Execution Version CREDIT AGREEMENT Dated as of May 11, 2018 among NSM INSURANCE GROUP, LLC, as the Borrower, NSM INSURANCE HOLDCO, LLC, as Holdings, ARES CAPITAL CORPORATION, as Administrative Agent, and THE LENDERS AND L/C ISSUERS PARTY HERETO FROM...
Execution Version CREDIT AGREEMENT Dated as of May 11, 2018 among NSM INSURANCE GROUP, LLC, as the 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 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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][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 Exhibit I - Form of Affiliated Lender Assignment and Assumption Exhibit J - Form of Solvency Certificate vi [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
THIS CREDIT AGREEMENT, DATED AS OF MAY 11, 2018, IS ENTERED INTO AMONG NSM INSURANCE GROUP, LLC, A DELAWARE LIMITED LIABILITY COMPANY (THE “BORROWER”), NSM INSURANCE HOLDCO, LLC, A DELAWARE LIMITED LIABILITY COMPANY (“HOLDINGS”), THE LENDERS, THE L/C ISSUERS AND ARES CAPITAL CORPORATION (“ARES”), AS ADMINISTRATIVE AGENT FOR THE LENDERS AND THE L/C ISSUERS (IN SUCH CAPACITY, TOGETHER WITH ITS SUCCESSORS AND PERMITTED ASSIGNS IN SUCH CAPACITY, THE “ADMINISTRATIVE AGENT”). W I T N E S S E T H: WHEREAS, the Borrower has requested, and the Lenders (as this and other capitalized terms used in these preliminary statements are defined in Section 1.1 below) have agreed, that (a) the Lenders make Initial Term Loans on the Closing Date to the Borrower in an aggregate amount equal to $100,000,000, (b) the Lenders commit to making Delayed-Draw Term Loans in an aggregate principal amount equal to $51,000,000 and (c) the Lenders provide the Revolving Credit Facility in an aggregate amount of $10,000,000, including the letter of credit subfacility, in each case on the terms and subject to the conditions set forth in this Agreement; WHEREAS, the Borrower will use the proceeds of the Initial Term Loans, the Delayed-Draw Term Loans and the Initial Revolving Borrowing, if any, to (i) consummate the Refinancing, (ii) finance the Xxx Acquisition and (iii) pay the fees and expenses incurred in connection with the transactions contemplated hereby; and WHEREAS, on the Closing Date, White Mountains Catskill Holdings, Inc., a Delaware corporation (the “Buyer”), a wholly owned subsidiary of White Mountains Insurance Group, Ltd., a Bermuda exempted limited liability company, will purchase certain Stock and Stock Equivalents in Holdings from the Sellers (the “Acquisition”) pursuant to the terms of the Acquisition Agreement. NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties hereto agree as follows: ARTICLE 1 DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS Section 1.1 Defined Terms. As used in this Agreement, the following terms have the following meanings: “Acceptable Intercreditor Agreement” means (i) any intercreditor or subordination agreement or arrangement (which may take the form of a “waterfall” or similar provision), as applicable, the terms of which are consistent with market terms (as determined by the Borrower and the 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 Borrower and the Administrative Agent. “Acquisition” has the meaning specified in the recitals. [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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. “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 the 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, the Borrower or any of their respective Subsidiaries). “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. “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, interest rate floor (with such interest rate floor equated to interest margins for purposes of determining any increase to the Applicable Margin); 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 “All-In 2 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
Yield” shall not include 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 such Indebtedness or commitments in respect thereof, and shall not include customary consent fees paid generally to consenting lenders. “Applicable Margin” means (a) with respect to the Initial Term Loans, Delayed-Draw Term Loans, Revolving Loans and Swingline Loans, (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, 4.50% per annum in the case of Eurodollar Rate Loans and 3.50% in the case of Base Rate Loans and (ii) thereafter, 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 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 tranche. Applicable Margin for Consolidated Total Eurodollar Rate Applicable Margin for Pricing Level Leverage Ratio Loans Base Rate Loans I > 4.50:1.00 4.75% 3.75% II ≤ 4.50:1.00 4.50% 3.50% but > 3.50:1.00 III ≤ 3.50:1.00 4.25% 3.25% 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), 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 under Section 6.1(b), 6.1(c) and 6.1(d), the Administrative Agent shall give the Borrower and each Lender facsimile or telephonic notice (confirmed in writing) of the Applicable Margin in effect from such date. In the event that any 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 Borrower shall as promptly as reasonably practicable following such determination deliver to the Administrative Agent correct financial statements and the related Compliance Certificate required by Section 6.1(b), 6.1(c) and 6.1(d) 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 financial statements and certificate and (z) the Borrower shall promptly (and in any event within ten Business Days) following delivery of such corrected financial statements and certificate pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period. 3 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“Approved Fund” means, with respect to any Lender, any Person (other than a natural Person) 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 individual) or any Affiliate of any Person (other than an individual) that administers or manages such Lender. “Ares” has the meaning set forth in the introductory paragraph 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), accepted by the Administrative Agent in substantially 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 the Borrower, by the Borrower. “Available Excluded Contribution Amount” means, at any time, the amount of any capital contribution in respect of Qualified Capital Stock or the proceeds of any issuance of Qualified Capital Stock received in cash or Cash Equivalents by the Borrower or any of its Restricted Subsidiaries, plus the fair market value (as reasonably determined by the Borrower) of other property received by the 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, to the extent not otherwise applied and other than any amounts (x) 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 (y) received from the Borrower or any Restricted 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 EEA Financial Institution. “Bail-In Legislation” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. “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 Party, 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 Party 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 Party with any counterparty that have been designated to the Administrative Agent in writing by the Borrower as being Banking Services Obligations for the purposes of the Loan Documents, it being 4 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
understood that each counterparty thereto 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. “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 Administrative Agent in consultation with the 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 Eurodollar Rate calculated for each such day based on an Interest Period of three months 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 Eurodollar Rate on any day shall be based on the Eurodollar Base Rate and the Screen Rate (or, if the Screen Rate is 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 months. “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. “Borrower” has the meaning set forth in the introductory paragraph hereto. “Borrowing” means a borrowing consisting of Loans (other than Swingline Loans and Loans deemed made pursuant to Section 2.3 or 2.4) made in one Facility on the same day by the Lenders according to their respective Commitments under such Facility. “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 close in New York City and, when determined in connection with notices and determinations in respect of any Eurodollar Rate or Eurodollar Rate Loan or any funding, conversion, continuation, Interest Period or payment of any Eurodollar Rate Loan, that is also a day on which dealings in Dollar deposits 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. 5 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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 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 (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 or United Kingdom government; (b) any readily-marketable direct obligations issued by any other agency of the United States or United Kingdom government, any state or territory of the United States or the United Kingdom or any political subdivision of any such state 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 Moody’s; (c) any commercial paper rated at least “A-2” by S&P or “P-2” by Moody’s and issued by any Person organized under the laws of any state of the United States; (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, any state 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 Moody’s the highest rating obtainable for money market funds in the United States; provided, however, that the maturities of all obligations specified in any of clauses (a), (b), (c), (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 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. 6 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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. “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 by the issued and outstanding 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 entity 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 Stock for the election of the directors of Holdings and (ii) the percentage of the total voting power of all of the outstanding Stock of Holdings owned, directly or indirectly, beneficially by Parent; or (c) Holdings 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 (subject to any transaction permitted by Section 8.7). “Closing Date” means May 11, 2018. “Code” means the U.S. Internal Revenue Code of 1986, as amended. “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 and Security Agreement, the Mortgages, each Control Agreement 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 any Loan Parties pledging or granting a Lien on Collateral, and any Lender or 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 hereby, as any of the foregoing may be amended, restated and/or modified from time to time. 7 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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. “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 at such date other than cash, Cash Equivalents, current deferred tax assets and any Indebtedness owing to such Person or any of its Restricted Subsidiaries by Affiliates of such Person and 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 acquisition. “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 Borrower and its Restricted Subsidiaries (and accrued interest thereon), (iv) current deferred tax liabilities and any current accrued interest and (v) liabilities in respect of unpaid earn- outs, 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 acquisition. “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” of any Person as of any date means, the ratio of (a) Consolidated First Lien Debt of such Person outstanding as of such date to (b) LTM EBITDA for such Person. “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 under Interest Rate Contracts for such period and (ii) all periodic fees with respect to letters of credit and banker’s acceptances 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 (c) any cash dividend paid or payable in respect of Disqualified Stock during such period other than to such Person or any Loan Party plus (d) any net losses or obligations arising under any Interest Rate Contracts 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, 8 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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 of such Person), except to the extent of the amount of dividends or distributions paid to such Person or Restricted Subsidiary, (b) solely for purposes of calculating the Cumulative Available Amount, the net income of any Subsidiary (other than a Guarantor) of such Person 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 of any other Person arising prior to such other Person becoming a Restricted Subsidiary of such Person or merging or consolidating into such Person or its Restricted Subsidiaries and (d) any gain (or loss) resulting from any Permitted Loan Retirement. “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 Collateral. “Consolidated Secured Leverage Ratio” of any Person as of any date means, the ratio of (a) Consolidated Secured Debt of such Person outstanding as of such date to (b) LTM EBITDA for such Person. “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) “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” of any Person as of any date means, the ratio of (a) Consolidated Total Debt of such Person outstanding as of such date to (b) LTM EBITDA for such Person. “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, (c) any other equivalent constitutive, organizational 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. 9 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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. “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. “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 Borrower not required to be applied to prepay Term Loans pursuant to Section 2.8(a), commencing with the Fiscal Year of the Borrower ended December 31, 2019; 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 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 used to fund Specified Equity Contributions or constituting an Available Excluded Contribution Amount); plus (e) an amount equal to the sum of (A) 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 the 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 Borrower or any of its Restricted Subsidiaries (up to the fair market value (as determined in good faith by the Borrower) of the original Investments by the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary) and (B) the fair market value (as determined in good faith by the Borrower) of the assets of any Unrestricted Subsidiary that have been transferred, conveyed or otherwise distributed to the Borrower or any of its Restricted Subsidiaries (up to the fair market value (as determined in good faith by the Borrower) of the original Investments by the 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 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: 10 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(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 the Liens in clause (i) above for amounts that are not delinquent for more than thirty (30) days or (y) in the case of clause (ii) above, that are not delinquent for more than ninety (90) days) or 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 or rights or setoff, 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 made 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) with the owner or lessor of premises leased by the Borrower or any of its Subsidiaries in the ordinary course of business of the Borrower and such Subsidiary to secure the performance of the Borrower’s or such Subsidiary’s obligations under the terms of the lease for such premises or (iv) made in lieu of, or to secure 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; (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; 11 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(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”. “Default” means any Event of Default and any event that, with the passing of time or the giving of notice or both, would 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 to such Loans and (b) in the case of any other 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 Obligations, the Applicable Margin for Revolving Loans that are Base Rate Loans plus 2.0% per annum. “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 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 the 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 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 (e)(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 (e), the 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 Borrower and the Administrative Agent), to continue 12 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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 Lender or its parent by any Governmental Authority; provided that such action does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such 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 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 Borrower in good faith) of non-cash consideration received by the 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 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): (1) the bona fide competitors of the Borrower and its Subsidiaries identified in writing by the Borrower or Parent to the Initial Lenders on or prior to the Closing Date, or from time to time after the Closing Date to the Administrative Agent, 13 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(2) those particular banks, financial institutions and other institutional lenders identified in writing by the Borrower or Parent to the Lead Arranger prior to the Closing Date, and (3) any Affiliate of the entities described in the preceding clauses (1) or (2), 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 Borrower or Parent to the Lead Arranger on or prior to the Closing Date, or after the Closing 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 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 (2) above and (y) any Person that is a Lender and subsequently becomes a Disqualified Lender (but was not a Disqualified Lender on the Closing 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) 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 any other equity interests, in each case prior to the date that is 90 days after the final maturity date of the Facilities; provided that the foregoing shall not apply to (i) a redemption, conversion or exchange into equity interests that do not themselves constitute Disqualified Stock, (ii) any offer to redeem or repurchase made in connection with a Change of Control 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 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 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 the amount in Dollars for any amount denominated in Dollars and the Equivalent Amount in Dollars of any amount denominated in any other currency. “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 14 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“Environmental Liabilities” means all Liabilities (including costs of Remedial Actions, natural resource damages and costs and expenses of 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, arising under any Environmental Law or in connection with any environmental condition or any health or safety condition arising from 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 Borrower, as the case may be, and the Administrative Agent. “Equivalent Percentage” means, with respect to any dollar amount, such percentage of Trailing EBITDA as 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 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, 16 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(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. “Eurodollar Base Rate” means, with respect to any Interest Period for any Eurodollar Rate Loan, the greater of (i) (a) with respect to Term Loans, 1.00% per annum and (b) with respect to Revolving Loans, 0.00% per annum and (ii) the offered rate per annum for deposits in Dollars 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 (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 Dollars 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 Period 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. “Eurodollar Rate” means, with respect to any Interest Period and for any Eurodollar Rate Loan, an interest rate per annum determined as the ratio of (a) the Eurodollar Base Rate with respect to such Interest Period for such Eurodollar Rate Loan to (b) the difference between the number one and the Eurodollar Reserve Requirements with respect to such Interest Period and for such Eurodollar Rate Loan. “Eurodollar Rate Loan” means any Revolving Loan or Term Loan (or any portion thereof) that bears interest based on the Eurodollar Rate. “Eurodollar Reserve Requirements” means, with respect to any Interest Period and for any Eurodollar Rate Loan, a rate per annum equal to the aggregate, without duplication, of the maximum rates (expressed as a decimal number) of reserve requirements in effect 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 17 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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 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 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, (vii) any increase in the Working Capital of Holdings during such Fiscal Year (measured as the excess of such Working Capital at the end of such period over such Working Capital at the beginning of such Fiscal Year and measured without giving effect to any (A) Permitted Acquisitions, (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 during such Fiscal Year or prior to the ECF Payment Date excluding any such Permitted 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 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), 18 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(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, (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, (ii) any decrease in the Working Capital of Holdings 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 thereof and measured without giving effect to (A) Permitted Acquisitions, (B) extraordinary and non- recurring Sales outside the ordinary course of business, or (C) the effect of fluctuations in currency exchange rates), (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 19 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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 Borrower or a Guarantor, (b) any Foreign Subsidiary of the Borrower or of any direct or indirect Domestic Subsidiary or Foreign Subsidiary, (c) any CFC Holdco, (d) any Domestic Subsidiary that is a direct or indirect Subsidiary of a direct or indirect Foreign Subsidiary of the Borrower that is a CFC, (e) any Subsidiary that is prohibited or restricted by applicable law (including in connection with any capital requirements) or by a binding contractual obligation from providing a guaranty (provided that such contractual obligation is not entered into by the Borrower or its Subsidiaries principally for the purpose of qualifying as an “Excluded Subsidiary” under this definition) or if such guaranty would require governmental (including regulatory) or third party (other than a Loan Party or an Affiliate of a Loan Party) consent, approval, license or authorization, (f) any special purpose securitization vehicle (or similar entity), (g) any Subsidiary that is a not-for-profit organization, (h) any Captive Insurance Subsidiary, (i) Subsidiaries subject to regulation as a broker-dealer, (j) any Subsidiary a guaranty by which would result in material adverse tax consequences as reasonably determined by the Borrower in consultation with the Administrative Agent, (k) any Unrestricted Subsidiary, (l) each Immaterial Subsidiary and (m) any other Subsidiary to the extent Administrative Agent and the Borrower mutually determine the cost or burden of obtaining the guaranty (including any adverse tax consequences) outweigh the benefit to the Lenders. “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. “Existing Letters of Credit” means the Letters of Credit specified on Schedule 2.4. “Extended/Modified Commitments” means, collectively, Extended/Modified Revolving Credit Commitments and Extended/Modified Term 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. 20 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“Extended/Modified Revolving Loans” means the Revolving Loans made pursuant to Extended/Modified Revolving Credit Commitments. “Extended/Modified Term Commitments” means the Term Loan Commitments held by an Extending/Modifying Lender. “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). “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 Initial Term Loan Facility, (b) the Delayed-Draw Term Loan Facility, (c) the Revolving Credit Facility, (d) any Incremental Facility and (e) any Extension/Modification 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. “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as determined by the Administrative Agent in its sole discretion. “Federal Reserve Board” means the Board of Governors of the United States Federal Reserve System and any successor thereto. “Fee Letter” means the Fee Letter, dated as of May 11, 2018, among the Buyer 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. “Fiscal Month” means any of the monthly accounting periods of the Borrower. “Fiscal Quarter” means each 3 Fiscal Month period ending on March 31, June 30, September 30 or December 31. 21 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“Fiscal Year” means the twelve-month period 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 Borrower that is not a Domestic Subsidiary. “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. “Group Members” means, collectively, the 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. “Guaranty and Security Agreement” means the guaranty and security agreement, in the form of Exhibit H, among the Administrative Agent, the Borrower and Guarantors 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 22 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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 any primary obligor, (iii) to make take-or-pay or similar payments, if required, regardless of non-performance by any other party to any Contractual Obligation, (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 primary obligor (including to pay for property or services irrespective of whether such property is received or such services are rendered); 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. 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 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. “Holdings” has the meaning specified in the introductory paragraph 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 Borrower or revenues representing in excess of 5.0% of total revenues of the Borrower for the period of four consecutive fiscal quarters for which such financial statements have been delivered, in each case calculated on a consolidated basis in accordance with GAAP and (b) when combined with all other Immaterial Subsidiaries, satisfies the following conditions: the aggregate amount of assets held by all Immaterial Subsidiaries shall not exceed 5.0% of the consolidated total assets of the Borrower and the aggregate amount of revenues of all Immaterial Subsidiaries shall not exceed 5.0% of the consolidated total assets of the Borrower for the period of four consecutive fiscal quarters for which such financial statements have been delivered, in each case, calculated on a consolidated basis in accordance with GAAP. “Incremental Amendment” shall have the meaning specified in Section 2.19(f). “Incremental Cap” means: (a) the Fixed Incremental Amount, plus (b) (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 23 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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 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 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 such Incremental Term Loan, the effectiveness of any such Incremental Revolving Credit Commitment (and after giving effect to any acquisition consummated simultaneously therewith and assuming, in the case of any increase in the Revolving Credit Commitments, that all such Incremental Revolving Credit Commitments are fully utilized on such Incremental Facility Closing Date) or the issuance of any such Incremental Equivalent Debt, as the case may be, (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 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 lien on the Collateral that is junior to the lien securing the Obligations, the pro forma Consolidated Secured Leverage Ratio 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, the pro forma Consolidated Total Leverage Ratio 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 may be incurred under one or more of clauses (a) through (c) of this definition as selected by the Borrower in its sole discretion, and (ii) if any Incremental Facility or Incremental Equivalent Debt 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 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. “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: 24 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(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 Loans; 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 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 (A) guaranteed by any Person that is not a Loan Party, (B) secured by any assets other than the Collateral or (C) issued, incurred or implemented by any Person other than the Borrower; (g) the All-In Yield (and the components thereof) applicable to such Indebtedness shall be determined by the Borrower and the holders of such Indebtedness; provided that, with respect to such Indebtedness which is pari passu with the Initial Term Loans in right of payment and with respect to security, if the All-In Yield applicable to such Indebtedness shall exceed the All-In Yield at such time on the Initial Term Loans by more than 0.50% (any such excess, the “Yield Differential”) the then Applicable Margin then in effect for the existing Initial Term Loans and Delayed-Draw Term Loans, as applicable, shall automatically be increased by the Yield Differential, effective upon the issuance or incurrence, as applicable, of such Indebtedness; provided, further, that any increase in All-In Yield applicable to any Initial Term Loan or Delayed-Draw Term Loan, as applicable, due to the application or imposition of an Base Rate or Eurodollar Rate “floor” on any such Indebtedness may, at the election of the Borrower, be effected through an increase in Base Rate or Eurodollar Rate “floor” applicable to such Initial Term Loans or Delayed-Draw 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 Borrower), (x) are substantially identical to, or are not materially more restrictive on the Borrower and its Restricted Subsidiaries (as determined by the 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 Section 1.3, no Event of Default shall exist. 25 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“Incremental Facility” means any Incremental Term Loan Facility and any Incremental Revolving Loan Facility. “Incremental Facility Closing Date” shall have the meaning specified in Section 2.19(f). “Incremental Loans” means the Incremental Revolving Loans and the Incremental Term Loans. “Incremental Revolving Credit Commitment” shall have 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 Section 2.19(a). “Incremental Term Loan Maturity Date” means the date that an 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) 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, (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 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 Scheduled 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 26 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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. “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, 27 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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 Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is made or converted to a Eurodollar Rate Loan or, if such loan 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 Borrower 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 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 Borrower 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 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, 28 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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 and any return of capital or return on Investment in the case of any equity Investment (whether as a distribution, dividend, redemption or sale 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. “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 lien, is unsecured or is Subordinated Debt, other than, in each case, Indebtedness among the Loan Parties. “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 Borrower in a notice to the Administrative Agent, and (b) from and after 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 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 at such time for such Letter of Credit and (b) the aggregate maximum undrawn face amount of such Letter of Credit outstanding 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 Borrower to the L/C Issuer thereof, as and when matured, to pay all amounts drawn under such Letter of Credit. 29 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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 hereof as a “Lender” or (b) from time to time becomes a party hereto by execution of an Assignment, 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 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 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. “Limited Condition Acquisition” means any Permitted Acquisition or other Investment permitted hereunder by the 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 Documents” means, collectively, this Agreement, any Notes, the Guaranty and Security Agreement, the Mortgages, the Control Agreements, 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 foregoing. 30 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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, (a) the Consolidated Net Income of such person 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, (ii) Consolidated Interest Expense for such period, and to the extent not reflected in such Consolidated Interest Expense, plus any losses during such period and minus any gains 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 in determining Consolidated Net Income, (iii) extraordinary, unusual or non-recurring items, not exceeding (with respect to such items reflected in Borrower’s Financial Statements after the Closing Date), when combined with any add-backs pursuant to clauses (vii), (xii) and adjustments pursuant to clause (2) below, 25% of LTM EBITDA in any trailing four Fiscal Quarter 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 during 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 during such period, (vi) any other non-cash 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 the Acquisition or any acquisition (or less gains or income) deducted in the determination of Consolidated Net Income for the 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 during such period not exceeding (with respect to such items reflected in Borrower’s Financial Statements after the Closing Date), when combined with any add-backs pursuant to clauses (iii), (xii) and adjustments pursuant to clause (2) below, 25% of LTM EBITDA in any trailing twelve month period (calculated prior to giving effect to any such add-backs), or such greater amount as may be approved by the Required Lenders, 31 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(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 acquisitions) (and including fees and expenses payable to Parent in accordance with this Agreement) with respect to the Related Transactions and any acquisition, 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, (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 included 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 Borrower’s Financial Statements after the Closing Date), when combined with any add-backs pursuant to clauses (iii), (vii) and adjustments pursuant to clause (2) below, 25% of LTM EBITDA in any four Fiscal Quarter 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), (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 income were 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, 32 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(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 during such period, (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 by such person during 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 stock or stock equivalent during 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 June 30, 2017, September 30, 2017, December 31, 2017 and March 31, 2018, LTM EBITDA of Holdings for such fiscal quarters shall (a) from the Closing Date until the date the Borrower and the Administrative Agent agree on revised amounts pursuant to Section 7.12(a) (the “Deemed LTM EBITDA Adjustment Date”), be deemed to be $8,977,596, $6,277,505, $4,752,978 and $5,968,752, respectively (such amounts, the “Deemed LTM EBITDA Amounts”) and (b) from and after the Deemed LTM EBITDA Adjustment Date, be deemed to be (i) $5,968,752 for the fiscal quarter ended March 31, 2018 and (ii) such amounts provided pursuant to Section 7.12(a) for the fiscal quarters ended June 30, 2017, September 30, 2017 and December 31, 2017, 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) acquisitions that have been made by the 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, or any Person or any of its Restricted Subsidiaries acquired by the 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 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 the 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 Borrower and based on assumptions believed by the Borrower to be reasonable at the time made); (2) LTM EBITDA shall be increased by the amount of “run-rate” cost savings, operating expense reductions and synergies (including revenue synergies related to acquisitions consummated in the previous 12 months) projected by the 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 33 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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 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 Borrower’s Financial Statements after the Closing Date), when combined with any add-backs pursuant to clauses (iii), (vii) and (xii) above, 25% of LTM EBITDA (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 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 Borrower or any of its Restricted Subsidiaries owing to the Borrower or any Restricted Subsidiaries shall be excluded; and (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. “Material Adverse Effect” means a material adverse effect on (a) the condition (financial or otherwise), 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 of any Loan Document or (d) the material rights and remedies of the Administrative Agent, the Lenders and the other Secured Parties 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”. “Moody’s” means Xxxxx’x Investors Service, Inc. 34 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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, 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 (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), 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 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. “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 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 adjustment 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), 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 Borrower that is not a Wholly Owned Subsidiary of the Borrower shall constitute “Net Cash Proceeds” only to the extent of the aggregate direct and indirect beneficial ownership interest of the Borrower therein. “Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender at such time. 35 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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. “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 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 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). “Obligations” means, with respect to any Loan Party, all amounts, obligations, liabilities, covenants and duties of every type and description owing by such 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 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 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, Excluded Swap Obligations shall not be deemed Obligations. “Offer” has the meaning specified in the definition of the term “Permitted Loan Retirement”. “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. 36 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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. “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 Law for, the operation of its business as currently conducted. “Permitted Acquisition” means any Proposed Acquisition satisfying each of the following conditions: (a) except with respect to an acquisition in which the acquisition consideration is less than $7,500,000, (i) the Borrower shall have provided the Administrative Agent with a reasonably detailed description of such Proposed Acquisition at least ten days prior to the consummation of such Proposed 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 Proposed Acquisition, have been made available to the Borrower on or prior to the closing of such Proposed Acquisition and have been reasonably requested by the Administrative Agent no less than eight days prior to the consummation of such Proposed 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 Proposed Acquisition); (b) the Proposed Acquisition Target is in the same line of business as Borrower and its Restricted Subsidiaries (or a business permitted by Section 8.8); (c) after giving effect to such Permitted Acquisition and any Indebtedness incurred, assumed or repaid in connection therewith and the use of the proceeds thereof, on a Pro Forma Basis, the Borrower’s Consolidated Total Leverage Ratio as of the last day of the most recently ended Fiscal Quarter for which Financial Statements have been delivered 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 delivered; (d) [reserved]; (e) the 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 Restricted Subsidiary) or assets acquired in such Proposed Acquisition, to the extent applicable, within the time periods specified therein; (f) in the case of any Proposed 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 Borrower on or prior to the closing of such Proposed Acquisition); (g) after giving effect to such Proposed Acquisition on a Pro Forma Basis, no Default or Event of Default shall have occurred and be continuing; and 37 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(h) the aggregate amount of such purchases and acquisitions made in Persons that do not become Loan Parties or, in the case of a purchase or acquisition of assets (other than Stock), not owned by a Loan Party, shall not exceed, after giving Pro Forma Effect to such purchase or acquisition, the greater of (i) $25,000,000 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; 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. Notwithstanding the foregoing, the Xxx 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 Acquisition). “Permitted Lien” means any Lien on or with respect to the property of any Group Member that is permitted by Section 8.2. “Permitted Loan Retirement” means any transaction pursuant to which the Borrower (a) purchases all or any portion of the Term Loans with cash of the Borrower and its Restricted Subsidiaries (other than the proceeds of any Revolving Loans), as certified by a Responsible Officer of the Borrower, pursuant to one or more offers on terms and conditions (including the form of notice thereof) reasonably agreed to by the Borrower and the Administrative Agent (each, an “Offer”) on a pro rata basis according to the principal amount of the Term Loans then held by the 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 Borrower shall have delivered a notice of each such Offer to the Administrative Agent and all Term Loan Lenders no later than noon (New York City time) at least five 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 $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. 38 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“Permitted Refinancing” means Indebtedness incurred (including by means of the extension or renewal of existing Indebtedness) to refinance, refund, extend, defease, discharge, renew or replace Permitted Indebtedness that (a) has an aggregate outstanding principal amount not greater than the aggregate principal amount of such Permitted Indebtedness outstanding at the time of such refinancing or extension 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) has a Weighted Average Life to Maturity (measured as of the date of such refinancing or 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 customary bridge loans with a maturity date of not longer than one year, provided 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 any property or any Lien other than those securing such Permitted Indebtedness and (e) is otherwise on terms (but excluding terms relating to interest rate margin, 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 Permitted Indebtedness or (ii) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower); 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 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 Borrower or any of its Subsidiaries (including through any acquisition 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 mean unsecured Indebtedness (other than “earn-outs” and similar deferred consideration) of the 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 Person. “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 in the definition of LTM EBITDA. “Pro Forma Transaction” means (x) any transaction consummated as part of the Acquisition, any Permitted Acquisition, any acquisition that is a Permitted Investment hereunder, any disposition of all or substantially all of the assets or Stock of any Subsidiary of the Borrower or the disposition of any business unit, line of business or division of the Borrower or any of its Subsidiaries or the designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, in each case together with each other transaction relating or incidental thereto and consummated in connection therewith and including the 39 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
incurrence, assumption or repayment of Indebtedness in connection therewith, and (y) 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. “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 or any brand, line of business, division, branch, operating division or other unit operation of any Person. “Pro Rata Outstandings”, of any Lender at any time, means (a) in the case of the Term Loan Facility, the outstanding principal amount of the Term Loans owing to such Lender and (c) in the case of the Revolving Credit Facility, the sum of (i) the outstanding principal amount of Revolving Loans owing to such Lender and (ii) 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 such Commitments in any such Facility are terminated, the Pro Rata Outstandings therein) of such Lender then in effect under such Facilities by (b) the sum of the Commitments (or, if such Commitments in any such Facility are terminated, the Pro Rata Outstandings therein) of all Lenders then in effect under such 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. “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). “Refinanced Loans” has the meaning specified in Section 11.1(d). 40 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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, the amount of such Net Cash Proceeds less 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 the Borrower. “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 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 Borrower shall have notified the Administrative Agent of the 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 III) 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 required 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 Borrower, Care 41 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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 or Delayed-Draw Term Loans with the proceeds of, or any conversion of the Initial Term Loans or 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 or 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 or 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 such Initial Term Loans or 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 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. “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. “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 Statements and, with respect to documents delivered on the Closing 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. 42 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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 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 of the Borrower, 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 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, 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 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 Revolving Credit Commitments of any other tranche, the rate per annum specified in the Incremental Amendment, the Extension/Modification Amendment, as the case may be, establishing Commitments of such tranche. Pricing Level Consolidated Total Leverage Ratio Revolving Commitment Fee Rate I > 3.50:1.00 0.50% II ≤ 3.50:1.00 0.375% 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), the Revolving Commitment Fee Rate shall be determined based on the rates set forth in Pricing Level I. Within one Business Day of receipt of the applicable information under Section 6.1(b), 6.1(c) and 6.1(d), the Administrative Agent shall give the Borrower and each Revolving Lender facsimile or telephonic notice (confirmed in writing) of the Revolving Commitment Fee Rate in effect from such date. In the event that any 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 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 Borrower shall as promptly as reasonably practicable following such determination deliver to the Administrative Agent correct financial statements and the related Compliance Certificate required by Section 6.1(b), 6.1(c) and 6.1(d) 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 43 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
determined based on the amounts set forth in such correct financial statements and certificate and (z) the Borrower shall promptly (and in any event within ten Business Days) following delivery of such corrected financial statements and certificate pay to the Administrative Agent the accrued additional interest 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 acquire interests in other Revolving Credit Outstandings, which commitment is in the amount set forth opposite such Lender’s name on Schedule I under the caption “Revolving Credit Commitment”, as amended to reflect Assignments and as such amount may be reduced pursuant to this Agreement. The aggregate amount of the Revolving Credit Commitments on the date hereof equals $10,000,000. Incremental Revolving Credit Commitments shall constitute Revolving Credit Commitments. “Revolving Credit Facility” means the Revolving Credit Commitments and the provisions herein related to the Revolving Loans, Swingline Loans and Letters of Credit. “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 Swingline Loans and (b) the L/C Obligations for all Letters of Credit. “Revolving Credit Termination Date” shall mean 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 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 May 11, 2023. 44 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“Screen Rate” has the meaning specified in the definition of “Eurodollar Base Rate”. “Secured Hedging Agreement” means any Hedging Agreement that (a) has been entered into with a Secured Hedging Counterparty, (b) in the case of a Hedging 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 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 Party 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. “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) 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. 45 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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), 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. “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, at the time, owned or controlled directly or indirectly by, such Person or one or more Subsidiaries of such Person. “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 of Lake Forest Bank as a Revolving Credit Lender hereunder, any Lender (or Affiliate or Approved Fund of any Lender) that agrees, with the reasonable consent of the 46 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
Administrative Agent (or, if there is no such successor Administrative Agent, the Required Lenders) and the Borrower, to act as the Swingline Lender hereunder. “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 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. “Term Loan Commitment” means, with respect to each Term Loan Lender, its Initial Term Loan Commitment, Delayed-Draw Term Loan Commitment, Incremental Term Loan Commitment and Extended/Modified Term Commitment. “Term Loan Facility” means 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. “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, 2024. “Termination Date” means the means the first date on which (A) the Commitments have expired or terminated, (B) all Loans, all L/C Reimbursement Obligations 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 Obligation have been paid and satisfied in full and (C) cash collateral with respect to all contingent Obligations has been deposited (or, in the case of any L/C Obligation, a back-up letter of credit has been issued and delivered to the Administrative Agent, or in the case of contingent Obligations arising under Secured Hedging Agreements, any other arrangements satisfactory to the applicable Secured Hedging Counterparty shall have been made) in amounts 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. “Term Loans” means the Initial Term Loans, the Delayed-Draw Term Loans, the Incremental Term Loans and the Extended/Modified Term Loans. 47 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
“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 Borrower and its Restricted Subsidiaries for the four consecutive Fiscal Quarters 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) the funding 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 (e) 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). “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. “United States” means the United States of America. “Unused Commitment Fee” has the meaning specified in Section 2.11(a). “Unrestricted Subsidiary” means any Subsidiary of the Borrower designated by the 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 Borrower. “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. “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 48 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
Obligation, Investment, Sale and/or Affiliate transaction under Section 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.9 or 8.10, respectively, but may instead be permitted in part under any combination thereof. (b) Certain References. Unless otherwise expressly indicated, references (i) in this Agreement to an Exhibit, Schedule, Article, Section or clause refer to the appropriate Exhibit or Schedule to, or Article, Section or clause in, this Agreement and (ii) in any Loan Document, to (A) any agreement shall include all exhibits, schedules, appendixes and annexes to such agreement and, unless the prior consent of any Secured Party required therefor is not obtained, any modification, amendment or restatement to any term of such agreement, (B) any statute shall be to such statute as modified from time to time and to any successor legislation thereto, in each case as in effect at the time any such reference is operative and (C) any time of day shall be a reference to New York time. Titles of articles, sections, clauses, exhibits, schedules and annexes contained in any Loan Document are without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto. Unless otherwise expressly indicated, the meaning of any term defined (including by reference) in any Loan Document shall be equally applicable to both the singular and plural forms of such term. (c) Laws. References to any statute or regulation may be made by using either the common or public name thereof or a specific citation reference and are to be construed as including all statutory and regulatory provisions relating thereto or consolidating, amending, replacing, supplementing or interpreting the statute or regulation. (d) Certain Calculations and Tests. (i) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test, such financial ratio or test shall be calculated at the time such action is taken (subject to Section 1.3 above), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after such calculation. (ii) Notwithstanding anything to the contrary herein, with respect to any amount incurred or transaction entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio (any such amount, a “Fixed Amount”) substantially concurrently with any amount incurred or transaction entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio (any such amount, an “Incurrence-Based Amount”), it is understood and agreed that (i) any Fixed Amount shall be disregarded in the calculation of the financial ratio applicable to the relevant Incurrence-Based Amount and (ii) pro forma effect shall be given to the entire transaction. (iii) The increase in any amount secured by any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment of interest or a dividend in the form of additional Indebtedness, amortization of original issue discount and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency will not be deemed to be the granting of a Lien for purposes of Section 8.2. Section 1.6 Currency Equivalents Generally. (a) Any amount specified in this Agreement (other than in Article II, or as set forth in clause (b) of this Section, or as expressly provided for in Article VIII) or any of the other Loan 52 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
Documents to be in Dollars shall also include the Dollar Equivalent of such amount in any currency other than Dollars. (b) For purposes of determining compliance under Sections 5.1, and for calculating any financial ratio set forth in this Agreement or any other Loan Document, any amount in a currency other than Dollars will be converted to Dollars in a manner consistent with that used in calculating net income in the Borrower’s Financial Statements delivered pursuant to Section 4.4(a). Section 1.7 Effectuation of Transactions. Each of the representations and warranties contained in this Agreement (and all corresponding definitions) is made after giving effect to the Related Transactions, unless the context otherwise requires. ARTICLE 2 THE FACILITIES Section 2.1 The Commitments. (a) Revolving Credit Commitments. On the terms and subject to the conditions contained in this Agreement, each Revolving Credit Lender severally, but not jointly, agrees to make loans in Dollars to the Borrower from time to time on any Business Day during the period from the date hereof until the Revolving Credit Termination Date (the loans borrowed under this Section 2.1(a), including any Incremental Revolving Loans and any Extended/Modified Revolving Loans, the “Revolving Loans”, and each a “Revolving Loan”) in an aggregate principal amount at any time outstanding for all such loans by such Lender not to exceed such Lender’s Revolving Credit Commitment; provided, however, that at no time shall any Revolving Credit Lender be obligated to make a Revolving Loan in excess of such Lender’s Pro Rata Share of the amount by which the then effective Revolving Credit Commitments exceeds the aggregate Revolving Credit Outstandings at such time. Within the limits set forth in the first sentence of this clause (a), amounts of Revolving Loans repaid may be reborrowed under this Section 2.1. No Revolving Loans will be made on the Closing Date other than the Initial Revolving Borrowings. (b) Initial Term Loan Commitments. On the terms and subject to the conditions contained in this Agreement, each Initial Term Loan Lender severally, but not jointly, agrees to make loans (the “Initial Term Loans”) in Dollars to the Borrower on the Closing Date, in an amount not to exceed such Lender’s Initial Term Loan Commitment. Amounts of Initial Term Loans repaid may not be reborrowed. (c) Delayed-Draw Term Loan Commitments. Subject to the terms and conditions hereof, each Delayed-Draw Term Loan Lender agrees to make available to Borrower from time to time beginning one Business Day after the Closing Date until the Delayed-Draw Commitment Termination Date loans (the “Delayed-Draw Term Loans”) in an aggregate amount not to exceed such Lender’s Delayed-Draw Term Loan Commitment. The obligations of each Delayed-Draw Term Loan Lender hereunder shall be several and not joint. Amounts of Delayed-Draw Term Loans repaid may not be reborrowed. Such Delayed-Draw Term Loans shall be added to (and constitute a part of, be of the same tranche and have the same Interest Period as) the Initial Term Loans; it being acknowledged that the application of this clause (c) may result in the Delayed-Draw Term Loans having an Interest Period (the duration of which may be less than one month) that begins during an Interest Period then applicable to outstanding Initial Term Loans and which ends on the last day of such Interest Period. Section 2.2 Borrowing Procedures. (a) Notice From the Borrower. Each Borrowing shall be made on notice given by the Borrower to the Administrative Agent not later than (i) 11:00 a.m. (New York time) on the first Business Day prior to the proposed Borrowing, in the case of a Borrowing 53 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
of Base Rate Loans and (ii) 1:00 p.m. (New York time) on the third Business Day prior to the date of the proposed Borrowing, in the case of a Borrowing of Eurodollar Rate Loans (or 12:00 p.m. (New York time) on the first Business Day prior to the date of the proposed Borrowing, in the case of a Borrowing of Eurodollar Rate Loans to be made on the Closing Date); provided that such notices may be conditioned on the occurrence of the Closing Date or on the occurrence of any other transaction utilizing such Loans. Each such notice may be made in a writing substantially in the form of Exhibit C (a “Notice of Borrowing”) duly completed or by telephone if confirmed promptly, but in any event within one Business Day and prior to such Borrowing, with such a Notice of Borrowing. Loans shall be made as Base Rate Loans unless, outside of a suspension period pursuant to Section 2.15, the Notice of Borrowing specifies that all or a portion thereof shall be Eurodollar Rate Loans. Each Borrowing shall be in an aggregate amount that is an integral multiple of $100,000. (b) Notice to Each Lender. The Administrative Agent shall give to each Lender prompt notice of the Administrative Agent’s receipt of a Notice of Borrowing and, if Eurodollar Rate Loans are properly requested in such Notice of Borrowing, prompt notice of the applicable interest rate. Each Lender shall, before 11:00 a.m. on the date of the proposed Borrowing, make available to the Administrative Agent at its address referred to in Section 11.11, such Lender’s Pro Rata Share of such proposed Borrowing. Upon fulfillment or due waiver (i) on the Closing Date, of the applicable conditions set forth in Section 3.1 and (ii) any time thereafter, of the applicable conditions set forth in Section 3.2, the Administrative Agent shall make available to the Borrower the Initial Term Loans or any Revolving Loan, as applicable. Upon fulfillment or due waiver on the Delayed-Draw Effective Date of the applicable conditions set forth in the relevant provisions of Section 3.4, the Administrative Agent shall make available to the Borrower the Delayed-Draw Term Loans. (c) Non-Funding of Loans. Unless the Administrative Agent shall have received notice from any Lender prior to the date such Lender is required to make any payment hereunder with respect to any Loan or any participation in any Swingline Loan or Letter of Credit that such Lender will not make such payment (or any portion thereof) available to the Administrative Agent, the Administrative Agent may assume that such Lender has made such payment available to the Administrative Agent on the date such payment is required to be made in accordance with this Article II and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. The Borrower agrees to repay to the Administrative Agent on demand such amount (until repaid by such Lender) with interest thereon for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at the interest rate applicable to the Obligation that would have been created when the Administrative Agent made available such amount to the Borrower had such Lender made a corresponding payment available; provided, however, that such payment shall not relieve such Lender of any obligation it may have to the Borrower, the Swingline Lender or any L/C Issuer. In addition, any Lender that shall not have made available to the Administrative Agent any portion of any payment described above shall be deemed to be a Defaulting Lender and agrees to pay such amount to the Administrative Agent on demand together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at the Federal Funds Rate for the first Business Day and thereafter (i) in the case of a payment in respect of a Loan, at the interest rate applicable at the time to such Loan and (ii) otherwise, at the interest rate applicable to Base Rate Loans under the Revolving Credit Facility. Such repayment shall then constitute the funding of the corresponding Loan (including any Loan deemed to have been made hereunder with such payment) or participation. The existence of any Defaulting Lender shall not relieve any other Lender of its obligations under any Loan Document, but no other Lender shall be responsible for the failure of any Defaulting Lender to make any payment required under any Loan Document. 54 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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 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 basis the amount otherwise required to be prepaid; provided, further, that if at the time that any such prepayment would be required, the 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 Borrower 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 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 Party or any of its Restricted Subsidiaries of Net Cash Proceeds arising from the incurrence by any Loan Party 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 upon Section 8.1), the Borrower shall promptly (but in any event within five Business Days after the receipt of such Net Cash Proceeds by a Loan Party or any Restricted Subsidiary of a Loan Party) 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) or any of their Restricted Subsidiaries of Net Cash Proceeds arising from (i) any non-ordinary course Sale by any Loan Party (other than Holdings) or any of their 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) and (d) 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) or any of their Restricted Subsidiaries to the extent resulting, in the aggregate with all other such Property Loss Events, 60 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
Proceeds of any Foreign Disposition, any Foreign Property Loss Event or Excess Cash Flow of a Foreign Subsidiary would have material adverse tax consequences with respect to such Net Cash Proceeds or Excess Cash Flow, the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary and will be repatriated only after the Borrower has determined in good faith that such repatriation may be effected only without material adverse tax consequence, and such repatriated Net Cash Proceeds or Excess Cash Flow (net of any tax cost of such repatriation) will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied to the repayment of the Term Loans pursuant to this Section 2.8 to the extent provided herein. (f) Joint Ventures. The Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.8(a) or 2.8(c) to the extent that the relevant Excess Cash Flow is generated by any joint venture or the relevant Net Cash Proceeds are received by any joint venture, in each case, for so long as the distribution to the Borrower of such Excess Cash Flow or Net Cash Proceeds would be prohibited under the Constituent Documents and/or joint venture agreements governing such joint venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the end of the applicable Fiscal Year or the event giving rise to the relevant Net Cash Proceeds, the relevant joint venture will promptly distribute the relevant Excess Cash Flow or the relevant Net Cash Proceeds, as the case may be, and the distributed Excess Cash Flow or Net Cash Proceeds, as the case may be, will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the Term Loans pursuant to this Section 2.8 to the extent required herein (without regard to this clause (f)). (g) Application of Payments. Any payments made to the Administrative Agent pursuant to this Section 2.8 shall be applied to the Obligations in accordance with Section 2.12(b). (h) The Borrower shall give notice to the Administrative Agent of any mandatory prepayment of the Loans pursuant to Sections 2.8(a), (b), (c), or (d) three (3) Business Days prior to the date on which such payment is due. Such notice shall state that the Borrower is offering to make or will make such mandatory prepayment on or before the date specified in Sections 2.8(a), (b), (c) or (d), as the case may be (each, a “Prepayment Date”). Once given, such notice shall be irrevocable (provided that the Borrower may rescind any notice of prepayment under Section 2.8(c) if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or been made in connection with a Sale, which refinancing or Sale shall not be consummated or shall otherwise be delayed) and all amounts subject to such notice shall be due and payable on the Prepayment Date (except as otherwise provided in the last sentence of this Section 2.8(h)). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the prepayment, the Prepayment Date and of such Lender’s Pro Rata Share of the prepayment. Each Lender may elect (in its sole discretion) to decline all (but not less than all) of its Pro Rata Share of any mandatory prepayment (other than a mandatory prepayment pursuant to Section 2.8(d)) by giving notice of such election in writing to the Administrative Agent by 11:00 a.m. (New York time), on the date that is one Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. If a Lender fails to deliver a notice of election declining receipt of its Pro Rata Share of such mandatory prepayment to the Administrative Agent within the time frame specified above, any such failure will be deemed to constitute an acceptance of such Lender’s Pro Rata Share of the total amount of such mandatory prepayment of Term Loans. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any amount so declined by any Lender shall be retained by the Borrower and its Restricted Subsidiaries or applied by the Borrower or any of the Restricted Subsidiaries in any manner permitted under the terms of this Agreement. 62 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
received by the Administrative Agent, on behalf of Lenders, is equal to the total interest that would have been received had the interest payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. Section 2.10 Conversion and Continuation Options. (a) Option. The Borrower may elect (i) in the case of any Eurodollar Rate Loan, (A) to continue such Eurodollar Rate Loan or any portion thereof for an additional Interest Period on the last day of the Interest Period applicable thereto and (B) to convert such Eurodollar Rate Loan or any portion thereof into a Base Rate Loan at any time on any Business Day, subject to the payment of any breakage costs required by Section 2.16(a), and (ii) in the case of Base Rate Loans (other than Swingline Loans), to convert such Base Rate Loans or any portion thereof into Eurodollar Rate Loans at any time on any Business Day upon three (3) Business Days’ prior notice; provided, however, that, (x) for each Interest Period, the aggregate amount of Eurodollar Rate Loans having such Interest Period must be an integral multiple of $1,000,000 and (y) no conversion in whole or in part of Base Rate Loans to Eurodollar Rate Loans and no continuation in whole or in part of Eurodollar Rate Loans shall be permitted at any time at which (1) an Event of Default shall be continuing and the Administrative Agent, at the direction of the Required Lenders, or the Required Lenders shall have notified the Borrower of their intention not to permit such conversions or continuations due to such Event of Default or (2) such continuation or conversion would be made during a suspension imposed by Section 2.15. No single Eurodollar Rate Loan shall be comprised of Loans under more than one of the Term Loan Facility or the Revolving Credit Facility. (b) Procedure. Each such election shall be made by giving the Administrative Agent at least 3 Business Days’ prior notice (or with respect to the continuation of or conversion to a Base Rate Loan, prior to 11:00 a.m. (New York City time) on the first Business Day prior to the continuation or conversion) in substantially the form of Exhibit F (a “Notice of Conversion or Continuation”) duly completed. The Administrative Agent shall promptly notify each Lender of its receipt of a Notice of Conversion or Continuation and of the options selected therein. If the Administrative Agent does not receive a timely Notice of Conversion or Continuation from the Borrower containing a permitted election to continue or convert any Eurodollar Rate Loan, then, upon the expiration of the applicable Interest Period, such Loan shall be automatically converted to a Base Rate Loan. Each partial conversion or continuation shall be allocated ratably among the Lenders in the applicable Facility in accordance with their Pro Rata Share. Section 2.11 Fees. (a) Unused Commitment Fee. The Borrower agrees to pay to the Administrative Agent for the benefit the Revolving Credit Lenders according to their Pro Rata Shares a commitment fee on the average daily balance by which the Revolving Credit Commitment of such Lender during the preceding calendar quarter exceeds its Pro Rata Share of the sum of (i) the average daily balance of the aggregate outstanding principal amount of Revolving Loans during the preceding calendar quarter, and (ii) average daily balance of the outstanding amount of the L/C Obligations for all Letters of Credit during the preceding calendar quarter (the “Unused Commitment Fee”) from the date hereof through the Revolving Credit Termination Date at a rate per annum equal to the Revolving Commitment Fee Rate, payable in arrears (A) on the last day of each calendar quarter and (B) on the Revolving Credit Termination Date. (b) Letter of Credit Fees. The Borrower agrees to pay, with respect to all Letters of Credit Issued by any L/C Issuer, (i) to such L/C Issuer, certain fees, documentary and processing charges as separately agreed between the Borrower and such L/C Issuer, (ii) to the Administrative Agent, for the benefit of the Revolving Credit Lenders according to their Pro Rata Shares, a fee accruing at a rate per annum equal to the Applicable Margin for Revolving Loans that are Eurodollar Rate Loans on the maximum undrawn face amount thereof payable in arrears (A) on the last day of each calendar quarter and (B) on the Revolving Credit Termination Date, (iii) to the Administrative Agent for the benefit of 64 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(b) Application of Mandatory Prepayments. Subject to the provisions of clause (c) below with respect to the application of payments after the exercise of remedies provided for in Section 9.2, any payment made by the Borrower to an Agent pursuant to Section 2.8 or any other prepayment of the Obligations required to be applied in accordance with this clause (b) shall be applied: (i) in the case of Sections 2.8(a), 2.8(b) and 2.8(c), first, to repay the next eight remaining installments of the Term Loans in forward order of maturity and thereafter to repay ratably the remaining principal balance of the Term 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 Borrower; and (ii) in the case of Section 2.8(d), 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. 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 and the Delayed-Draw Term Loans (if any). (c) Application of Payments. After the exercise of remedies provided for in Section 9.2 (or after 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; second, to pay Obligations in respect of any cost or expense reimbursements or indemnities then due to the Lenders and the L/C Issuers; third, to payment of all accrued unpaid interest on the Loans and fees owed to the Administrative Agent, the Lenders and L/C Issuers; fourth, to payment of principal of the Loans and L/C Reimbursement Obligations then due and payable until paid in full, and to provide cash collateral for unmatured L/C Obligations to the extent described in Section 9.3 and to any Secured Hedging Agreement; fifth, to the ratable payment of all other Obligations owing to the Lenders then due and payable; and sixth, any remainder shall be for the account of and paid to the Borrower or to whomsoever shall be lawfully entitled thereto. (d) Application of Payments Generally. All payments that would otherwise be allocated to the Revolving Credit Lenders pursuant to this Section 2.12 shall instead be allocated first, to repay interest on Swingline Loans, on any portion of the Revolving Loans that the Administrative Agent may have advanced on behalf of any Lender and on any L/C Reimbursement Obligation, in each case for which the Administrative Agent or, as the case may be, the L/C Issuer has not then been reimbursed by 66 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
such Lender being a Defaulting Lender, a proposed Borrowing, conversion into or continuation of Eurodollar Rate Loans does not occur on a date specified therefor in a Notice of Borrowing or a Notice of Conversion or Continuation or in a similar request made by telephone by the Borrower, (B) to the extent any Eurodollar Rate Loan is paid (whether through a scheduled, optional or mandatory prepayment) or converted to a Base Rate Loan (including because of Section 2.15) on a date that is not the last day of the applicable Interest Period or (C) as a consequence of any failure by the Borrower to repay Eurodollar 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 Eurodollar Reserve Requirements) from any Governmental Authority shall have the effect of (i) increasing the cost to such Lender of making, funding or maintaining any Eurodollar Rate Loan or to agree to do so or of participating, or agreeing to participate, in extensions of credit, (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, upon demand by such Lender or L/C Issuer (with copy to the Administrative Agent), the 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, (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. (c) Increased Capital 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 Eurodollar 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, 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 Eurodollar 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, upon demand from time to time by such Lender or L/C Issuer (with a copy of such demand to the Administrative Agent), the 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. 71 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(f) Mitigation. Any Lender claiming any additional amounts payable pursuant to this Section 2.17 shall use its reasonable efforts (consistent with its internal policies and Requirements of Law) to change the jurisdiction of its lending office if such a change would reduce any such additional amounts (or any similar amount that may thereafter accrue) and would not, in the reasonable determination of such Lender, be otherwise disadvantageous to such Lender. (g) Tax Forms. (i) Any Secured Party that is entitled to an exemption from, or reduction of, withholding Tax with respect to payments made under this Agreement or any other Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Secured Party, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Secured Party is subject to backup withholding or information reporting requirements. (ii) Without limiting the generality of the foregoing: (A) Each Non-U.S. Lender Party that, at any of the following times, is entitled to an exemption from United States withholding tax or is subject to such withholding tax at a reduced rate under an applicable tax treaty, shall (w) on or prior to the date such Non-U.S. Lender Party becomes a “Non-U.S. Lender Party” hereunder, (x) on or prior to the date on which any such form or certification expires or becomes obsolete, (y) after the occurrence of any event requiring a change in the most recent form or certification previously delivered by it pursuant to this clause (i) and (z) from time to time if requested by the Borrower or the Administrative Agent (or, in the case of a participant or SPV, the relevant Lender), provide the Administrative Agent and the Borrower (or, in the case of a participant or SPV, the relevant Lender) with two properly completed and duly executed copies of each of the following, as applicable: (A) Forms W-8ECI (claiming exemption from U.S. withholding tax because the income is effectively connected with a U.S. trade or business), W-8BEN or W-8BEN-E (claiming exemption from, or a reduction of, U.S. withholding tax under an income tax treaty) or any successor forms and/or W-8IMY (together with any required accompanying forms), (B) in the case of a Non-U.S. Lender Party claiming exemption under Sections 871(h) or 881(c) of the Code, Form W-8BEN or W-8BEN-E (claiming exemption from U.S. 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 the 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 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. 74 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
faith) no more favorable to the lenders or holders providing such Indebtedness than, those applicable to the Initial Term Loans; provided, that this clause (vii) will not apply to (1) interest rate, fees, funding discounts and other pricing terms, (2) redemption, prepayment or other premiums, (3) optional prepayment terms, and (4) covenants and other terms that are (i) applied to the Term Loans existing at the time of incurrence of such Incremental Term Loans (so that existing Lenders also receive the benefit of such provisions) and/or (ii) applicable only to periods after the latest maturity date of any Term Loans at the time of incurrence of such Incremental Term Loans; provided further, that a certificate of the Borrower delivered to the Administrative Agent at least five Business Days prior to the 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 of such Indebtedness or drafts of the documentation relating thereto, stating that the 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 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) may participate in any voluntary or mandatory prepayment of Term Loans; and (ix) on the date of the Borrowing of any Incremental Term Loans that will be of the same tranche as any then-existing tranche of Term Loans, such Incremental Term Loans shall be added to (and constitute a part of, be of the same tranche as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such tranche on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Loan Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such tranche; it being acknowledged that the application of this clause (ix) may result in new 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 tranche 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 Commitment. The Incremental Revolving Loans (i) shall rank pari passu in right of payment and of security with the Revolving Loans shall not mature earlier than the Scheduled Revolving Credit Termination Date and (ii) shall be on the same terms and pursuant to the same documentation as the Revolving Loans. (e) No Lender (or any successor thereto) shall have any obligation to issue any commitment for the Incremental Loans, and any decision by a Lender to issue any such 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 Loan except to the extent the 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 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 the Incremental Loan as to which such Lender did not issue a commitment, 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 to this 78 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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) deliver to the Administrative Agent all documents representing all certificated Stock, Stock Equivalents and other Securities pledged pursuant to the documents delivered pursuant to clause (a) above, together with undated powers or endorsements duly executed in blank; and (iii) to take all other actions that the Administrative Agent has reasonably requested and determined are necessary or to ensure the validity or continuing validity of any guaranty for any Obligation or any Lien securing any Obligation, to perfect, maintain, evidence or enforce any Lien securing any Obligation or to ensure such Liens have the same priority as that of the Liens on similar Collateral set forth in the Loan Documents executed on the Closing Date or the Closing Date, as applicable, (or, for Collateral located outside the United States, a similar priority acceptable to the Administrative Agent), including authorizing the filing of UCC financing statements in such jurisdictions as may be required by the Loan Documents or applicable Requirements of Law or as the Administrative Agent may otherwise reasonably request; provided that no action shall be required to be taken under the Assignment of Claims Act of 1940, as amended, 31 U.S.C. 3727, 41 U.S.C. 15. (b) To the extent not delivered to the Administrative Agent on or before the Closing Date (including in respect of after-acquired property and Persons that become Subsidiaries (other than Excluded Subsidiaries) of any Loan Party after the Closing Date), each Group Member (other than any Excluded Subsidiary) shall, within ninety (90) days (or such later date as may be agreed by the Administrative Agent) following the acquisition of any such real property, deliver to the Administrative Agent a Mortgage on any real property located in the United States and acquired in fee by any Loan Party and having a fair market value on the date of acquisition in excess of $3,000,000, together with all Mortgage Supporting Documents relating thereto. (c) To the extent not delivered to the Administrative Agent on or before the Closing Date (including in respect of after-acquired property and Persons that become Subsidiaries (other than Excluded Subsidiaries) of any Loan Party after the Closing Date), each Group Member (other than any Excluded Subsidiary) shall within sixty (60) days (or such later date as may be agreed by the Administrative Agent) following the establishment or acquisition of any deposit account other than any Excluded Account, deliver to the Administrative Agent a Control Agreement with respect to such deposit account established or acquired by any Loan Party, unless such deposit account is an Excluded Account, each duly executed by, in addition to the applicable Loan Party, the applicable financial institution. (d) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, the Loan Parties shall not be required, nor shall the Administrative Agent be authorized, (i) to enter into Control Agreements, except to the extent provided for in Section 7.10 or Section 7.11, (ii) unless the Borrower and the Administrative Agent otherwise agree, to pledge as security for the Obligations any Excluded Equity (as defined in the Guaranty and Security Agreement), (iii) to complete any filings or take any other action with respect to the creation or perfection of security interests in assets located or titled outside the United States, including any Intellectual Property registered in any jurisdiction outside of the United States, (iv) to make any filing with any Governmental Authority, or to 102 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(d) Capitalized Lease Obligations arising under Sale and Leaseback Transactions permitted hereunder in reliance upon Section 8.4(b)(ii); (e) intercompany loans owing to any Group Member and constituting Permitted Investments of such Group Member; (f) obligations under Hedging Agreements entered into for the sole purpose of hedging in the normal course of business or consistent with industry practices or in connection with Permitted Acquisitions; (g) Guaranty Obligations of any Group Member with respect to Indebtedness of any Group Member other than Holdings (other than Indebtedness permitted hereunder in reliance upon clause (b) or (c) above, for which Guaranty Obligations shall be permitted only to the extent set forth in such clauses), in each case to the extent permitted under Section 8.3; (h) any other Indebtedness of any Group Member; provided, however, that aggregate outstanding principal amount of all Indebtedness incurred in reliance on this clause (h) at any time shall not exceed the greater of (i) $6,000,000 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; (i) Indebtedness arising under indemnity agreements to title insurers to cause such title insurers to issue to the Administrative Agent mortgagee title insurance policies; (j) Permitted Refinancing Indebtedness in respect of Indebtedness incurred pursuant to clauses (b), (c), (d), (h), (j), (k), (m), (o), (p), (q) and (t) of this Section 8.1; (k) 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 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 Borrower or any of their respective 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 incurred; (l) Indebtedness arising from agreements of the Borrower or a Restricted Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or other similar obligations, in each case, incurred or assumed in connection with (A) the disposition of any business, assets or 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 disposition shall be permitted by the terms of this Agreement, or (B) any Permitted Acquisition or other Proposed Acquisition permitted by Section 8.3; (m) Indebtedness of any Person that becomes a Restricted Subsidiary on or after the date of this Agreement; provided that such Indebtedness, (i) exists at the time such person becomes a Restricted Subsidiary, (ii) is not created in anticipation or contemplation of such person becoming a Restricted Subsidiary, (iii) 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 Subsidiary and its Restricted 105 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
Subsidiaries, and (iv) other than any Indebtedness of any Person that becomes a Restricted Subsidiary in connection with the Xxx Acquisition, 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; (n) Indebtedness consisting of “earn-outs” and other similar deferred consideration in respect of Permitted Acquisitions; (o) Permitted Seller Debt in an aggregate principal amount not exceeding 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; (p) (i) Indebtedness consisting of promissory notes issued by the Borrower, any Restricted Subsidiary of the Borrower to 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) to finance the redemption, purchase or other acquisition or retirement for value by Holdings of its (or any of its parent company’s) Qualified Capital 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 be permitted by this Agreement; (q) other Indebtedness; provided that (i) the final maturity of such Indebtedness shall not be earlier than the date that is 90 days after the Scheduled 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) (A) if such Indebtedness 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 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 lien on the Collateral that is junior to the lien securing the Obligations, the pro forma Consolidated Secured Leverage Ratio 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, the pro forma Consolidated Total Leverage Ratio 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; (r) Indebtedness of Subsidiaries that are not Loan Parties, together with any Indebtedness incurred by any other Restricted Subsidiaries that are not Loan Parties, in an aggregate outstanding amount 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; (s) Indebtedness consisting of obligations of the Borrower and its Restricted Subsidiaries under deferred compensation or other similar arrangements with employees incurred by such 106 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
Person in connection with the Related Transactions or other Permitted Acquisitions or any other Permitted Investment; (t) Incremental Equivalent Debt; and (u) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of Banking Services and/or otherwise in connection with cash management and deposit accounts, including Banking Services Obligations and incentive, supplier finance or similar programs. For purposes of determining compliance with this Section 8.1: (1) the principal amount in Indebtedness outstanding under any clause of this Section 8.1 will be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness; (2) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness that are otherwise included in the determination of a particular amount of Indebtedness will not be included in the determination of such amount of Indebtedness; (3) (i) the accrual of interest, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest in the form of additional Indebtedness, (ii) the payment of premiums, fees, expenses, charges and additional or contingent interest on obligations and (iii) increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies, in each case, will not be deemed to be an incurrence of Indebtedness; (4) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the categories set forth above, the Borrower may, in its sole discretion, at the time of incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant; provided that all Indebtedness created pursuant to the Loan Documents will be deemed to have been incurred in reliance on the exception in clause (a) above and shall not be permitted to be reclassified pursuant to this paragraph; (5) for the avoidance of doubt, if the Borrower or any Restricted Subsidiary incurs any Lien securing Indebtedness using a ratio-based test on the same date that it incurs any Lien securing Indebtedness under any Dollar-based test, then the ratio-based test will be calculated with respect to such incurrence under the ratio-based test without regard to any incurrence of Indebtedness under the Dollar-based test; and (6) the principal amount of any Indebtedness, advance, loan or other extension of credit incurred in a currency other than Dollars shall be measured based upon the Dollar Equivalent thereof at the time of incurrence. Subsequent changes in currency exchange rates shall not deem to result in an increase or decrease to the outstanding amount of such Indebtedness. If any Indebtedness incurred as a Permitted Refinancing permitted under this Section 8 of any other Indebtedness that is denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced) would cause the applicable Dollar-denominated restriction to be exceeded if calculated on a Dollar Equivalent basis as of the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the Dollar Equivalent of the outstanding or committed principal amount, as applicable, of such Indebtedness being 107 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(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 not cured within ten (10) days; (r) Liens consisting of security deposits (i) in connection with leases, utility services and similar transactions entered into by any Loan Party 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 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) (x) on or prior to the Closing Date or (y) in connection with an asset 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; 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; 109 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(b) Investments in cash and Cash Equivalents; (c) (i) endorsements for collection or deposit in the ordinary course of business consistent with past practice, and (ii) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from account debtors and other credits to suppliers in the ordinary course of business; (d) Investments made as part of, or acquired in connection with, the Related Transactions, the Xxx Acquisition or any other Permitted Acquisition; (e) Investments, including in the form of Guaranty Obligations, by (i) any Loan Party in any other Loan Party (other than Holdings), (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 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 clause (ii) above shall at all times be subordinated in full to the payment of the Obligations of such Loan Party on terms and conditions reasonably satisfactory to the Administrative Agent; (f) loans or advances to employees of the 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 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 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 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 as the proceeds of such loan or advance are substantially contemporaneously contributed to the Borrower; (h) intercompany loans and advances to Holdings (or any parent of Holdings) to the extent that the 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 111 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
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 Borrower or its Subsidiaries as a result of consideration received in connection with Sales of assets made in compliance with Section 8.4; (k) Guarantee Obligations permitted by Section 8.1; (l) Investments constituting Capital Expenditures made in the ordinary course of business; (m) any other Investment by the Borrower or any of its Restricted Subsidiaries; provided, however, that the aggregate outstanding amount of all such Investments shall not exceed (i) at any time the greater of (x) $15,000,000 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; (n) Investments in Interest Rate Contracts and other Hedging Agreements maintained in accordance with Section 8.1(f); (o) Investments as a result of the receipt of non-cash consideration in the settlement of any litigation or claims; (p) Holdings and its Restricted Subsidiaries may hold Investments to the extent such Investments are otherwise permitted hereunder and reflect an increase in the value thereof; (q) so long as no Event of Default shall have occurred and be continuing or would result therefrom, Investments not to exceed the Cumulative Available Amount at the time such Investment is made; (r) Investments funded with the proceeds of, or made in exchange for, the issuance of (or contributions in respect of) Stock or Stock Equivalents of Holdings (or any parent of Holdings) that constitute Qualified Capital Stock, in each case, to the extent (x) not otherwise applied and (y) not constituting a Specified Equity Contribution or an Available Excluded Contribution Amount; (s) intercompany loans and other Investments by the Borrower and any Guarantor (other than Holdings) in Foreign Subsidiaries to the extent necessary for a Foreign Subsidiary to fund (i) a Permitted Acquisition to be made by such Foreign Subsidiary or (ii) other Investments by such Foreign Subsidiary permitted pursuant to Sections 8.3(m) and (q); provided that any Investment consisting of loans or advances to any Loan Party made pursuant to this clause (p) shall be subordinated in full to the payment of the Obligations of such Loan Party on terms and conditions reasonably satisfactory to the Administrative Agent; (t) intercompany receivables that arise solely from customary transfer pricing arrangement among the 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 Borrower and its Subsidiaries and to maintain compliance with all applicable jurisdictional tax requirements; 112 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(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 obtaining, maintaining or renewing client contacts and loans or advances made to distributors in the ordinary course of business; (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 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 acquisition 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 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(h)), Restricted Payments permitted under Section 8.5, Restricted Debt Payments permitted by Section 8.6, and mergers, consolidations, amalgamations and acquisitions 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 Borrower or Qualified Capital Stock of the Borrower or any Restricted 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; (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 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; 113 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(a) (i) in each case to the extent entered into in the ordinary course of business, (1) Sales or discounts of accounts receivable in connection with the collection or compromise thereof, including supplier financing arrangements without recourse to the Borrower or its Subsidiaries that accelerate collection of receivables from clients or customers, (2) Sales of inventory, (3) Sales of property that is or has become obsolete, damaged, worn out or surplus, (4) non-exclusive licenses or sublicenses of Intellectual Property, and (5) the abandonment or other disposition of Intellectual Property that is, in the reasonable good faith judgment of Borrower, no longer material to the conduct of the business of the Group Members taken as a whole, and (ii) Sales of equipment or real property to the extent that such property is exchanged for credit against the purchase price of similar replacement property or the proceeds of such disposition are promptly applied to the purchase price of such replacement property; (b) (i) a true lease or sublease of real property not constituting Indebtedness and not entered into as part of a Sale and Leaseback Transaction and (ii) a Sale of property pursuant to a Sale and Leaseback Transaction; provided, however, that the aggregate fair market value (measured at the time of the applicable Sale) of all property covered by any outstanding Sale and Leaseback Transaction at any time shall not exceed $2,000,000; (c) any Sale of any property (including Stock or Stock Equivalents) by any Group Member (other than Holdings) to any other Group Member (other than Holdings) (A) to the extent any resulting Investment constitutes a Permitted Investment or (B) any such Sale made by any Loan Party to any Restricted Subsidiary that is not a Loan Party shall be for fair market value (as reasonably determined by the Borrower); (d) (i) any Sale or issuance by the 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 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 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 property 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 Borrower or any Restricted Subsidiary) of the 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 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 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 115 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
fair market value (as reasonably determined by the 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 acquisition or similar Investment permitted hereunder which, within 90 days of the date of such acquisition or Investment, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the 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); (i) Sales or issuances that constitute Permitted Investments, Liens permitted by Section 8.2, Restricted Payments permitted by Section 8.5 or transactions permitted by Section 8.7; (j) Sales of assets subject to a Property Loss Event; (k) to the extent constituting a Sale, the consummation of the Related Transactions; (l) terminations or unwinds of Hedging Agreements; (m) Sales or issuances of Stock and Stock Equivalents of, or sales or issuances of Indebtedness or other Securities of, Unrestricted Subsidiaries; (n) Sales made to comply with any order of any Governmental Authority or any applicable Requirement of Law; (o) any merger, consolidation, amalgamation, Sale or issuance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction; and (p) other Sales of assets in an aggregate amount during any Fiscal Year of not more than $250,000, which, if not used in such Fiscal Year, shall be carried forward to the next succeeding Fiscal Year (but not any subsequent Fiscal Year, it being understood that any such amount carried over to any Fiscal Year shall be deemed to be used (in such order as shall be determined by the Borrower) in such Fiscal Year prior to the usage of the amount set forth above otherwise available for such Fiscal Year). To the extent that any Collateral is sold as permitted by this Section 8.4 to any Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such sale; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 10. 116 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
promissory notes from the proceeds of cash dividends 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 any Borrower or Restricted Subsidiary after the Closing Date, (C) the amount of net cash proceeds from the sale of Stock of any Holdco or any parent thereof contributed to any Borrower (other than Disqualified Stock) to officers, directors, employees, advisors or consultants, to the extent not otherwise used under this Agreement or applied to 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 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 Borrower and its Subsidiaries; (v) the payment of fees and expenses related to debt or equity offerings, Investments or acquisitions (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 Borrower and/or its Subsidiaries), the 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 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 the applicable requirements of Section 8.3 as if undertaken as a direct Investment by the Borrower or the relevant Restricted Subsidiary); (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; (e) if no Event of Default shall have occurred and be continuing or shall 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; 118 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
Financing (collectively, “Restricted Debt Payments”); provided, however, that each Group Member may, to the extent not otherwise prohibited by the Loan Documents, do each of the following: (a) consummate a Permitted Refinancing in respect of Junior Financing that is otherwise permitted under this Agreement; (b) prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof (or set apart any property for such purpose) any Indebtedness owing by a Group Member to any other Group Member (other than Holdings), provided, if any Event of Default shall have occurred and be continuing, then no Loan Party shall prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof (or set apart any property for such purpose) Indebtedness owing by such Loan Party to any Group Member that is not a Loan Party (A) subject to clause (B) below, in an aggregate amount for all such Loan Parties and such Indebtedness exceeding $2,500,000 or (B) in any amount upon the occurrence and during the continuance of an Event of Default under Section 9.1(a), 9.1(c) (resulting from failure to comply with Section 5.1) or 9.1(d); (c) make regularly scheduled or otherwise required repayments or redemptions of Indebtedness but only to the extent permitted by the subordination provisions thereof, and in the case of any Indebtedness incurred pursuant to Section 8.1(q), to the extent permitted thereunder; (d) (i) make regularly scheduled cash interest payments (including any penalty interest, if applicable) pursuant to the terms of any Junior Financing (but only to the extent permitted by the subordination provisions thereof, if applicable), and (ii) prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof Junior Financing, in each case, with the proceeds of a Permitted Refinancing; (e) so long as no Event of Default shall have occurred and be continuing or shall result therefrom and, solely in the case of any such Restricted Debt 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 prepayment, make Restricted Debt Payments in an amount not to exceed the Cumulative Available Amount at the time of consummation of such prepayment; (f) so long as no Event of Default shall have occurred and be continuing or would result therefrom, make Restricted Debt Payments in an amount 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; (g) make Restricted Debt Payments as part of an applicable high yield discount obligation catch-up payment; (h) make (A) Restricted Debt Payments in exchange for, or with proceeds of any issuance 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) and/or any capital contribution in respect of Qualified Capital Stock of the Borrower that are not otherwise applied and (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 hereunder and (3) other than any Specified Equity Contribution and/or any Available Excluded Contribution Amount, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Junior Financing into Qualified Capital 120 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(vii) the making of contributions to the capital of the Borrower and receiving, and holding proceeds of, Restricted Payments from the Borrower and its Subsidiaries and distributing the proceeds thereof to the extent permitted in Section 8.5; (viii) performance of its obligations under the Loan Documents to which it is a party and other transactions expressly permitted under this Agreement; (ix) as necessary to consummate any Permitted Acquisition or other Permitted Investment; (x) the incurrence of Indebtedness and Liens under the Loan Documents or the making of guarantees in respect of any Indebtedness of the Borrowers and the Restricted Subsidiaries permitted to be incurred pursuant to Section 8.1; (xi) providing indemnification for officers, directors, members of management, employees and advisors or consultants of any parent company, the Borrower or its Subsidiaries; (xii) the performance of its obligations under any document, agreement and/or Investment contemplated by the Related Transactions or otherwise not prohibited under this Agreement; (xiii) the performance of obligations under and complying with its Constituent Documents, any demands or requests from or requirements of a Governmental Authority or any applicable Requirements of Law (including with respect to the maintenance of its existence and the activities of its Subsidiaries); (xiv) making and holding Investments in the Borrower and of the type permitted under Sections 8.3(f) or (h); and (xv) activities incidental to any of the foregoing. (c) Other than as provided for in Section 8.7(b), Holdings shall not merge, consolidate or amalgamate with any Person, except so long as no Default or Event of Default shall have occurred and be continuing prior to and after giving effect to such merger, consolidation or amalgamation, Holdings may merge, consolidate or amalgamate with any other Person; provided that (i) Holdings shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger, consolidation or amalgamation is not Holdings (any such Person, “Successor Holdings”), (A) Successor Holdings shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, (B) Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger, consolidation or amalgamation 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, Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement. 123 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(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 Borrower); (o) (i) any collective bargaining, employment or severance agreement or compensatory (including profit sharing) arrangement entered into by the 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 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 Holdings, any parent company of Holdings, the 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 Borrower or any of its Subsidiaries or any employment contract or arrangement; (p) (i) transactions permitted by Sections 8.1(l) and (p), Section 8.3(dd), (ii), (gg) and (hh), Section 8.5 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 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 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 Borrower and/or its applicable Restricted Subsidiary in the good faith determination of the board of directors (or similar governing body) of the 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 Borrower); (t) (i) any purchase by Holdings of the Stock of (or contribution to the equity capital of) the Borrower and (ii) any intercompany loan made by Holdings to the Borrower and/or any Restricted Subsidiary; or (u) any transaction in respect of which the Borrower delivers to the Administrative Agent a letter addressed to the board of directors (or equivalent governing body) of the 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 Borrower or the applicable Restricted Subsidiary 125 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
waiver or consent, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and (3) in the case of any other amendment, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower; provided, however, that no amendment, consent or waiver described in clause (2) or (3) above shall, unless in writing and signed by each Lender directly affected thereby (or by the Administrative Agent with the consent of such Lender), in addition to any other Person the signature of which is otherwise required pursuant to any Loan Document, do any of the following: (i) waive or change any provision of Section 2.12(c); (ii) increase the Commitment of such Lender or subject such Lender to any additional obligation (which increase shall be deemed only to affect directly the Lender whose Commitment is being increased); (iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of the Borrower to repay (whether or not on a fixed date), any outstanding Loan owing to such Lender, (B) any fee or accrued interest payable to such Lender or (C) if such Lender is a Revolving Credit Lender, any L/C Reimbursement Obligation or any obligation of the Borrower to repay (whether or not on a fixed date) any L/C Reimbursement Obligation; provided, however, that this clause (iii) does not apply to (x) any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such increase or (y) any modification to the financial covenant set forth in Section 5.1 or in any definition set forth therein or principally used therein (it being understood that no change in the calculation of any other interest, fee or premium due hereunder (including any component definition thereof), nor 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); (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 Obligation of the 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 the consent of the Required Revolving Lenders; 137 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
(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 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 to, the Administrative Agent (or otherwise modify any provision of Article X or the application thereof), any L/C Issuer or any SPV that has been granted an option pursuant to Section 11.2(f) unless in writing and signed by the Administrative Agent, such L/C Issuer or, 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, 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), 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 hereunder, 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 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 Obligations owing to such Defaulting Lender in a disproportionately adverse manner as compared to the 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 Borrower and the Lenders providing the Replacement Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any 138 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
tranche (“Refinanced Loans”) with replacement term loans (“Replacement Loans”); provided that (a) 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, (c) 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 to the time of such incurrence), (d) any Replacement Loans may rank pari passu with or junior to any then-existing tranche of 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) any Replacement Loans may participate in any mandatory prepayment of Term Loans and (f) 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 (i) substantially identical to, or (taken as a whole as determined by the 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 (ii) 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) the Borrower and the Administrative Agent may, without the input or consent of any Lender, amend, supplement and/or waive any Collateral Document to (A) comply with any Requirement of Law or the advice of counsel or (B) cause such Collateral Document to be consistent with this Agreement and/or the relevant other Loan Documents, (ii) the 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 Borrower and the Administrative Agent to (A) effect the provisions of Section 2.19, 2.20 or 11.19, 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); 139 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
to the extent expressly permitted under Section 11.2(g)) or (iii) any other Eligible Assignee (other than the Borrower, the Permitted Investors or any of their respective Affiliates except pursuant to a Permitted Loan Retirement 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 Borrower (which acceptance shall not be unreasonably withheld or delayed); 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, 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 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 person permitted to become a Lender pursuant to this Section 11.2 (and the Borrower 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 Borrower or any of its Affiliates (other than an Affiliated Lender in accordance with Section 11.2(g)) or to a holder of Subordinated Debt issued by the Borrower or any of its Affiliates (other than an Affiliated Lender in accordance with Section 11.2(g)) 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 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) 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 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 Agreement have been assigned by it pursuant to 141 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
such Assignment, relinquish its rights (except for those surviving the termination of the Commitments and the payment in full of the 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 X, 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 (A) any federal reserve bank (pursuant to Regulation A of the Federal Reserve Board), without notice to the Administrative Agent or (B) 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 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 Obligation and (y) without notice to or consent from the Administrative Agent or the 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 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 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) 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 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 142 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
substantially all of the Collateral). No party hereto shall institute (and each of 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 Obligations. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the 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. (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 who, 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 subsection 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 143 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]
participation) shall not exceed twenty-five percent (25%) of all Term Loans outstanding under this Agreement. (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 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 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 subsection 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 Administrative Agent to vote and/or object on behalf of such Affiliated Lender in connection with any plan of reorganization with respect to the Loans held by such Affiliated Lender in accordance with clause (iii) above of this subsection 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 Administrative Agent) in accordance with clause (iii) of this subsection 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 144 [[NYCORP:3713047v14:05/10/2018--10:17 PM]]