automatically be reclassified as having been incurred under clause (c) of this definition if, at any time after the incurrence thereof, such portion of such Incremental Facility or Incremental Equivalent Debt would, using the figures as of the end of the most recently ended Test Period, be 31 [[5286738]]
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permitted under the Consolidated First Lien Leverage Ratio, Consolidated Secured Leverage Ratio or Consolidated Total Leverage Ratio test, as applicable, set forth in clause (e) of this definition. “Incremental Commitment” means any Incremental Term Loan Commitment or any Incremental Revolving Credit Commitment. “Incremental Equivalent Debt” means Indebtedness in the form of pari passu senior secured notes or loans or junior secured or unsecured notes or loans and/or commitments in respect of any of the foregoing issued, incurred or implemented in lieu of loans under an Incremental Facility; provided, that: (a) the aggregate outstanding principal amount thereof shall not exceed the Incremental Cap as in effect at the time of determination; (b) the Weighted Average Life to Maturity applicable to such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term LoansLoan Facility; provided that such Indebtedness may be in the form of customary bridge loans with a final maturity date of no longer than one year, so long as any Indebtedness for which such loans are exchanged for or that otherwise replaces such loans satisfies the requirements of this clause (b); (c) the final maturity date with respect to such Indebtedness shall be no earlier than the Term Loan Maturity Date on the date of the issuance or incurrence, as applicable, thereof; provided that such Indebtedness may be in the form of customary bridge loans with a final maturity date of no longer than one year, so long as any Indebtedness for which such loans are exchanged for or that otherwise replaces such loans satisfies the requirements of this clause (c); (d) subject to clauses (b) and (c), the amortization schedule and Applicable Margin for such Indebtedness shall be determined by the U.S. Borrower and the holders of such Indebtedness; (e) if such Indebtedness is (i) secured on a pari passu basis with the Obligations that are secured on a first lien basis, (ii) secured on a junior basis as compared to the Obligations that are secured on a first lien basis or (iii) unsecured and subordinated to the Obligations, then the holders of such Indebtedness shall be party to an Acceptable Intercreditor Agreement; (f) no such Indebtedness may be (Ai) guaranteed by any Person that is not a Loan Party, (Bii) secured by any assets other than the Collateral or (Ciii) issued, incurred or implemented by any Person other than theany Borrower; (g) the All-In Yield (and the components thereof) applicable to such Indebtedness shall be determined by the U.S. Borrower and the holders of such Indebtedness; provided that, with respect to such Indebtedness whichthat is pari passu with the Initial Term Loans in right of payment and with respect to security, (i) (A) if such Indebtedness is denominated in Dollars and the All-In Yield applicable to such Indebtedness (determined on the date of the incurrence thereof) shall exceed the All-In Yield at such time on the InitialDollar Term Loans (determined on such date but prior to any adjustment under this clause (g)) by more than 0.50% (any such excess, the “Yield Differential”) the, then the Applicable Margin then in effect for the existing InitialDollar Term Loans, First Amendment Incremental Term Loans, Second Amendment Incremental Term Loans, Third Amendment Incremental Term Loans and 32 [[5286738]]
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Delayed-Draw Term Loans, as applicable, shall automatically be increased byto the Yield Differential, effective upon the issuance or incurrence, as applicable, ofextent required in order for the All-In Yield on the Dollar Term Loans to be not more than 0.50% lower than the All-In Yield on such Indebtedness and (B) if such Indebtedness is denominated in Sterling and the All-In Yield applicable to such Indebtedness (determined on the date of the incurrence thereof) shall exceed the All-In Yield at such time on the Dollar Term Loans (determined on such date but prior to any adjustment under this clause (g)) by more than 1.00%, then the Applicable Margin then in effect for the Dollar Term Loans shall automatically be increased to the extent required in order for the All-In Yield on the Dollar Term Loans to be not more than 1.00% lower than the All-In Yield on such Indebtedness;, provided, furtherin each case, that any increase in the All-In Yield applicable to any Initialthe Dollar Term Loan, First Amendment Incremental Term Loan, Second Amendment Incremental Term Loan, Third Amendment Incremental Term Loan or Delayed-Draw Term Loan, as applicable,Loans due to the application or imposition of an Base Rate or Eurodollar Rate “any interest rate floor” on any with respect to such Indebtedness may, at the election of the U.S. Borrower, be effected through an increase in Base Rate or Eurodollar Rate “floor” applicable to such Initial Term Loans, First Amendment Incremental Term Loans, Second Amendment Incremental Term Loans, Third Amendment Incremental Term Loans or Delayed-Draw Term Loans; the corresponding interest rate floor with respect to the Dollar Term Loans, and (ii) if such Indebtedness is denominated in Sterling and the All-In Yield applicable to such Indebtedness (determined on the date of the incurrence thereof) shall exceed the All-In Yield at such time on the Sterling Term Loans (determined on such date but prior to any adjustment under this clause (g)) by more than 0.50%, then the Applicable Margin then in effect for the Sterling Term Loans shall automatically be increased to the extent required in order for the All-In Yield on the Sterling Term Loans to be not more than 0.50% lower than the All-In Yield on such Indebtedness; provided that any increase in the All-In Yield applicable to the Sterling Term Loans due to the application of any interest rate floor with respect to such Indebtedness may, at the election of the U.K. Borrower, be effected through an increase in the corresponding interest rate floor with respect to the Sterling Term Loans; (h) except as otherwise permitted herein, the terms of such Indebtedness (excluding, to the extent applicable, pricing, interest rate margin, fees, discounts, rate floors and optional prepayment or redemption terms, all of which shall be determined by the U.S. Borrower), (x) are substantially identical to, or are not materially more restrictive on the U.S. Borrower and its Restricted Subsidiaries (as determined by the U.S. Borrower), when taken as a whole, than those applicable to the then-existing Term Loans (except for covenants or other provisions applicable only to periods after the Term Loan Maturity Date) or (y) otherwise reasonably acceptable to the Administrative Agent; and (i) at the time of the incurrence of such Indebtedness, except as provided in and subject to Section 1.3(c) with respect to any LCA Election, no Event of Default shall exist. “Incremental Facility” means any Incremental Term Loan Facility and any Incremental Revolving LoanCredit Facility. “Incremental Facility Closing Date” shall havehas the meaning specified in Section 2.19(f). 33 [[5286738]]
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“Incremental Loans” means the Incremental Revolving Loans and the Incremental Term Loans. “Incremental Revolving Credit Commitment” shall haveCommitments” has the meaning specified in Section 2.19(a). “Incremental Revolving Credit Facility” has the meaning specified in Section 2.19(a). “Incremental Revolving Loan” means any Revolving Loan made by a Revolving Credit Lender pursuant to its Incremental Revolving Credit Commitment. “Incremental Term Loan” means any Term Loan made by a Term Loan Lender pursuant to its Incremental Term Loan Commitment. “Incremental Term Loan Commitment” shall have the meaning specified in “Incremental Term Loan Commitments” has the meaning specified in Section 2.19(a). “Incremental Term Loan Facility” has the meaning specified in Section 2.19(a). “Incremental Term Loan Maturity Date” means, with respect to any Incremental Term Loan, the date that ansuch Incremental Term Loan is originally scheduled to mature. “Incremental Revolving Loan Facility” means any Incremental Revolving Loans and the provisions herein related to such Incremental Revolving Loans. “Incremental Term Loan Facility” means any Incremental Term Loans and the provisions herein related to such Incremental Term Loans. “Incurrence-Based Amount” has the meaning specified in Section 1.1(d)(ii). “Indebtedness” of any Person means, without duplication, any of the following, whether or not matured: (a) all indebtedness for borrowed money, (b) all obligations evidenced by notes, bonds, debentures or similar instruments, (c) all reimbursement and all obligations with respect to (i) letters of credit, bank guarantees or bankers’ acceptances or (ii) surety, customs, reclamation or performance bonds, (in each case, not related to judgments or litigation) and other than those entered into in the ordinary course of business, (d) all obligations to pay the deferred purchase price of property or services, including all “earn-outs” and other similar deferred consideration payable in connection with any Permitted Acquisition or other Investment (but only to the extent such obligations are required to be treated as liabilities on such Person’s balance sheet in accordance with GAAP), other than (i) trade payables or similar obligations incurred in the ordinary course of business or consistent with past practice (including with respect to insurance premiums) or, (ii) accruals for payroll, employee compensation and similar liabilities incurred in the ordinary course of business or consistent with past practice and (iii) customary liabilities associated with customer prepayments and deposits or funds held in trust for any broker, in each case, incurred in the ordinary course of business, (e) all obligations created or arising under any conditional sale or other title retention agreement, regardless of whether the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property, (f) all Capitalized Lease Obligations, (g) all obligations, whether or not 34 [[5286738]]
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contingent, to purchase, redeem, retire, defease or otherwise acquire for value any of its own Disqualified Stock or Stock Equivalents relating to Disqualified Stock prior to the date that is 90 days after the Scheduledlatest Maturity Date, valued at, in the case of redeemable preferred Disqualified Stock, the greater of the voluntary liquidation preference and the involuntary liquidation preference of such Disqualified Stock, plus accrued and unpaid dividends, (h) net obligations under Hedging Agreement and (i) all Guaranty Obligations for obligations of any other Person constituting Indebtedness of such other Person; provided, however, that the items in each of clauses (a) through (i) above shall constitute “Indebtedness” of such Person solely to the extent, directly or indirectly, (x) such Person is liable for any part of any such item, (y) any such item is secured by a Lien on such Person’s property or (z) any other Person has a right, contingent or otherwise, to cause such Person to become liable for any part of any such item or to grant such a Lien; provided, further, that (i) in no event shall obligations under any Hedging Agreement be deemed “Indebtedness” for any calculation of the Consolidated Total Leverage Ratio, the Consolidated First Lien Leverage Ratio, the Consolidated Secured Leverage Ratio or any other financial ratio under this Agreement and (ii) notwithstanding anything herein to the contrary, the term “Indebtedness” shall not include, and shall be calculated without giving effect to, the effects of Accounting Standards Codification Topic 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivatives created by the terms of such Indebtedness (it being understood that any such amounts that would have constituted Indebtedness hereunder but for the application of this proviso shall not be deemed an incurrence of Indebtedness hereunder). The amount of any net obligation under any Hedging Agreement on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e), to the extent recourse is limited to the property encumbered thereby, shall be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the fair market value (as determined by such Person in good faith) of the property encumbered thereby as determined by such Person in good faith. “Indemnified Matters” has the meaning specified in Section 11.4(a). “Indemnitee” has the meaning specified in Section 11.4(a). “Initial Lenders” means Ares Capital (and funds affiliated with Ares Capital) and Lake Forest Bank. “Initial Revolving Borrowing” means one or more borrowings of Revolving Loans (exclusive of Letters of Credit) on the Closing Date to pay the Transaction Expenses and for working capital purposes not exceeding $3,000,000; provided that, without limitation, Letters of Credit may be issued on the Closing Date to backstop or replace letters of credit, guarantees and performance or similar bonds outstanding on the Closing Date. “Initial Term Loans” has the meaning specified in Section 2.1(b). “Initial Term Loan Commitment” means, with respect to each Initial Term Loan Lender, the commitment of such Lender to make Initial Term Loans to the Borrower, which commitment is in the amount set forth opposite such Lender’s name on Schedule I under the caption “Initial Term Loan Commitment”, as amended to reflect Assignments and as such amount may be reduced pursuant to this Agreement. The aggregate amount of the Initial Term Loan Commitments on the Closing Date shall be $100,000,000. 35 [[5286738]]
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“Initial Term Loan Facility” means the Initial Term Loan Commitments and the provisions herein related to the Initial Term Loans. “Initial Term Loan Lender” means each Lender that has an Initial Term Loan Commitment or that holds Initial Term Loans. “Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors;, in each case in clauses (a) and (b) above, undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code. “Intellectual Property” means all rights, title and interests in intellectual property arising under any Requirement of Law and all IP Ancillary Rights associated therewith, including all Copyrights, Patents, Trademarks, Internet Domain Names and Trade Secrets. “Interest Period” means, with respect to any EurodollarEurocurrency Rate Loan, the period commencing on the date such EurodollarEurocurrency Rate Loan is made or converted to a EurodollarEurocurrency Rate Loan or, if such loanLoan is continued, on the last day of the immediately preceding Interest Period therefor and, in each case, ending 1, 2, 3, or 6 months (or, to the extent consented to by all affected Lenders, a shorter period or 12 months) thereafter, as selected by the applicable Borrower (or the U.S. Borrower on its behalf) pursuant hereto; provided, however, that (a) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless the result of such extension would be to extend such Interest Period into another such Business Day that falls in the next calendar month, in which case such Interest Period shall end on the immediately preceding Business Day, (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month, (c) the applicable Borrower (or the U.S. Borrower on its behalf) may not select any Interest Period (i) in the case of Revolving Loans, ending after the Scheduled Revolving Credit Termination Date and (ii) in the case of Term Loans, ending after the Term Loan Maturity Date and (d) there shall be outstanding at any one time no more than 10 Interest Periods. “Interest Rate Contracts” means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance. “Internet Domain Names” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in internet domain names. “Interpolated Screen Rate” means, with respect to any period, a rate per annum that results from interpolating on a linear basis between (a) the applicable Screen Rate for the longest maturity for which a Screen Rate with respect to the applicable currency is available that is shorter than such period and (b) the applicable Screen Rate for the shortest maturity for which a Screen Rate with respect to the applicable currency is available that is longer than such period, in each case, as of the time the Interpolated Screen Rate is required to be determined in accordance with the other provisions hereof. “Investment” means, with respect to any Person, directly or indirectly, (a) to own, purchase or otherwise acquire, in each case whether beneficially or otherwise, any investment in, including any interest in, any Security of any other Person (other than any evidence of any Obligation), (b) to purchase or otherwise acquire, whether in one transaction or in a series of transactions, all or 36 [[5286738]]
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substantially all of the property of any other Person or a business conducted by any other Person or all or substantially all of the assets constituting the business of a division, branch, brand or other unit operation of any other Person, (c) to incur, or to remain liable under, any Guaranty Obligation for Indebtedness of any other Person, to assume the Indebtedness of any other Person or to make, hold, purchase or otherwise acquire, in each case directly or indirectly, any deposit, loan, advance, commitment to lend or advance, or other extension of credit, excluding deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable and similar items created in the ordinary course of business or (d) to make, directly or indirectly, any contribution to the capital of any other Person. The amount of any Investment shall be the original cost of such Investment, plus the cost of any addition thereto that otherwise constitutes an Investment, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto, but giving effect to any repayments of principal in the case of any Investment in the form of a loan or, advance or other extension of credit and any return of capital or return on Investment in the case of any equity Investment (whether as a distribution, dividend, redemption or saleSale but not in excess of the amount of the relevant initial Investment). “IP Ancillary Rights” means, with respect to the subject Intellectual Property, all foreign counterparts to, and all divisionals, reversions, continuations, continuations-in-part, reissues, reexaminations, renewals and extensions of, as applicable, such Intellectual Property and all income, royalties, proceeds and Liabilities at any time due or payable or asserted under or with respect to any of the foregoing or otherwise with respect to such Intellectual Property, including all rights to xxx or recover at law or in equity for any past, present or future infringement, misappropriation, dilution, violation or other impairment thereof, and, in each case, all rights to obtain any other IP Ancillary Right. “IP License” means all Contractual Obligations, whether written or oral, granting any right to use any Intellectual Property. “IRS” means the Internal Revenue Service of the United States and any successor thereto. “Issue” means, with respect to any Letter of Credit, to issue, extend the expiration date of, renew (excluding automatic renewal of evergreen Letters of Credit), increase the face amount of, or reduce or eliminate any scheduled decrease in the face amount of, such Letter of Credit, or to cause any Person to do any of the foregoing. The terms “Issued” and “Issuance” have correlative meanings. “ITA” means the United Kingdom Income Tax Xxx 0000. “Judgment Currency” has the meaning specified in Section 11.24(b). “Junior Financing” means Indebtedness of the types described in clauses (a) and (b) of the definition of “Indebtedness” of a Loan Party that is secured by a junior lienLien on Collateral that is expressly junior to the Liens securing the Obligations, is unsecured or is Subordinated Debt, other than, in each case, Indebtedness among the Loan Parties. “KBKKingsbridge Acquisition” has the meaning specified in the FirstFourth Amendment. “Lake Forest Bank” means Lake Forest Bank & Trust Company, N.A. “L/C Cash Collateral Account” means any Cash Collateral Account (a) specifically designated as such by the U.S. Borrower in a notice to the Administrative Agent, and (b) from and after 37 [[5286738]]
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the effectiveness of such notice, not containing any funds other than those required under the Loan Documents to be placed therein. “L/C Issuer” means (a) Lake Forest Bank or any of its Affiliates, (b) Ares or any of its Affiliates and (c) each Person that hereafter becomes an L/C Issuer with the approval of, and pursuant to an agreement with and in form and substance reasonably satisfactory to, the Administrative Agent and the U.S. Borrower, in each case in their capacity as an issuer of Letters of Credit hereunder and, together with their successors in such capacity. “L/C Obligations” means, for any Letter of Credit at any time, the sum of (a) the L/C Reimbursement Obligations outstanding at such time for such Letter of Credit and (b) the aggregate maximum undrawn face amount of such Letter of Credit outstandingthat remains available for drawing at such time. “L/C Reimbursement Agreement” has the meaning specified in Section 2.4(a)(iii). “L/C Reimbursement Date” has the meaning specified in Section 2.4(e). “L/C Reimbursement Obligation” means, for any Letter of Credit, the obligation of the U.S. Borrower to the L/C Issuer thereof, as and when matured, to pay all amounts drawn under such Letter of Credit. “L/C Request” has the meaning specified in Section 2.4(b). “L/C Sublimit” means $7,500,000. “LCA Election” has the meaning specified in Section 1.3(c). “LCA Test Date” has the meaning specified in Section 1.3(c). “Lead Arranger” means Ares Capital. “Lender” means, collectively, the Swingline Lender and any other financial institution or other Person that (a) is listed on the signature pages hereofto the Fourth Amendment as a “Lender” or (b) from time to time becomes a party hereto by execution of an Assignment or pursuant to an Incremental Amendment, in each case for so long as such Person holds a Loan or Commitment hereunder. Notwithstanding the foregoing, no Disqualified Lender that purports to become a Lender hereunder in violation of the proviso to Section 11.2(b) shall be entitled to any of the rights or privileges enjoyed by the other Lenders (including with respect to voting, information and lender meetings) and shall be deemed for all purposes to be a Defaulting Lender, until such time as such Disqualified Lender no longer owns any Loans or Commitments. “Xxx Acquisition” means the acquisition of 100% of the equity interests of Fresh Insurance Services Group Limited by Vantage Holdings Limited. “Letter of Credit” means any letter of credit Issued (or deemed Issued) pursuant to Section 2.4. “Liabilities” means all claims, actions, suits, judgments, damages, losses, liability, fines, penalties, sanctions, commissions, and related reasonable and documented out-of-pocket costs and expenses, in each case of any kind or nature (including interest accrued thereon or as a result thereof and reasonable out-of-pocket fees, charges and disbursements of legal counsel and financial and other 38 [[5286738]]
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advisors and consultants), whether joint or several, whether or not indirect, contingent, consequential, actual, punitive, treble or otherwise. “Lien” means any mortgage, deed of trust, pledge, hypothecation, collateral assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory or other), security interest or other security arrangement and any other preference, priority or preferential arrangement of any kind or nature whatsoever in the nature of a security interest, including any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing. For the avoidance of doubt, “Lien” shall not be deemed to include any exclusive license or sublicense of Intellectual Property, each of which shall constitute a Sale, or any operating lease. “Limited Condition Acquisition” means any Permitted Acquisition or other Investment permitted hereunder by the U.S. Borrower or one or more of its Restricted Subsidiaries whose consummation is not conditioned on the availability of, or on obtaining, third party financing. “Loan” means any loan made or deemed made by any Lender hereunder. “Loan Document Obligations” means all amounts, obligations, liabilities, covenants and duties of every type and description owing by any Loan Party to the Administrative Agent, any Lender, any L/C Issuer or any Indemnitee under any Loan Document, whether direct or indirect (regardless of whether acquired by assignment), absolute or contingent, due or to become due, whether liquidated or not, now existing or hereafter arising and however acquired, and whether or not evidenced by any instrument or for the payment of money, including (a) if such Loan Party is a Borrower, all Loans and L/C Obligations, as applicable, (b) all interest, whether or not accruing after the filing of any petition in bankruptcy or after the commencement of any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed in any such proceeding, and (c) all fees, expenses (including fees, charges and disbursement of counsel), charges, costs, disbursements, indemnities and reimbursement of amounts paid and other sums chargeable to such Loan Party under any Loan Document (including those payable to L/C Issuers as described in Section 2.11). “Loan Documents” means, collectively, this Agreement, any Notes, the Guaranty and Security Agreement, the Mortgages, the Control AgreementsCollateral Documents, the Fee Letter and the L/C Reimbursement Agreements (if any), together with any modification of any term, or any waiver with respect to, any of the foregoingin each case, as amended, restatement, supplemented or otherwise modified from time to time. “Loan Party” means each Borrower and each Guarantor. “LTM EBITDA” means, with respect to any Person for the trailing four Fiscal Quarter period most recently ended for which Financial Statements have been delivered, any period: (a) the Consolidated Net Income of such personPerson for such period, plus (b) the sum of, in each case to the extent deducted in the calculation of such Consolidated Net Income (other than with respect to clause (xvii)) but without duplication,: (i) any provision for income taxes or other taxes measured by income and franchise taxes during such period, 39 [[5286738]]
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(ii) Consolidated Interest Expense for such period, and to the extent not reflected in such Consolidated Interest Expense, plus any losses duringfor such period (and minus any gains for such period) on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk arising hereunder during such period, to the extent deducted (or included) in determining Consolidated Net Income, (iii) extraordinary, unusual or non-recurring items, not exceeding (with respect to such items reflected in the U.S. Borrower’s Financial Statementsconsolidated financial statements after the Closing Date), when combined with any add-backs pursuant to clauses (vii), and (xii) and adjustments pursuant to clause (2) below, 25% of LTM EBITDA infor any trailing four Fiscal Quarter periodTest Period (calculated prior to giving effect to any such add-backs), or such greater amount as may be approved by the Required Lenders; provided that for periods following the Closing Date, items related to category 4 and 5 storms shall not be considered “extraordinary, unusual or non-recurring” for purposes of this clause (iii) (it being understood that any such items up to an aggregate amount of $2,700,000 shall be considered “extraordinary, unusual or non-recurring” for such purposes for all applicable periods prior to the Closing Date), (iv) any depreciation, depletion and amortization duringfor such period, (v) any aggregate net loss on the sale or other disposition of property (other than accounts receivable and inventory) outside the ordinary course of business duringfor such period, (vi) any other non-cash charges or expenses (including any impairment charges), including any reduction in net income on account of any write-up of assets as a result the application of purchase accounting in connection with theany Permitted Acquisition or any acquisition (or less gains or income)other Acquisition permitted hereunder, deducted in the determination of Consolidated Net Income for thesuch period and for which no cash outlay (or cash receipt) is foreseeable during the twelve (12) month period after the last day of such period (provided that if any such non-cash charges or expenses represent an accrual or reserve for potential cash items in any future period, (i) such Person may determine not to add back such non-cash charge or expense in the current period and (ii) to the extent such Person does decide to add back such non-cash charge or expense, the cash payment in respect thereof in such future period shall be subtracted from LTM EBITDA to such extent,) and excluding amortization of a prepaid cash item that was paid in a prior period), (vii) severance, relocation costs and expenses, integration costs and restructuring costs and other items reflecting costs and other items to be eliminated included in the determination of Consolidated Net Income duringfor such period not exceeding (with respect to such items reflected in the U.S. Borrower’s Financial Statementsconsolidated financial statements after the Closing Date), when combined with any add-backs pursuant to clauses (iii), and (xii) and adjustments pursuant to clause (2) below, 25% of LTM EBITDA infor any trailing twelve month periodTest Period (calculated prior to giving effect to any such add-backs), or such greater amount as may be approved by the Required Lenders, 40 [[5286738]]
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(viii) during such period, fees, charges and expenses (including Transaction Expenses, amortization of debt discount and commissions, representation and warranty insurance, finders’ fees and employee bonuses in connection with acquisitionsAcquisitions) (and including fees and expenses payable to Parent in accordance with this Agreement) with respect to the Related Transactions and any acquisitionAcquisition, Investment, Restricted Payment, equity issuance, disposition, Indebtedness or amendments of the foregoing permitted (or that would have been permitted) hereunder, whether or not consummated, to the extent deducted in determining Consolidated Net Income, for such period, (ix) consulting fees, directors compensation, merger and acquisition fees to consultants, directors and advisors (that are not Parent), and non-compete fees (or similar fees), including to former employees, (x) expenses associated with discontinued operations, (xi) expenses, charges and losses during such period in connection with “earn-outs” and other deferred payments in connection with Permitted Acquisitions or other Permitted Investments (including Investments consummated prior to the Closing Date), to the extent required to be includeddeducted in the calculation of Consolidated Net Income in accordance with GAAP, (xii) costs, fees and expenses paid in connection with new market start-up activities, opening facilities, signing, retention and completion bonuses, relocation expenses, facility openings, employee searches, travel and housing costs and related legal and accounting fees, costs and expenses, and costs, fees and expenses incurred in connection with any strategic or new initiatives, and other business optimization expenses, not exceeding (with respect to such items reflected in the U.S. Borrower’s Financial Statementsconsolidated financial statements after the Closing Date), when combined with any add-backs pursuant to clauses (iii), and (vii) and adjustments pursuant to clause (2) below, 25% of LTM EBITDA infor any four Fiscal Quarter periodTest Period (calculated prior to giving effect to any such add-backs), (xiii) fees and expenses payable to Parent to the extent such payment is permitted under Section 8.9(h) or (i),[reserved], (xiv) all customary and reasonable deferred financing costs written off and premiums paid or other expenses incurred directly in connection with any early extinguishment of Indebtedness and any net gain (loss) from any write-off or forgiveness of Indebtedness, (xv) costs or expenses pursuant to any management equity plan, profits interest or stock option plan or any other Stock-based management or Stock-based employee benefit plan or any stock subscription, stockholders or partnership agreement, (xvi) any non-cash rent expense, and (xvii) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing LTM EBITDA or Consolidated Net Income of such Person in any period to the extent non-cash gains relating to such incomereceipts were 41 [[5286738]]
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deducted during the four Fiscal Quarter period immediately preceding the date of such cash receipt in the calculation of LTM EBITDA of such Person for any previous period and not added back; minus (c) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income and without duplication,: (i) any credit for United States federal income taxes or other taxes measured by net income during such period, (ii) any gain from extraordinary items duringfor such period, (iii) any aggregate net gain from the sale or other disposition of property (other than accounts receivable and inventory) out ofoutside the ordinary course of business by such person duringfor such period, (iv) any other non-cash gain, including any reversal of a charge referred to in clause (b)(vi) above by reason of a decrease in the value of any stockStock or stock equivalent duringStock Equivalent for such period, (v) any other cash payment during such period in respect of expenditures, charges and losses that have been added to LTM EBITDA of such Person pursuant to clause (b)(vi) above in any prior period, and (vi) income during such period in connection with “earn-outs” and other deferred payments in connection with Permitted Acquisitions, to the extent required to be included in the calculation of Consolidated Net Income in accordance with GAAP; all determined on a consolidated basis in accordance with GAAP; provided that for purposes of calculating LTM EBITDA of the Borrower for any period that includes any of the fiscal quarters ended March 31, 2018, June 30, 2018, September 30, 2018 and December 31, 2018, LTM EBITDA of Holdings for such fiscal quarters shall be deemed to be $11,481,956, $14,372,450, $12,281,093 and $8,700,589, respectively (such amounts, the “Deemed LTM EBITDA Amounts”), in each case, as may be subject to add-backs and adjustments as set forth in the following paragraph. In addition, for purposes of calculating LTM EBITDA (except for the calculation of Excess Cash Flow): (1) acquisitionsAcquisitions that have been made by the U.S. Borrower or any of its Restricted Subsidiaries, including through mergers or consolidations, the acquisition of assets constituting a business unit, line of business or division of another Person or a facility, oror by any Person or any of its Restricted Subsidiaries acquired by the U.S. Borrower or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four Fiscal Quarter reference period or, except as otherwise set forth in Section 1.3(b), subsequent to such reference period and on or prior to the calculation date will be calculated on a Pro Forma Basis as if they had occurred on the first day of thesuch four Fiscal Quarter reference period (such pro forma calculations shall be determined in good faith by the chief financial officer (or other financial officer) of the U.S. Borrower and based on assumptions believed by the U.S. Borrower to be reasonable at the time 42 [[5286738]]
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made, it being understood that, in the case of any such acquisition consummated on or prior to the Second Amendment Effective Date, the provisions of this clause (1) shall not apply with respect to the fiscal quarters ended March 31, 2018, June 30, 2018, September 30, 2018 and December 31, 2018); (2) LTM EBITDA shall be increased by the amount of “run-rate” cost savings, operating expense reductions and synergies (including revenue synergies related to acquisitionsAcquisitions consummated in the previous twelve (12) months) projected by the U.S. Borrower in good faith to be realized as a result of specified actions that have been taken (or for which substantial steps have been taken) (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of the four Fiscal Quarter reference period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions (such cost savings and synergies, “Specified Transaction Adjustments”); provided that (A) such Specified Transaction Adjustments are reasonably identifiable, quantifiable and factually supportable in the good faith judgment of the U.S. Borrower, and (B) such cost savings, operating expense reductions and synergies are expected to be realized no later than twelve (12) months after the date on which such action has been taken; provided, further that projected cost savings, operating expense reductions and synergies to be included in LTM EBITDA in any four Fiscal Quarter period shall not exceed (with respect to such items reflected in the U.S. Borrower’s Financial Statementsconsolidated financial statements after the Closing Date), when combined with any add-backs pursuant to clauses (iii), (vii) and (xii) above, 25% of LTM EBITDA for any Test Period (calculated prior to giving effect to any such projected cost savings, operating expense reductions and synergies); (3) the net income (or loss) attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the calculation date, will be excluded for the period of four Fiscal Quarters for which Financial Statements have been delivered ending on or most recently prior to the calculation date; (4) if any Indebtedness the incurrence of which is accounted for on a Pro Forma Basis bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the calculation date had been the applicable rate for the entire period (taking into account any hedging obligation applicable to such Indebtedness if such hedging obligation has a remaining term as at the calculation date in excess of twelve (12) months); (5) any unrealized currency translation gains or losses in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person and any unrealized exchange gains or losses relating to translation of assets and liabilities denominated in currencies other than the Dollar shall be excluded; (6) any unrealized currency translation or transaction gains or losses in respect of Indebtedness or other obligations of the U.S. Borrower or any of its Restricted Subsidiaries owing to the U.S. Borrower or any Restricted Subsidiaries shall be excluded; and 43 [[5286738]]
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(7) for purposes of calculating LTM EBITDA, contingent revenue will not be considered a non-cash gain and contingent expenses will not be considered a non-cash expense or loss pursuant to clauses (b)(vi), (b)(xvii), (c)(iv) and (c)(v) above. “Majority in Interest” means, at any time with respect to any Facility, (a) in the case of any Term Loan Facility, Lenders holding or having at such time more than 50% of the sum of the aggregate amount of unused Term Loan Commitments and the aggregate principal amount of the Term Loans under such Term Loan Facility, in each case, in effect or outstanding at such time, but disregarding in such calculations the amounts held by any Defaulting Lender, and (b) in the case of the Revolving Facility, the Required Revolving Lenders. “Material Adverse Effect” means a material adverse effect on (a) the condition (financial or otherwise)condition, business, performance, operations or property of the Group Members, taken as a whole, (b) the ability of the Loan Parties, (taken as a whole), to perform their material obligations under the Loan Documents, (c) the validity or enforceability against the Loan Parties of any Loan Document or (d) the material rights and remedies of the Administrative Agent, the Lenders and the other Secured PartiesL/C Issuers under the Loan Documents. “Material Environmental Liabilities” means Environmental Liabilities in excess of $7,500,000. “Minimum Equity Contribution” has the meaning specified in the definition of “Equity Contribution”. “Maturity Date” means the Scheduled Revolving Credit Termination Date, the Term Loan Maturity Date, each Incremental Term Loan Maturity Date or the final scheduled maturity of any other Facility hereunder. “Xxxxx’x” means Xxxxx’x Investors Service, Inc. “Mortgage” means any mortgage, deed of trust or equivalent document executed or required herein to be executed by any Loan Party and granting a security interest over fee-owned real property in favor of the Administrative Agent as security for the Obligations. “Mortgage Supporting Documents” means, with respect to any Mortgage for a parcel of owned real property owned by a U.S. Loan Party, each document (including title policies or marked-up unconditional insurance binders (in each case, together with copies of all documents referred to therein), maps, ALTA/NSPS (or TLTA, if applicable) as-built surveys (in form and as to date that is sufficiently acceptable to the title insurer issuing title insurance to the Administrative Agent for such title insurer to deliver endorsements to such title insurance as reasonably requested by the Administrative Agent; provided that, in lieu of a zoning endorsement, the Administrative Agent will accept a zoning report), environmental assessments and reports in form and substance reasonably acceptable to the Administrative Agent (in the case of owned real property acquired after the Closing Date having a fair market value on the date of acquisition in excess of $7,500,000) and evidence regarding recording and payment of fees, insurance premium and taxes) and customary legal opinions of local counsel for the relevant U.S. Loan Party in such real property is located that the Administrative Agent may reasonably request, to create, register, perfect, maintain, evidence the existence, substance, form or validity of or enforce a valid lien on such parcel of real property in favor of the Administrative Agent for the benefit of the Secured Parties, subject only to Permitted Liens such Liens as the Administrative Agent may approve. 44 [[5286738]]
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“Multiemployer Plan” means any multiemployer plan, as defined in Section 400l(a)(3) of ERISA, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise. “Net Cash Proceeds” means (a) proceeds received in cash from any Sale of, or Property Loss Event with respect to, property (including casualty insurance (excluding (i) at all times, business interruption insurance proceeds in an aggregate amount of up to $2,000,000 and (ii) unless an Event of Default has occurred and is continuing, all business interruption insurance proceeds) and condemnation proceeds), net of (i) the reasonable out-of-pocket cash costs, fees and expenses paid or required to be paid in connection therewith (including reasonable out-of-pocket attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees), (ii) Taxes paid or reasonably estimated to be payable as a result thereof, (iii) any amount required to be applied to the repayment of Indebtedness (other than the Loans and Indebtedness owing to Holdings or any Group Member) (including any principal, premium, penalty and interest) secured by the property subject of such Sale or Property Loss Event, (iv) in the case of a taking, the reasonable out-of-pocket costs of putting any affected property in a safe and secure position and (v) any amounts provided as a reserve, in accordance with GAAP, against any liabilities in respect of any indemnification obligations or, purchase price adjustmentadjustments or similar contingent liabilities associated with such Sale (provided that, to the extent and at any time such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds), and (v) customary Cash escrows (until released from escrow to the U.S. Borrower or any of its Restricted Subsidiaries) from the sale price for such Sale or Property Loss Event; or (b) proceeds received in cash from any incurrence of Indebtedness, net of brokers’, advisors’ and investment banking fees and other reasonable out-of-pocket underwriting discounts, commissions and reasonable out-of-pocket cash costs, fees and expenses (including reasonable out-of-pocket attorneys’ fees, accountants’ fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees), in each case incurred in connection with such transaction; provided, however, that any such proceeds received by any Subsidiary of the U.S. Borrower that is not a Wholly Owned Subsidiary of the U.S. Borrower shall constitute “Net Cash Proceeds” only to the extent of the aggregate direct and indirect beneficial ownership interest of the U.S. Borrower therein. “Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender at such time. “Non-Excluded Taxes” has the meaning specified in Section 2.17(a). “Non-U.S. Lender Party” means each of the Administrative Agent, each Lender, each L/C Issuer, each SPV and each participant, in each case, that is not a Domestic Person. “Non-U.S. Loan Party” means any U.K. Loan Party and any other Loan Party that is a Foreign Subsidiary. “Not Otherwise Applied” means amounts that were not previously applied in connection with a Restricted Payment pursuant to Section 8.5(h), prepayment of Junior Financing pursuant to Section 8.6(e) or a Permitted Investment pursuant to Section 8.3(q). “Note” means a promissory note of the applicable Borrower, in substantially the form of Exhibit B, payable to a Lender or its registered assigns in any Facility in a principal amount equal to the 45 [[5286738]]
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amount of such Lender’s Commitment under such Facility (or, in the case of the Term Loan Facility, the aggregate initial principal amount of the Term Loans). “Notice of Borrowing” has the meaning specified in Section 2.2(a). “Notice of Conversion or Continuation” has the meaning specified in Section 2.10(b). “Notice of Intent to Cure” has the meaning specified in Section 5.2. “Obligations” means, with respect to any (a) the Loan Party,Document Obligations, (b) all Banking Services Obligations and (c) all amounts, obligations, liabilities, covenants and duties of every type and description owing by suchany Loan Party to the Administrative Agent, any Lender, any L/C Issuer, any other Indemnitee or any Secured Hedging Counterparty or provider of Banking Services Obligations, arising out of, under, or in connection with, any Loan DocumentSecured Hedging Agreement, whether direct or indirect (regardless of whether acquired by assignment), absolute or contingent, due or to become due, whether liquidated or not, now existing or hereafter arising and however acquired, and whether or not evidenced by any instrument or for the payment of money, including (a) if such Loan Party is the Borrower, all Loans and L/C Obligations, (b) all interest, whether or not accruing after the filing of any petition in bankruptcy or after the commencement of any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed in any such proceeding, and (c) all other fees, expenses (including fees, charges and disbursement of counsel), interest, commissions, charges, costs, disbursements, indemnities and reimbursement of amounts paid and other sums chargeable to such Loan Party under any Loan Document (including those payable to L/C Issuers as described in Section 2.11); provided, however, that (i) Excluded Swap Obligations shall not be deemed Obligations and (ii) when the term “Obligations” is used in reference to any Non-U.S. Loan Party or any CFC Loan Party, the term “Obligations” shall be limited to Loan Document Obligations with respect to or on account of the Sterling Term Loans. “Offer” has the meaning specified in the definition of the term “Permitted Loan Retirement”. “Original Credit Agreement” means this Agreement as in effect on the Closing Date. “Other Applicable Indebtedness” has the meaning specified in Section 2.8(a). “Other Taxes” has the meaning specified in Section 2.17(c). “Outstanding Amount” means (a) with respect to Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any extension of a Letter of Credit occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of payments made by the L/C Issuer in respect of a Letter of Credit. “Parent” means, collectively, White Mountains Insurance Group, Ltd. and its controlled Affiliates. 46 [[5286738]]
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“Patents” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in letters patent and applications therefor. “PBGC” means the United States Pension Benefit Guaranty Corporation and any successor thereto. “PSC Register” means “PSC register” within the meaning of section 790C(10) of the Companies Xxx 0000. “PSC Registrable Person” means a “registrable person” or “registrable relevant legal entity”. “Permit” means, with respect to any Group Member, any permit, approval, authorization, license, registration, certificate, concession, grant, franchise, variance or permission from any Governmental Authority that are material to, or otherwise required in any material respects by applicable Lawlaw for, the operation of its business as currently conducted. “Permitted Acquisition” means any Proposedproposed Acquisition satisfying each of the following conditions: (a) except with respect to an acquisitionAcquisition in which the acquisition consideration is less than $7,500,000, (i) the U.S. Borrower shall have provided the Administrative Agent with a reasonably detailed description of such Proposedproposed Acquisition at least ten (10) days prior to the consummation of such Proposedproposed Acquisition (or such later date as may be agreed by the Administrative Agent) and (ii) solely to the extent that they have been prepared for such Proposedproposed Acquisition, have been made available to the U.S. Borrower on or prior to the closing of such Proposedproposed Acquisition and have been reasonably requested by the Administrative Agent no less than eight (8) days prior to the consummation of such Proposedproposed Acquisition, the Administrative Agent shall have received copies of the acquisition agreement and related material Contractual Obligations to be executed in connection therewith and other diligence documents, in each case, (subject, in each case, to any confidentiality obligations imposed under the documentation governing the Proposedproposed Acquisition); (b) the Proposed Acquisition Target is in the same line of business as the U.S. Borrower and its Restricted Subsidiaries (or a business permitted by Section 8.8(a)); (c) after giving effect to such Permittedproposed Acquisition and any Indebtedness incurred, assumed or repaid in connection therewith and the use of the proceeds thereof, on a Pro Forma Basis, the U.S. Borrower’s Consolidated Total Leverage Ratio as of the last day of the most recently ended Fiscal Quarter for which Financial Statements have been deliveredTest Period shall not exceed the greater of (x) 5.00:1.00 and (y) the then applicable maximum Consolidated Total Leverage Ratio covenant set forth under Section 5.1 as of the last day of the most recently ended Fiscal Quarter for which Financial Statements have been delivered6.00:1.00; (d) [reserved]; (e) the U.S. Borrower and its Restricted Subsidiaries shall comply with all requirements of Section 7.10 with respect to any Restricted Subsidiary (and any assets of such 47 [[5286738]]
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Restricted Subsidiary) or assets acquired in such Proposedproposed Acquisition, to the extent applicable, within the time periods specified therein; (f) in the case of any Proposedproposed Acquisition for which the LTM EBITDA for the Proposed Acquisition Target is more than $3,000,000, the Required Lenders shall have received a quality of earnings report (to the extent such report has been prepared and is available to the U.S. Borrower on or prior to the closing of such Proposedproposed Acquisition); (g) after giving effect to such Proposedproposed Acquisition on a Pro Forma Basis, no Default or Event of Default shall have occurred and be continuing; and (h) the aggregate amount of such purchases and acquisitions made in Personsconsideration paid for the acquisition of any Person that dodoes not become a Loan Parties orParty (including as a result of a merger or consolidation with or into a Loan Party), inor for the case of a purchase or acquisition of assets (other than Stock), by a Restricted Subsidiary that is not owned by a Loan Party, shall not exceed, after giving Pro Forma Effect to such purchase or acquisition, the sum of (i) the greater of (ix) $25,000,000 and (iiy) an amount equal to the Equivalent Percentage of the amount set forth in clause (ix) multiplied by Trailing EBITDA as of the applicable date of determination at such time; provided that (x) in the event that the Borrower or any Restricted Subsidiary makes one or more Investments pursuant to Section 8.3(d) in any Person that is or becomes a non-wholly-owned Restricted Subsidiary, and as a result of any subsequent Investment in such Person, such Person becomes a Loan Party, then all Investments in such Person made in reliance on Section 8.3(d) shall be deemed automatically at such time to no longer have been made in reliance on Section 8.3(d) but instead in reliance on Section 8.3(e)(iv) and (y) the limitation described in this clause (h) shall not apply to any acquisition or Investment to the extent (i) the consideration therefor is financed with the proceeds of sales of the Qualified Capital Stock of, or capital contributions in respect of Qualified Capital Stock to, the Borrower or any Restricted Subsidiary, in each case, that are not otherwise applied and other than (A) any Specified Equity Contribution, Cumulative Available Amount or Available Excluded Contribution Amount or (B) proceeds received from the sale of Qualified Capital Stock to, or contributions from, the Borrower or any Restricted Subsidiary and and/or (ii) the Person so acquired (or the Person owning the assets so acquired) becomes a Guarantor even though such Person is not otherwise required to become a Guarantor and (ii) amounts otherwise available under Sections 8.3(q) and 8.3(jj). Notwithstanding the foregoing, each of the Xxx Acquisition, the KBK Acquisition and the Embrace Acquisition (in each case, as defined in the Existing Credit Agreement) and the Kingsbridge Acquisition shall be deemed to be a Permitted Acquisition. “Permitted Indebtedness” means any Indebtedness of any Group Member that is permitted by Section 8.1. “Permitted Investment” means any Investment of any Group Member that is permitted by Section 8.3. “Permitted Investors” means, collectively, Parent and each other direct or indirect holder of Stock or Stock Equivalents in Holdings on the Closing Date (after giving effect to the Acquisitiontransactions consummated on the Closing Date). “Permitted Lien” means any Lien on or with respect to the property of any Group Member that is permitted by Section 8.2. 48 [[5286738]]
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“Permitted Loan Retirement” means any transaction pursuant to which theany Borrower (a) purchases all or any portion of the Term Loans under any Facility with cash of the U.S. Borrower and its Restricted Subsidiaries (other than the proceeds of any Revolving Loans), as certified by a Responsible Officer of the U.S. Borrower, pursuant to one or more offers made, on terms and conditions (including the form of notice thereof) reasonably agreed to by the U.S. Borrower and the Administrative Agent (each, an “Offer”) , to the Term Loan Lenders under such Facility on a pro rata basis according to the principal amount of the Term Loans under such Facility then held by thesuch Term Loan Lenders and (b) substantially concurrent with such purchase, forgives all Indebtedness represented by such Term Loans purchased thereby, as evidenced by a written instrument delivered to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent and made available to the Term Loan Lenders; provided, however, that (i) the applicable Borrower shall have delivered a notice of each such Offer to the Administrative Agent and all Term Loan Lenders no later than noon12:00 p.m. (New York City time) at least five (5) Business Days in advance of the proposed consummation date of such Offer, in form and substance reasonably acceptable to the Administrative Agent, (ii) the aggregate principal amount of the Term Loans purchased and retired pursuant to such Offer shall be no less than $(A) in the case of the Term Loans denominated in Dollars, $1,000,000 and (B) in the case of Term Loans denominated in Sterling, £1,000,000 and (iii) both immediately prior to and after giving effect to such transaction, no Default or Event of Default shall have occurred or be continuing; provided, further, that any Permitted Loan Retirement may be consummated on a non-pro-rata basis. “Permitted Refinancing” means, in respect of any Indebtedness (the “Original Indebtedness”), any Indebtedness incurred (including by means of the extension or renewal of existingsuch Original Indebtedness) to refinance, refund, extend, defease, discharge, renew or replace Permittedsuch Original Indebtedness (or any Permitted Refinancing in respect thereof); provided that such Indebtedness (a) has an aggregate outstanding principal amount not greater than the aggregate principal amount of such PermittedOriginal Indebtedness outstanding at the time of such refinancing or, refunding, extension , defeasance, discharge, renewal or replacement, plus the amount of any premiums, make-whole amounts or penalties and accrued and unpaid interest paid thereon and fees (including any closing fees and original issue discount) and expenses, in each case, associated with such refinancing, refunding, extension, defeasance, discharge, renewal or replacement, (b) other than in the case of Original Indebtedness outstanding in reliance on Section 8.1(c) has a Weighted Average Life to Maturity (no shorter, and final maturity no earlier, than that of such Original Indebtedness, in each case, measured as of the date of such refinancing or, refunding, extension) and maturity no shorter than that of such Permitted Indebtedness (other than with respect of Permitted Indebtedness incurred in reliance on Section 8.1(c) and other than, defeasance, discharge, renewal or replacement; provided that this clause (b) shall not apply to customary bridge loans with a maturity date of not longer than one year,; provided, however, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (b)), (c) [reserved], (d) is not secured by Liens on any property or any Lienassets other than those securingthe assets that secured (or, in the case of after-acquired assets, would be required to secure pursuant to the terms thereof) such PermittedOriginal Indebtedness or have any guarantors that did not guaranty (or, in the case of after-acquired Subsidiaries, would be required to guaranty pursuant to the terms thereof) such Original Indebtedness, and (ed) is otherwise on terms (but excluding terms relating to interest rate marginmargins, fees, discounts, rate floors and optional prepayment, redemption or subordination) (i) no less favorable to the Group Members, taken as a whole, than those of such PermittedOriginal Indebtedness or (ii) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuancethereof (as determined by the U.S. Borrower in its reasonable discretion); provided, however, that, notwithstanding the foregoing, (x) the terms of such Permitted Indebtedness may be modified as part of such Permitted Refinancing if such modification 49 [[5286738]]
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would have been permitted pursuant to Section 8.11 (to the extent applicable) and (y) no Guaranty Obligation for such Indebtedness shall constitute part of such Permitted Refinancing unless similar Guaranty Obligations with respect to such Permitted Indebtedness existed and constituted Permitted Indebtedness prior to such refinancing or extension. “Permitted Reinvestment” means, with respect to the Net Cash Proceeds of any Sale or Property Loss Event, the acquisition, repair, replacement, improvement or construction of, to the extent otherwise permitted hereunder, property or other assets useful in the business of the U.S. Borrower or any of its Subsidiaries (including through any acquisitionAcquisition or other Investment permitted by this Agreement, Capital Expenditure or the acquisition of any new programs) or, if such Property Loss Event involves loss or damage to property, to repair such loss or damage. “Permitted Seller Debt” shall meanmeans unsecured Indebtedness (other than “earn-outs” and similar deferred consideration) of the U.S. Borrower or any of its Restricted Subsidiaries incurred in connection with, or as part of the consideration payable in respect of, any Permitted Acquisition or other acquisition of any Person that becomes a Restricted Subsidiary of the Borrower or of all or substantially all of the assets of another PersonAcquisition permitted hereunder. “Person” means any individual, partnership, corporation (including a business trust and a public benefit corporation), joint stock company, estate, association, firm, enterprise, trust, limited liability company, unincorporated association, joint venture and any other entity or Governmental Authority. “Pro Forma Basis” and “Pro Forma Effect” means, with respect to any determination for any period and any Pro Forma Transaction, that such determination shall be made by giving pro forma effect to such Pro Forma Transaction in the manner contemplated inby Section 1.3(b) and the definition of LTM EBITDA. “Pro Forma Transaction” means (xa) any transaction consummated as part of the Acquisition,(i) any Permitted Acquisition, or any acquisitionother Acquisition that is apermitted hereunder, or any other Permitted Investment hereunder,that results in a Person becoming a Subsidiary, (ii) any sale, transfer or other disposition of all or substantially all of the assets or Stock of any Restricted Subsidiary of the Borrower or the dispositionor of any business unit, division, brand, program or product line or line of business or division of the U.S. Borrower or any ofand its Restricted Subsidiaries or, (iii) the designation of aany Subsidiary as a Restricted Subsidiary or as an Unrestricted Subsidiary and (iv) any other transaction where the consummation thereof, or the determination of whether such transaction is permitted to be consummated under this Agreement, requires that a financial ratio or test be calculated on a Pro Forma Basis or after giving Pro Forma Effect to such transaction, in each case, together with each other transaction relating or incidental thereto and consummated in connection therewith and including the incurrence, assumption or repayment of Indebtedness in connection therewith, and (yb) to the extent required to be determined on a Pro Forma Basis other than by Section 1.3(b), any incurrence or repayment of Indebtedness. “Proceeding” means any action, litigation, suits, arbitration, claim, demand, mediation, investigation, audit, charge, inquiry or similar proceeding. “Projections” means any document delivered pursuant to Section 6.1(e). “Property Loss Event” means, with respect to any property, any loss of or damage to such property or any taking of such property or condemnation thereof. 50 [[5286738]]
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“Proposed Acquisition” means a purchase or acquisition of property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person, a facility or Stock in a Person that, upon the consummation thereof, will be a Restricted Subsidiary of the Borrower (including as a result of a merger or consolidation) or, in the case of a purchase or acquisition of assets (other than Stock), will be owned by the Borrower or a Restricted Subsidiary of the Borrower. “Proposed Acquisition Target” means any Person that is, or any brand, line ofthe assets of which (or the assets of a business unit, division, branch, operating division or other unit operationbrand, program or product line or line of business of which) is, the subject of any Personproposed Acquisition. “Pro Rata Outstandings”, of any Lender at any time, means (a) in the case of theany Term Loan Facility, the outstanding principal amount of the Term Loans under such Term Loan Facility owing to such Lender and (cb) in the case of the Revolving Credit Facility, the sum of (i) the outstanding principal amount of the Revolving Loans owing to such Lender and, (ii) the amount of the funded and unfunded risk participations of such Lender in the outstanding Swingline Loans and (iii) the amount of the participation of such Lender in the L/C Obligations outstanding with respect to all Letters of Credit. “Pro Rata Share” means, with respect to any Lender and any Facility or Facilities at any time, the percentage obtained by dividing (a) the sum of the Commitments (or, if suchthe Commitments inunder any such Facility are terminated, the Pro Rata Outstandings thereinthereunder) of such Lender then in effect under such Facility or Facilities by (b) the sum of the Commitments (or, if suchthe Commitments inunder any such Facility are terminated, the Pro Rata Outstandings thereinthereunder) of all Lenders then in effect under such Facility or Facilities; provided, however, that, if there are no Commitments and no Pro Rata Outstandings in any of such Facilities, such Lender’s Pro Rata Share in such Facilities shall be determined based on the Pro Rata Share in such Facilities most recently in effect, after giving effect to any subsequent assignment and any subsequent non-pro rata payments of any Lender pursuant to Section 2.18. For the purposes of Section 2.19(e), Pro Rata Share for any Term Loan Lender means a percentage of the proposed Incremental Term Loans equal to a percentage thereof equal to a fraction, the numerator of which is the principal amount of the Term Loans held by such Term Loan Lender at the time the notice of the Incremental Term Loans is issued by the Borrower and the denominator is the aggregate outstanding amount of the Term Loans at such time. “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. § 5390(c)(8)(D). “QFC Credit Support” has the meaning assigned to such term in Section 11.25(a). “Qualified Capital Stock” means Stock that is not Disqualified Stock. “Qualifying IPO” means the issuance by Holdings or any direct or indirect parent thereof of its common Stock in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the Securities and Exchange Commission in accordance with the Securities Exchange Act of 1934, as amended (whether alone or in connection with a secondary public offering). “Qualifying U.K. Lender” means a Lender that is beneficially entitled to interest payable to such Lender in respect of a Loan and is (a) a Lender which is a bank (as defined for the purpose of section 879 of the ITA) making a Loan and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of such Loan or would be 51 [[5286738]]
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within such charge as respects such payments apart from section 18A of the CTA, (b) a Lender in respect of a Loan made by a Person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that such Loan was made and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of such Loan, (c) a Lender that is (i) a company resident in the United Kingdom for United Kingdom tax purposes, (ii) a partnership each member of which is either (A) a company so resident in the United Kingdom or (B) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that Loan that falls to it by reason of Part 17 of the CTA, or (iii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of such Loan in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company, or (d) a U.K. Treaty Lender. “Quarterly Compliance Date” means, with respect to any event, (a) if such event occurs during the first three Fiscal Quarters of any Fiscal Year, the later of (i) the date on which the consolidated financial statements of the U.S. Borrower are required to be delivered pursuant to Section 6.1(b) for the Fiscal Quarter in which such event occurs and (ii) sixty (60) days after the date on which such event occurs or (b) if such event occurs during the fourth Fiscal Quarter of any Fiscal Year, the date that is sixty (60) days after the end of such Fiscal Quarter (or, in the case of each of clauses (a) and (b), such later date as the Administrative Agent may reasonably agree to). “Quotation Day” means (a) with respect to Dollars for any Interest Period, two Business Days prior to the first day of such Interest Period and (b) with respect to Sterling for any Interest Period, the first day of such Interest Period, in each case unless market practice differs in the London interbank market for such currency, in which case the Quotation Day for such currency shall be determined by the Administrative Agent in accordance with market practice in the London interbank market (and if quotations would normally be given by leading banks in the London interbank market on more than one day, the Quotation Day shall be the last of those days). “Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any L/C Issuer. “Refinanced Loans” has the meaning specified in Section 11.1(d). “Refinancing” means the repayment in full of all principal of and accrued and unpaid interest on all outstanding loans under the Existing Credit Agreement, and all accrued and unpaid fees and other amounts outstanding under the Existing Credit Agreement and the termination, discharge and release of all commitments, Guaranty Obligations and Liens existing in connection with the Existing Credit Agreement. “Refunding Capital Stock” has the meaning specified in Section 8.5(k). “Register” has the meaning specified in Section 2.14(b). “Reinvestment Prepayment Amount” means, with respect to any Net Cash Proceeds on the Reinvestment Prepayment Date therefor, (a) the amount of such Net Cash Proceeds less (b) any amount paid or required to be paid by any Group Member to make Permitted Reinvestments with such Net Cash Proceeds pursuant to a Contractual Obligation entered into prior to such Reinvestment Prepayment Date with any Person that is not an Affiliate of theany Borrower. 52 [[5286738]]
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“Reinvestment Prepayment Date” means, with respect to any portion of any Net Cash Proceeds of any Sale or Property Loss Event, the earliest of (a) the 365th day after the completion of the portion of such Sale or Property Loss Event corresponding to such Net Cash Proceeds, or, to the extent the U.S. Borrower or any Subsidiary shall have entered into a binding commitment to make Permitted Reinvestments with such Net Cash Proceeds within such 365-day period, the 180th day following the entering into of such commitment and (b) the date that is 5 Business Days after the date on which the U.S. Borrower shall have notified the Administrative Agent of the applicable Borrower’s determination not to make Permitted Reinvestments with such Net Cash Proceeds. “Related Person” means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee, representative, attorney, accountant and each insurance, environmental, legal, financial and other advisor (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III3) and other consultants and agents of or to such Person or any of its Affiliates, together with, if such Person is the Administrative Agent, each other Person or individual designated, nominated or otherwise mandated by or helping the Administrative Agent pursuant to and in accordance with Section 10.4 or any comparable provision of any Loan Document. “Related Transactions” means, collectively, the consummation of the Acquisition, the consummation of the Equity Contribution, the consummation of the Xxx Acquisition and the Transactions. “Release” means any release, spill, emission, leaking, pumping, pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Material into or through the environment. “Remedial Action” means all actions, to the extent required under Environmental Law, to (a) clean up, remove, treat or in any other way address any Hazardous Material in the indoor or outdoor environment, (b) prevent or minimize any Release so that a Hazardous Material does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment or (c) perform pre-remedial studies and investigations and post-remedial monitoring and care with respect to any Hazardous Material. “Renewal Rights Agreement” means the Renewal Rights, Assignment and Amendment Agreement dated as of September 1, 2016 and amended as of March 31, 2018, among the U.S. Borrower, Care Providers Insurance Services, LLC, American Collectors Insurance, LLC, AIG, and National Union Fire Insurance Company of Pittsburgh, PA. “Replacement Loans” has the meaning specified in Section 11.1(d). “Repricing Transaction” means (a) any prepayment or repayment of the Initial Term Loans, the First Amendment Incremental Term Loans, the Second Amendment Incremental Term Loans, the Third Amendment Incremental Term Loans or the Delayed-Draw Term Loans with the proceeds of, or any conversion of the Initial Term Loans, the First Amendment Incremental Term Loans, the Second Amendment Incremental Term Loans, the Third Amendment Incremental Term Loans or the Delayed-Draw Term Loans into, any new or replacement tranche of term loans (including any Replacement Loans) bearing interest at All-In Yield less than All-In Yield applicable to the Initial Term Loans, the First Amendment Incremental Term Loans, the Second Amendment Incremental Term Loans, the Third Amendment Incremental Term Loans or the Delayed-Draw Term Loans (determined consistent with generally accepted financial practice) and (b) any amendment to the Term Loan Facility that directly or indirectly reduces the All-In Yield applicable to the Initial Term Loans, the First Amendment 53 [[5286738]]
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Incremental Term Loans, the Second Amendment Incremental Term Loans, the Third Amendment Incremental Term Loans or the Delayed-Draw Term Loans; provided that the primary purpose of such prepayment, repayment, conversion or amendment was to reduce the All-In Yield applicable to the Initial Term Loans, the First Amendment Incremental Term Loans, the Second Amendment Incremental Term Loans, the Third Amendment Incremental Term Loans or the Delayed-Draw Term Loans; provided, further, that in no event shall any prepayments, repayments, conversions or amendments in connection with (i) a Qualifying IPO, (ii) a Change of Control or (iii) a material acquisition that is not a Permitted Acquisition constitute a Repricing Transaction. “Required Lenders” means, at any time, Lenders having at such time in excess of 50% of the sum of the aggregate (a) Revolving Credit Commitments, the sum of the amounts of the participations in Swingline Loans, the principal amount of unparticipated portions of the Swingline Loans and the Pro Rata Outstandings in the Revolving Credit Facility and (b) Term Loan Commitments and the Pro Rata Outstandings in the Term Loan Facility then in effect, ignoring, in such calculation, the amounts held by any Defaulting Lender. “Required Revolving “Required Lenders” means, at any time, Lenders having at such time in excess of 50% of the sum of the aggregate Revolving Credit Commitments, the sum of the amounts of the participations in Swingline Loans, the principal amount of unparticipated portions of the Swingline Loans and the Pro Rata Outstandings in the Revolving Credit Facility then in effect, ignoring, in such calculation, the amounts held by any Defaulting Lender. “Required Term Loan Lenders” means, at any time, Lenders having at such time in excess of 50% of the aggregate Term Loan Commitments and the Pro Rata Outstandings in the Term Loan Facility then in effect, ignoring, in such calculation, the Commitments and Pro Rata Outstandings of any Defaulting Lender.or holding at such time more than 50% of the sum of (a) the aggregate amount of unused Revolving Credit Commitments, the aggregate principal amount of the Revolving Loans, the aggregate amount of the funded and unfunded risk participations in the Swingline Loans and the aggregate amount of the participations in the L/C Obligations and (b) the aggregate amount of unused Term Loan Commitments and the aggregate principal amount of the Term Loans, in each case, in effect or outstanding at such time, but disregarding in such calculations the amounts held by any Defaulting Lender. “Required Revolving Lenders” means, at any time, Lenders having at such time more than 50% of the sum of the aggregate amount of unused Revolving Credit Commitments, the aggregate principal amount of the Revolving Loans, the aggregate amount of the funded and unfunded risk participations in the Swingline Loans and the aggregate amount of the participations in the L/C Obligations, in each case, in effect or outstanding at such time, but disregarding in such calculations the amounts held by any Defaulting Lender. “Requirements of Law” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. 54 [[5286738]]
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“Resolution Authority” means an EEA Resolution Authority or, with respect to any U.K. Financial Institution, a U.K. Resolution Authority. “Responsible Officer” means, with respect to any Person, any of the president, chief executive officer, treasurer, assistant treasurer, controller, managing member or general partner of such Person but, in any event, with respect to financial matters, any such officer that is responsible for preparing the Financial Statementsconsolidated financial statements of the U.S. Borrower and, with respect to documents delivered on the ClosingFourth Amendment Effective Date and documents delivered pursuant to Section 7.10, the secretary or assistant secretary of such Person or any other officer responsible for maintaining the corporate and similar records of such Person. “Restricted Debt Payments” has the meaning specified in Section 8.6. “Restricted Payment” means (a) any dividend, return of capital or distribution, whether direct or indirect (including through the use of Hedging Agreements, the making, repayment, cancellation or forgiveness of Indebtedness and similar Contractual Obligations) and whether in cash, Securities or other property, in each case, on account of any Stock or Stock Equivalent of Holdings, the U.S. Borrower or any of its Restricted Subsidiaries, in each case now or hereafter outstanding, including with respect to a claim for rescission of a Sale of such Stock or Stock Equivalent and (b) any redemption, retirement, termination, defeasance, cancellation, purchase or other acquisition for value, whether direct or indirect (including through the use of Hedging Agreements, the making, repayment, cancellation or forgiveness of Indebtedness and similar Contractual Obligations), of any Stock or Stock Equivalent of any Group Member or of any direct or indirect parent entity ofHoldings, the U.S. Borrower or any of its Restricted Subsidiaries, now or hereafter outstanding, and any payment or other transfer setting aside funds for any such redemption, retirement, termination, cancellation, purchase or other acquisition, whether directly or indirectly and whether to a sinking fund, a similar fund or otherwise; provided that any Investment permitted under Section 8.3 shall be deemed not to be a Restricted Payment. “Restricted Subsidiary” means any Subsidiary of the U.S. Borrower other than an Unrestricted Subsidiary. “Revolving Commitment Fee Rate” means (a) with respect to the initial Revolving Credit Commitments, (i) from the Closing Date until the third Business Day following the date of the delivery of the financial statements pursuant to Section 6.1(b) for the Fiscal Quarter ending June 30, 2018, 0.50% per annum and (ii) thereafter,rate per annum as set forth in the table below, from and after the third Business Day after the date on which the Administrative Agent shall have received the applicable financial statements pursuant to Section 6.1(b) or 6.1(c) and the Compliance Certificate pursuant to Section 6.1(d) calculating based upon the Consolidated Total Leverage Ratio with respect to the period of four consecutive Fiscal Quarters ended onas of the last day of such Fiscal Quarterthe most recently ended Test Period and (b) with respect to Revolving Credit Commitments ofrevolving credit commitments under any other trancheFacility, the rate per annum specified in the Incremental Amendment, or the Extension/Modification Amendment, as the case may be, establishing Commitments ofrevolving credit commitments under such trancheFacility. Pricing Level Consolidated Total Leverage Ratio Revolving Commitment Fee Rate I > 3.50:1.00 0.50% II ≤ 3.50:1.00 0.375% 55 [[5286738]]
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At any time the Borrower has not submitted to the Administrative Agent the applicable financial statements as and when required under Section 6.1(b) and 6.1(c) and the Compliance Certificate as and when required under Section 6.1(d),Each change in the Revolving Commitment Fee Rate shall be determined based on the rates set forth in Pricing Level Iarising from a change in the Consolidated Total Leverage Ratio shall be effective from and after the third Business Day after the date on which the Administrative Agent shall have received the consolidated financial statements pursuant to Section 6.1(b) or 6.1(c) and the related Compliance Certificate pursuant to Section 6.1(d). Within one Business Day of receipt of the applicable information underconsolidated financial statements and related Compliance Certificate pursuant to Section 6.1(b), 6.1(c) andor 6.1(d), as applicable, the Administrative Agent shall give the U.S. Borrower and each Revolving Credit Lender facsimile or telephonic notice (confirmed in writing) of the Revolving Commitment Fee Rate in effect from such date. If the U.S. Borrower has not delivered to the Administrative Agent the applicable consolidated financial statements as and when required pursuant to Section 6.1(b) or 6.1(c) or the Compliance Certificate as and when required pursuant to Section 6.1(d), the Revolving Commitment Fee Rate shall be determined based on the rates set forth in Pricing Level I until such consolidated financial statements or such Compliance Certificate is delivered. In the event that any consolidated financial statement or Compliance Certificate delivered pursuant to Section 6.1(b), 6.1(c) or 6.1(d) is determined to be inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher Revolving Commitment Fee Rate for any period (an “Applicable Period”) than the Revolving Commitment Fee Rate applied for such Applicable Period, then, if such determination of inaccuracy occurs prior to the repayment in full of the Loans and termination of the Commitments, (x) the U.S. Borrower shall as promptly as reasonably practicable following such determination deliver to the Administrative Agent correct consolidated financial statements and the related Compliance Certificate required by Section 6.1(b), 6.1(c) andor 6.1(d), as applicable, for such Applicable Period, (y) the Revolving Commitment Fee Rate for such Applicable Period shall be determined as if the Consolidated Total Leverage Ratio were determined based on the amounts set forth in such correct consolidated financial statements and certificatesuch Compliance Certificate and (z) the U.S. Borrower shall promptly (and in any event within ten (10) Business Days) following delivery of such corrected consolidated financial statements and certificatesuch Compliance Certificate pay to the Administrative Agent the accrued additional interestfees owing as a result of such increased Revolving Commitment Fee Rate for such Applicable Period. “Revolving Credit Commitment” means, with respect to each Revolving Credit Lender, the commitment of such Lender to make Revolving Loans and to acquire interests in other Revolvingparticipations in Swingline Loans and Letters of Credit Outstandings, which, as such commitment is in the amount set forth opposite such Lender’s name on Schedule I hereto under the caption “Revolving Credit Commitment”, as amended to reflect Assignments or in the Incremental Amendment pursuant to which such Lender became a party hereto, and as such amountcommitment may be (a) reduced from time to time pursuant to this AgreementSection 2.5 or increased from time to time pursuant to Section 2.19 or (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.2. The aggregate amount of the Revolving Credit Commitments on the date hereof equals $10,000,000. Incremental Revolving Credit Commitments shall constitute Revolving Credit CommitmentsFourth Amendment Effective Date is $15,000,000. “Revolving Credit Facility” means the Revolving Credit Commitments and the provisions set forth herein related to the Revolving Loans, the Swingline Loans and the Letters of Credit. 56 [[5286738]]
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“Revolving Credit Lender” means each Lender that has a Revolving Credit Commitment, holds a Revolving Loan or participates in any Swingline Loan or Letter of Credit. “Revolving Credit Obligations” means all Obligations arising (a) under or with respect to the Revolving Credit Facility and (b) under any Secured Hedging Agreement that is provided by the Administrative Agent or any Affiliate thereof or by a Revolving Credit Lender. “Revolving Credit Outstandings” means, at any time, the sum of, in each case to the extent outstanding at such time, (a) the aggregate principal amount of the Revolving Loans and the Swingline Loans and (b) the L/C Obligations for all Letters of Credit. “Revolving Credit Termination Date” shall meanmeans the earliest of (a) the Scheduled Revolving Credit Termination Date, (b) the date of termination of the Revolving Credit Commitments pursuant to Section 2.5 or 9.2 and (c) the date on which the Loan Document Obligations become due and payable pursuant to Section 9.2. “Revolving Creditor” means each Revolving Credit Lender, the Swingline Lender, each L/C Issuer, and to the extent its claims arises in connection with the Revolving Credit Facility, each other Indemnitee and holder of a Revolving Credit Obligation of a Loan Party, including Secured Hedging Counterparties. “Revolving Loan” has the meaning specified in Section 2.1(a). “S&P” means Standard & Poor’s Rating Services. “Sale and Leaseback Transaction” means, with respect to any Person (the “obligor”), any Contractual Obligation or other arrangement with any other Person (the “counterparty”) consisting of a lease by such obligor of any property that, directly or indirectly, has been or is to be Sold by the obligor to such counterparty or to any other Person to whom funds have been advanced by such counterparty based on a Lien on, or an assignment of, such property or any obligations of such obligor under such lease. “Scheduled Maturity Date” means the later of the Scheduled Revolving Credit Termination Date, the Term Loan Maturity Date and each Incremental Term Loan Maturity Date. “Scheduled Revolving Credit Termination Date” means MayNovember 11, 20232025. “Screen Rate” has the meaning specified in the definition of “EurodollarEurocurrency Base Rate”. “Second Amendment” means the Second Amendment dated as of April 1, 2019, to this Agreement, among Holdings, the Borrower, the other Loan Parties party thereto, the Administrative Agent and the Lenders party thereto. “Second Amendment Effective Date” means April 1, 2019. “Second Amendment Incremental Term Loans” means the Incremental Term Loans provided pursuant to the Second Amendment. “Secured Hedging Agreement” means any Hedging Agreement that (a) has been entered into by a Loan Party with a Secured Hedging Counterpartyany Person, (b) in the case of a Hedging 57 [[5286738]]
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Agreement not entered into with or provided or arranged by the Administrative Agent or an Affiliate of the Administrative Agent, is expressly identified as being a “Secured Hedging Agreement” hereunder in a joint notice from such Loan Party and such Person delivered to the Administrative Agent reasonably promptly after the execution of such Hedging Agreement and (c) meets the requirements of Section 8.1(f). “Secured Hedging Counterparty” means each counterparty to a Secured Hedging Agreement with a Loan Party the obligations under which constitute Obligations, provided that any counterparty to a Hedging Agreement that has been designated to the Administrative Agent in writing by the U.S. Borrower as being a Secured Hedging Agreement for the purposes of the Loan Documents shall be deemed (a) to appoint the Administrative Agent as its agent under the applicable Loan Documents and (b) to agree to be bound by the provisions of Article 10, Section 11.3, Section 11.13, Section 11.14 and Section 11.15 and any Acceptable Intercreditor Agreement as if it were a Lender. “Secured Parties” means the Lenders, the L/C Issuers, the Administrative Agent, any Secured Hedging Counterparty, each provider of Banking Services to any Loan PartyGroup Member the obligations under which constitute Banking Services Obligations, each other Indemnitee and any other holder of any Obligation of any Loan Party. “Security” means all Stock, Stock Equivalents, voting trust certificates, bonds, debentures, instruments and other evidence of Indebtedness, whether or not secured, convertible or subordinated, all certificates of interest, share or participation in, all certificates for the acquisition of, and all warrants, options and other rights to acquire, any Security. “Sell” means, with respect to any property, to sell, convey, transfer, assign, license (as licensor), lease (as lessor) or otherwise dispose of, any interest therein or to permit any Person to acquire any such interest, including, in each case, through a Sale and Leaseback Transaction or through a sale, factoring at maturity, collection of or other disposal, with or without recourse, of any notes or accounts receivable. Conjugated forms thereof and the noun “Sale” have correlative meanings. “Sellers” has the meaning specified in the Acquisition Agreement. “Similar Business” means any Person the majority of the revenues of which are derived from a business that would be permitted by Section 8.8 if the references to “Group Member” and “Restricted Subsidiaries” in Section 8.8 were read to refer to such Person(a). “Solvent” means, with respect to any Person as of any date of determination, that, as of such date, (a) the value of the assets of such Person (both at fair value and present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person, (b) such Person is able to pay all liabilities of such Person as such liabilities mature and (c) other than in the case of any U.K. Loan Party, such Person does not have unreasonably small capital. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. “Specified Acquisition” has the meaning specified in Section 5.1(b). “Specified Equity Contribution” has the meaning specified in Section 5.2. “Specified Representations” means those representations and warranties made by the Loan Parties on the Closing Date (as a condition precedent pursuant to Section 3.1) in Sections 4.2(a)(i), 58 [[5286738]]
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4.2(a)(ii)(A), 4.2(b), 4.6, 4.9, 4.11, 4.18 (solely as it relates to use of proceeds) and 4.19 (solely as it relates to use of proceeds) hereof and Section 4.2 of the Guaranty and Security Agreement ((i) only with respect to Collateral Documents required to be delivered on the Closing Date pursuant to Section 3.1 and (ii) subject to any Permitted Liens). “SPV” means any special purpose funding vehicle identified as such in a writing by any Lender to the Administrative Agent. “Sterling” or “₤” means the lawful currency of the United Kingdom. “Sterling Overnight Rate” means, for any day, (a) the offered rate per annum for overnight deposits in Sterling in the London interbank market equal to the ICE LIBOR Rate, as published on the applicable Bloomberg screen page (or such other commercially available source providing quotations of ICE LIBOR as may be designated by the Administrative Agent from time to time) as of 11:00 a.m. (London, England time) on such day or (b) if the rate referred to in clause (a) is not available for Sterling, a rate per annum at which overnight deposits in Sterling would be offered on such day in the London interbank market, as such rate is determined by the Administrative Agent by such means as the Administrative Agent shall determine to be reasonable. Notwithstanding the foregoing, in no event shall the Sterling Overnight Rate be less than 1.25% per annum. “Sterling Term Loan Commitment” has the meaning assigned to the term “Sterling Term Loan Commitment” in the Fourth Amendment. “Sterling Term Loan Facility” means the Sterling Term Loans and the provisions set forth herein relating to the Sterling Term Loans. “Sterling Term Loan Lender” means each Lender that has a Sterling Term Loan Commitment or holds a Sterling Term Loan. “Sterling Term Loans” has the meaning assigned to the term “Sterling Term Loans” in the Fourth Amendment. “Stock” means all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial, partnership or membership interests, limited liability company interests or units, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting. “Stock Equivalents” means all securities convertible into or exchangeable for Stock or any other Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any Stock or any other Stock Equivalent, whether or not presently convertible, exchangeable or exercisable. “Subordinated Debt” means any Indebtedness that is subordinated to the Obligations as to right and time of payment and as to other rights and remedies thereunder, the subordination terms thereof being reasonably satisfactory to the Administrative Agent. “Subsidiary” means, with respect to any Person, any corporation, partnership, joint venture, limited liability company, association or other entity, the management of which is, directly or indirectly, controlled by, or of which an aggregate of more than 50% of the outstanding Voting Stock is, 59 [[5286738]]
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at the time, owned or controlled directly or indirectly by, such Person or one or more Subsidiaries of such Person. “Subsidiary Guarantor” means each Restricted Subsidiary of the U.S. Borrower that is a party to the Guaranty Agreement on the Fourth Amendment Effective Date or becomes a party thereto after the Fourth Amendment Effective Date. “Supported QFC” has the meaning assigned to such term in Section 11.25(a). “Swap Termination Value” means, in respect of any one or more Hedging Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the xxxx-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender or any Affiliate of a Lender). “Substitute Lender” has the meaning specified in Section 2.18(a). “Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act. “SWDA” means the Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.). “Swingline Commitment” means $1,500,000. “Swingline Lender” means, each in its capacity as Swingline Lender hereunder, Lake Forest Bank or, upon the resignation ofif Lake Forest Bank asceases to be a Revolving Credit Lender hereunder, any Lender (or Affiliate or Approved Fund of any Lender) that agrees, with the reasonable consent of the Administrative Agent (or, if there is no such successor Administrative Agent, the Required Lendersnot to be unreasonably withheld, delayed or conditioned) and the U.S. Borrower, to act as the Swingline Lender hereunder, in each case, in its capacity as the lender of Swingline Loans hereunder. “Swingline Loan” has the meaning specified in Section 2.3(a). “Swingline Request” has the meaning specified in Section 2.3(b). “Swingline Loan” has the meaning specified in Section 2.3(a). “Tax Affiliate” means, Holdings, the U.S. Borrower and its Subsidiaries. “Tax Returns” has the meaning specified in Section 4.8. “Taxes” has the meaning specified in Section 2.17(a). “Term Creditor” means each Term Loan Lender, each other holder of a Term Loan Obligation and, to the extent its claims arise in connection with the Term Loan Facility, each other Indemnitee. 60 [[5286738]]
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“Term Loan Commitment” means, with respect to each Term Loan Lender, its InitialSterling Term Loan Commitment, Delayed-Draw Term Loan Commitment, or Incremental Term Loan Commitment and Extended/Modified Term Commitment. “Term Loan Facility” means the InitialDollar Term Loan Facility, the Delayed-DrawSterling Term Loan Facility, theany Incremental Term Loan Facility and theany Extended/Modified Facility in respect of Extended/Modified Term Loans. “Term Loan Lender” means each Lender that has a Term Loan Commitment or that holds a Term Loan. “Term Loan Maturity Date” means May 11, 20242026. “Termination Date” means the means the first date on which (Aa) xxxxxx Commitments have expired or terminated, (Bb) the principal of and interest on each Loan and all Loansfees, all L/C Reimbursement Obligationsexpenses and all other Obligations (including Obligations arising under Secured Hedging Agreements) that the Administrative Agent has been notified in writing are then due and payable by the holder of such Obligationamounts payable under any Loan Document (other than contingent indemnification and yield protection obligations for which no claim or demand has been made) have been paid and satisfied in full and (C)in cash collateral with respect to all contingent Obligations has been deposited (or, in the case of any L/C Obligation, aand (c) all Letters of Credit have expired or have been terminated (or have been collateralized or back-upstopped by a letter of credit has beenor otherwise, or deemed issued and delivered to the Administrative Agent, or in the case of contingent Obligations arising under Secured Hedging Agreements, any other arrangementsunder another agreement, in each case, in a manner reasonably satisfactory to the applicable Secured Hedging Counterparty shall have been made) in amountsL/C Issuers) and on terms and conditions and with parties satisfactory to the Administrative Agent (or, in the case of contingent Obligations arising under Secured Hedging Agreements, satisfactory to the applicable Secured Hedging Counterparty). “Term Loan Obligations” means all Obligations arising (a) under or in respect of the Initial Term Loan Facility, the Delayed-Draw Term Loan Facility, the Incremental Term Loan Facility and the Extended/Modified Facility in respect of Extended/Modified Term Loans, and (b) under any Secured Hedging Agreement that are not Revolving Credit Obligations.all drawings under any Letter of Credit have been reimbursed. “Term Loans” means the InitialDollar Term Loans, the Delayed-DrawSterling Term Loans, the Incremental Term Loans (including the First Amendment Incremental Term Loans, the Second Amendment Incremental Term Loans and the Third Amendment Incremental Term Loans) and the Extended/Modified Term Loans. “Third Amendment” means the Third Amendment dated as of June 28, 2019, to this Agreement, among Holdings, the Borrower, the other Loan Parties party thereto, the Administrative Agent and the Lenders party thereto. “Third Amendment Effective Date” means June 28, 2019. “Third Amendment Incremental Term Loans” means the Incremental Term Loans provided pursuant to the Third Amendment. “Test Period” means, as of any date, the period of four consecutive Fiscal Quarters then most recently ended for which consolidated financial statements of the U.S. Borrower have 61 [[5286738]]
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been delivered (or are required to have been delivered) under Section 6.1(b) or 6.1(c), as applicable. “Title IV Plan” means a pension plan subject to Title IV of ERISA, other than a Multiemployer Plan, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise. “Trademarks” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers and, in each case, all goodwill associated therewith, all registrations and recordations thereof and all applications in connection therewith. “Trade Secrets” means all right, title and interest (and all related IP Ancillary Rights) arising under any Requirement of Law in trade secrets. “Trailing EBITDA” means, as of any date of determination, LTM EBITDA of the U.S. Borrower and its Restricted Subsidiaries for the four consecutive Fiscal QuartersTest Period most recently ended prior to such date for which financial statements and corresponding Compliance Certificates have been delivered (or were required to have been delivered) pursuant to Section 6.1(b) or 6.1(c) (or, in the case of a determination date that occurs prior to the first such delivery pursuant to such Section, for the four consecutive fiscal quarters ended as of March 31, 2018). “Transaction Expenses” means any fees or expenses incurred or paid by Holdings or any of its Subsidiaries in connection with the Related Transactions, this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby. “Transactions” means, collectively, (a) the Refinancing, (b)execution, delivery and performance by the fundingLoan Parties of the Initial Term Loans on the Closing Date, (c) the funding of the Initial Revolving Borrowing on the Closing Date, (d) the consummation of any other transactions in connection with the foregoing and (eLoan Documents to which they are a party and the borrowing of the Loans and the obtainment of the Letters of Credit and (b) the payment of the fees and expenses incurred in connection with any of the foregoing. “Transfer” has the meaning specified in Section 11.2(b). “Treasury Capital Stock” has the meaning specified in Section 8.5(k). “Type”, when used in reference to any Loan, refers to whether the rate of interest on such Loan is determined by reference to the Base Rate or the Eurocurrency Rate. “UCC” means the Uniform Commercial Code of any applicable jurisdiction and, if the applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial Code as in effect in the State of New York. “U.K.” means the United Kingdom. “U.K. Borrower” has the meaning specified in the preamble hereto. 62 [[5286738]]
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“Unused Commitment Fee” has the meaning specified in Section 2.11(a). “Unrestricted Cash” means, as to any Person as of any date of determination, the aggregate amount of cash and Cash Equivalents of such Person and its Restricted Subsidiaries on a Consolidated basis as of such date. For the avoidance of doubt, the amount of commissions held in trust accounts by such Person and its Restricted Subsidiaries in excess of the amount thereof required to be held in trust shall be deemed to be Unrestricted Cash. “Unrestricted Subsidiary” means any Subsidiary of the U.S. Borrower designated by the U.S. Borrower as an Unrestricted Subsidiary pursuant to Section 7.14 subsequent to the date hereof, in each case, until such Person ceases to be an Unrestricted Subsidiary of the Borrower in accordance with Section 7.14 or ceases to be a Subsidiary of the U.S. Borrower. “U.S. Borrower” has the meaning specified in the preamble hereto. “U.S. Lender Party” means each of the Administrative Agent, each Lender, each L/C Issuer, each SPV and each participant, in each case, that is a Domestic Person. “U.S. Loan Party” means Holdings, the U.S. Borrower and each Subsidiary Guarantor that is a Domestic Subsidiary. “U.S. Security Agreement” means the U.S. Security Agreement dated as of April 7, 2020, among Holdings, the U.S. Borrower, the other U.S. Loan Parties and the Administrative Agent, as amended, restated, supplemented or otherwise modified from time to time. “U.S. Special Resolution Regimes” has the meaning assigned to such term in Section 11.25(a). “Voting Stock” means Stock of any Person having ordinary power to vote in the election of members of the board of directors, managers, trustees or other controlling Persons, of such Person (irrespective of whether, at the time, Stock of any other class or classes of such entity shall have or might have voting power by reason of the occurrence of any contingency). “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (b) the then outstanding principal amount of such Indebtedness; provided that for purposes of determining the Weighted Average Life to Maturity of any Indebtedness that is being modified, refinanced, refunded, renewed, replaced or extended (the “Applicable Indebtedness”), the effects of any prepayments made on such Applicable Indebtedness prior to the date of the applicable modification, refinancing, refunding, renewal, replacement or extensiondetermination shall be disregarded. “Wholly Owned Subsidiary” of any Person means any Subsidiary of such Person, all of the Stock of which (other than nominal holdings and director’s qualifying shares) is owned by such Person, either directly or through one or more Wholly Owned Subsidiaries of such Person. “Withdrawal Liability” means, at any time, any liability incurred (whether or not assessed) by any ERISA Affiliate and not yet satisfied or paid in full at such time with respect to any Multiemployer Plan pursuant to Section 4201 of ERISA. 64 [[5286738]]
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(i) after giving effect to such Issuance, (A) the aggregate Revolving Credit Outstandings would exceed the aggregate Revolving Credit Commitments or (B) the L/C Obligations for all Letters of Credit would exceed the L/C Sublimit; (ii) the expiration date of such Letter of Credit (A) is not a Business Day, (B) is more than one year after the date of Issuance thereof or (C) is later than 5 days prior to the Scheduled Revolving Credit Termination Date; provided, however, that any Letter of Credit with a term not exceeding one year may provide for its renewal for additional periods not exceeding one year as long as (x) each of the Borrower and such L/C Issuer havehas the option to prevent such renewal before the expiration of such term or any such period and (y) neither such L/C Issuer nor the Borrower shall not permit any such renewal to extend such expiration date beyond the date set forth in clause (C) above; (iii) (A) any fee due in connection with, and on or prior to, such Issuance has not been paid, (B) such Letter of Credit is requested to be Issued in a form that is not acceptable to such L/C Issuer or (C) such L/C Issuer shall not have received, each in form and substance reasonably acceptable to it and duly executed by the U.S. Borrower (and, if such Letter of Credit is Issued for the account of any other Group Member, such Group Member), the documents that such L/C Issuer generally uses in the ordinary course of its business for the Issuance of letters of credit of the type of such Letter of Credit (collectively, the “L/C Reimbursement Agreement”); orprovided that (i) no L/C Reimbursement Agreement shall contain any representations or warranties, covenants or events of default not set forth in this Agreement (and to the extent inconsistent herewith shall be rendered null and void (or reformed automatically without further action by any Person to conform to the terms of this Agreement), and all representations and warranties, covenants and events of default set forth therein shall contain standards, qualifications, thresholds and exceptions for materiality or otherwise consistent with those set forth in this Agreement (and, to the extent inconsistent herewith, shall be deemed to automatically incorporate the applicable standards, qualifications, thresholds and exceptions set forth herein without action by any Person) and (ii) in the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any L/C Reimbursement Agreement, the terms and conditions of this Agreement shall control; or (iv) subject to the application of Section 2.21(b), any Revolving Credit Lender is a Defaulting Lender, unless thesuch L/C Issuer has entered into arrangements reasonably satisfactory to thesuch L/C Issuer (in its sole discretion) with the U.S. Borrower to eliminate thesuch L/C Issuer’s risk with respect to the participation in Letters of Credit by all such Defaulting Lenders, including by cash collateralizing, or obtaining a backstop letter of credit from an issuer reasonably satisfactory to the L/C Issuer to support, each such Defaulting Lender’s Pro Rata Share of any L/C Reimbursement Obligation. For each such Issuance, the applicable L/C Issuer may, but shall not be required to, determine that, or take notice whether, the conditions precedent set forth in Section 3.2 have been satisfied or waived in connection with the Issuance of any Letter of Credit; provided, however, that no Letter of Credit shall be Issued during the period starting on the first Business Day after the receipt by such L/C Issuer of notice from the Administrative Agent that any condition precedent contained in Section 3.2 is not satisfied and ending on the date all such conditions are satisfied or duly waived. 74 [[5286738]]
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Ratio of the Group Members in effectU.S. Borrower as of the last day of such Fiscal Year is equal to or less than 3.50:1.00, but greater than 3.00:1.00, such percentage shall be reduced to 25%; provided, further, that, and in the event that the Consolidated Total Leverage Ratio of the Group Members in effectU.S. Borrower as of the last day of such Fiscal Year is equal to or less than 3.00:1.00, such percentage shall be reduced to 0%; provided, further, that (x) voluntary prepayments of the Term Loans, Replacement Loans or Incremental Equivalent Debt that is secured on a pari passu basis with the Initial Term Loans made during such Fiscal Year or prior to the ECF Payment Date (calculated on a Dollar Equivalent basis and without duplication of any amounts deducted in the calculation of Excess Cash Flow in any prior Fiscal Year), (y) voluntary prepayments of the Revolving Loans made during such Fiscal Year or prior to the ECF Payment Date (without duplication of any amounts deducted in the calculation of Excess Cash Flow in any prior Fiscal Year) to the extent accompanied by an equal permanent reduction in the Revolving Credit Commitments and (z) the amount of any reduction in the outstanding amount of any Term Loans resulting from any assignment made in accordance with Section 11.2(h) prior to the date such payment is due and, in each case under this clause (z), based upon the actual amount of cash paid by the U.S. Borrower and any of its Restricted Subsidiaries in connection with the relevant assignment, in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.8(a) in the prior Fiscal Year, in each case shall reduce on a dollar-for-dollar basisby an equal amount the amount otherwise required to be prepaid; provided, further, that if at the time that any such prepayment would be required, the U.S. Borrower or any Restricted Subsidiary is required to prepay or offer to repurchase any Indebtedness that is secured on a pari passu basis with the Initial Term Loans pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) with any portion of the amount otherwise required to be prepaid, then the BorrowerBorrowers may apply such portion of the amount otherwise required to be prepaid on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and the relevant Other Applicable Indebtedness at such time; provided, that the portion of such amount otherwise required to be prepaid allocated to the Other Applicable Indebtedness shall not exceed the amount of such amount otherwise required to be prepaid required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such amount otherwise required to be prepaid shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the prepayment or repurchase of the relevant Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.8(a) shall be reduced accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof. (b) Debt Issuances. Upon receipt on or after the Closing Date by any Loan Partythe U.S. Borrower or any of its Restricted Subsidiaries of Net Cash Proceeds arising from the incurrence by any Loan Partythe U.S. Borrower or any of its Restricted Subsidiaries of Indebtedness of the type specified in clause (a) or (b) of the definition thereof (other than any such Indebtedness permitted hereunder in reliance uponunder Section 8.1 other than Replacement Loans), the BorrowerBorrowers shall promptly (but in any event within five (5) Business Days after the receipt of such Net Cash Proceeds by a Loan Partythe U.S. Borrower or any of its Restricted Subsidiary of a Loan PartySubsidiaries) pay or cause to be paid to the Administrative Agent an amount equal to 100% of such Net Cash Proceeds. (c) Asset Sales and Property Loss Events. Upon receipt on or after the Closing Date by any Loan Party (other than Holdings)the U.S. Borrower or any of theirits Restricted Subsidiaries of Net Cash Proceeds arising from (i) any non-ordinary course Sale by any Loan Party (other than 79 [[5286738]]
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Holdings)the U.S. Borrower or any of theirits Restricted Subsidiaries of any of its property, including the sale of any program renewal rights (but excluding the AIG Renewal Rights), other than Sales of its own Stock and Sales of property permitted hereunder in reliance upon any of clauses (a), (b), (c), (d), (f), (i) and (do) of Section 8.4 to the extent resulting, in the aggregate with all such other Sales, in the receipt by any of them of Net Cash Proceeds in excess of the Dollar Equivalent of $1,500,000 in any twelve-month period following the Closing Date or (ii) any Property Loss Event with respect to any property of any Loan Party (other than Holdings)the U.S. Borrower or any of theirits Restricted Subsidiaries to the extent resulting, in the aggregate with all other such Property Loss Events, in the receipt by any of them of Net Cash Proceeds in excess of the Dollar Equivalent of $1,500,000 in any twelve -month period following the Closing Date, the BorrowerBorrowers shall promptly (but in any event within five (5) Business Days after the receipt of such Net Cash Proceeds by any Loan Party (other than Holdings)the U.S. Borrower or any of theirits Restricted Subsidiaries) pay or cause to be paid to the Administrative Agent an amount equal to 100% of such Net Cash Proceeds; provided, however, that, upon any such receipt, so long as no Event of Default shall be continuing, any Group Member may make Permitted Reinvestments with such Net Cash Proceeds and the BorrowerBorrowers shall not be required to make or cause such payment to the extent (x) such Net Cash Proceeds are intended to be used to make Permitted Reinvestments and (y) on each Reinvestment Prepayment Date for such Net Cash Proceeds, the BorrowerBorrowers shall pay or cause to be paid to the Administrative Agent an amount equal to the Reinvestment Prepayment Amount applicable to such Reinvestment Prepayment Date and such Net Cash Proceeds; provided, further, if, at the time that any such prepayment would be required hereunder, the U.S. Borrower or any of its Restricted Subsidiaries is required to repay or repurchase any Other Applicable Indebtedness (or offer to repurchase such Other Applicable Indebtedness) with any portion of the Net Cash Proceeds, then the Borrowers may apply the Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and the Other Applicable Indebtedness at such time; provided that the portion of the Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof and the remaining amount, if any, of the Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the prepayment or repurchase of the relevant Other Applicable Indebtedness, and the amount of the prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.8(c) shall be reduced accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof. (d) Excess Outstandings. On any date on which the aggregate principal amount of Revolving Credit Outstandings exceeds the aggregate Revolving Credit Commitments, the U.S. Borrower shall pay to the Administrative Agent an amount equal to such excess. (e) Foreign Dispositions and Excess Cash Flow of Foreign Subsidiaries. Notwithstanding any other provisions of this Section 2.8 or Section 2.12 to the contrary, (Ai) to the extent that any or all of the Net Cash Proceeds of any Sale by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.8(c) (a “Foreign Disposition”), the Net Cash Proceeds of any or a Property Loss Event fromwith respect to any property of a Foreign Subsidiary (a “Foreign Property Loss Event”) or any Excess Cash Flow ofthat is generated by a Foreign Subsidiary, in each case, are prohibited or delayed by applicable local law (including by reason of financial assistance, corporate benefit, restrictions on upstreaming or transfer of cash intra group and the fiduciary and statutory duties of the directors of relevant Subsidiaries) from being repatriated to the United Statesany Borrower, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to 80 [[5286738]]
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(i) in the case of Sections 2.8(a), 2.8(b) and 2.8(c), shall be allocated ratably as among the Term Loan Facilities in accordance with the aggregate principal amount thereof (calculated on a Dollar Equivalent basis) (or allocated in such other manner as is referred to below) and, within each Term Loan Facility, shall be applied to reduce, first, to repay the next eight remaining scheduled amortization installments of the Term Loans under such Facility payable under Section 2.6 in forward order of maturity and, thereafter, to repayreduce ratably the remaining scheduled amortization installments of the Term Loans under such Facility payable under Section 2.6 until paid in full; provided that if any portion of such payment remains unapplied after the allocation and application as set forth above, such portion shall be applied, first, to repay the outstanding principal balance of the Swingline Loans until paid in full, second, to repay the outstanding principal balance of the Revolving Loans and Swingline Loans without a corresponding permanent reduction in the Revolving Credit Commitments until paid in full, and third, to provide cash collateral for the L/C Obligations to the extent and in the manner provided in Section 9.3, and then, any excess shall be retained by the Borrowerin each case, without a corresponding permanent reduction in the Revolving Credit Commitments; and (ii) in the case of Section 2.8(d), shall be applied first, to the repay the outstanding principal balance of the Swingline Loans until paid in full, second, to repay the outstanding principal balance of the Revolving Loans without a corresponding permanent reduction in the Revolving Credit Commitments until paid in full, and third, to provide cash collateral for the L/C Obligations to the extent and in the manner provided in Section 9.3, in each case, without a corresponding permanent reduction in the Revolving Credit Commitments. All prepayments pursuant to this Section 2.12(b) that are to be applied to the Term Loans shall be applied pro rata between the Initial Term Loans, the First Amendment Incremental Term Loans, the Second Amendment Incremental Term Loans, the Third Amendment Incremental Term Loans and the Delayed-Draw Term Loans. Notwithstanding anything to the contrary in clause (i) above, (A) any Net Cash Proceeds arising from any Sale of assets by, or any Property Loss Event with respect to the assets of, the U.K. Subsidiaries may, at the election of the U.S. Borrower as notified in writing to the Administrative Agent, be allocated solely to the Sterling Term Loan Facility, (B) the allocation as among the Term Loan Facilities set forth above may be adjusted by the Borrowers in such manner as the U.S. Borrower shall reasonably determine to give effect to Section 2.8(e), as such determination is notified in writing to the Administrative Agent and (C) in the case of any prepayment under Section 2.8(b) arising from the incurrence of any Replacement Loans, such prepayment shall be allocated to such Term Loan Facility (or, if applicable, such Term Loan Facilities) as shall constitute the Refinanced Loans with respect thereto, as notified by the U.S. Borrower in writing to the Administrative Agent. (f) Application of Payments. After the exercise of remedies provided for in Section 9.2 (or after all or any portion of the Loans have automatically become immediately due and payable as set forth in the proviso to Section 9.2), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order: first, to Obligations in respect of any cost or expense reimbursements or indemnities then due to the Administrative Agent; 86 [[5286738]]
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each Term Loan Loans and any assignment of any such interest, obligation or right, and (2) the Administrative Agent agrees to register by book entry the interests (including any rights to receive payment hereunder) of the Administrative Agent, each Revolving Credit Lender and each L/C Issuer ofin the Revolving Loans, Swingline Loans and L/C Obligations, each of their obligations under this Agreement to participate in each RevolvingSwingline Loan, Letter of Credit and L/C Reimbursement Obligation, and any assignment of any such interest, obligation or right and (B) accounts in the applicable Register in accordance with its usual practice in which it shall record (1) the names and addresses of the Lenders and the L/C Issuers, as applicable (and each change thereto pursuant to Sections 2.18 (Substitution of Lenders) and 11.2 (Assignments and Participations; Binding Effect)), (2) the Commitments of each applicable Lender, (3) the amount of each Loan and, each funding of any participation described in clause (A) above and, for EurodollarEurocurrency Rate Loans, the Interest Period applicable thereto, (4) the amount of any principal or interest due and payable or paid with respect to Loans recorded in the applicable Register, (5) the amount of the L/C Reimbursement Obligations due and payable or paid and (6) any other payment received by the Administrative Agent from theany Borrower and its application to the Loan Document Obligations. (c) Registered Obligations. Notwithstanding anything to the contrary contained in this Agreement, the Loans (including any Notes evidencing such Loans and, in the case of Revolving LoansCredit Commitments, the corresponding obligations to participate in L/C Obligations and Swingline Loans) and the L/C Reimbursement Obligations are registered obligations, and the right, title and interest of the Lenders and the L/C Issuers and their assignees in and to such Loans or L/C Reimbursement Obligations, as the case may be, shall be transferable only upon notation of such transfer in the applicable Register and no assignment thereof shall be effective until recorded therein. This Section 2.14 and Section 11.2 shall be construed so that the Loans and L/C Reimbursement Obligations are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related regulations (and any successor provisions). (d) Prima Facie Evidence. The entries made in a Register and in the accounts maintained pursuant to clauses (a) and (b) above shall be conclusive absent manifest error and theeach Borrower, each Guarantor, the Administrative Agent, the Lenders and the LendersL/C Issuers may treat each Person whose name is recorded in athe Register or such accounts pursuant to the terms hereof as a Lender hereunder (or the owner of a participation hereunder, as applicable) for all purposes of this Agreement, notwithstanding notice to the contrary; provided, however, that no error in such account and no failure of any Lender or the Administrative Agent to maintain any such account shall affect the obligations of any Loan Party to repay the Loans in accordance with their terms. In addition, the Loan Parties, the Administrative Agent, the Lenders and the L/C Issuers shall treat each Person whose name is recorded in the applicable Register as a Lender or L/C Issuer, as applicable, for all purposes of this Agreement. Information contained in suchthe Register with respect to any Lender or any L/C Issuer shall be available for access by theeach Borrower, the Administrative Agent, such Lender or such L/C Issuer at any reasonable time and from time to time upon reasonable prior notice. No Lender or L/C Issuer shall, in such capacity, have access to or be otherwise permitted to review any information in the Register other than information with respect to such Lender or L/C Issuer unless otherwise agreed by the Administrative Agent. (e) Notes. Upon any Lender’s request, the applicable Borrower shall promptly execute and deliver Notes to such Lender evidencing the Loans of such Lender inunder a Facility and substantially in the form of Exhibit B; provided, however, that only one Note for each Facility shall be issued to each Lender, except (i) to an existing Lender exchanging existing Notes to reflect changes in the Register relating to such Lender, in which case the new Notes delivered to such Lender shall be dated the date of the original Notes, and (ii) in the case of loss, destruction or mutilation of existing Notes and 90 [[5286738]]
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because of Section 2.15) on a date that is not the last day of the applicable Interest Period or (Ciii) as a consequence of any failure by thesuch Borrower to repay EurodollarEurocurrency Rate Loans when required by the terms hereof. (b) Increased Costs. If at any time any Lender or L/C Issuer reasonably determines that, after the date hereof, the adoption of, or any change in or in the interpretation, application or administration of, or compliance with, any Requirement of Law (other than any imposition or increase of EurodollarEurocurrency Reserve Requirements) from any Governmental Authority shall have the effect of (i) increasing the cost to such Lender of making, funding or maintaining any EurodollarEurocurrency Rate Loan or to agree to do so or of participating, or agreeing to participate, in extensions of creditL/C Obligations, (ii) increasing the cost to such L/C Issuer of Issuing or maintaining any Letter of Credit or of agreeing to do so or (iii) imposing any other cost to such Lender or L/C Issuer with respect to compliance with its obligations under any Loan Document, then, uponwithin 30 days of demand by such Lender or L/C Issuer (with copy to the Administrative Agent), the U.S. Borrower shall pay to the Administrative Agent for the account of such Lender or L/C Issuer amounts sufficient to compensate such Lender or L/C Issuer for such increased cost; provided however that this Section 2.16(b) shall not apply to any increase or imposition of any Taxes, which shall be governed by Section 2.17; and provided further, that notwithstanding anything herein to the contrary, (iA) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (iiB) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in a Requirement of Law, regardless of the date enacted, adopted or issued. (c) Increased Capital and Liquidity Requirements. If at any time any Lender or L/C Issuer reasonably determines that, after the date hereof, the adoption of, or any change in or in the interpretation, application or administration of, or compliance with, any Requirement of Law (other than any imposition or increase of EurodollarEurocurrency Reserve Requirements) from any Governmental Authority regarding capital adequacy or liquidity requirements, reserves, special deposits, compulsory loans, insurance charges against property of, deposits with or for the account of, Loan Document Obligations owing to, or other credit extended or participated in by, any Lender or L/C Issuer or any similar requirement (in each case other than any imposition or increase of EurodollarEurocurrency Reserve Requirements) shall have the effect of reducing the rate of return on the capital of such Lender’s or L/C Issuer (or any corporation controlling such Lender or L/C Issuer) as a consequence of its obligations under or with respect to any Loan Document or Letter of Credit to a level below that which, taking into account the capital adequacy policies of such Lender, L/C Issuer or corporation, such Lender, L/C Issuer or corporation could have achieved but for such adoption or change, then, uponwithin 30 days of demand from time to time by such Lender or L/C Issuer (with a copy of such demand to the Administrative Agent), the U.S. Borrower shall pay to the Administrative Agent for the account of such Lender amounts sufficient to compensate such Lender for such reduction; provided that notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change in a Requirement of Law, regardless of the date enacted, adopted or issued. (d) Compensation Certificate. Each demand for compensation under this Section 2.16 shall be accompanied by a certificate of the Lender or L/C Issuer claiming such compensation, setting forth the amounts to be paid hereunder, which certificate shall be conclusive, binding and final for 93 [[5286738]]
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withholding tax under the portfolio interest exemption) or any successor form and a certificate in form and substance acceptable to the Administrative Agent that such Non-U.S. Lender Party is not (1) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of theany Borrower within the meaning of Section 881(c)(3)(B) of the Code or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code or (C) any other applicable document prescribed by the IRS certifying as to the entitlement of such Non-U.S. Lender Party to such exemption from United States withholding tax or reduced rate with respect to all payments to be made to such Non-U.S. Lender Party under the Loan Documents. Unless the U.S. Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that payments under any Loan Document to or for a Non-U.S. Lender Party are not subject to United States withholding tax or are subject to such tax at a rate reduced by an applicable tax treaty, the Loan Parties and the Administrative Agent shall withhold amounts required to be withheld by applicable Requirements of Law from such payments at the applicable statutory rate. (B) Each U.S. Lender Party shall (A) on or prior to the date such U.S. Lender Party becomes a “U.S. Lender Party” hereunder, (B) on or prior to the date on which any such form or certification expires or becomes obsolete, (C) after the occurrence of any event requiring a change in the most recent form or certification previously delivered by it pursuant to this clause (g) and (D) from time to time if requested by the U.S. Borrower or the Administrative Agent (or, in the case of a participant or SPV, the relevant Lender), provide the Administrative Agent and the U.S. Borrower (or, in the case of a participant or SPV, the relevant Lender) with two properly completed and duly executed copies of Form W-9 (certifying that such U.S. Lender Party is entitled to an exemption from U.S. backup withholding tax) or any successor form. (iii) If a payment made to a LenderRecipient under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such LenderRecipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such LenderRecipient shall deliver to the Administrative Agent and the U.S. Borrower (or, in the case of a participant or SPV, the relevant Lender) at the time or times prescribed by law and at such time or times reasonably requested by the Administrative Agent or the U.S. Borrower such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Administrative Agent or the U.S. Borrower (or, in the case of a participant or SPV, the relevant Lender) as may be necessary for the Administrative Agent or the U.S. Borrower (or, in the case of a participant or SPV, the relevant Lender) to comply with their obligations under FATCA and to determine that such LenderRecipient has complied with such LenderRecipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (g), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. (iv) Each Lender having sold a participation in any of its Loan Document Obligations or identified an SPV as such to the Administrative Agent shall collect from such participant or SPV the documents described in this clause (g) and provide them to the Administrative Agent. 97 [[5286738]]
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Each Lender agrees that if any documentation (including any specific documentation required above in this Section 2.17(g)) it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall deliver to the U.S. Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the U.S. Borrower or the Administrative Agent) or promptly notify the U.S. Borrower and the Administrative Agent in writing of its legal ineligibility to do so. Notwithstanding anything to the contrary in this Section 2.17(g), no Lender shall be required to provide any documentation that such Lender is not legally eligible to deliver. (h) (i) Subject to paragraph (h)(ii) below, each Lender and each U.K. Loan Party that makes a payment to such Lender shall cooperate in completing any procedural formalities necessary for such U.K. Loan Party to obtain authorization to make such payment without withholding or deduction for Taxes imposed under the laws of the United Kingdom. (ii) (A) A Lender that is such on the Fourth Amendment Effective Date that (x) holds a passport under the HMRC DT Treaty Passport Scheme and (y) wishes such scheme to apply to this Agreement, shall provide its scheme reference number and its jurisdiction of tax residence to each U.K. Loan Party or the Administrative Agent; and (B) a Lender that becomes a Lender hereunder after the Closing Date that (x) holds a passport under the HMRC DT Treaty Passport Scheme and (y) wishes such scheme to apply to this Agreement, shall provide its scheme reference number and its jurisdiction of tax residence to each U.K. Loan Party or the Administrative Agent, and (C) upon satisfying either clause (A) or (B) above, such Lender shall have satisfied its obligation under paragraph (h)(i) above and shall not be required to provide any further documentation to the U.K. Loan Party or the Administrative Agent for the purposes of Section 2.17(a). (iii) If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (h)(ii) above, the U.K. Loan Party shall make a Borrower DTTP Filing with respect to such Lender, and shall promptly provide such Lender with a copy of such filing; provided that, if: (A) each U.K. Loan Party making a payment to such Lender has not made a Borrower DTTP Filing in respect of such Lender; or (B) each U.K. Loan Party making a payment to such Lender has made a Borrower DTTP Filing in respect of such Lender but: (1) such Borrower DTTP Filing has been rejected by HM Revenue & Customs; (2) HM Revenue & Customs has not given such U.K. Loan Party authority to make payments to such Lender without a deduction for tax within 60 days of the date of such Borrower DTTP Filing; or 98 [[5286738]]
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outstanding Loans ofLoan Document Obligations owed to such Lender (or terminate the Commitment of such Lender ofunder the applicable trancheFacility and repay all the outstanding Loans ofLoan Document Obligations owed to such Lender ofunder the applicable trancheFacility), in each case, without any obligation to terminate any Commitment or prepay any Loan or any other Loan Document Obligations of any other Lender or (y) replace such Lender by requiring such Lender to assign and delegate (and such Lender shall be obligated to assign and delegate), without recourse (in accordance with and subject to the restrictions contained in Section 11.2), all of its interests, rights and obligations under this Agreement (or all of its interests, rights and obligations under this Agreement as a Lender ofunder the applicable trancheFacility) to an assignee permitted by Section 11.2 that assumes such obligations (which assignee may be another Lender, if any Lender accepts such assignment and delegation) (in each case, a “Substitute Lender”). (b) Procedure. To substitute such Affected Lender or pay in full the Loan Document Obligations owed to suchany Affected Lender or to substitute any Affected Lender, in each case, under suchany Facility, the applicable Borrower shall deliver a notice to the Administrative Agent and such Affected Lender. The effectiveness of such payment or substitution shall be subject to the delivery to the Administrative Agent by the BorrowerBorrowers (or, as may be applicable in the case of a substitution, by the Substitute Lender) of (i) payment by the applicable Borrower (or, as may be applicable in the case of a substitution, by the Substitute Lender) to the Administrative Agent, for the account of such Affected Lender, of, to the extent accrued through, and outstanding on, the effective date for such payment or substitution, all Loan Document Obligations owing to such Affected Lender with respect tounder such Facility (including those that will be owed because of such payment and all Obligations that would be owed to such Lender if it was solely a Lender in such Facility), (ii) in the case of a payment in full of the Loan Document Obligations owing to such Affected Lender inunder the Revolving Credit Facility, payment to the Administrative Agent of any amount that, after giving effect to the termination of the Commitment of such Affected Lender, is required to be paid pursuant to Section 2.8(d) (Excess Outstandings) and (iii) in the case of a substitution, (A) payment to the Administrative Agent of the assignment fee set forth in Section 11.2(c) and (B) delivery by the Borrower (or, as may be applicable in the case of a substitution, by the Substitute Lender) of an Assignment (or such other assignment and/or assumption agreement in form and substance reasonably satisfactory to the Administrative Agent whereby, the U.S. Borrower and the Substitute Lender shall, among other things, agree to be bound by the terms of the Loan Documents and assume the Commitment of the Affected Lender under such Facility). (c) Effectiveness. Upon satisfaction of the conditions set forth in clause (b) above, the Administrative Agent shall record suchthe applicable substitution or payment in the Register, whereupon (i) in the case of any payment in full inof the Loan Document Obligations owed to the applicable Affected Lender under any Facility, such Affected Lender’s Commitments inCommitment under such Facility shall be terminated and (ii) in the case of any substitution inunder any Facility, (A) thesuch Affected Lender shall sell and be relieved of, and the Substitute Lender shall purchase and assume, all rights and claims of such Affected Lender under the Loan Documents with respect to such Facility, except that thesuch Affected Lender shall retain such rights expressly providing that they survive the repayment of the Loan Document Obligations and the termination of the Commitments, (B) the Substitute Lender shall become a “Lender” hereunder having a Commitment inunder such Facility in the amount of such Affected Lender’s Commitment inunder such Facility and (C) thesuch Affected Lender shall execute and deliver to the Administrative Agent an Assignment to evidence such substitution and deliver any Note in its possession with respect to such Facility; provided, however, that the failure of anysuch Affected Lender to execute any such Assignment or deliver any such Note shall not render such sale and purchase (or the corresponding assignment) invalid. 101 [[5286738]]
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(v) (A)(x) if the All-In Yield on the Incremental Term Loans (determined on the date of the making of such Incremental Term Loans) denominated in Dollars shall exceed the All-In Yield at such time on the existing Dollar Term Loans or the Revolving Loans (determined on such date but prior to any adjustment under this clause (v)) by more than 0.50% (any such excess, the “Yield Differential”) the, then the Applicable Margin then in effect for the existing Dollar Term Loans or Revolving Loans, as applicable, shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loan; to the extent required in order for the All-In Yield on the existing Dollar Term Loans or the Revolving Loans, as applicable, to be not more than 0.50% lower than the All-In Yield on such Incremental Term Loans and (y) if the All-In Yield on the Incremental Term Loans (determined on the date of the making of such Incremental Term Loans) denominated in Sterling shall exceed the All-In Yield at such time on the Dollar Term Loans (determined on such date but prior to any adjustment under this clause (v)) by more than 1.00%, then the Applicable Margin then in effect for the Dollar Term Loans shall automatically be increased to the extent required in order for the All-In Yield on the Dollar Term Loans to be not more than 1.00% lower than the All-In Yield on such Incremental Term Loans; provided, in each case, that any increase in the All-In Yield applicable to the existing Dollar Term Loans or the Revolving Loans due to the application of any interest rate floor with respect to such Incremental Term Loans may, at the election of the U.S. Borrower, be effected through an increase in the corresponding interest rate floor with respect to the existing Dollar Term Loans or the existing Revolving Loans, as applicable and (B) if the All-In Yield on the Incremental Term Loans (determined on the date of the making of such Incremental Term Loans) denominated in Sterling shall exceed the All-In Yield at such time on the existing Sterling Term Loans (determined on such date but prior to any adjustment under this clause (v)) by more than 0.50%, then the Applicable Margin then in effect for the existing Sterling Term Loans shall automatically be increased to the extent required in order for the All-In Yield on the existing Sterling Term Loans to be not more than 0.50% lower than the All-In Yield on such Incremental Term Loans; provided that any increase in the All-In Yield applicable to the existing Sterling Term Loans due to the application of any interest rate floor with respect to such Incremental Term Loans may, at the election of the U.K. Borrower, be effected through an increase in the corresponding interest rate floor with respect to the existing Sterling Term Loans; (vi) the proceeds of the Incremental Term Loans shall be used solely as permitted by Section 7.9(b); (vii) the covenants and events of default applicable to such Indebtednessany Incremental Term Loans are either (x) substantially identical to, or, (taken as a whole as determined by the Borrower in good faith), no more favorable to the lenders or holdersLenders providing such IndebtednessIncremental Term Loans than, those applicable to the Initial Term Loans existing at the time of incurrence of such Incremental Term Loans (in each case, as determined by the U.S. Borrower); provided, that this clause (vii) will not apply (A) for the avoidance of doubt, to (1) interest rate, fees, funding discounts and other pricing terms, (2) redemption, prepayment or other premiums, (3) or optional prepayment terms, and (4B) to covenants and other termsevents of default that are (ix) applied to the Term Loans existing at the time of incurrence of such Incrementalexisting Term Loans (so that existing Term Loan Lenders also receive the benefit of such provisions) and/or (iiy) applicable only to periods after the latest maturity date of any Term Loans at the time of incurrence ofMaturity Date then applicable to such Incrementalexisting Term Loans; provided further, that a certificate of the U.S. Borrower delivered to the Administrative Agent at least five (5) Business Days prior to the 103 [[5286738]]
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incurrence of such Incremental Term Loans (or such shorter period as may be agreed by the Administrative Agent), together with a reasonably detailed description of the material covenants and events of default ofapplicable to such IndebtednessIncremental Term Loans or drafts of the documentation relating thereto, stating that the U.S. Borrower has reasonably determined in good faith that such termscovenants and conditionsevents of default satisfy the foregoing requirement shall be conclusive evidence that such termscovenants and conditionsevents of default satisfy the foregoing requirement unless the Administrative Agent notifies the U.S. Borrower within such five (5) Business Day period that it disagrees with such determination (including a reasonably detailed description of the basis upon which it disagrees); provided, further that the operation and agency provisions contained in the Incremental Amendment shall be reasonably satisfactory to the Administrative Agent; (viii) Incremental Term Loans may participate on a pro rata or less than pro rata basis (but not in any event on a greater than pro rata basis) in any voluntary or mandatory prepayment of Term Loans; and (ix) on the date of the Borrowingborrowing of any Incremental Term Loans that will be of the same tranche asan increase to any then-existing tranche of Term LoansLoan Facility, notwithstanding anything to the contrary in Section 2.2, such Incremental Term Loans shall be added to (and constitute a part of, be of the same tranche as Type (and, atin the electioncase of the BorrowerEurocurrency Rate Loans, have the same Interest Period as) each Borrowing of outstandingas the other Term Loans ofunder such tranche on a pro rata basis (based onFacility (and, if the relative sizes of such Borrowings), so that each Term Loan Lender providingother Term Loans under such Facility shall be of more than one Type or shall have more than one Interest Period, such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such trancheshall be allocated thereto on a pro rata basis); it being acknowledged that the application of this clause (ix) may result in newsuch Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Loans of the relevant trancheunder such Facility and which end on the last day of such Interest Period. (d) Each Incremental Revolving Credit Commitment shall be an increase to the Revolving Credit CommitmentFacility. The Incremental Revolving Loans (i) shall rank pari passu in right of payment and of security with the other Revolving Loans and shall not mature earlier thanon the Scheduled Revolving Credit Termination Date and (ii) shall be on the same terms and pursuant to the same documentation as the other Revolving Loans. (e) No Lender (or any successor thereto) shall have any obligation to issueprovide any commitment for the Incremental LoansCommitment, and any decision by a Lender to issueprovide any such commitmentIncremental Commitment shall be made in its sole discretion independently from any other Lender. Existing Lenders will not have any right to participate in, and will not have any right of first refusal or other right to provide all or any portion of, any Incremental LoanCommitment except to the extent the U.S. Borrower in its discretion, chooses to invite or include any such existing Lender (which may or may not apply to all existing Lenders and may or may not be pro rata among existing Lenders). The U.S. Borrower may designate any bank or other financial institution or institutional investor (which may be, but need not be, one or more of the existing Lenders) to issue a commitment for the portion of theprovide any Incremental Loan as to which such Lender did not issue a commitmentCommitment, and, if such other bank or other financial institution or institutional investor is not a party to this Agreement (an “Additional Lender”), such Additional Lender shall become a party 104 [[5286738]]
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to this Agreement pursuant to the Incremental Amendment; provided, however, that any Additional Lender must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or, delayed or conditioned, if suchthe consent of the Administrative Agent would be required under Section 11.2 for an assignment of Loans to such Lender or Additional Lender. (f) (f) Commitments in respect; provided further that any Additional Lender that is an Affiliated Lender shall be subject to Section 11.2(g) as if it became a Lender by way of the an assignment. (g) Incremental LoansCommitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the U.S. Borrower (and, in the case of any Incremental Commitments extended to it, the U.K. Borrower), each Lender agreeing to provide such Incremental Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, subject to clauses (c) and (d) of this Section 2.19, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the U.S. Borrower, to effect the provisions of this Section 2.19. The Administrative Agent agrees that its consent to any amendment to this Agreement or any other Loan Document as contemplated above, or to the form and substance of any Incremental Amendment, will not be unreasonably withheld, delayed or conditioned, provided that the operation and agency provisions contained in the Incremental Amendment shall be reasonably satisfactory to the Administrative Agent. The effectiveness of any Incremental Amendment shall be subject to (, in each case except as set forth in Section 1.3(c)) or 2.19(i), subject to: (i) the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 3.2 (it being understood that all references to “the date of such Credit Event” or similar language in such Section 3.2 shall be deemed to refer to the effective date of such Incremental Amendment), (ii) the payment of fees and expenses owing in respect of the applicable Incremental LoansFacility to the Administrative Agent and the Lenders and (iii) such other conditions as the parties thereto shall agree. (h) This Section 2.19 shall supersede any provisions in Section 11.1 or 11.9 to the contrary. (i) Upon the effectiveness of any Incremental Revolving Credit Commitments, the outstanding Revolving Loans (and participations in outstanding Letters of Credit and Swingline Loans) shall be adjusted as determined by the Administrative Agent so that the Pro Rata Shares of all Revolving Credit Lenders in outstanding Revolving Loans (and participations in outstanding Letters of Credit and Swingline Loans) of the Revolving Credit Lenders shall equal their Pro Rata Shares in the Revolving Credit Commitments, in each case, after giving effect to such Incremental Revolving Credit Commitments. (j) Notwithstanding anything to the contrary in this Section 2.19 or in any other provision of any Loan Document (including Section 3.2), if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition and the lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality (including the making and accuracy of customary “specified representations” as may be agreed by the U.S. Borrower and the lenders providing such Incremental Facility). SECTION 2.19 Section 2.20 Extensions/Modifications of Loans. 105 [[5286738]]
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(a) Extension/Modification Offers. Pursuant to one or more offers (each, an “Extension/Modification Offer”) made from time to time by theany Borrower to all the Lenders holding Loans and/or Commitments of a particular tranche with a like maturity dateunder any Facility on a pro rata basis, thesuch Borrower may extend the Maturity Date applicable to such maturity dateFacility and/or otherwise modify the terms of suchthe Loans and/or Commitments pursuant tounder such Facility on the terms set forth in anthe applicable Extension/Modification Offer (each such extension and/or modification, an “Extension/Modification”). Each Extension/Modification Offer will specify the minimum amount of Loans; and/or the Loans and Commitments with respectextended or otherwise modified pursuant to which an Extension/Modification Offer may be accepted, which will be an integral multiple of $1,000,000 and an aggregate principal amount that is not less than $5,000,000, or if less, the aggregate principal amount of such Loans outstanding Extension/Modification Offers will be made on a pro rata basis to all Lenders holding Loans and/or Commitments of a particular tranche with a like maturity date. If, the “Extended/Modified Loans” or “Extended/Modified Commitments”, respectively). The terms of an Extension/Modification Offer shall be determined by the applicable Borrower, and Extension/Modification Offers may contain one or more conditions to their effectiveness, including a condition that a minimum amount of Loans and/or Commitments under any or all applicable Facilities be tendered (it being agreed that if the aggregate outstanding principal amount of such Loans (calculated on the face amount thereof) and/or Commitments in respect of which Lenders have accepted antendered in such Extension/Modification Offer exceeds the maximum aggregate principal amount of Loans and/or Commitments offered to be extended or and/or modified pursuant to such Extension/Modification Offer, then the Loans and/or Commitments of such Lenders will be extended and/or modifiedaccepted in such Extension/Modification Offer ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension/Modification Offer). There is no requirement that any Extension/Modification Offer or Extension/Modification Amendment be subject to any “most favored nation” pricing provisions. The terms of an Extension/Modification Offer shall be determined by the Borrower and Extension/Modification Offers may contain one or more conditions to their effectiveness, including a condition that a minimum amount of Loans and/or Commitments of any or all applicable tranches be tendered. (b) Extension/Modification Amendments. The Lenders hereby irrevocably authorize the Administrative Agent, without the consent of any Lender (other than the applicable Extending/Modifying Lenders) to enter into amendments to this Agreement and the other Loan Documents (an “Extension/Modification Amendment”) as may be necessary in orderor appropriate, in the reasonable opinion of the Administrative Agent and the U.S. Borrower, to establish new tranches in respect of Extended/Modified Loans and/or Extended/Modified Commitments and such amendments as permitted by clause (e) below as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches ofor otherwise to give effect to the provisions of this Section 2.20, including ratable reductions of the remaining scheduled amortization installments of the Term Loans subject to the applicable Extension/Modification Offer to reflect the conversion thereof into Extended/Modified Loans. This Section 2.20 shall supersede any provisions in Sections 11.1 and 11.9 to the contrary. Extensions and modifications will not constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement. (c) Terms of Extension/Modification Offers and Extension/Modification Amendments. The terms of any Extended/Modified Loans and Extended/Modified Commitments will be set forth in an Extension/Modification Offer and as agreed between the applicable Borrower and the Extended/Modified Lenders accepting such Extension/Modification Offer; provided that: 106 [[5286738]]
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(i) the final maturity date of such Extended/Modified Loans and Extended/Modified Commitments will be no earlier than the Scheduled Maturity Date applicable to the Loans and/or Commitments subject to such Extension/Modification Offer; (ii) the Weighted Average Life to Maturity of any Extended/Modified Loans that are Term Loans will be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans subject to such Extension/Modification Offer; (iii) any Extended/Modified Loans that are Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments of Term Loans; (iv) such Extended/Modified Loans and Extended/Modified Commitments are not secured by any assets or property that does not constitute Collateral; (v) such Extended/Modified Loans and Extended/Modified Commitments are not guaranteed by any Subsidiary of the U.S. Borrower other than a Guarantor; and (vi) the termscovenants and conditionsevents of default applicable to Extended/Modified Loans and/or Extended/Modified Commitments are substantially identical to, or, taken as a whole, no lessmore favorable to the Group Members (as determined by the Borrower in good faith)Lenders providing such Extended/Modified Loans and/or Extended/Modified Commitments than those applicable to the Loans and/or Commitments subject to such Extension/Modification Offer (in each case, as determined by the U.S. Borrower); provided further, a certificate of the U.S. Borrower delivered to the Administrative Agent at least five (5) Business Days prior to the effectiveness of the Extended/Modified Loans and/or Extended/Modified Commitmentsapplicable Extension/Modification Amendment, together with a reasonably detailed description of the material covenants of such Extended/Modified Loans and/or Extended/Modified Commitments or drafts of the documentation relating thereto, stating that the U.S. Borrower has reasonably determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the U.S. Borrower within such five (5) Business Day period that it disagrees with such determination (including a reasonably detailed description of the basis upon which it disagrees); provided, further, that this clause (vi) will not apply: (A) to (1) terms addressed in the preceding clauses (i), (ii), (iii), (iv) and (v), (2) for the avoidance of doubt, interest rate, fees, funding discounts and other pricing terms, (3) redemption, prepayment or other premiums, (4) or optional prepayment terms, (5) redemption terms, and (63) covenants and events of default that are (x) applied to the existing Loans and/or Commitments subject to such Extension/Modification Offer and/or (y) applicable only to periods after the Scheduledlatest Maturity Date at the time of incurrence of such Indebtednessthen applicable to such existing Loans and/or Commitments subject to such Extension/Modification Offer; or (B) if an Extension/Modification Offer is made to all the Loans and/or Commitments of a particular tranche and all such Loans and/or Commitments are accepted in such Extension/Modification Offer and amended pursuant to the applicable Extension/Modification Amendment., after giving effect to such 107 [[5286738]]
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Extension/Modification, no Loans and/or Commitments subject to such Extension/Modification Offer shall remain outstanding or in effect. Any Extended/Modified Loans will constitute a separate tranche of Term Loans and/or Revolving Loans from the Term Loans subject to the applicable Extension/Modification Offer, and/or Revolving Loans held by Lenders that did not accept any Extended/Modified Commitments will constitute a separate tranche of Commitments from the Commitments subject to the applicable Extension/Modification Offer. (d) Extension/Modification of Revolving Credit Commitments. In the case of any Extension/Modification of Revolving Credit Commitments and/or Revolving Loans, the following shall apply: (i) all borrowings and all prepayments of Revolving Loans shall continue to be made on a ratable basis among all Revolving Credit Lenders, based on the relative amounts of their Revolving Credit Commitments, until the repayment of the Revolving Loans attributable to the non-extended and/or non-modified Revolving Credit Commitments on the relevant maturity dateMaturity Date; (ii) the allocation of the participation exposure with respect to any then-existing or subsequently issued or made Letter of Credit or Swingline Loan as between the Revolving Credit Commitments of such new tranche and the remaining Revolving Credit Commitments shall be made on a ratable basis in accordance with the relative amounts thereof until the maturity dateMaturity Date relating to such non-extended and/or non-modified Revolving Credit Commitments has occurred; (iii) no termination of extended and/or modified Revolving Credit Commitments and no repayment of extended and/or modified Revolving Loans accompanied by a corresponding permanent reduction in extended and/or modified Revolving Credit Commitments shall be permitted unless such termination or repayment (and corresponding reduction) is accompanied by at least a pro rata termination or permanent repayment (and corresponding pro rata permanent reduction), as applicable, of each other tranche of Revolving Loans and Revolving Credit Commitments (or each other tranche of Revolving Credit Commitments and Revolving Loans shall have otherwise been terminated and repaid in full); and (iv) the Scheduled Revolving Credit Termination Date with respect to the Revolving Credit Commitments may not be extended and/or modified without the prior written consent of the L/C IssuerIssuers and the Swingline Lender;. (e) Required Consents. No consent of any Lender or any other Person will be required to effectuate any Extension/Modification, other than the consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditionconditioned), the U.S. Borrower (and, in the case of an Extension/Modification Offer with respect to the Sterling Term Loans, the U.K. Borrower) and the applicable Extending/Modifying Lender. The transactions contemplated by this Section 2.20 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended/Modified Loans on such terms as may be set forth in the relevant Extension/Modification Offer) will not require the consent of any other Lender or any other Person, and the requirements of any provision of this Agreement or any other Loan Document that may otherwise prohibit any such Extension/Modification or any other transaction contemplated by this Section 2.20 will not apply to any of the transactions effected pursuant to this Section 2.20. 108 [[5286738]]
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(a) Certain Documents. The Administrative Agent shall have received on or prior to the Closing Date each of the following, each dated as of the Closing Date unless otherwise agreed by the Initial Lenders: (i) this Agreement, duly executed by the Borrower and Holdings and, for the account of each Lender having requested the same by notice to the Administrative Agent and the Borrower received by each at least 3 Business Days prior to the Closing Date (or such later date as may be agreed by the Borrower), Notes in each applicable Facility conforming to the requirements set forth in Section 2.14(e); (ii) the Guaranty and Security Agreement, duly executed by each applicable Loan Party (other than Holdings) together with all UCC financing statements, required thereby, together with (A) copies of UCC, Intellectual Property and other appropriate search reports and of all effective prior filings listed therein to the extent requested by the Administrative Agent at least 30 days prior to the Closing Date and (B) all documents representing all certificated Securities (with respect to the Stock and Stock Equivalents of the Borrower and its domestic Subsidiaries) being pledged pursuant to such Guaranty and Security Agreement and related undated powers or endorsements duly executed in blank and (C) all documents required for the perfection of all security interests in all Collateral as required by the Guaranty and Security Agreement and this Agreement and set forth on Schedule 3.1(a), provided that to the extent any Collateral securing any portion of the Facilities may not be perfected by the filing of a UCC financing statement or the filing of intellectual property security agreements with the United States Patent and Trademark Office or the United States Copyright Office on or prior to the Closing Date, after the Borrower’s use of commercially reasonable efforts to do so, then the perfection of the security interest in such collateral shall not constitute a condition precedent to the availability of the Term Loan Facility or the Revolving Credit Facility on the Closing Date but, instead, shall be accomplished within 90 days after the Closing Date or such longer time as may be agreed by the Administrative Agent in its reasonable discretion; (iii) duly executed favorable opinions of Cravath, Swaine & Xxxxx LLP, in its capacity as special New York counsel for the Loan Parties, Xxxxxxxx, Xxxxxx & Finger, PA, in its capacity as special Delaware counsel for the Loan Parties, and Xxxxxx & Xxxxxxx LLP, in its capacity as special Texas counsel for the Loan Parties, in each case addressed to the Administrative Agent, the L/C Issuers and the Lenders in form and substance reasonably satisfactory to the Administrative Agent; (iv) a copy of each Constituent Document of each Loan Party that is on file with any Governmental Authority in the jurisdiction of its organization or formation, as applicable, of such Loan Party, certified as of a recent date by such Governmental Authority, together with, if applicable, certificates attesting to the good standing of such Loan Party in such jurisdiction; (v) a certificate of the secretary or other officer of each Loan Party in charge of maintaining books and records of such Loan Party certifying as to (A) the names and signatures of each officer of such Loan Party executing any Loan Document, (B) the Constituent Documents of such Loan Party attached to such certificate are complete and correct copies of such Constituent Documents as in effect on the date of such certification (or, for any such Constituent Document delivered pursuant to clause (iv) above, that there have been no changes from such Constituent Document so delivered) and (C) the resolutions of such Loan Party’s 112 [[5286738]]
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board of directors or other appropriate governing body approving and authorizing the execution, delivery and performance of each Loan Document to which such Loan Party is a party; (vi) a certificate of a Responsible Officer of the Borrower as to the matters set forth in Section 3.1(f); and (vii) a Notice of Borrowing. (b) Fees and Expenses. All reasonable and reasonably documented out-of-pocket costs, fees and expenses payable to the Lenders under the Loan Documents and the Fee Letter shall be substantially contemporaneously paid to the extent then due; provided that an invoice shall have been provided to the Borrower at least two Business Days prior to the Closing Date. (c) Solvency. The Administrative Agent shall have received a solvency certificate in the form attached hereto as Exhibit J from the chief financial officer (or other officer with equivalent duties) of the Borrower (or at the Buyer’s option, of the Buyer). (d) KYC. To the extent requested by the Administrative Agent not less than ten (10) days prior to the Closing Date, the Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act. (e) Material Adverse Effect. Since the date of the Acquisition Agreement, no event, change, occurrence or circumstance shall have occurred that has had or would reasonably be expected to have a Material Adverse Effect (as defined in the Acquisition Agreement) that would result in a failure of a condition to Buyer’s (or its Affiliates’) obligations to effect the Acquisition under the Acquisition Agreement. (f) Representations and Warranties. As of the Closing Date, after giving effect to the Related Transactions, the Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects; provided that to the extent that any representation and warranty specifically refers to a given date or period, it is true and correct in all material respects as of such date or for such period; provided, further, that a failure of any Acquisition Agreement Representation to be true and correct shall not result in a failure of the condition precedent to the initial availability and funding of the Facilities on the Closing Date, unless such failure (x) such failure or breach results in a failure of a condition precedent to the obligations of the Buyer or Parent to effect the Acquisition under the Acquisition Agreement or (y) such breach gives the Buyer or Parent the right (after giving effect to any notice and cure provisions) to terminate its obligations (or to refuse to consummate the Acquisition) under the Acquisition Agreement. (g) Consummation of Transactions. Prior to or substantially concurrently with the initial Borrowing on the Closing Date, (i) the Equity Contribution shall have been made in an amount at least equal to the Minimum Equity Contribution, (ii) the Refinancing shall have been consummated and (iii) the Acquisition shall have been consummated. The Acquisition Agreement shall not have been amended or waived, and no consents shall have been given with respect thereto, in any material respect, by Parent or the Buyer in a manner materially adverse to the Initial Lenders without the consent of Ares (such consent not to be unreasonably withheld, conditioned or delayed), it being understood that (a) any change to the terms of the Acquisition Agreement that decreases the consideration required to be paid in cash thereunder shall be deemed not to be materially adverse to the Initial Lenders so long as such reduction in consideration is allocated (i) first, to a reduction in the Equity Contribution until the Equity 113 [[5286738]]
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the following, as long as any Obligation (other than Obligations under Secured Hedging Agreements and contingent indemnification obligations in respect of which no claim has been asserted) or any Commitment remains outstandingTermination Date: SECTION 5.1 Section 5.1 Maximum Consolidated Total Leverage Ratio. (a) Other than as provided for in Section 5.1(b), the Borrower shall not have, on the last day of each Fiscal Quarter set forth below (it being understood and agreed that this Section 5.1 shall not apply prior to September 30, 2018), a Consolidated Total Leverage Ratio greater than the maximum ratio set forth opposite such Fiscal Quarter: MAXIMUM CONSOLIDATED TOTAL FISCAL QUARTER ENDING LEVERAGE RATIO September 30, 2018 5.50:1.00 December 31, 2018 5.50:1.00 March 31, 2019 5.50:1.00 June 30, 2019 5.50:1.00 September 30, 2019 5.50:1.00 December 31, 2019 5.50:1.00 March 31, 2020 5.00:1.00 June 30, 2020 5.00:1.00 September 30, 2020 5.00:1.00 December 31, 2020 5.00:1.00 March 31, 2021 4.50:1.00 June 30, 2021 4.50:1.00 September 30, 2021 4.50:1.00 December 31, 2021 4.50:1.00 March 31, 2022 and each Fiscal Quarter ending 4.00:1.00 thereafter (b) Upon the consummation of any Permitted Acquisition or other acquisition constituting an Investment permitted by this Agreement that, in each case, would result in an increase in the LTM EBITDA of the Borrower and its Restricted Subsidiaries of at least 15% (calculated prior to giving effect to such Permitted Acquisition or Investment) (any such Permitted Acquisition or other acquisition, a “Specified Acquisition”), each of the maximum Consolidated Total Leverage Ratio covenant levels set 122 [[5286738]]
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provided, however, that, unless the Borrower and the Administrative Agent otherwise agree, in no event shall (x) any Excluded Subsidiary be required to guaranty the payment of any Obligation of the Borrower or (y) the Loan Parties, individually or collectively, be required to pledge as security for the Obligations in excess of 65% of the outstanding Voting Stock of any first tier Foreign Subsidiary or any CFC Holdco, or any other assets that the Administrative Agent and Borrower reasonably agree that the costs of obtaining a security interest is excessive in relation to the value of the security to be afforded thereby or would result in material adverse tax consequences to Holdings, the Borrower or any of their Subsidiaries; (ii) constituting Excluded Property under the U.S. Security Agreement or property that is customarily excluded from being collateral in the jurisdiction of organization of such Restricted Subsidiary). (b) If any Loan Party acquires after the Fourth Amendment Effective Date any Stock (other than Stock of a type constituting Excluded Property under the U.S. Security Agreement), then the U.S. Borrower shall cause such Loan Party to (i) unless such Stock is already subject to such valid and enforceable security interest, no later than the Quarterly Compliance Date with respect thereto enter into such Collateral Documents, which shall be in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent reasonably requests, subject to the limitations set forth in this Section 7.10 or elsewhere in this Agreement and the other Loan Documents, in order for such Loan Party to grant to the Administrative Agent, for the benefit of the Secured Parties as security for the Obligations, a valid and enforceable security interest in such Stock and (ii) to the extent required by the Collateral Documents, no later than the Quarterly Compliance Date with respect thereto deliver to the Administrative Agent all documentscertificates representing all certificated Stock, Stock Equivalents and other Securities pledged pursuant to the documents delivered pursuant to clause (a) abovesuch Stock, together with undated powers, stock transfer forms or endorsements duly executed in blank; and. (c) If any Loan Party owns on the date it becomes a Loan Party, or acquires after such date, any real property owned in fee and having a fair market value on the date of acquisition thereof by such Loan Party in excess of $3,000,000, then the U.S. Borrower shall cause such Loan Party to (i) in the case of any such real property owned by a U.S. Loan Party and located in the United States, within ninety (90) days (or such later date as may be agreed by the Administrative Agent) following the date it becomes a Loan Party or the date of the acquisition of such real property, as the case may be, deliver to the Administrative Agent a Mortgage thereon, together with all Mortgage Supporting Documents relating thereto, (ii) in the case of any such real property owned by a U.K. Loan Party and located in England and Wales, a Mortgage (as defined in the U.K. Debenture) as and to the extent required by the U.K. Debenture and (iii) in the case of any such real property owned by a Non-U.S. Loan Party, within ninety (90) days (or such later date as may be agreed by the Administrative Agent) following the date it becomes a Loan Party or the date of the acquisition of such real property, as the case may be, enter into such Collateral Documents, which shall be in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent reasonably requests, subject to the limitations set forth in this Section 7.10 or elsewhere in this Agreement and the other Loan Documents, in order for such Loan Party to grant to the Administrative Agent, for the benefit of the Secured Parties as security for the Obligations, a valid and enforceable security interest in such real property. (d) If any U.S. Loan Party (other than Holdings) holds on the date it becomes a Loan Party, or establishes or acquires after such date, any deposit account (other than an Excluded Account or an account that constitutes Excluded Property under the U.S. Security Agreement), the U.S. Borrower shall cause such Loan Party to, within sixty (60) days (or such later date as may be 132 [[5286738]]
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(l) Indebtedness incurred in the ordinary course of business in respect of (i) overdraft facilities, employee credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements; (ii) performance bonds, bid bonds, appeal bonds, surety bonds and, completion guarantees, return of money bonds and similar obligations not in connection with money borrowed, including those incurred to secure health, safety and environmental obligations; and (iii) Indebtedness owed to any Person providing property, casualty, business interruption or liability insurance to the U.S. Borrower or any of their respectiveits Subsidiaries, so long as such Indebtedness shall not be in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such incurrence for the annual price in which such Indebtedness is incurredpremiums therefor; (m) Indebtedness (i) arising from agreements of the U.S. Borrower or aany Restricted Subsidiary of the Borrower providing for indemnification, adjustment of purchase price “earn-outs” or other similar obligations, in each case, incurred or assumed in connection with (A) any Sale by the disposition of any business, assetsU.S. Borrower or any Restricted Subsidiary of the Borrower; provided that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received or receivable by the Borrower and its Restricted Subsidiaries in connection with such disposition and such dispositionsuch Sale shall be permitted by the terms of this Agreement, or (B) any Permitted Acquisition or other Proposed Acquisition permitted by Section 8.3Permitted Investment, or (ii) in respect of guaranties, letters of credit, bank guaranties, bankers’ acceptances, surety bonds, performance bonds or similar obligations to support any of the foregoing obligations; (n) Indebtedness of any Person that becomes a Restricted Subsidiary (or is merged or consolidated with or into the U.S. Borrower or any Restricted Subsidiary) or Indebtedness assumed by the U.S. Borrower or any Restricted Subsidiary in connection with any Acquisition or other Permitted Investment, in each case, on or after the date of this Agreement; provided that (i) such Indebtedness, (i) exists at the time such personPerson becomes a Restricted Subsidiary (or is so merged or consolidated) or such Acquisition or other Permitted Investment is consummated, (ii) such Indebtedness is not created in anticipation or contemplation of such personPerson becoming a Restricted Subsidiary (or being so merged or consolidated) or such Acquisition or other Permitted Investment, (iii) such Indebtedness is not directly or indirectly recourse to any of the Group Members or any of their respective assets, other than to the person that becomes a Restricted Subsidiarysuch Person and its Restricted Subsidiaries, and (iv) other than any Indebtedness of any Person that becomes a Restricted Subsidiary in connection with the Xxx Acquisition,with respect to such Indebtedness incurred or assumed after the Fourth Amendment Effective Date, the aggregate outstanding principal amount of all such Indebtedness of all other such Restricted Subsidiaries outstanding at any one time shall not exceed the greater of (x) $3,000,000 and (y) an amount equal to the Equivalent Percentage of the amount set forth in clause (x) multiplied by Trailing EBITDA as of the applicable date of determination at such time; (o) unsecured Indebtedness consisting of “earn-outs” and other similar deferred consideration in respect of Permitted Acquisitions or other Permitted Investments; (p) Permitted Seller Debt in an aggregate outstanding principal amount not exceeding at any time the greater of (i) $3,000,000 and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by Trailing EBITDA as of the applicable date of determination at such time; 138 [[5286738]]
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(q) (i) Indebtedness consisting of promissory notes issued by the U.S. Borrower, or any Restricted Subsidiary of the Borrower to current or former officers, managers, consultants, directors and employees of Holdings or any Group Member (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the redemption, purchase or other acquisition or retirement for value by Holdings of its (or any of its parent company’s) Qualified Capitalof its Stock (or Stock Equivalents with respect to its Qualified Capital Stock); provided that at the time of the issuance of such promissory note such purchase or, redemption is otherwise permitted by this Agreement and (ii) Subordinated Debt consisting of promissory notes issued by any Group Member to current or former officers, managers, consultants, directors and employees of Holdings or any Group Member (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the redemption, purchase or other acquisition or retirement for value by Holdings of its Qualified Capital Stock (or Stock Equivalents with respect to its (or any of its parent company’s) Qualified Capital Stock); provided that at the time of the issuance of such promissory note such purchase or redemption would beis otherwise permitted by this Agreement; (r) other Indebtedness; provided that (i) the final maturity of such Indebtedness shall not be earlier than the date that is 90 days after the Scheduledlatest Maturity Date, (ii) any such Indebtedness in the form of Subordinated Debt is subject to a subordination agreement in form and substance reasonably satisfactory to the Administrative Agent and, (iii) to the extent such Indebtedness is secured by assets that are not Collateral, such Indebtedness shall not be secured by Collateral and (iv) on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness (and after giving effect to any Permitted Acquisition or other Permitted Investment consummated simultaneously therewith and any other application of the proceeds thereof), (A) if such Indebtedness is secured by a lienLien on the Collateral that is pari passu with the LienLiens securing the Obligations, the pro forma Consolidated First Lien Leverage Ratio as of the last day of the most recently ended Test Period shall be no greater than (1) with respect to Indebtedness incurred to finance Permitted Acquisitions or other Permitted Investments, 4.75:1.00 or (2) with respect to all other Indebtedness, 4.50:1.00, (B) if such Indebtedness is secured by a lienLien on the Collateral that is junior to the lienLien securing the Obligations, the pro forma Consolidated Secured Leverage Ratio as of the last day of the most recently ended Test Period shall be no greater than (1) with respect to Indebtedness incurred to finance Permitted Acquisitions or other Permitted Investments, 5.25:1.00 or (2) with respect to all other Indebtedness, 5.00:1.00 and (C) if such Indebtedness is unsecured or secured solely by assets that do not constitute Collateral, the pro forma Consolidated Total Leverage Ratio as of the last day of the most recently ended Test Period shall be no greater than (1) with respect to Indebtedness incurred to finance Permitted Acquisitions or other Permitted Investments, 5.25:1.00 or (2) with respect to all other Indebtedness, 5.00:1.00; (s) Indebtedness of Subsidiaries that are not Loan Parties, together with any Indebtedness incurred by any other Restricted Subsidiaries that are not Loan Parties, in anprovided that the aggregate principal amount of all Indebtedness outstanding amountin reliance on this clause (r) at any time shall not to exceed the greater of (i) $2,000,000 and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by Trailing EBITDA as of the applicable date of determination at such time; (t) Indebtedness consisting of obligations of the U.S. Borrower and its Restricted Subsidiaries under deferred compensation or other similar arrangements with employees incurred by such Person in the ordinary course of business or in connection with the Related Transactions or otherany Permitted AcquisitionsAcquisition or any other Permitted Investment; (u) Incremental Equivalent Debt; and 139 [[5286738]]
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(f) Liens on property of aany Person existing at the time such Person is acquired becomes a Restricted Subsidiary (or is merged with or into or consolidated with any Group Member to the extentor into the U.S. Borrower or any Restricted Subsidiary) and Liens existing on any property prior to the acquisition thereof by the U.S. Borrower or any Restricted Subsidiary, in each case, in a transaction permitted hereunder, and any modification, replacement, refinancing, renewal or extension thereof; provided that such Liens (i) do not extend to property not subject to such Liens at the time of such Person becomes a Restricted Subsidiary (or is so merged or consolidated) or such acquisition (other thanis consummated (and proceeds thereof and accessions, improvements thereonand additions thereto) and (ii) are not created in anticipation or contemplation of such Person becoming a Restricted Subsidiary (or being so merged or consolidated) or such acquisition, merger or consolidation; (g) Liens on any xxxx xxxxxxx money deposits made by a Group Member in connection with any letter of intent or purchase agreement entered into with respect to a Permitted Acquisition or other Investment not otherwise prohibited by this Agreement; (h) Liens on any property of the U.S. Borrower or any of its Restricted Subsidiaries securing any of their Indebtedness or their other liabilities; provided, however, that the aggregate outstanding principal amount of all such Indebtedness and other liabilities shall not exceed at any time the greater of (x) $3,000,000 and (y) an amount equal to the Equivalent Percentage of the amount set forth in clause (x) multiplied by Trailing EBITDA as of the applicable date of determination at such time; (i) Liens on any property of any Foreign Subsidiaries that are not Loan Parties; (j) Liens on any property securing Indebtedness incurred in reliance on Section 8.1(m); (k) Restrictionsrestrictions permitted under Section 8.10 and Sales permitted under Section 8.4; (l) any interest or title of a lessor or sublessor under any lease permitted by this Agreement; (m) Liens arising from precautionary uniform commercial code financing statements filed under any lease permitted by this Agreement; (n) Liens consisting of Contractual Obligations of any Loan Party to Sell property; provided that (i) such Sale is permitted (or is required to be permitted) under Section 8.4, (ii) such Liens extend only to the property that is the subject of such Sale and (iii) such Contractual Obligations do not constitute Indebtedness; (o) Liens for the benefit of insurance companies and insurance brokers on rights under insurance policies and proceeds thereof securing obligations permitted by Section 8.1(k); (p) non-exclusive licenses or sublicenses of Intellectual Property entered into in the ordinary course of business; (q) Liens for the benefit of insurance companies notthat are cured within ten (10) days; 142 [[5286738]]
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(r) Liens consisting of security deposits (i) in connection with leases, utility services and similar transactions entered into by any Loan Partythe U.S. Borrower or any Restricted Subsidiary of a Loan Party in the ordinary course of business and (ii) to secure the performance of bids, tenders, statutory obligations (other than taxes), surety, stay, customs, performance bonds, and other obligations of a like nature (including those to secure health and, safety and environmental obligations) incurred in the ordinary course of business; provided that any such Lien does not secure any Indebtedness and is not required or created as a result of any breach or default, including any default in payment, under any Contractual Obligation; (s) Liens on program renewal rights sold to third parties (and any related books and records, goodwill, information technology system, trade names or trademarks (and licenses thereof) and any proceeds thereof) (xi) on or prior to the Closing Date or (yii) in connection with an asset saleany Sale permitted pursuant to Section 8.4, including liens on all assets pledged pursuant to Section 2.3 of the Renewal Rights Agreement and all proceeds thereof; (t) Liens securing Indebtedness permitted pursuant to Section 8.1(j) (solely with respect to the permitted refinancing, refunding or replacement of secured Indebtedness permitted pursuant to Sections 8.1(b), (c), (d), (h), (j), (k), (m), (o), (p), (q) and (t)); (u) Liens arising under Sale and Leaseback Transactions permitted hereunder in reliance upon Section 8.4(b)(ii); (v) Liens on assets and Stock of Restricted Subsidiaries that are not Loan Parties (including Capital Stock owned by such Persons) securing Indebtedness of Restricted Subsidiaries that are not Loan Parties permitted pursuant to Section 8.1; (w) Liens securing Incremental Equivalent Debt or Indebtedness permitted pursuant to Section 8.1(q); provided, that any such Lien on the Collateral that is pari passu with or junior to the Lien on the Collateral securing any of the Obligations shall be subject to an Acceptable Intercreditor Agreement; (x) Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party, in the case of clauses (i) and (ii), securing intercompany Indebtedness permitted (or not restricted) under Section 8.1 or Section 8.9; (y) Liens securing (i) obligations of the type described in Section 8.1(f) and/or (ii) obligations of the type described in Section 8.1(u); (z) (i) Liens on Stock of joint ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture or similar agreements and agreements with respect to non-wholly-ownedjoint ventures or Subsidiaries that are not Wholly Owned Subsidiaries; and (aa) Liens on cash or Cash Equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness. For purposes of determining compliance with this Section 8.2:, (1) the increase in the amount of any obligation secured by a Lien by virtue of (i) the accretion or amortization of original issue discount, (ii) the payment of interest, fees and other amounts 143 [[5286738]]
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Guaranty Obligations in respect of Indebtedness (other than the Obligations) of any Non-U.S. Loan Party, the applicable U.S. Loan Party providing such Guaranty Obligations could have been the primary obligor with respect to such Indebtedness) by the U.S. Loan Parties (other than CFC Loan Parties) in the Non-U.S. Loan Parties made after the Fourth Amendment Effective Date and permitted by this clause (i) shall not exceed at any time the greater of (x) $5,000,000 and (y) an amount equal to the Equivalent Percentage of the amount set forth in clause (x) multiplied by Trailing EBITDA at such time, (ii) any Group Member that is not a Loan Party in any Group Member (other than Holdings) or in any joint venture, (iii) any Loan Party (other than Holdings) in any Group Member that is not a Loan Party the proceeds of which are used substantially concurrently to consummate a Permitted Acquisition, or (iv) any Loan Party (other than Holdings) in any Group Member that is not a Loan Party or in any joint venture;, provided, however, that the aggregate outstanding amount of all Investments permitted pursuant to this clause (iv) shall not exceed at any time the greater of (x) $5,000,000 and (y) an amount equal to the Equivalent Percentage of the amount set forth in clause (x) multiplied by Trailing EBITDA as of the applicable date of determination at such time; and provided, further, that any Investment consisting of loans or advances to any Loan Party pursuant to this clause (iie) above shall at all times be subordinated in full to the payment of the Loan Document Obligations of such Loan Party on terms and conditions reasonably satisfactory to the Administrative Agent; (f) loans or advances to employees of the U.S. Borrower or any of its Restricted Subsidiaries to finance travel, entertainment and relocation expenses and other ordinary business purposes; provided, however, that the aggregate outstanding principal amount of all loans and advances permitted pursuant to this clause (f) shall not exceed at any time the greater of (i) $750,000 and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by Trailing EBITDA as of the applicable date of determination at such time; (g) (i) Investments made in connection with any compensation plan or arrangement for any future, present or former employee, director, member of management, officer, manager or consultant or independent contractor (or any Affiliate thereof) of Holdings, any parent company of Holdings, the U.S. Borrower or any of its Subsidiaries or joint ventures and (ii) loans or advances to future, present or former employees, directors, members of management, officers, managers or consultants or independent contractors (or any Affiliate thereof) of Holdings, any parent company of Holdings, the U.S. Borrower or any of its Subsidiaries or joint ventures in connection with such Person’s purchase of equity interests (or purchase of such loans made by others), (A) in an aggregate principal amount for both clauses (i) and (ii) not to exceed $2,500,000 at any time outstanding plus (B) in the case of clause (ii) only, so long asthe amount of the proceeds of such loan or advance that are substantially contemporaneously contributed to the U.S. Borrower; (h) intercompany loans and advances to Holdings (or any parent of Holdings) to the extent that the U.S. Borrower may pay dividends to Holdings pursuant to Section 8.5 (and in lieu of paying such dividends); (i) receivables arising and trade credit granted in the ordinary course of business and any securities received in satisfaction or partial satisfaction thereof from account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayment and other credits, deposits or pledges (which deposits and pledges are not otherwise prohibited by this Agreement) to suppliers made in the ordinary course of business; (j) Investments made by the U.S. Borrower or its Subsidiaries as a result of consideration received in connection with Sales of assets made in compliance with Section 8.4 (other than clause (i) thereof); 145 [[5286738]]
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non-recurring events, provided that the aggregate outstanding amount of all such Investments permitted pursuant to this clause (D) shall not exceed at any time £1,000,000; (t) intercompany receivables that arise solely from customary transfer pricing arrangement among the U.S. Borrower and its Subsidiaries in each case in the ordinary course of business and only to the extent such arrangements are entered into in order to accurately reflect the costs of operating the business of the U.S. Borrower and its Subsidiaries and to maintain compliance with all applicable jurisdictional tax requirements; (u) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices; (v) advances of payroll payments to employees in the ordinary course of business; (w) Investments made in the ordinary course of business in connection with (i) obtaining, maintaining or renewing client contactscustomer contracts and loans or advances made to distributors in the ordinary course of business, and (ii) customary trade arrangements with customers, suppliers, licensors, sublicensors, licensees, sublicensees and other counterparties; (x) Investments required pursuant to any Requirement of Law, including, for the avoidance of doubt, including in connection with any capital requirements; (y) (i) to the extent the U.S. Borrower or any Loan Party acquires the AIG Renewal Rights with the proceeds of Qualified Capital Stock (other than a Specified Equity Contribution or an Available Excluded Contribution Amount), any acquisitionAcquisition or other Investments made with the proceeds of any Sale or other disposition of the AIG Renewal Rights and (ii) to the extent such acquisition constitutes an Investment, the consummation of the required purchase of the AIG Renewal Rights; (z) Investments so long as (i) after giving effect thereto on a Pro Forma Basis, the Consolidated Total Leverage Ratio as of the last day of the most recently ended Test Period does not exceed 4.00:1.00 and (ii) no Event of Default exists or would result therefrom; (aa) to the extent constituting Investments, Investments consisting of (or resulting from) Indebtedness permitted under Section 8.1 (other than Indebtedness permitted under Section 8.1(e)), Permitted Liens, Sales permitted by Section 8.4 (other than Section 8.4(hi)), Restricted Payments permitted under Section 8.5 (other than Section 8.5(m)), Restricted Debt Payments permitted by Section 8.6, and mergers, consolidations, amalgamations and acquisitions and liquidations permitted by Section 8.7 (other than Section 8.7(c)); (bb) Investments (including debt obligations and Stock) received (i) in connection with the bankruptcy or reorganization of any Person, (ii) in settlement of delinquent obligations of, or other disputes with, customers, suppliers and other account debtors arising in the ordinary course of business, (iii) upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (iv) as a result of the settlement, compromise, resolution of litigation, arbitration or other disputes; (cc) Investments to the extent that payment therefor is made solely with Stock of any parent company of the U.S. Borrower or Qualified Capital Stock of the U.S. Borrower or any Restricted 147 [[5286738]]
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Subsidiary, in each case, to the extent (x) not otherwise applied, (y) not resulting in a Change of Control and (z) not constituting a Specified Equity Contribution or an Available Excluded Contribution Amount; (dd) (i) Investments of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or consolidated or amalgamated with, the U.S. Borrower or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment otherwise permitted by this Section 8.3 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation or consolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) of this Section 8.3(dd) so long as no such modification, replacement, renewal or extension thereof increases the original amount of such Investment except as otherwise permitted by this Section 8.3; (ee) any Investment made by any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a Restricted Subsidiary so long as the relevant Investment was not made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary; [Reserved]; (ff) Investments consisting of the licensing or contribution of Intellectual Property rights pursuant to joint marketing arrangements with other Persons; (gg) Investments in the U.S. Borrower, any Restricted Subsidiary and/or joint venture in connection with intercompany cash management arrangements and related activities in the ordinary course of business; (hh) Investments made in joint ventures as required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture agreements and similar binding arrangements entered into in the ordinary course of business; (ii) (i) Investments in Subsidiaries in connection with internal reorganizations and/or restructurings and activities related to tax planning; provided that, after giving effect to any such reorganization, restructuring or activity, neither the Guaranty Obligation of the Guarantors, taken as a whole, nor the security interest of the Administrative Agent in the Collateral, taken as a whole, is materially impaired (as determined by the U.S. Borrower in good faith), and (ii) Investments in any Restricted Subsidiary that is not a U.S. Loan Party made in the form of a contribution in respect of (or in exchange for the issuance of) Stock or Stock Equivalents of such Restricted Subsidiary of Stock or Stock Equivalents of any other Restricted Subsidiary that is not a U.S. Loan Party; (jj) any Investment in an amount not to exceed the portion, if any, of the Available Excluded Contribution Amount onat the time such dateInvestment is made that the U.S. Borrower elects to apply to this clause (jj); and (kk) Investments in any Unrestricted Subsidiary and/or any Similar Business (including any joint venture) in an aggregate outstanding amount not to exceed at any time the greater of (i) $2,500,000 and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by Trailing EBITDA as of the applicable date of determination at such time; and (ll) Investments by the U.S. Borrower and/or any Restricted Subsidiary that result solely from the receipt by the U.S. Borrower or such Restricted Subsidiary of a dividend or 148 [[5286738]]
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(other than a CFC Loan Party) to any Non-U.S. Loan Party, in each case, is for fair market value (as reasonably determined by the U.S. Borrower); (d) (i) any Sale or issuance by the U.S. Borrower of its own Stock to Holdings, (ii) any Sale or issuance by any Restricted Subsidiary of the Borrower of its own Stock to its equity holders, provided, however, that the proportion of such Stock and of each class of such Stock (both on an outstanding and fully-diluted basis) held by the Loan Parties (other than Holdings), taken as a whole, does not change as a result of such Sale or issuance and (iii) to the extent necessary to satisfy any Requirement of Law in the jurisdiction of incorporation of any Restricted Subsidiary of the Borrower, any Sale or issuance by such Restricted Subsidiary of its own Stock constituting directors’ qualifying shares or nominal holdings; (e) as long as no Event of Default is continuing or would result therefrom (other than with respect to Sale or issuance made pursuant to a legally binding commitment entered into by the U.S. Borrower or any Restricted Subsidiary at a time when no Event of Default existed or would have resulted from such Sale or issuance), any Sale or issuance by any Group Member for fair market value (as reasonably determined by the U.S. Borrower); provided, however, that, with respect to any such Sale or issuance with a purchase price in excess of $2,500,000, at least 75% of the consideration payable in respect of such Sale of propertyor issuance is in the form of cash or Cash Equivalents (provided that for purposes of the 75% cash consideration requirement, (i) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are expressly subordinated in right of payment or Lien priority to the Obligations or the Liens created under the Collateral Documents, respectively, or that are owed to the U.S. Borrower or any Restricted Subsidiary) of the U.S. Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the U.S. Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, (ii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Sale or issuance, (iii) any Security received by the U.S. Borrower or any Restricted Subsidiary from such transferee that is converted by such Person into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Sale or issuance and (iv) any Designated Non-Cash Consideration received in respect of such Sale or issuance having an aggregate fair market value (as reasonably determined by the U.S. Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (e) that is at that time outstanding, not in excess of $1,000,000, in each case, shall be deemed to be cash); (f) the Sale or discount by any Group Member in each case without recourse and in the ordinary course of business of overdue receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with past practice (and not as part of any bulk sale or financing transaction); (g) any Sale or other disposition of the AIG Renewal Rights; (h) as long as no Event of Default exists on the date on which the definitive agreement governing the relevant Sale is executed, the Sale of non-core assets acquired in any acquisitionAcquisition or similar Investment permitted hereunder which, within 90 days of the date of such acquisitionAcquisition or Investment, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the U.S. Borrower or any of its Restricted Subsidiaries or any of their respective businesses; provided that the Net Cash Proceeds of such Sale are applied and/or reinvested as (and to the extent) required by Section 2.8(c); 150 [[5286738]]
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Subsidiary of the Borrower that is not a Loan Party to any holder of its Stock, to the extent made to all such holders ratably according to their ownership interests in such Stock; (b) dividends and distributions declared and paid on the Qualified Capital Stock of any Group Member ratably to the holders of such Qualified Capital Stock and payable only in Qualified Capital Stock of such Group Member; (c) cash dividends or distributions on the StockRestricted Payments by of the U.S. Borrower to Holdings (or, in the case of clause (iii) below, the issuance of, or cash payments on, promissory notes issued in accordance with Section 8.1(p)(i)) issued, paid and declared solely for the purpose of funding the following: (i) payments by Holdings (or any direct or indirect owners of Holdings) in an amount sufficient to permit such owners to pay any federal, state and local income taxes required to be paid by such owner on their taxable income or gain attributable to the U.S. Borrower and its Subsidiaries for any taxable year, calculated by multiplying such income (or a good-faith estimate thereof) by an assumed tax rate equal to the highest combined tax rate of an individual subject to federal, state or local income tax in the highest tax rate state in which Holdings or the U.S. Borrower has income tax nexus (the “Permitted Tax Distributions”), provided, for the avoidance of doubt, that Permitted Tax Distributions may be made quarterly; (ii) ordinary operating expenses and other transaction expenses of Holdings (or any direct or indirect parent company of Holdings) (including corporate overhead, legal or similar expenses, audit and accounting expenses and customary salary, bonus and other benefits payable to directors, officers, employees, members of management, managers and/or consultants of Holdings (or any direct or indirect parent company of Holdings));, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any indemnification claims made by directors, officers, members of management, managers, employees or consultants of Holdings (or any direct or indirect parent company of Holdings), in each case, to the extent attributable to the ownership or operations of any Holdings (or any direct or indirect parent company of Holdings) (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any Subsidiary of any Person other than the U.S. Borrower and/or its Subsidiaries), the U.S. Borrower and/or its Subsidiaries; (iii) so long as no Event of Default under Section 9.1(a) or (d) exists at the time thereof or would result therefrom, the redemption, purchase or other acquisition or retirement for value by Holdings or any parent company thereof of its Qualified Capital Stock (or Stock Equivalents with respect to its Qualified Capital Stock) from current or former officers, managers, consultants, directors and employees of any Group Member (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) and the issuance of and the payments in promissory notes issued in accordance with Section 8.1(p)(i) in respect of such redemption, purchase or other acquisition for retirement; provided, however, that the aggregate amount of such cash dividendsRestricted Payments (together with the issuance of, and payments on promissory notes issued in accordance with Section 8.1(p)(i) (other than any payments on such promissory notes from the proceeds of cash dividendsRestricted Payments taken into account under this clause (iii)) in any Fiscal Year shall not exceed (A) $10,000,000 in the aggregate plus (B) an amount not to exceed the cash proceeds of key man life insurance policies received by anythe U.S. Borrower or any Restricted Subsidiary after the Closing Date, (C) the amount of net cash proceeds from the sale of Stock of 152 [[5286738]]
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any HoldcoHoldings or any parent thereof contributed to anythe U.S. Borrower (other than Disqualified Stock) to officers, directors, employees, advisors or consultants, to the extent not otherwise used under this Agreement or applied toor included in the Cumulative Available Amount and (D) the amount of any cash bonuses or other compensation otherwise payable to any future, present or former director, employee, consultant or distributor of the U.S. Borrower or any Restricted Subsidiary that are foregone in return for the receipt of Stock of Holdings or any parent thereof and (E) the cancellation of Indebtedness owing to a Loan Party from officers, directors, employees, advisors or consultants of a Loan Party or any of its Subsidiaries in connection with any repurchase of Stock; and (iv) the payment of customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the U.S. Borrower and its Subsidiaries; (v) the payment of fees and expenses related to debt or equity offerings, Investments or acquisitionsAcquisitions (whether or not consummated) and expenses and indemnities of any trustee, agent, arranger, underwriter or similar Person; (vi) the payment of insurance premiums to the extent attributable to any Holdings or any parent company thereof (but excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or operations of any Subsidiary of any Person other than the U.S. Borrower and/or its Subsidiaries), the U.S. Borrower and/or its Subsidiaries; and (vii) the financing of any Permitted Investment (provided that (x) any Restricted Payment under this clause (vii) shall be made substantially concurrently with the closing of such Investment and (y) Holdings or any relevant parent company thereof shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the U.S. Borrower or one or more of its Restricted Subsidiaries or (II) the merger, consolidation or amalgamation of the Person formed or acquired by the Borrower or one or more of its Restricted Subsidiaries, in each case, in order to consummate such Investment in compliance with or into the applicable requirements of Section 8.3 as if undertaken as a direct Investment by theU.S. Borrower or the relevantany Restricted SubsidiarySubsidiaries); and (viii) (d) Restricted Payments to enable repurchases by Holdings of warrants, options or other securities convertible into or exchangeable for Stock deemed to occur upon the exercise of stock options if such Stock represents a portion of the exercise price thereof; (d) (e) ifso long as no Event of Default shall have occurred and be continuing or shallwould result therefrom, other Restricted Payments not to exceed the greater of (i) $1,500,000 and (ii) an amount equal to the Equivalent Percentage of the amount set forth in clause (i) multiplied by Trailing EBITDA as of the applicable date of determination at such time; (f) if no Event of Default shall have occurred and be continuing or shall occur as a consequence thereof, the acquisition of any shares of Stock of Holdings solely in exchange for shares of Qualified Capital Stock of Holdings; (e) [Reserved]; 153 [[5286738]]
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(f) (g) so long as no Event of Default is continuing, forgiveness of Indebtedness owing by the U.S. Borrower, or any of its Restricted Subsidiaries that are Guarantors, to Holdings or any of its Restricted Subsidiaries; (h) so long as no Event of Default shall have occurred and be continuing or would result therefrom and, solely in the case of any such Restricted Payment made in reliance on clause (a), (b), (c), (e) or (f) of the definition of “Cumulative Available Amount”, the Consolidated Total Leverage Ratio does not exceed 3.50:1.00 (calculated based on the most recently delivered Financial Statements for the most recently ended four Fiscal Quarter period), in each case on a Pro Forma Basis after giving effect to such Restricted Payment, Restricted Payments in an amount not to exceed the Cumulative Available Amount at the time of consummation of such Restricted Payment; (g) [Reserved]; (h) (i) Restricted Payments, so long as (x) no Event of Default has occurred and is continuing and (y) the Consolidated Total Leverage Ratio, (calculated on a Pro Forma Basis) does after giving effect to such Restricted Payment as of the last day of the most recently ended Test Period, would not exceed 2.00:1.00; (i) (j) Restricted Payments the proceeds of which are applied to pay Transaction Expenses; (j) [Reserved]; (k) Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire (A) any Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary or (B) any Stock of Holdings or any parent company of Holdings, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower or any Stock of Holdings or any parent company of Holdings (to the extent such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock) (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock; [Reserved]; (l) Restricted Payments with the net proceeds of any sale or issuance of, or any capital contribution in respect of, the Stock of the Borrower, Holdings or any parent company of Holdings (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary), in each case, (1) other than any net proceeds received from the sale of Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries, (2) to the extent the relevant net proceeds have not otherwise been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder and (3) other than any Specified Equity Contribution and/or any Available Excluded Contribution Amount; so long as (x) no Event of Default shall have occurred and be continuing or would result therefrom and (y) the Consolidated Total Leverage Ratio, calculated on a Pro Forma Basis after giving effect to such Restricted Payment as of the last day of the most recently ended Test Period, would not exceed 6.00:1.00, other Restricted Payments, provided that at the time any Restricted Payment is made in reliance on this clause (l), and giving effect to the making thereof, the aggregate amount of Restricted Payments made in reliance on this clause (l) in any period of twelve (12) months shall not exceed the lesser of (x) 4.0% of the Gross Invested Equity Capital at such time and (y) $25,000,000; and 154 [[5286738]]
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100% of the equity interest of the U.S. Borrower to the Administrative Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent; (c) (i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is not a Loan Party, (ii) any Restricted Subsidiary (other than the U.K. Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, and (iii) any merger or consolidation the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted; provided, in the case of clauses (ii) and (iii), that (A) no Event of Default shall have occurred and be continuing prior to and after giving effect to such merger or consolidation and (B) the surviving Person shall be a Loan Party (and, if any party to such merger or consolidation is a U.S. Loan Party, shall be a U.S. Loan Party) or such transaction muchmust be a Permitted Investment in accordance with Section 8.3; (d) so long as no Default or Event of Default shall have occurred and be continuing prior to and after giving effect to such merger, or consolidation or amalgamation, the U.S. Borrower or the U.K. Borrower may merge, or consolidate or amalgamate with any other Person (other than the other Borrower); provided that (i) the U.S. Borrower or the U.K. Borrower, as applicable, shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger, or consolidation or amalgamation is not the U.S. Borrower or the U.K. Borrower, as applicable (any such Person, thea “Successor Borrower”), (A) thesuch Successor Borrower shall (1) in the case of the proposed substitution of the U.S. Borrower, be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, or (2) in the case of the proposed substitution of the U.K. Borrower, be an entity organized or existing under the laws of England and Wales, (B) thesuch Successor Borrower shall expressly assume all the obligations of the applicable Borrower under this Agreement and the other Loan Documents to which the applicable Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Loan Party, unless it is the other party to such merger, or consolidation or amalgamation, shall have by a supplement tocustomary reaffirmation agreement confirm that its obligations under the Guaranty and Security Agreement confirmed that its obligations thereunderand the Collateral Documents shall apply to thesuch Successor Borrower’s obligations under this Agreement, (D) if requested by the Administrative Agent, each mortgagor of a property subject to a Mortgage, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to thesuch Successor Borrower’s obligations under this Agreement, and (E) the U.S. Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement, and, with respect to such opinion of counsel only, including customary organization, due execution, no conflicts and enforceability opinions and if applicable customary continuing security interest and perfection opinions, in each case, to the extent reasonably requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, thesuch Successor Borrower will succeed to, and be substituted for, the applicable Borrower under this Agreement; and (e) the Acquisition and the Xxx Acquisition may be consummated.mergers or consolidations that constitute or effect Permitted Investments, Restricted Payments permitted by Section 8.5 (other than clause (m) thereof) or Sales permitted by Section 8.4 (other than clause (i) thereof), provided that any such merger or consolidation to which any Borrower is a party shall be subject to clause (d) above. 157 [[5286738]]
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based incentive plans and (ii) the execution, delivery and performance of any stockholder or registration rights agreement approved by board of directors (or equivalent governing body) of any Holdings, any parent company of Holdings, the U.S. Borrower or any Restricted Subsidiary; (e) the Group Members may enter into any indemnification agreement or any similar arrangement with directors, officers, consultants and employees of the Group Members in the ordinary course of business and may pay fees and indemnities to directors, officers, consultants and employees of the Group Members in the ordinary course of business; (f) (i) any purchase by Holdings of equity interests of the U.S. Borrower or any contribution by Holdings to the equity capital of the U.S. Borrower and (ii) any acquisition of equity interests of Holdings and any contribution by any equity holder of Holdings to the equity capital of Holdings; (g) transactions between or among Holdings and any of its Subsidiaries (or any entityPerson that becomes a Subsidiary as a result of such transaction), provided such transactions are not otherwise prohibited by this Agreement; (h) [reserved]; (i) [reserved]; (j) assignments to Affiliated Lenders to the extent expressly permitted under Section 11.2(g); (k) the non-exclusive licensing of trademarks, copyrights or other Intellectual Property in the ordinary course of business to permit the commercial exploitation of Intellectual Property between or among Affiliates and Subsidiaries of the U.S. Borrower; (l) the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, directors, officers, employees and consultants of Holdings, the U.S. Borrower and its Subsidiaries or any direct or indirect parent of Holdings in the ordinary course of business to the extent attributable to the ownership or operation of the U.S. Borrower and its Subsidiaries; (m) any agreement, instrument or arrangement as in effect as of the Closing Date and set forth on Schedule 8.9, or any amendment thereto (so long as any such amendment is not adverse to the Lenders in any material respect as compared to the applicable agreement as in effect on the Closing Date); (n) any transaction or series of related transactions with consideration valued at less than $2,000,000 (as determined in good faith by the U.S. Borrower); (o) (i) any collective bargaining, employment or severance agreement or compensatory (including profit sharing) arrangement entered into by the U.S. Borrower or any of its Restricted Subsidiaries with current or former officers, directors, members of management, managers, employees, consultants or independent contractors of Holdings, any parent company of Holdings, the U.S. Borrower or any of its Subsidiaries, (ii) any subscription agreement or similar agreement pertaining to the repurchase of Stock pursuant to put/call rights or similar rights with current or former officers, directors, members of management, managers, employees, consultants or independent contractors of 160 [[5286738]]
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Holdings, any parent company of Holdings, the U.S. Borrower or any of its Subsidiaries and (iii) transactions pursuant to any employee compensation, benefit plan, stock option plan or arrangement, any health, disability or similar insurance plan which covers current or former officers, directors, members of management, managers, employees, consultants or independent contractors of Holdings, any parent company of Holdings, the U.S. Borrower or any of its Subsidiaries or any employment contract or arrangement; (p) (i) transactions permitted by Sections 8.1(l) and 8.1(p), Section 8.3(dd), (ii), (gg), (hh) and (hh),(ii), Section 8.5 (other than clause (m) thereof) and Section 8.6 and (ii) issuances of Stock and issuances and incurrences of Indebtedness not restricted by this Agreement; (q) the Related Transactions, including the payment of Transaction Expenses; (r) the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board of directors (or similar governing body), officers, employees, members of management, managers, consultants and independent contractors of Holdings, any parent company of Holdings, the U.S. Borrower and/or any of its Subsidiaries in the ordinary course of business and, in the case of payments to such Person in such capacity on behalf of Holdings or any parent company of Holdings, to the extent attributable to the operations of the U.S. Borrower or its Subsidiaries; (s) transactions with customers, clients, suppliers, joint ventures, purchasers or sellers of goods or services or providers of employees or other labor entered into in the ordinary course of business, which are (i) fair to the U.S. Borrower and/or its applicable Restricted Subsidiary in the good faith determination of the board of directors (or similar governing body) of the U.S. Borrower or the senior management thereof or (ii) on terms at least as favorable as might reasonably be obtained from a Person other than an Affiliate (as reasonably determined by the U.S. Borrower); (t) (i) any purchase by Holdings of the Stock of (or contribution to the equity capital of) the U.S. Borrower and (ii) any intercompany loan made by Holdings to the U.S. Borrower and/or any Restricted Subsidiary; xxxxx (u) any transaction in respect of which the U.S. Borrower delivers to the Administrative Agent a letter addressed to the board of directors (or equivalent governing body) of the U.S. Borrower from an accounting, appraisal or investment banking firm of nationally recognized standing stating that such transaction is on terms that are no less favorable to the U.S. Borrower or the applicable Restricted Subsidiary than might be obtained at the time in a comparable arm’s length transaction from a Person who is not an Affiliate. SECTION 8.10 Section 8.10 Third-Party Restrictions on Liens or Restricted Payments. The U.S. Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, incur or otherwise suffer to exist or become effective or remain liable on or responsible for any Contractual Obligation limiting the ability of (a) any Restricted Subsidiary of the Borrowerthat is not a Loan Party to make Restricted Payments to, or to make or repay loans or advances to, any Loan Party (other than Holdings) or (b) any Group MemberLoan Party to incur or suffer to exist any Lien upon any property of any Group Member, whether now owned or hereafter acquired, securingits properties to secure any of its Obligations, except, for each of clauses (a) and (b) above, (A) pursuant to 161 [[5286738]]
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(a) any encumbrance or restrictions set forth in (i) the Loan Documents or, (ii) any agreement with respect togoverning any Incremental Equivalent Debt and/or inIndebtedness and (iii) any agreement with respect to any Incremental Equivalent Debt and/or in any agreements with respect to any refinancing, renewal or replacement of such Indebtednessgoverning (A) any Indebtedness of any Restricted Subsidiary that is not a Loan Party permitted by Section 8.1 and (B) any Indebtedness permitted by clauses (b), (c), (h), (m), (o) and/or (q) of Section 8.1; (b) (B) limitations on Liens (other than those securing any Obligation) on any property whose acquisition, repair, improvement or construction is financed by purchase money Indebtedness, Capitalized Lease Obligations or Permitted Refinancings permitted hereunder in reliance upon Section 8.1(b) or (c) set forth in the Contractual Obligations governing such Indebtedness, Capitalized Lease Obligations or Permitted Refinancing or Guaranty Obligations with respect thereto; (c) (C) provisions restricting subletting or assignment of any lease governing a leasehold interest of a Restricted Subsidiary entered into in the ordinary course of business; (d) (D) provisions restricting assignment of, or the pledge of rights under, any agreement entered into by a Group Member in the ordinary course of business; (e) (E) restrictions and conditions contained in any agreement relating to the Sale of any property pending the consummation of such Sale; provided that (i) such restrictions and conditions apply only to the property to be Sold, and (ii) such Sale is permitted hereunder; (f) (F) any agreement in effect at the time suchany Person becomes a Restricted Subsidiary becomes a Subsidiary of Borrower, so long as such agreement was not entered into in connection with or in contemplation of such personPerson becoming a Restricted Subsidiary of Borrower; (g) (G) any encumbrances or restrictions imposed by any amendments or refinancings that are otherwise permitted by the Loan Documents of the contracts, instruments or obligations referred to in clause (Ff) above; provided that such amendments or refinancings are no more restrictive, taken as a whole, with respect to such encumbrances and restrictions than those prior to such amendment or refinancing; (h) (H) provisions restricting the Sale of Intellectual Property contained in licenses entered into the ordinary course of business and in accordance with the terms hereof; (i) (I) any encumbrance or restrictions with respect to an interest in or Restricted Payments, Investments or Sales by such joint venture imposed by any joint venture agreement, organizational agreement or the Indebtedness of any joint venture maintained in accordance with Section 8.3; (j) (J) any encumbrance or restrictions pursuant to the documentation governing any Indebtedness permitted hereunder; provided that (i) such encumbrance or restrictions are no more onerous than those contained in this Agreement, (ii) reflect market terms and conditions (when taken as a whole and as reasonably determined by the U.S. Borrower) for such Indebtedness or (iii) the U.S. Borrower shall have determined in good faith that such encumbrances and restrictions would not reasonably be expected to impair in any material respect the ability of the Borrowers and the other Loan Parties to meet their obligations under this Agreement; 162 [[5286738]]
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relief of debtors or seeking the entry of an order for relief or the appointment of a custodian, receiver, trustee, conservator, liquidating agent, liquidator, other similar official or other official with similar powers, in each case for it or for any substantial part of its property and, in the case of any such proceedings instituted against (but not by or with the consent of) the U.S. Borrower or any Restricted Subsidiary (other than an Immaterial Subsidiary), either such proceedings shall remain undismissed or unstayed for a period of sixty (60) days or more or any action sought in such proceedings shall occur or (iii) the U.S. Borrower or any Restricted Subsidiary (other than an Immaterial Subsidiary) shall take any corporate or similar action or any other action to authorize any action described in clause (i) or (ii) above; or (e) one or more judgments, orders or decrees (or other similar process) shall be rendered against the U.S. Borrower or any Restricted Subsidiary (other than an Immaterial Subsidiary) (i) involving an aggregate amount (excluding amounts covered by insurance, to the extent the relevant insurer has not denied coverage therefor, or other indemnity or contribution obligation) in excess of $7,500,000 and (ii) such judgment, order or decree shall not have been vacated or discharged for a period of 60 consecutive days and there shall not be in effect (by reason of a pending appeal or otherwise) any stay of enforcement thereof; or (f) except pursuant to a valid, binding and enforceable termination or release permitted under the Loan Documents and executed by the Administrative Agent or except as otherwise expressly permitted under any Loan Document, (i) any provision of any Loan Document shall, at any time after the delivery of such Loan Document, fail to be valid and binding on, or enforceable against, any Loan Party party thereto, (ii) any Loan Document purporting to xxxxx x Xxxx to secure any Obligation shall, at any time after the delivery of such Loan Document, fail to create a valid and enforceable Lien on any Collateral with an aggregate value in excess of $7,500,000 purported to be covered thereby or, except due to an act or omission of the Administrative Agent (including a failure to file UCC continuation statements or loss of certificated collateral that has been delivered) or to the extent covered by enforceable title insurance, such Lien shall fail or cease to be a perfected Lien with the priority required in the relevant Loan Document on any Collateral or (iii) any subordination provision in respect of any Subordinated Debt shall, in whole or in part, terminate or otherwise fail or cease to be valid and binding on, or enforceable against, the holders of such Subordinated Debt or any representative thereof (or any such holder or representative shall so state in writing), or, other than in any bona fide, good faith dispute as to the scope of Collateral or whether any Lien has been, or is required to be released, any Group Member shall state in writing that any of the events described in clause (i), (ii) or (iii) above shall have occurred; or (g) there shall occur any Change of Control; or (h) (i) any Group Member shall fail to make any payment when due (whether due because of scheduled maturity, required prepayment provisions, acceleration, demand or otherwise), after giving effect to any applicable grace period, on any Indebtedness of any Group Member (other than the Obligations or any Hedging Agreement) and, in each case, such failure relates to Indebtedness having a principal amount of $7,500,000 or more or (ii) any other event in the nature of default shall occur or any condition in the nature of default shall exist, and in each case be continuing, under any Contractual Obligation relating to any such Indebtedness, if the effect of such event or condition is to accelerate, or otherwise permit the acceleration of, the maturity of such Indebtedness (after giving effect to any applicable grace or cure period); provided that this clause (h) shall not apply to any secured Indebtedness that becomes due as a result of the voluntary Sale of the property securing such Indebtedness if such Sale is permitted hereunder or as a result of a casualty or condemnation event; provided, further, that any failure described under this clause (h) is unremedied and is not waived by the holders of such 165 [[5286738]]
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hereunder (including any component definition thereof), nordefinition of the term “All-In Yield” or to any provision hereof referring to such term, (y) any amendment, modification or waiver of, or consent to departure from, the definition of the term “Consolidated Total Leverage Ratio” (or any provision of any Loan Document referring to such term), shall constitute a reduction in any rate of interest, fee or premium hereunder)component definition thereof) or (z) any change to mandatory prepayments, including those required under Section 2.8; (iv) waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Loan or fee owing to such Lender or for the reduction of such Lender’s Commitment; provided, however, that this clause (iv) does not apply to any change to mandatory prepayments, including those required under Section 2.8; (v) except as provided in Section 10.10 or Section 11.22 (other than with respect to a release of all or substantially all Collateral), release all or substantially all of the Collateral or any Guarantor from its guaranty of any Loan Document Obligation of theany Borrower; (vi) reduce or increase the proportion of Lenders required for the Lenders (or any subset thereof) to take any action hereunder or change the definition of the terms “Required Lenders”, “Pro Rata Share” or “Pro Rata Outstandings”; or (vii) amend Section 10.10 (Release of Collateral or Guarantor), Section 11.9 (Sharing of Payments), Section 11.22 or this Section 11.1; and provided, further, that (x) any change to the definition of the term “Required Revolving Lenders” shall require the consent of the Required Revolving Lenders; (y) no amendment or waiver shall, unless signed by the Required Revolving Lenders (or by the Administrative Agent with the consent of the Required Revolving Lenders) (but without the need for the consent of the Required Lenders) (A) amend or waive compliance with the conditions precedent to the obligations of any Revolving Credit Lenders to make any Revolving Loan (or of any L/C Issuer to Issue any Letter of Credit or of the Swingline Lender to make any Swingline Loan) in Section 3.2, (B) waive any Default or Event of Default for the purpose of satisfying the conditions precedent to the obligations of the Revolving Credit Lenders to make Revolving Loans (or of any L/C Issuer to Issue any Letter of Credit or of the Swingline Lender to make any Swingline Loan) in Section 3.2, (C) amend or waive compliance with any provision of Sections 2.1(a), 2.2, 2.3, 2.4, 2.8(d), 2.12(d) (solely to the extent pertaining to any Revolving Loan), 2.19(d), 2.20(c) (solely to the extent pertaining to any Revolving Loan) or 2.20(d), (D) amend or waive this clause (y) or the definitions of the terms used in this clause (y) insofar as the definitions affect the substance of this clause (y) or (E) amend any specific right of the Required Revolving Lenders to grant or withhold consent or take or omit to take any action hereunder; and (z) no amendment, waiver or consent shall affect the rights or duties under any Loan Document of, or any payment for its own account to, the Administrative Agent (or otherwise modify any provision of Article X10 or the application thereof), any L/C Issuer or any SPV that has been granted an option pursuant to Section 11.2(f)the Swingline Lender unless in writing and signed by the 174 [[5286738]]
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Administrative Agent, such L/C Issuer or the Swingline Lender, as the case may be, such SPV in addition to any signature otherwise required. Notwithstanding anything to the contrary contained in this Section 11.1, the Administrative Agent may amend Schedule I to reflect assignments entered into pursuant to Section 11.2. Notwithstanding anything to the contrary herein, except as provided in Section 11.2(g) and other than with respect to any amendment, waiver or consent that disproportionately and adversely affects such Permitted Investor as compared to other Lenders, no Permitted Investor that is a Lender shall have any right to approve or disapprove any amendment, waiver or consent under the Loan Documents other than any amendment, waiver or consent that disproportionately and adversely affects such Permitted Investor as compared to other Lenders, and any such Term Loans held by a Permitted Investor for purposes hereof shall be automatically deemed to be voted pro rata according to the Term Loans of all other Lenders in the aggregate (other than the Permitted Investors). (b) Each waiver or consent under any Loan Document shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Loan Party shall entitle any Loan Party to any notice or demand in the same, similar or other circumstances. No failure on the part of any Secured Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. (c) Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver, consent or other modification hereunderunder any Loan Document, except that (i) the Commitment of such Lender may not be increased or extended without the consent of such Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded from a vote of the Lenders hereunder requiring any consent of the Lenders), (ii) the principal of such Lender’s Loans shall not be reduced or forgiven without the consent of such Lender and (iii) the interest rate applicable to Loan Document Obligations owing to a Defaulting Lender may not be reduced without the consent of such Lender (unless the applicable amendment, waiver or consent has been consented to by all non-Defaulting Lenders and does not treat the Loan Document Obligations owing to such Defaulting Lender in a disproportionately adverse manner as compared to the Loan Document Obligations owing to non-Defaulting Lenders). (d) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the applicable Borrower and the Lenders providing the Replacement Loans (as defined below) to permit the refinancing of all outstanding Term Loans ofunder any trancheFacility (“Refinanced Loans”) with replacement term loans (“Replacement Loans”); provided that (ai) the aggregate principal amount of such Replacement Loans shall not exceed the aggregate principal amount of such Refinanced Loans (plus (1) any additional amounts permitted to be incurred under Section 8.1; provided that, to the extent any such additional amounts are secured, the related Liens are permitted under Section 8.2, and (2) the amount of accrued interest, penalties and premium (including tender premium) thereon, any committed but undrawn amount and underwriting discounts, fees (including upfront fees, original issue discount or initial yield payments), commissions and expenses associated therewith), (b) the All-In Yield with respect to such Replacement Loans (or similar interest rate spread applicable to such Replacement Loans) shall not be higher than the All-In Yield for such Refinanced Loans (or similar interest rate spread applicable to such Refinanced Loans) immediately prior to such refinancing, (cii) the Weighted Average Life to Maturity of such Replacement Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Loans at the time of such refinancing (except by virtue of amortization or prepayment of the Refinanced Loans prior 175 [[5286738]]
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to the time of such incurrence), (diii) any Replacement Loans mayshall rank pari passu with or junior to any then-existing tranche ofthe other Term Loans in right of payment and/or security or may be unsecured (and to the extent the relevant Replacement Loans are subordinated in right of payment or are secured by Collateral, they shall be subject to an Acceptable Intercreditor Agreement), (e, (iv) any Replacement Loans may participate in any mandatory prepayment of Term Loans and (fv) all other terms and conditions (other than with respect to pricing, premiums and optional prepayment or redemption terms) applicable to such Replacement Loans shall be (iA) substantially identical to, or (taken as a whole as determined by the U.S. Borrower in its reasonable judgment) are no more favorable to the lenders or holders providing such Replacement Loans than those applicable to the Refinanced Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest Scheduled Maturity Date of the Loans in effect immediately prior to such refinancing or (iiB) reasonably acceptable to the Administrative Agent (it being agreed that terms and conditions of any Replacement Loans that are more favorable to the Lenders of such Replacement Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents pursuant to the applicable amendment shall be deemed acceptable to the Administrative Agent). (e) Notwithstanding anything to the contrary contained in this Section 11.1 or any other provision of this Agreement or any provision of any other Loan Document: (i) (A) the U.S. Borrower and the Administrative Agent may, without the input or consent of any Lender, enter into any Collateral Document or amend, supplement and/or waive any Collateral Document to (A1) comply with any Requirement of Law or the advice of counsel or (B2) cause such Collateral Document to be consistent with this Agreement and/or the relevant other Loan Documents, and (B) the Administrative Agent may, without the input or consent of any Lender, consent to a departure by any Loan Party from any covenant of such Loan Party set forth in this Agreement or any other Loan Document to the extent such departure is consistent with the authority of the Administrative Agent set forth in Section 7.10(g); (ii) the U.S. Borrower and the Administrative Agent may, without the input or consent of any other Lender (other than the relevant Lenders (including Incremental Loan Lenders) providing Loans under such Sections), effect amendments to this Agreement and the other Loan Documents as may be necessary in the reasonable opinion of the U.S. Borrower and the Administrative Agent to (A) effect the provisions of Section 2.19, 2.20, 11.1(d) or 11.19 (including, in the case of any Term Loans incurred or established pursuant to any such Section that are intended to be “fungible” with any then-existing Term Loans, providing scheduled amortization in such other percentages or amounts as may be agreed by the applicable Borrower and the Administrative Agent to ensure that such Term Loans are “fungible” with such then-existing Term Loans), or any other provision specifying that any waiver, amendment or modification may be made with the consent or approval of the Administrative Agent and/or (B) add terms (including representations and warranties, conditions, prepayments, covenants or events of default and terms contemplated by the definition of “Acceptable Intercreditor Agreement”), in connection with the addition of any Loan or Commitment hereunder, any Incremental Equivalent Debt or any Replacement Loans that are favorable to the then-existing Lenders (taken as a whole), as reasonably determined by the Administrative Agent (it being understood that, where applicable, any such amendment may be effectuated as part of an Incremental Amendment, Extension/Modification Amendment and/or an amendment in respect of Replacement Loans); 176 [[5286738]]
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the Administrative Agent shall have the right to assign any rights or obligations hereunder or any interest herein. (b) Right to Assign. Each Lender may sell, transfer, negotiate or and assign (a “Transfer”) all or a portion of its rights and obligations hereunder (including all or a portion of its Commitments and its rights and obligations with respect to Loans and Letters of Credit) to: (i) any existing Lender (other than the U.S. Borrower, the Permitted Investors or any of their respective Affiliates except pursuant to a Permitted Loan Retirement or pursuant to Section 11.2(h) or an assignment to an Affiliated Lender to the extent expressly permitted under Section 11.2(g)); (ii) any Affiliate or Approved Fund of any existing Lender (other than the U.S. Borrower, the Permitted Investors or any of their respective Affiliates except pursuant to a Permitted Loan Retirement, pursuant to Section 11.2(h) or an assignment to an Affiliated Lender to the extent expressly permitted under Section 11.2(g)) or (iii) any other Eligible Assignee (other than the U.S. Borrower, the Permitted Investors or any of their respective Affiliates except pursuant to a Permitted Loan Retirement, pursuant to Section 11.2(h) or an assignment to an Affiliated Lender to the extent expressly permitted under Section 11.2(g)), acceptable (which acceptance shall not be unreasonably withheld or delayed) to the Administrative Agent and, as long as no Event of Default under Section 9.1(a) or 9.1(d) has occurred and is continuing, the U.S. Borrower (which acceptance shall not be unreasonably withheld or delayed); provided that the U.S. Borrower shall be deemed to have consented to any assignment of Loans (other than to a Disqualified Lender) unless the U.S. Borrower shall object thereto by written notice (which may be by email) to the Administrative Agent within ten (10) Business Days after having received written notice thereof; provided, however, that (x) such Transfers do not have to be ratable between the Facilities but must be ratable among the obligations owing to and owed by such Lender with respect to a Facility, (y) for each Facility, the aggregate outstanding principal amount (determined as of the effective date of the applicable Assignment) of the Loans, Commitments and L/C Obligations subject to any such Transfer shall be in a minimum amount of $1,000,000 (or, in the case of Sterling Term Loans, £1,000,000), unless such Transfer is of the assignor’s (together with its Affiliates and Approved Funds) entire interest in such Facility or is made with the prior consent of the U.S. Borrower and the Administrative Agent and (z) no Transfers may be made to a Disqualified Lender unless an Event of Default under Section 9.1(d) has occurred and is continuing. To the extent that any Transfer is purported to be made to a Disqualified Lender in violation of the foregoing clause (z), such Disqualified Lender shall be required immediately (and in any event within five (5) Business Days) to assign all Loans and Commitments then owned by such Disqualified Lender to another Lender (other than a Defaulting Lender) or persona Person permitted to become a Lender pursuant to this Section 11.2 (and the Borrowerapplicable Borrowers shall be entitled to seek specific performance in regards to this sentence). As to Transfers requiring the Administrative Agent’s consent, the withholding of such consent for Transfers to the U.S. Borrower or any of its Affiliates (other than an Affiliated Lendera Transfer in accordance with Section 11.2(g) or 11.2(h)) or to a holder of Subordinated Debt issued by the U.S. Borrower or any of its Affiliates (other than an Affiliated Lendera Transfer in accordance with Section 11.2(g) or 11.2(h)) shall not be deemed to be unreasonable. (c) Procedure. The parties to each Transfer made in reliance on clause (b) above (other than those described in clause (e) or (f) below) shall execute and deliver to the Administrative 178 [[5286738]]
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Agent an Assignment via an electronic settlement system designated by the Administrative Agent (or if previously agreed with the Administrative Agent, via a manual execution and delivery of the assignment) evidencing such Transfer, together with any existing Note subject to such Transfer (or any affidavit of loss therefor acceptable to the Administrative Agent), any tax forms required to be delivered pursuant to Section 2.17(g) or 2.17(h) and payment of an assignment fee in the amount of $3,500, provided that (1) if a Transfer by a Lender is made to an Affiliate or an Approved Fund of such assigning Lender, then no assignment fee shall be due in connection with such Transfer, and (2) if a Transfer by a Lender is made to an assignee that is not an Affiliate or Approved Fund of such assignor Lender, and concurrently to one or more Affiliates or Approved Funds of such assignee, then only one assignment fee of $3,500 shall be due in connection with such Transfer. Upon receipt of all the foregoing, and conditioned upon such receipt and, if such assignment is made in accordance with Section 11.2(b)(iii), upon the Administrative Agent (and the U.S. Borrower, if applicable) consenting to such Assignment, from and after the effective date specified in such Assignment, the Administrative Agent shall record or cause to be recorded in the Register the information contained in such Assignment. (d) Effectiveness. Subject to the recording of an Assignment by the Administrative Agent in the Register pursuant to Section 2.14(b), (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment, shall have the rights and obligations of a Lender, (ii) any applicable Note shall be transferred to such assignee through such entry and (iii) the assignor thereunder shall, to the extent that rights and obligations under this Agreementthe Loan Documents have been assigned by it pursuant to such Assignment, relinquish its rights (except for those surviving the termination of the Commitments and the payment in full of the Loan Document Obligations) and be released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto except that each Lender agrees to remain bound by Article X10, Section 11.8 (Right of Setoff) and 11.9 (Sharing of Payments) to the extent provided in Section 10.11 (Additional Secured Parties)). (e) Grant of Security Interests. In addition to the other rights provided in this Section 11.2, each Lender may grant a security interest in, or otherwise assign as collateral, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Loans), to (Ai) any federal reserve bank (pursuant to Regulation A of the Federal Reserve Board), without notice to the Administrative Agent or (Bii) any holder of, or trustee for the benefit of the holders of, such Lender’s Securities by notice to the Administrative Agent; provided, however, that no such holder or trustee, whether because of such grant or assignment or any foreclosure thereon (unless such foreclosure is made through an assignment in accordance with clause (b) above), shall be entitled to any rights of such Lender hereunder and no such Lender shall be relieved of any of its obligations hereunder. (f) Participants and SPVs. In addition to the other rights provided in this Section 11.2, each Lender may, (x) with notice to the Administrative Agent and the U.S. Borrower, grant to an SPV the option to make all or any part of any Loan that such Lender would otherwise be required to make hereunder (and the exercise of such option by such SPV and the making of Loans pursuant thereto shall satisfy the obligation of such Lender to make such Loans hereunder) and such SPV may assign to such Lender the right to receive payment with respect to any Loan Document Obligation and (y) without notice to or consent from the Administrative Agent or the U.S. Borrower, sell participations to one or more Eligible Assignees in or to all or a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to the Term Loans, Revolving Loans and Letters of 179 [[5286738]]
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Credit); provided, however, that, whether as a result of any term of any Loan Document or of such grant or participation, (i) no such SPV or participant shall have a commitment, or be deemed to have made an offer to commit, to make Loans hereunder, and, except as provided in the applicable option agreement, none shall be liable for any obligation of such Lender hereunder, (ii) such Lender’s rights and obligations, and the rights and obligations of the Loan Parties and the Secured Parties towards such Lender, under any Loan Document shall remain unchanged and each other party hereto shall continue to deal solely with such Lender, which shall remain the holder of the Loan Document Obligations in the Register, except that (A) each such participant and SPV shall be entitled to the benefit of Sections 2.16 (Breakage Costs; Increased Costs; Capital Requirements) and 2.17 (Taxes), but only to the extent such participant or SPV delivers the tax forms such Lender is required to collect pursuant to Section 2.17(g) or 2.17(h) and then only to the extent of any amount to which such Lender would be entitled in the absence of any such grant or participation and (B) each such SPV may receive other payments that would otherwise be made to such Lender with respect to Loans funded by such SPV to the extent provided in the applicable option agreement and set forth in a notice provided to the Administrative Agent by such SPV and such Lender, provided, however, that in no case (including pursuant to clause (A) or (B) above) shall an SPV or participant have the right to enforce any of the terms of any Loan Document, and (iii) the consent of such SPV or participant shall not be required (either directly, as a restraint on such Lender’s ability to consent hereunder or otherwise) for any amendments, waivers or consents with respect to any Loan Document or to exercise or refrain from exercising any powers or rights such Lender may have under or in respect of the Loan Documents (including the right to enforce or direct enforcement of the Loan Document Obligations), except for those described in clauses (ii) and (iii) of Section 11.1(a) with respect to amounts, or dates fixed for payment of amounts, to which such participant or SPV would otherwise be entitled and, in the case of participants, except for those described in Section 11.1(a)(iv) (or amendments, consents and waivers with respect to Section 10.10 to release all or substantially all of the Collateral). No party hereto shall institute (and each of the U.S. Borrower and Holdings shall cause each other Loan Party not to institute) against any SPV grantee of an option pursuant to this clause (f) any bankruptcy, reorganization, insolvency, liquidation or similar proceeding, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper of such SPV; provided, however, that each Lender having designated an SPV as such agrees to indemnify each Indemnitee against any Liability that may be incurred by, or asserted against, such Indemnitee as a result of failing to institute such proceeding (including a failure to get reimbursed by such SPV for any such Liability). The agreement in the preceding sentence shall survive the termination of the Commitments and the payment in full of the Loan Document Obligations. Each Lender that sells a participation shall, acting solely for this purpose as an agent of theeach Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (g) Affiliated Lenders. 180 [[5286738]]
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(i) In addition to the other rights provided in this Section 11.2, each Lender may assign all or a portion of any of its Term Loans to any Person whothat, after giving effect to such assignment, would be an Affiliated Lender (without the consent of any Person but subject to acknowledgment by the Administrative Agent (which acknowledgment shall be provided promptly after request therefor)) on a non-pro rata basis (A) through Permitted Loan Retirements or (B) through open market purchases; provided that: (A) the assigning Lender and the Affiliated Lender purchasing such Lender’s tranche or tranches of Term Loans shall execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit I hereto (an “Affiliated Lender Assignment and Assumption”), it being understood that each Affiliated Lender Assignment and Assumption (other than with respect to an assignment to an Affiliated Debt Fund) shall, among other things, provide for a power of attorney in favor of the Administrative Agent to vote the claims in respect of Term Loans held by such Affiliated Lender in an Insolvency Proceeding as provided in clause (iv) of this subsectionSection 11.2(g); (B) for the avoidance of doubt, Lenders shall not be permitted to assign any tranche of Revolving Loan Commitments or Revolving Loans to an Affiliated Lender and any purported assignment of any tranche of Revolving Loan Commitments or Revolving Loans to an Affiliated Lender shall be null and void; (C) at the time of such assignment and after giving effect to such assignment, the aggregate principal amount of all Term Loans held by all Affiliated Lenders (other than Affiliated Debt Funds) (or in which Affiliated Lenders have a participation) shall not exceed twenty-five percent (25%) of all Term Loans outstanding under this Agreement; and (D) at the time of such assignment and after giving effect to such assignment and at no time thereafter, the total number of Affiliated Lenders (other than Affiliated Debt Funds) shall not exceed the lesser of (x) three (3) in the aggregate or (y) 49% or less of the total number of Lenders (rounded down) party hereto, provided that, notwithstanding the foregoing, there may be at least one Affiliated Lender. (ii) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender (other than an Affiliated Debt Fund) shall have any right to (A) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Loan Parties are not invited or (B) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and/or one or more Lenders, except to the extent such information or materials have been made available to any Loan Party or any representative of any Loan Party. (iii) Notwithstanding anything in Section 11.1 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders, all affected Lenders or all Lenders have (A) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (B) otherwise acted on any matter related to any Loan Document or (C) directed or required the Administrative Agent or any Lender to undertake any 181 [[5286738]]
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action (or refrain from taking any action) with respect to or under any Loan Document, an Affiliated Lender (other than Affiliated Debt Fund) shall be deemed to have voted its interest as a Lender without discretion in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Affiliated Lenders (other than Affiliated Debt Funds); provided that, without the consent of an Affiliated Lender, no such amendment, modification, waiver, consent or other action shall (1) increase any Commitment of such Affiliated Lender, (2) extend the due date for any scheduled installment of principal (including the maturity dateMaturity Date) of any Term Loan held by such Affiliated Lender, (3) extend the due date for interest under the Loan Documents owed to such Affiliated Lender, (4) reduce any amount owing to such Affiliated Lender under any Loan Document or (5) disproportionately adversely affect such Affiliated Lender differently than other similarly situated Lenders, in each case except as provided in clause (iv) of this subsectionSection 11.2(g); and provided, further, that each Affiliated Lender shall receive its ratable portion of any fee received in respect of any such amendment, modification, waiver or consent. (iv) Each Affiliated Lender (other than an Affiliated Debt Fund), solely in its capacity as a holder of any tranche of Term Loans, hereby agrees, and each Affiliated Lender Assignment and Assumption shall provide a confirmation that, if any Loan Party shall be subject to any Insolvency Proceeding, with respect to any matter requiring the vote of holders of any tranche of Term Loans during the pendency of an Insolvency Proceeding (including voting on any plan of reorganization pursuant to 11 U.S.C. §1126), such Affiliated Lender irrevocably authorizes and empowers the Administrative Agent to vote and/or object on behalf of such Affiliated Lender in connection with any plan of reorganization with respect to the Term Loans held by such Affiliated Lender in accordance with clause (iii) above of this subsectionSection 11.2(g) (without regard to clauses (2), (3) and (4) of the proviso to such clause (iii)); provided that each Affiliated Lender shall be entitled to vote or object in its sole discretion (and not in accordance with the direction of the Administrative Agent) in accordance with clause (iii) of this subsectionSection 11.2(g), including in connection with any plan of reorganization, to the extent any such plan of reorganization proposes to treat any Term Loans held by such Affiliated Lender in a manner that is more adverse to the interests of such Affiliated Lender than the proposed treatment of Term Loans held by other Lenders that are not Affiliated Lenders is to the interests of such other Lenders. For the avoidance of doubt, the Lenders and each Affiliated Lender agree and acknowledge that the provisions set forth in this clause (iv), and the related provisions set forth in each Affiliated Lender Assignment and Assumption, constitute a “subordination agreement” as such term is contemplated by, and utilized in, Section 510(a) of the Bankruptcy Code, and, as such, would be enforceable for all purposes in any case where a Loan Party has filed for protection under the Bankruptcy Code. (v) For purposes of determining whether the Required Lenders have consented to any amendment or waiver under Section 11.1, the aggregate amount of Loans held by Affiliated Debt Funds will be excluded to the extent in excess of 49.9% of the amount required to constitute Required Lenders. (h) Any Lender may, so long as no Event of Default has occurred and is continuing or would result therefrom, assign all or a portion of its rights and obligations with respect to the Term Loans and the Term Loan Commitments under this Agreement to Holdings, the U.S. Borrower or any of its Subsidiaries through (x) Permitted Loan Retirements or (y) open market purchasepurchases on a non-pro rata basis; provided that: 182 [[5286738]]
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EXHIBIT A TO CREDIT AGREEMENT FORM OF ASSIGNMENT This ASSIGNMENT, dated as of the Effective Date, is entered into between _____________ (“the Assignor”) and ________________ (“the Assignee”). The parties hereto hereby agree as follows: NSM Insurance Group, LLC (the “U.S. Borrower”) and NSM UK Holdings Ltd (the Borrowers: “U.K. Borrower”) Ares Capital Corporation, as administrative agent and collateral agent for the Lenders Administrative Agent: and L/C Issuers (in such capacity and together with its successors and permitted assigns, the “Administrative Agent”) Credit Agreement, dated as of May 11, 2018, among the U.S. Borrower, the U.K. Borrower, NSM Insurance HoldCo, LLC (“Holdings”), the Lenders, the L/C Issuers Credit Agreement: and Administrative Agent (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein without definition are used as defined in the Credit Agreement) [Trade Date: _________, ____]1 Effective Date: _________, ____2 1 Insert for informational purposes only if needed to determine other arrangements between the Assignor and the Assignee. 2 To be filled out by Administrative Agent upon entry in the Register. A-1
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Aggregate amount of Commitments or principal Aggregate amount of amount of Loans for all Commitments4 or principal Facility Assigned3 Lenders6 amount of Loans Assigned5 Percentage Assigned6 [$][₤]____________ [$][₤]____________ __._________% [THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK] 3 Fill in the appropriate defined term for the type of facilities under the Credit Agreement that are being assigned under this Assignment. (e.g., “Revolving Credit Facility”, “Dollar Term Loan Facility”, “Sterling Term Loan Facility”, etc.) 4 In the case of the Revolving Credit Facility, includes Revolving Loans and interests, participations and obligations to participate in L/C Obligations and Swingline Loans. 5 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. The aggregate amounts are inserted for informational purposes only to help in calculating the percentages assigned which, themselves, are for informational purposes only. 6 Set forth, to at least 9 decimals, the Assigned Interest as a percentage of the aggregate Commitment or Loans in the Facility. This percentage is set forth for informational purposes only and is not intended to be binding. The assignments are based on the amounts assigned not on the percentages listed in this column. A-2
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ACCEPTED and AGREED this __ day of ______ _____: ARES CAPITAL CORPORATION as Administrative Agent By: Name: Title: [NSM INSURANCE GROUP, LLC]7 By: Name: Title: 7 Include only if required pursuant to Section 11.2(b) of the Credit Agreement. [SIGNATURE PAGE FOR ASSIGNMENT]
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EXHIBIT B TO CREDIT AGREEMENT FORM OF [REVOLVING LOAN] [DOLLAR TERM LOAN][STERLING TERM LOAN] NOTE Lender: [NAME OF LENDER] New York, New York Principal Amount: $ _______ ___________, ____ FOR VALUE RECEIVED, the undersigned, [NSM Insurance Group, LLC, a Delaware limited liability company][NSM UK Holdings Ltd, a company incorporated in England and Wales with registered number 12498389 and having its registered office at Xxxxx 00, 00 Xx Xxxx Xxx, Xxxxxx, XX0X 0XX] (the “[U.S][U.K.]Borrower”), hereby promises to pay to the order of the Lender set forth above (the “Lender”) the principal amount set forth above, or, if less, the aggregate unpaid principal amount of [all Revolving Loans] [the Dollar Term Loans][the Sterling Term Loans] (as defined in the Credit Agreement referred to below) of the Lender to the [U.S][U.K.] Borrower, payable at such times and in such amounts as are specified in the Credit Agreement. The [U.S][U.K.] Borrower promises to pay interest on the unpaid principal amount of the [Revolving Loans] [Dollar Term Loans][Sterling Term Loans] from the date made until such principal amount is paid in full, payable at such times and at such interest rates as are specified in the Credit Agreement. Demand, diligence, presentment, protest and notice of non- payment and protest are hereby waived by the [U.S][U.K.] Borrower. Both principal and interest are payable in [Dollars][Sterling] to Ares Capital Corporation, as Administrative Agent, at 240 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx, in immediately available funds. This Note is one of the Notes referred to in, and is entitled to the benefits of, the Credit Agreement, dated as May 11, 2018 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the [U.S Borrower, NSM UK Holdings Ltd, a company incorporated in England and Wales with registered number 12498389 and having its registered office at Lexxx 00, 00 Xx Xxxx Xxx, Xxxxxx, XX0X 0EP][NSM Insurance Group, LLC, a Delaware limited liability company, the U.K. Borrower], NSM Insurance HoldCo, LLC, a Delaware limited liability company (“Holdings”), the Lenders and the L/C Issuers party thereto and Ares Capital Corporation, as Administrative Agent and collateral agent for the Lenders and L/C Issuers. Capitalized terms used herein without definition are used as defined in the Credit Agreement. The Credit Agreement, among other things, (a) provides for the making of [Revolving Loans] [Term Loans] by the Lender to the [U.S][U.K.] Borrower in an aggregate amount [not to exceed at any time outstanding][equal to] the principal amount set forth above, the indebtedness of the [U.S][U.K.] Borrower resulting from such [Revolving Loans] [Term Loans] being evidenced by this Note and (b) contains provisions for acceleration of the maturity of the unpaid principal amount of this Note upon the happening of certain stated events and also for B-1
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prepayments on account of the principal hereof prior to the maturity hereof upon the terms and conditions specified therein. This Note is a Loan Document, is entitled to the benefits of the Loan Documents and is subject to certain provisions of the Credit Agreement, including Sections 1.5 (Interpretation), 11.14(a) (Submission to Jurisdiction) and 11.15 (Waiver of Jury Trial) thereof. This Note is a registered obligation, transferable only upon notation in the Register, and no assignment hereof shall be effective until recorded therein. This Note shall be governed by, and construed and interpreted in accordance with, the law of the State of New York. [SIGNATURE PAGES FOLLOW] B-2
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EXHIBIT C TO CREDIT AGREEMENT FORM OF NOTICE OF BORROWING ARES CAPITAL CORPORATION as Administrative Agent under the Credit Agreement referred to below _________ __, ____ Notice of Borrowing Reference is made to the Credit Agreement, dated as of May 11, 2018 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among NSM Insurance Group, LLC (the “U.S. Borrower”), NSM UK Holdings Ltd, a company incorporated in England and Wales with registered number 12498389 and having its registered office at Lexxx 00, 00 Xx Xxxx Xxx, Xxxxxx, XX0X 0XX, NSM Insurance HoldCo, LLC, the Lenders and L/C Issuers party thereto and Ares Capital Corporation, as Administrative Agent. Capitalized terms used herein without definition are used as defined in the Credit Agreement. The [U.S.] Borrower hereby gives you irrevocable notice, pursuant to Section 2.2 of the Credit Agreement of its request of a Borrowing (the “Proposed Borrowing”) under the Credit Agreement and, in that connection, sets forth the following information: A. The date of the Proposed Borrowing is __________, ____8 (the “Funding Date”). B. The aggregate principal amount of Revolving Loans is $_________, of which $________ consists of Base Rate Loans and $________ consists of Eurocurrency Rate Loans having an initial Interest Period of ______ months. C. The aggregate principal amount of [Dollar][Sterling]Term Loans is [$][₤][_______, of which $________ consists of Base Rate Loans and [$][₤]________ consists of Eurocurrency Rate Loans having an initial Interest Period of ______ months. 8 For Term Loans, must be the Closing Date, the Fourth Amendment Effective Date, the Incremental Facility Closing Date or the date of effectiveness of an amendment governing Replacement Loans. C-1
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[NSM INSURANCE GROUP, LLC] By: Name: Title:] [SIGNATURE PAGE TO NOTICE OF BORROWING DATED _________ __, ____]
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EXHIBIT D TO CREDIT AGREEMENT FORM OF SWINGLINE LOAN REQUEST ARES CAPITAL CORPORATION, as Administrative Agent under the Credit Agreement referred to below _________ __, ____ Swingline Loan Request Reference is made to the Credit Agreement, dated as of May 11, 2018 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among NSM Insurance Group, LLC (the “U.S. Borrower”), NSM UK Holdings Ltd, a company incorporated in England and Wales with registered number 12498389 and having its registered office at Lexxx 00, 00 Xx Xxxx Xxx, Xxxxxx, XX0X 0XX, NSM Insurance HoldCo, LLC, the Lenders and L/C Issuers party thereto and Ares Capital Corporation, as Administrative Agent. Capitalized terms used herein without definition are used as defined in the Credit Agreement. The U.S. Borrower hereby gives you irrevocable notice pursuant to Section 2.3 of the Credit Agreement that it requests Swingline Loans under the Credit Agreement (the “Proposed Advance”) and, in that connection, sets for the following information: A. The date of the Proposed Advance is __________, ____ (the “Funding Date”). B. The aggregate principal amount of Swingline Loan is $_________. D-1
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NSM INSURANCE GROUP, LLC By: Name: Title: [SIGNATURE PAGE TO SWING LOAN REQUEST DATED _________ __, ____]
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EXHIBIT E TO CREDIT AGREEMENT FORM OF L/C REQUEST [NAME OF L/C ISSUER], as L/C Issuer under the Credit Agreement referred to below Attention: _________ __, ____ Letter of Credit Request Reference is made to the Credit Agreement, dated as of May 11, 2018 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among NSM Insurance Group, LLC (the “U.S. Borrower”), NSM UK Holdings Ltd, a company incorporated in England and Wales with registered number 12498389 and having its registered office at Lexxx 00, 00 Xx Xxxx Xxx, Xxxxxx, XX0X 0XX, NSM Insurance HoldCo, LLC, the Lenders and L/C Issuers party thereto and Ares Capital Corporation, as Administrative Agent. Capitalized terms used herein without definition are used as defined in the Credit Agreement. The U.S. Borrower hereby gives you notice, irrevocably, pursuant to Section 2.4(b) of the Credit Agreement, of its request for an Issuance of a Letter of Credit by you, in the form attached hereto, for the benefit of [Name of Beneficiary], in the amount of $________, to be issued on ________, ____ (the “Issue Date”) with an expiration date of _________, ____. E-1
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NSM INSURANCE GROUP, LLC By: Name: Title: [SIGNATURE PAGE TO LETTER OF CREDIT REQUEST DATED _________ __, ____]
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EXHIBIT F TO CREDIT AGREEMENT FORM OF NOTICE OF CONVERSION OR CONTINUATION ARES CAPITAL CORPORATION as Administrative Agent under the Credit Agreement referred to below _________ __, ____ Notice of Conversion or Continuation Reference is made to the Credit Agreement, dated as of May 11, 2018 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among NSM Insurance Group, LLC (the “U.S. Borrower”), NSM UK Holdings Ltd, a company incorporated in England and Wales with registered number 12498389 and having its registered office at Lexxx 00, 00 Xx Xxxx Xxx, Xxxxxx, XX0X 0XX (the “U.K. Borrower”), NSM Insurance HoldCo, LLC, the Lenders and L/C Issuers party thereto and Ares Capital Corporation, as Administrative Agent and collateral agent for the Lenders and L/C Issuers. Capitalized terms used herein without definition are used as defined in the Credit Agreement. The [U.S.][U.K.] Borrower hereby gives you irrevocable notice, pursuant to Section 2.10 of the Credit Agreement, of its request for the following: (i) a continuation, on ________, ____, as Eurocurrency Rate Loans having an Interest Period of ___ months, of [Dollar Term Loans][Sterling Term Loans][Revolving Loans] in an aggregate outstanding principal amount of [$][₤]____________ having an Interest Period ending on the proposed date for such continuation; (ii) a conversion, on ________, ____, to Eurocurrency Rate Loans having an Interest Period of ___ months of [Dollar Term Loans][Revolving Loans] in an aggregate outstanding principal amount of $_________; or (iii) a conversion, on ________, ____, to Base Rate Loans, of [Dollar Term Loans][Revolving Loans] in an aggregate outstanding principal amount of $_________. F-1
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[NSM INSURANCE GROUP, LLC][NSM UK HOLDINGS LTD] By: Name: Title: [SIGNATURE PAGE TO NOTICE OF CONVERSION OR CONTINUATION DATED _________ __, ____]
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EXHIBIT G TO CREDIT AGREEMENT FORM OF COMPLIANCE CERTIFICATE __________, 20__ Reference is made to the Credit Agreement, dated as of May 11, 2018 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among NSM Insurance Group, LLC (the “U.S. Borrower”), NSM UK Holdings Ltd, a company incorporated in England and Wales with registered number 12498389 and having its registered office at Lexxx 00, 00 Xx Xxxx Xxx, Xxxxxx, XX0X 0XX, NSM Insurance HoldCo, LLC (“Holdings”), the Lenders and L/C Issuers party thereto and Ares Capital Corporation, as Administrative Agent. Capitalized terms used herein without definition are used as defined in the Credit Agreement. The undersigned, a duly authorized Responsible Officer of the U.S. Borrower having the name and title set forth below under [his][her] signature, hereby certifies, on behalf of the U.S. Borrower, that such Responsible Officer of the U.S. Borrower is familiar with the Credit Agreement and that: (a) Attached hereto as Annex A are the consolidated financial statements of the U.S. Borrower for the [Fiscal Quarter/Fiscal Year] ended _________, ____, required to be delivered pursuant to Section 6.1[(b)/(c)] of the Credit Agreement, together with the report thereon from the Group Members’ Accountants required pursuant to Section 6.1(c)]9. [Such financial statements present fairly, in all material respects, the consolidated financial position, results of operations and cash flow of the U.S. Borrower and its Subsidiaries as at the dates indicated therein and for the periods indicated therein in accordance with GAAP (subject to the absence of footnote disclosure and purchase accounting and normal year-end audit adjustments).]10 (b) Attached hereto as Annex B are the calculations used to determine the Consolidated Total Leverage Ratio and LTM EBITDA to determine compliance with the financial covenant contained in Section 5.1 of the Credit Agreement as of the last day of the Fiscal Quarter ended _________, ____ [and the calculations used in determining Excess Cash Flow for the Fiscal Year ended _________, ____]11. (c) No Default is continuing as of the date hereof[, except as provided for on Annex C attached hereto, with respect to each of which the U.S. Borrower proposes to take the actions set forth on Annex C]. (d) Attached hereto as Annex [D] is a discussion and analysis of the financial condition and results of operations of the Group Members (taken as a whole) for 9 Insert language in brackets only for annual reports. 10 Insert language in brackets only for quarterly reports. 11 Insert language in brackets only for annual reports, commencing with the annual report for the fiscal year ending December 31, 2020 and only if, with respect to the applicable fiscal year, the applicable percentage of Excess Cash Flow under Section 2.8(a) of the Credit Agreement shall be greater than zero. [SIGNATURE PAGE TO COMPLIANCE CERTIFICATE DATED _________ __, ____]
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ANNEX A TO COMPLIANCE CERTIFICATE DATED _________, ____ FINANCIAL STATEMENTS G-5
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ANNEX B TO COMPLIANCE CERTIFICATE DATED _________, ____ FINANCIAL CALCULATIONS G-6
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[ANNEX C TO COMPLIANCE CERTIFICATE OF DATED _________, ____ CONTINUING DEFAULTS]14 14 Delete if not used in the text of the certificate. G-7
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[ANNEX [D] TO COMPLIANCE CERTIFICATE DATED _________, ____ MANAGEMENT DISCUSSION AND ANALYSIS]15 15 Insert language in brackets for annual reports. G-8
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[ANNEX [E] TO COMPLIANCE CERTIFICATE DATED _________, ____ UNRESTRICTED SUBSIDIARIES RECONCILIATIONS G-9
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EXHIBIT I TO CREDIT AGREEMENT FORM OF AFFILIATED LENDER ASSIGNMENT AND ASSUMPTION This ASSIGNMENT, dated as of the Effective Date, is entered into between ___________ (the “Assignor”) and ___________ (the “Assignee”). The parties hereto hereby agree as follows: NSM Insurance Group, LLC (the “U.S. Borrower”) and NSM UK Borrowers: Holdings Ltd (the “U.K. Borrower”) Agent: Ares Capital Corporation, as administrative agent for the Lenders and L/C Issuers (in such capacity and together with its successors and permitted assigns, the “Administrative Agent”). Credit Agreement: Credit Agreement, dated as of May 11, 2018, among the U.S. Borrower, the U.K. Borrower, NSM Insurance HoldCo, LLC (“Holdings”), the Lenders, the L/C Issuers and Administrative Agent (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein without definition are used as defined in the Credit Agreement) [Trade Date: _________, ____]16 Effective Date: _________, ____17 Aggregate principal Principal amount of amount of [Dollar][Sterling] Term [Dollar][Sterling] Term Loans for all Lenders Loans Assigned18 Percentage Assigned19 Term Loan [$][₤]_________ [$][₤]_________ __.____% [$][₤]_________ [$][₤]_________ __.____% [$][₤]_________ [$][₤]_________ __.____% 16 Insert for informational purposes only if needed to determine other arrangements between the assignor and the assignee. 17 To be filled out by Agent upon entry in the Register. 18 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. The aggregate amounts are inserted for informational purposes only to help in calculating the percentages assigned which, themselves, are for informational purposes only. 19 Set forth, to at least 9 decimals, the assigned interest as a percentage of the aggregate Commitment or Loans in the Facility. This percentage is set forth for informational purposes only and is not intended to be binding. The assignments are based on the amounts assigned, not on the percentages listed in this column. 1
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Section 1. Assignment. Assignor hereby sells and assigns to Assignee, and Assignee hereby purchases and assumes from Assignor, Assignor’s rights and obligations in its capacity as Lender under the Credit Agreement (including Liabilities owing to or by Assignor thereunder) and the other Loan Documents, in each case to the extent related to the amounts identified above (the “Assigned Interest”). Section 2. Representations, Warranties and Covenants of Assignors. Assignor (a) represents and warrants to Assignee and the Administrative Agent that (i) it has full power and authority, and has taken all actions necessary for it, to execute and deliver this Assignment and to consummate the transactions contemplated hereby, (ii) it is the legal and beneficial owner of its Assigned Interest and that such Assigned Interest is free and clear of any Lien and other adverse claims, (iii) by executing, signing and delivering this Assignment via E-System or any other electronic settlement system designated by the Administrative Agent, the Person signing, executing and delivering this Assignment on behalf of the Assignor is an authorized signer for the Assignor and is authorized to execute, sign and deliver this Assignment and (iv) represents and warrants that it is [not] an Affiliated Lender, (b) makes no other representation or warranty and assumes no responsibility, including with respect to the aggregate amount of the Term Loans, the percentage of the Term Loans represented by the amounts assigned, any statements, representations and warranties made in or in connection with any Loan Document or any other document or information furnished pursuant thereto, the execution, legality, validity, enforceability or genuineness of any Loan Document or any document or information provided in connection therewith and the existence, nature or value of any Collateral, (c) assumes no responsibility (and makes no representation or warranty) with respect to the financial condition of any Group Member or Loan Party or the performance or nonperformance by any Loan Party of any obligation under any Loan Document or any document provided in connection therewith and (d) attaches any Notes held by it evidencing at least in part the Assigned Interest of such Assignor (or, if applicable, an affidavit of loss or similar affidavit therefor) and requests that the Administrative Agent exchange such Notes for new Notes in accordance with Section 2.14(e) of the Credit Agreement. Section 3. Representations, Warranties and Covenants of Assignees. Assignee (a) represents and warrants to Assignor and the Administrative Agent that (i) it has full power and authority, and has taken all actions necessary for Assignee, to execute and deliver this Assignment and to consummate the transactions contemplated hereby, (ii) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest assigned to it hereunder and either Assignee or the Person exercising discretion in making the decision for such assignment is experienced in acquiring assets of such type, (iii) by executing, signing and delivering this Assignment via E-System, the Person signing, executing and delivering this Assignment on behalf of the Assignee is an authorized signer for the Assignee and is authorized to execute, sign and deliver this Assignment, (iv) it is an Affiliated Lender, (v) as of the date hereof, and after giving effect to this Assignment, the principal amount of all Term Loans held or participated in by all Affiliated Lenders does not exceed twenty-five percent (25%) of the aggregate principal amount of all Term Loans outstanding at such time and (vi) as of the date hereof, and after giving effect to this Assignment, the total number of Affiliated Lenders (other than Affiliated Debt Funds) does not exceed the lesser of (A) three (3) in the aggregate or (B) 49% or less of the total number of Lenders (rounded down) party to the Credit Agreement, provided that, notwithstanding the foregoing, there may be at least one Affiliated Lender, (b) appoints and authorizes the Administrative Agent to take such action as administrative agent and collateral agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto, including a power of attorney in favor of Administrative Agent to vote the claims in respect of Term Loans held by Assignee in an Insolvency Proceeding as provided in Section 11.2(g)(iv) of the Credit Agreement, (c) shall perform in accordance with their terms all obligations that, by the terms of the Loan Documents, are required to be 2
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performed by it as a Lender, (d) confirms it has received such documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and shall continue to make its own credit decisions in taking or not taking any action under any Loan Document independently and without reliance upon Administrative Agent, any L/C Issuer, any Lender or any other Indemnitee and based on such documents and information as it shall deem appropriate at the time, (e) acknowledges and agrees that, as a Lender, it may receive material non-public information and confidential information concerning the Loan Parties and their Affiliates and their Securities and agrees to use such information in accordance with Section 11.20 of the Credit Agreement, (f) specifies as its applicable lending offices (and addresses for notices) the offices at the addresses set forth beneath its name on the signature pages hereof, (g) shall pay to the Administrative Agent an assignment fee in the amount of $3,500 to the extent such fee is required to be paid under Section 11.2(c) of the Credit Agreement, (h) to the extent required pursuant to Section 2.17(g) of the Credit Agreement, attaches two properly completed and duly executed originals of Forms W-8ECI, W-8BEN, W-8BEN-E, W-8IMY or W-9 and, if applicable, a portfolio interest exemption certificate and (i) to the extent required pursuant to Section 2.17(h) of the Credit Agreement, attaches properly completed and duly executed tax forms required to be delivered thereunder. If any Loan Party shall be subject to any Insolvency Proceeding, with respect to any matter requiring the vote of holders of any Term Loans during the pendency of an Insolvency Proceeding (including voting on any plan of reorganization pursuant to 11 U.S.C. §1126), Assignee irrevocably authorizes and empowers the Administrative Agent to vote and/or object on behalf of Assignee in connection with any plan of reorganization with respect to the Term Loans held by Assignee in accordance with Section 11.2(g)(iii) of the Credit Agreement (without regard to clauses (2), (3) and (4) of the proviso to such Section 11.2(g)(iii)). Section 4. Determination of Effective Date; Register. Following the due execution and delivery of this Assignment by Assignor, Assignee and, to the extent required by Section 11.2(b) of the Credit Agreement, the U.S. Borrower, this Assignment (including its attachments) will be delivered to the Administrative Agent for its acceptance and recording in the Register. The effective date of this Assignment (the “Effective Date”) shall be the later of (i) the acceptance of this Assignment by the Administrative Agent and (ii) the recording of this Assignment in the Register. The Administrative Agent shall insert the Effective Date when known in the space provided therefor at the beginning of this Assignment. Section 5. Effect. As of the Effective Date, (a) Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment, have the rights and obligations of a Lender under the Credit Agreement and (b) Assignor shall, to the extent provided in this Assignment, relinquish its rights (except those surviving the termination of the Commitments and payment in full of the Obligations) and be released from its obligations under the Loan Documents other than those obligations relating to events and circumstances occurring prior to the Effective Date. Section 6. Distribution of Payments. On and after the Effective Date, the Administrative Agent shall make all payments under the Loan Documents in respect of the Assigned Interest (a) in the case of amounts accrued to but excluding the Effective Date, to Assignor and (b) otherwise, to Assignee. Section 7. Miscellaneous. This Assignment is a Loan Document and, as such, is subject to certain provisions of the Credit Agreement, including Sections 1.5 (Interpretation), 11.14(a) (Submission to Jurisdiction) and 11.15 (Waiver of Jury Trial) thereof. On and after the Effective Date, this Assignment shall be binding upon, and inure to the benefit of, the Assignor, Assignee, the Administrative Agent and their Related Persons and their successors and assigns. This Assignment shall be governed by, and be construed and interpreted in accordance with, the law of the State of New York. This Assignment may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute 3
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one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page of this Assignment by facsimile transmission or Electronic Transmission shall be as effective as delivery of a manually executed counterpart of this Assignment. 4
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ACKNOWLEDGED this __ day of ______ _____: ARES CAPITAL CORPORATION as Administrative Agent By:________________________________ Name: Title: I-1
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EXHIBIT J TO CREDIT AGREEMENT FORM OF SOLVENCY CERTIFICATE DATE: _________ ___, 20___ This certificate is being delivered pursuant to Section 5(l) of the Fourth Amendment dated as of the date hereof (the “Fourth Amendment”), among NSM Insurance Group, LLC, a Delaware limited liability company (the “U.S. Borrower”), NSM Insurance HoldCo, LLC, a Delaware limited liability company (“Holdings”), NSM UK Holdings LTD., a company incorporated in England and Wales with registered number 12498389 and having its registered office at Lexxx 00, 00 Xx Xxxx Xxx, Xxxxxx, XX0X 0XX, the other Loan Parties, the Lenders party thereto, the L/C Issuers party thereto and Ares Capital Corporation, as administrative agent (in such capacity, the “Administrative Agent”), which amends the Credit Agreement dated as of May 11, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the U.S. Borrower, Holdings, the Administrative Agent and the Lenders party thereto. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Fourth Amendment or the Credit Agreement as amended by the Fourth Amendment, as the case may be. The undersigned hereby certifies, solely in the undersigned’s capacity as Chief Financial Officer of the U.S. Borrower, and not in an individual capacity, as of the Fourth Amendment Effective Date that: 1. He is the Chief Financial Officer of the U.S. Borrower and, in such capacity, is authorized to execute and deliver this certificate for and on behalf of the U.S. Borrower. 2. He is familiar with the business and financial affairs of the Loan Parties, including the transactions contemplated by the Fourth Amendment. 3. The U.S. Borrower and its Subsidiaries on a consolidated basis will be Solvent after giving effect to the Sterling Term Loans to be made on the Fourth Amendment Effective Date, the consummation of the Kingsbridge Acquisition and the payment of fees and expenses relating to the Fourth Amendment and the Kingsbridge Acquisition. - REMAINDER OF PAGE INTENTIONALLY BLANK - J-1