EX-10.7 2 egl-ex107_690.htm EX-10.7 egl-ex107_690.htm

Exhibit 10.7

 

Execution Version

 

AMENDMENT No. 1, dated as of February 13, 2017 (this “Amendment”), to the Credit Agreement, dated as of August 12, 2016 (as amended, restated, modified and supplemented from time to time prior to the date hereof, the “Credit Agreement”), by and among ENGILITY CORPORATION (the “Borrower”), ENGILITY HOLDINGS, INC. (“Holdings”), the Guarantors party thereto, the several banks and other financial institutions or entities from time to time party to the Credit Agreement (each a “Lender” and, collectively, the “Lenders”), MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent (the “Administrative Agent”), Collateral Agent, Swingline Lender and Issuing Bank; capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement (as defined below).

WHEREAS, the Borrower desires (i) New Commitments (the “Term B1 Commitments” and the Loans incurred thereunder, the “Term B1 Loans”) to refinance the existing Term B1 Loans (the “Existing Term B1 Loans”) and (ii) New Commitments (the “Term B2 Commitments” and the Loans incurred thereunder, the “Term B2 Loans”) to refinance the existing Term B2 Loans (the “Existing Term B2 Loans”) and (iii) substantially concurrently with, but immediately following, the initial funding under the Term B1 Commitments and the Term B2 Commitments, to amend the Credit Agreement as described herein, in each case, on the terms and subject to the conditions set forth herein;

WHEREAS, Section 2.25 of the Credit Agreement provides that the Borrower may, under certain circumstances, request New Commitments and may effect the joinder of such New Commitments under the Credit Agreement pursuant to the applicable Joinder Agreement;

WHEREAS, it is understood and agreed that this Amendment shall constitute a Joinder Agreement for all purposes of the Credit Agreement;

WHEREAS, Section 10.1 of the Credit Agreement provides that the Administrative Agent, the relevant Loan Parties and the Required Lenders may amend the Credit Agreement and the other Loan Documents for certain purposes;

WHEREAS, in the case of Existing Term B1 Loans, each Lender that has delivered a consent to this Amendment in the form of Exhibit A-1 hereto (a “Term B1 Consent”) has agreed, on the terms and conditions set forth herein, to have its outstanding Existing Term B1 Loans (x) if such Lender delivered a Term B1 Consent indicating an election for the “Cashless Settlement Option” (any such Lender, a “Converting Term B1 Lender”), converted into a like principal amount in Dollars (or such lesser amount as notified to such Lender by the Administrative Agent prior to the Amendment No. 1 Effective Date) of new Term B1 Loans  (collectively, “Converted Term B1 Loans”), effective as of the Amendment No. 1 Effective Date (as defined below) or (y) if such Lender delivered a Term B1 Consent indicating an election for the “Post-Closing Settlement Option”, repaid on the Amendment No. 1 Effective Date and such Lender shall purchase by assignment new Term B1 Loans from the Additional Term B1 Lender (as defined below) in a like principal amount (or such lesser amount as notified to such Lender by the Administrative Agent prior to the Amendment No. 1 Effective Date) as the Existing Term B1 Loans of such Lender that were repaid (it being understood that no Existing Term B1 Loans repaid pursuant to this clause (y) shall be deemed to be Converted Term B1 Loans for purposes of the Amended Credit Agreement);

WHEREAS, in the case of Existing Term B2 Loans, each Lender that has delivered a consent to this Amendment in the form of Exhibit A-2 hereto (a “Term B2 Consent” and, together with the Term B1 Consents, the “Term Consents”) has agreed, on the terms and conditions set forth herein, to have its outstanding Existing Term B2 Loans (x) if such Lender delivered a Term B2 Consent indicating

 

 


an election for the “Cashless Settlement Option” (any such Lender, a “Converting Term B2 Lender” and, together with the Converting Term B1 Lenders, the “Converting Term Lenders”), converted into a like principal amount in Dollars (or such lesser amount as notified to such Lender by the Administrative Agent prior to the Amendment No. 1 Effective Date) of new Term B2 Loans  (collectively, “Converted Term B2 Loans”), effective as of the Amendment No. 1 Effective Date (as defined below) or (y) if such Lender delivered a Term B2 Consent indicating an election for the “Post-Closing Settlement Option”, repaid on the Amendment No. 1 Effective Date and such Lender shall purchase by assignment new Term B2 Loans from the Additional Term B2 Lender (as defined below) in a like principal amount (or such lesser amount as notified to such Lender by the Administrative Agent prior to the Amendment No. 1 Effective Date) as the Existing Term B2 Loans of such Lender that were repaid (it being understood that no Existing Term B2 Loans repaid pursuant to this clause (y) shall be deemed to be Converted Term B2 Loans for purposes of the Amended Credit Agreement);

WHEREAS, Morgan Stanley Senior Funding, Inc. has agreed (i) to make additional Term B1 Loans (in such capacity, the “Additional Term B1 Lender”), in a principal amount equal to $195.0 million minus the principal amount of any Existing Term B1 Loans that were converted into new Term B1 Loans on the Amendment No. 1 Effective Date, the proceeds of which shall be applied to repay in full the then outstanding non-converted Existing Term B1 Loans (the “Term B1 Loan Refinancing”) and (ii) to make additional Term B2 Loans (in such capacity, the “Additional Term B2 Lender”), in a principal amount equal to $608.0 million minus the principal amount of any Existing Term B2 Loans that were converted into new Term B2 Loans on the Amendment No. 1 Effective Date, the proceeds of which shall be applied to repay in full the then outstanding non-converted Existing Term B2 Loans (the “Term B2 Loan Refinancing” and, together with the Term B1 Loan Refinancing, the “Term Loan Refinancing”);

WHEREAS, substantially concurrently with, but immediately following, the initial funding under the Term B1 Commitments and Term B2 Commitments and the consummation of the Term Loan Refinancing, the Lenders party hereto consent to the other amendments described herein (the “Amendments”), subject to the terms and conditions described herein;  

NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1.Term B1 Loans and Term B2 Loans; Amendment of the Credit Agreement.  

(a)Effective as of the Amendment No. 1 Effective Date, (i) the Additional Term B1 Lender hereby acknowledges and agrees that it has a Term B1 Commitment in an amount equal to $2,437,673.62 and agrees to make new Term B1 Loans in Dollars in a single Borrowing on the Amendment No. 1 Effective Date in accordance with the Amended Credit Agreement, (ii) the Additional Term B2 Lender hereby acknowledges and agrees that it has a Term B2 Commitment in an amount equal to $46,295,610.40 and agrees to make new Term B2 Loans in Dollars in a single Borrowing on the Amendment No. 1 Effective Date in accordance with the Amended Credit Agreement and (iii) each Converting Term Lender acknowledges and agrees that, on the terms and conditions set forth herein, its outstanding Existing Term B1 Loans and/or Existing Term B2 Loans, as the case may be, shall be converted into a like principal amount in Dollars (or such lesser amount as notified to such Lender by the Administrative Agent) of new Term B1 Loans and/or new Term B2 Loans, respectively, effective as of the Amendment No. 1 Effective Date.  From and after the Amendment No. 1 Effective Date, the Additional Term B1 Lender, the Additional Term B2 Lender and each Converting Term Lender shall be a “Term B1 Lender” and/or “Term B2 Lender, as applicable (as defined in the Amended Credit Agreement) for all purposes under the Credit Agreement and the other Loan Documents.  The Term B1 Loans shall be a single, fungi

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ble tranche regardless of whether such Term B1 Loans are made by the Additional Term B1 Lender or converted from Existing Term B1 Loans.  The Term B2 Loans shall be a single, fungible tranche regardless of whether such Term B2 Loans are made by the Additional Term B2 Lender or converted from Existing Term B2 Loans.  The Term B1 Commitments and Term B2 Commitments are Incremental Term Loan Commitments and the Term B1 Loans and Term B2 Loans are Incremental Term Loans, in each case incurred pursuant to Section 2.25 of the Credit Agreement.  This Amendment is a Joinder Agreement pursuant to Section 2.25 of the Credit Agreement.  The Additional Term B1 Lender, the Additional Term B2 Lender and each Converting Term Lender hereby consents to the Amendments described herein.

(b)The Credit Agreement is, effective as of the Amendment No. 1 Effective Date, hereby amended to delete the stricken text (indicated textually in the same manner as the following example:  stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example:  double-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit B hereto (as amended, the “Amended Credit Agreement”).  It is understood and agreed that the joinder of the Term B1 Commitments and Term B2 Commitments and the consummation of the Term Loan Refinancing shall occur substantially concurrently with, but immediately prior to, the other Amendments.

Section 2.Representations and Warranties, No Default.  The Borrower hereby represents and warrants that as of the Amendment No. 1 Effective Date, after giving effect to this Amendment, (i) no Default or Event of Default has occurred and is continuing, (ii) this Amendment has been duly authorized, executed and delivered by each Loan Party party hereto and constitutes the legal, valid and binding obligations of each such Loan Party enforceable against each in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law and (iii) all representations and warranties made by any Loan Party contained in the Amended Credit Agreement or in the other Loan Documents are true and correct in all material respects, in each case on and as of such date as if made on and as of the date hereof except to the extent that such representations and warranties relate to an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date, provided that, in each case, such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality in the text thereof.

Section 3.Effectiveness.  This Amendment shall become effective on the date (such date, the “Amendment No. 1 Effective Date”) that the following conditions have been satisfied:

(i)Consents.  The Administrative Agent shall have received an executed signature page to this Amendment (including in the form of a Term Consent) from (i) the Additional Term B1 Lender, the Additional Term B2 Lender and each Converting Term Lender, (ii) Lenders constituting the Required Lenders (as defined in the Credit Agreement) immediately after giving effect to the joinder of the Term B1 Commitments and Term B2 Commitments and the consummation of the Term Loan Refinancing, (iii) the Swingline Lender named in the Amended Credit Agreement and (iv) each Loan Party;

(ii)Incremental Facility Conditions.  After giving effect to the incurrence of the new Term B1 Loans and Term B2 Loans (including the conversion of any Converted Term Loans) and the consummation of the Term Loan Refinancing (but, for the avoidance of doubt, not the consummation of the other Amendments), each of the conditions set forth in Section 2.25(a) of the Credit Agreement shall be satisfied;

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(iii)Fees.  The Administrative Agent and the Joint Lead Arrangers shall have received the fees in the amounts previously agreed in writing by the Borrower to be received on the Amendment No. 1 Effective Date, and all reasonable and documented expenses for which invoices have been presented prior to the Amendment No. 1 Effective Date;

(iv)Legal Opinions.  The Administrative Agent shall have received favorable legal opinions of (1) Bass, Berry & Sims PLC, special counsel to the Loan Parties and (2) Mintz Levin Cohn Ferris Glovsky and Popeo PC, special New York and Massachusetts counsel to the Loan Parties, each covering such matters as the Administrative Agent may reasonably request and otherwise reasonably satisfactory to the Administrative Agent;

(v)Officer’s Certificate.  The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower dated the Amendment No. 1 Effective Date certifying that (a) all representations and warranties made by any Loan Party contained in the Amended Credit Agreement or in the other Loan Documents are true and correct in all material respects, in each case on and as of such date as if made on and as of the Amendment No. 1 Effective Date except to the extent that such representations and warranties relate to an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date, provided that, in each case, such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality in the text thereof and (b) no Default, shall have occurred and be continuing; and

(vi)Closing Certificates.  The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization (or other similar organizational document), including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization (or a certification from each Loan Party that there have been no changes other than changes specified in the certification to the certificate or articles of incorporation or organization, including all amendments thereto, that were delivered to the Administrative Agent on the Closing Date), (ii) a certificate as to the good standing (where relevant) of each Loan Party organized in the United States as of a recent date, from such Secretary of State or similar Governmental Authority and (iii) a certificate of a manager, director, Secretary or Assistant Secretary or similar officer of each Loan Party dated the Amendment No. 1 Effective Date and certifying that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement (or other similar organizational document) of such Loan Party as in effect on the Amendment No. 1 Effective Date (or a certification from each Loan Party that there have been no changes other than changes specified in the certification to the by-laws or operating (or limited liability company) agreement that were delivered to the Administrative Agent on the Closing Date).

(vii)The Term Loan Refinancing shall be consummated and all accrued and unpaid interest and fees shall have been paid in connection therewith.

Section 4.Consent.  Each Person delivering a Term Consent hereto agrees not to make any claims to the Borrower pursuant to Section 2.21 of the Credit Agreement with respect to any loss or expense that such Lender may sustain or incur as a consequence of any event caused by the prepayment of its Existing Term B1 Loans or Existing Term B2 Loans on the Amendment No. 1 Effective Date. 

Section 5.Counterparts.  This Amendment may be executed in any number of counterparts (including the Term Consents) and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken

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together shall constitute a single instrument.  Delivery of an executed counterpart of a signature page of this Amendment (including the Term Consents) by facsimile or any other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

Section 6.Applicable Law.  THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

Section 7.Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AMENDMENT AND FOR ANY COUNTERCLAIM THEREIN.

Section 8.Jurisdiction; Consent to Service of Process.  Each party hereto hereby submits for itself and its Property in any legal action or proceeding relating to this Amendment, or for recognition and enforcement of any judgment in respect hereof, to the exclusive general jurisdiction of the courts of the State of New York, the courts of the United States for the Southern District of New York, and appellate courts from any thereof, (ii) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same, (iii) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to it at its address set forth in Section 10.2 of the Amended Credit Agreement or at such other address of which the Administrative Agent shall have been notified pursuant thereto and (iv) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction. .

Section 9.Headings.  The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

Section 10.Effect of Amendment.  Except as expressly set forth herein, (i) this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent or the Collateral Agent, in each case under the Amended Credit Agreement or any other Loan Document, and (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Amended Credit Agreement or any other Loan Document and nothing herein shall or may be construed as a novation thereof.  Except as expressly set forth herein, each and every term, condition, obligation, covenant and agreement contained in the Amended Credit Agreement or any other Loan Document is hereby ratified and re-affirmed in all respects and shall continue in full force and effect and each Loan Party reaffirms its obligations under the Loan Documents to which it is party and the grant of its Liens on the Collateral made by it pursuant to the Security Documents.  From and after the Amendment No. 1 Effective Date, all references to the Credit Agreement in any Loan Document and all references in the Amended Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Amended Credit Agreement, shall, unless expressly provided otherwise, refer to the Credit Agreement as amended by this Amendment.  Each of the Loan Parties hereby consents to this Amendment and confirms that all obligations of such Loan Party under the Loan Documents to which such Loan Party is a party shall continue to apply to the Amended Credit Agreement as amended hereby and that the amendment of the Credit Agreement pursuant to this Amendment shall not constitute a novation of the Credit Agreement or any other Loan Document as in effect prior to the Amendment No. 1 Effective Date.

[SIGNATURE PAGES FOLLOW]

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

 

engility corporation

 

 

 

 

 

 

 

 

 

By:

 

/s/ Wayne M. Rehberger

 

 

 

Name: Wayne M. Rehberger

 

 

 

Title: Senior Vice President and Chief Financial Officer

 

 

 

 

 

/s/ Thomas O. Miiller

 

 

 

Name: Thomas O. Miiller

 

 

 

Title: Senior Vice President, General Counsel and Corporate Secretary

 

 

 

engility holdings, inc.

 

 

 

 

 

 

 

 

 

By:

 

/s/ Wayne M. Rehberger

 

 

 

Name: Wayne M. Rehberger

 

 

 

Title: Senior Vice President and Chief Financial Officer

 

 

 

 

 

/s/ Thomas O. Miiller

 

 

 

Name: Thomas O. Miiller

 

 

 

Title: Senior Vice President, General Counsel and Corporate Secretary

 

 

 

ENGILITY LLC

 

 

 

 

 

 

 

 

 

By:

 

/s/ Thomas O. Miiller

 

 

 

Name: Thomas O. Miiller

 

 

 

Title: Senior Vice President, General Counsel and Corporate Secretary

 

 

 

DYNAMICS RESEARCH CORPORATION

 

 

 

 

 

 

 

 

 

By:

 

/s/ Thomas O. Miiller

 

 

 

Name: Thomas O. Miiller

 

 

 

Title: Senior Vice President, General Counsel and Corporate Secretary

 


 

 

 

SUPPORT SERVICES ORGANIZATION, LLC

 

 

 

 

 

 

 

 

 

By:

 

/s/ Thomas O. Miiller

 

 

 

Name: Thomas O. Miiller

 

 

 

Title: Senior Vice President, General Counsel and Corporate Secretary

 

 

 

TEXELTEK, LLC

 

 

 

 

 

 

 

 

 

By:

 

/s/ Thomas O. Miiller

 

 

 

Name: Thomas O. Miiller

 

 

 

Title: Senior Vice President, General Counsel and Corporate Secretary

 

 

 

TASC SERVICES CORPORATION

 

 

 

 

 

 

 

 

 

By:

 

/s/ Thomas O. Miiller

 

 

 

Name: Thomas O. Miiller

 

 

 

Title: Senior Vice President, General Counsel and Corporate Secretary

 

 

 

ATAC SERVICES LLC

 

 

 

 

 

 

 

 

 

By:

 

/s/ Thomas O. Miiller

 

 

 

Name: Thomas O. Miiller

 

 

 

Title: Vice President and Secretary

 

 

 

 


 

 

 

 

morgan stanley senior funding, inc.,

 

as Administrative Agent, Collateral Agent, Swingline Lender and Issuing Bank

 

 

 

 

 

 

 

 

 

By:

 

/s/ Robbie Pearson

 

 

 

Name: Robbie Pearson

 

 

 

Title: Authorized Signatory

 

 

 

morgan stanley senior funding, inc.,

 

as Additional Term B1 Lender

 

 

 

 

 

 

 

 

 

By:

 

/s/ Robbie Pearson

 

 

 

Name: Robbie Pearson

 

 

 

Title: Authorized Signatory

 

 

 

morgan stanley senior funding, inc.,

 

as Additional Term B2 Lender

 

 

 

 

 

 

 

 

 

By:

 

/s/ Robbie Pearson

 

 

 

Name: Robbie Pearson

 

 

 

Title: Authorized Signatory

 

 

 


 

EXHIBIT A-1

Term B1 Consent

The undersigned Term B1 Lender hereby irrevocably and unconditionally approves the Amendment and consents as follows:

Cashless Settlement Option

to convert 100% of the outstanding principal amount of the Existing Term B1 Loans held by such Term B1 Lender (or such lesser amount as notified to such Lender by the Administrative Agent) into new Term B1 Loans in a like principal amount in Dollars.

Post-Closing Settlement Option

to have 100% of the outstanding principal amount of the Existing Term B1 Loans held by such Term B1 Lender repaid on the Amendment No. 1 Effective Date and to purchase by assignment from the Additional Term B1 Lender a like principal amount in Dollars of new Term B1 Loans (or such lesser amount as notified to such Lender by the Administrative Agent).

 

 

 

 

 

(Name of Institution)

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

Title:

 

 

 

If a second signature is necessary:

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

Title:

 

 

 

 


 

EXHIBIT A-2

Term B2 Consent

The undersigned Term B2 Lender hereby irrevocably and unconditionally approves the Amendment and consents as follows:

Cashless Settlement Option

to convert 100% of the outstanding principal amount of the Existing Term B2 Loans held by such Term B2 Lender (or such lesser amount as notified to such Lender by the Administrative Agent) into new Term B2 Loans in a like principal amount in Dollars.

Post-Closing Settlement Option

to have 100% of the outstanding principal amount of the Existing Term B2 Loans held by such Term B2 Lender repaid on the Amendment No. 1 Effective Date and to purchase by assignment from the Additional Term B2 Lender a like principal amount in Dollars of new Term B2 Loans (or such lesser amount as notified to such Lender by the Administrative Agent).

 

 

 

 

 

(Name of Institution)

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

Title:

 

 

 

If a second signature is necessary:

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 


EXHIBIT B

$1,045,000,000

CREDIT AGREEMENT

Dated as of August 12, 2016,

as Amended by Amendment No. 1 on February 13, 2017

among

ENGILITY HOLDINGS, INC.,

as Holdings,

ENGILITY CORPORATION,

as the Borrower

The Several Lenders from Time to Time Parties Hereto,

MORGAN STANLEY SENIOR FUNDING, INC.,

as Administrative Agent and Collateral Agent,

MORGAN STANLEY SENIOR FUNDING, INC.,
as Swingline Lender and Issuing Bank

and

MORGAN STANLEY SENIOR FUNDING, INC.,

BARCLAYS BANK PLC,

DEUTSCHE BANK SECURITIES, INC.,

JPMORGAN CHASE BANK, N.A.,

KKR CAPITAL MARKETS LLC

REGIONS BANK

  and
SUNTRUST ROBINSON HUMPHREY, INC.,

as Joint Lead Arrangers and Joint Bookrunners,

Dated as of August 12, 2016

 

 

 

 


 

TABLE OF CONTENTS

 

 

 

 

 

Page

 

 

 

 

 

SECTION 1. DEFINITIONS

 

1

 

 

 

 

 

Section 1.1

 

Defined Terms

 

1

Section 1.2

 

Other Definitional Provisions

 

40

Section 1.3

 

Pro Forma Calculations

 

41

Section 1.4

 

Certifications

 

41

 

 

 

 

 

SECTION 2. AMOUNT AND TERMS OF COMMITMENTS

 

41

 

 

 

 

 

Section 2.1

 

Term Commitments

 

42

Section 2.2

 

Procedure for Term Loan Borrowing

 

42

Section 2.3

 

Amortization of Term Loans

 

43

Section 2.4

 

Revolving Commitments

 

43

Section 2.5

 

Procedure for Revolving Loan Borrowing

 

44

Section 2.6

 

Swingline Commitment

 

44

Section 2.7

 

Procedure for Swingline Borrowing; Refunding of Swingline Loans

 

45

Section 2.8

 

Repayment of Loans

 

46

Section 2.9

 

Commitment Fees, etc.

 

47

Section 2.10

 

Termination or Reduction of Revolving Commitments

 

47

Section 2.11

 

Optional Prepayments

 

48

Section 2.12

 

Mandatory Prepayments

 

50

Section 2.13

 

Conversion and Continuation Options

 

52

Section 2.14

 

Minimum Amounts and Maximum Number of Eurocurrency Tranches

 

52

Section 2.15

 

Interest Rates and Payment Dates

 

53

Section 2.16

 

Computation of Interest and Fees

 

53

Section 2.17

 

Inability to Determine Interest Rate

 

54

Section 2.18

 

Pro Rata Treatment and Payments

 

54

Section 2.19

 

Requirements of Law

 

56

Section 2.20

 

Taxes

 

57

Section 2.21

 

Indemnity

 

60

Section 2.22

 

Illegality

 

60

Section 2.23

 

Change of Lending Office

 

61

Section 2.24

 

Replacement of Lenders

 

61

Section 2.25

 

Incremental Loans

 

62

Section 2.26

 

Certain Provisions Regarding Defaulting Lenders

 

63

Section 2.27

 

Extended Loans

 

63

Section 2.28

 

Permitted Debt Exchanges

 

65

Section 2.29

 

Refinancing Amendments

 

67

 

 

 

 

 

SECTION 3. LETTERS OF CREDIT

 

72

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Page

 

 

 

 

 

Section 3.1

 

L/C Commitment

 

72

Section 3.2

 

Procedure for Issuance of Letter of Credit

 

72

Section 3.3

 

Fees and Other Charges

 

73

Section 3.4

 

L/C Participations

 

73

Section 3.5

 

Reimbursement Obligation of the Borrower

 

74

Section 3.6

 

Obligations Absolute

 

74

Section 3.7

 

Letter of Credit Payments

 

75

Section 3.8

 

Applications; Resignation or Replacement of Issuing Bank

 

76

Section 3.9

 

Existing Letters of Credit

 

76

 

 

 

 

 

SECTION 4. REPRESENTATIONS AND WARRANTIES

 

76

 

 

 

 

 

Section 4.1

 

Financial Condition

 

76

Section 4.2

 

No Change

 

77

Section 4.3

 

Existence; Compliance with Law

 

77

Section 4.4

 

Corporate Power; Authorization; Enforceable Obligations

 

77

Section 4.5

 

No Legal Bar

 

78

Section 4.6

 

No Material Litigation

 

78

Section 4.7

 

No Default

 

78

Section 4.8

 

Ownership of Property; Liens

 

78

Section 4.9

 

Intellectual Property

 

78

Section 4.10

 

Taxes

 

79

Section 4.11

 

Federal Regulations

 

79

Section 4.12

 

ERISA

 

79

Section 4.13

 

Investment Company Act

 

80

Section 4.14

 

Subsidiaries

 

80

Section 4.15

 

Environmental Matters

 

80

Section 4.16

 

Accuracy of Information, etc

 

80

Section 4.17

 

Security Documents

 

81

Section 4.18

 

Solvency

 

82

Section 4.19

 

Patriot Act; Foreign Corrupt Practices Act

 

82

Section 4.20

 

Sanctioned Persons

 

82

 

 

 

 

 

SECTION 5. CONDITIONS PRECEDENT

 

82

 

 

 

 

 

Section 5.1

 

Conditions to Initial Extension of Credit

 

82

Section 5.2

 

Conditions to Each Revolving Loan Extension of Credit After Closing Date

 

84

 

 

 

 

 

SECTION 6. AFFIRMATIVE COVENANTS

 

84

 

 

 

 

 

Section 6.1

 

Financial Statements

 

85

Section 6.2

 

Certificates; Other Information

 

85

Section 6.3

 

Payment of Taxes

 

87

-ii-

 


Page

Section 6.4

 

Conduct of Business and Maintenance of Existence, etc.; Compliance

 

87

Section 6.5

 

Maintenance of Property; Insurance

 

87

Section 6.6

 

Inspection of Property; Books and Records; Discussions; Lender Meetings

 

88

Section 6.7

 

Notices

 

88

Section 6.8

 

Additional Collateral, etc.

 

89

Section 6.9

 

Use of Proceeds

 

91

Section 6.10

 

Post-Closing Undertakings

 

91

Section 6.11

 

Maintenance of Ratings

 

92

Section 6.12

 

Further Assurances

 

92

Section 6.13

 

Changes in Fiscal Periods

 

92

Section 6.14

 

Lines of Business

 

92

Section 6.15

 

Compliance with Sanctions, Anti-Money Laundering and Anti-Corruption Laws

 

92

 

 

 

 

 

SECTION 7. NEGATIVE COVENANTS

 

92

 

 

 

 

 

Section 7.1

 

Financial Covenant

 

93

Section 7.2

 

Indebtedness

 

93

Section 7.3

 

Liens

 

99

Section 7.4

 

Fundamental Changes

 

103

Section 7.5

 

Dispositions of Property

 

104

Section 7.6

 

Restricted Payments

 

106

Section 7.7

 

Investments

 

108

Section 7.8

 

Optional Payments and Modifications of Certain Debt Instruments

 

110

Section 7.9

 

Transactions with Affiliates

 

111

Section 7.10

 

Sales and Leasebacks

 

111

Section 7.11

 

[Reserved]

 

111

Section 7.12

 

Negative Pledge Clauses

 

112

Section 7.13

 

Clauses Restricting Subsidiary Distributions

 

113

Section 7.14

 

[Reserved]

 

114

Section 7.15

 

Limitation on Hedge Agreements

 

114

Section 7.16

 

Changes in Jurisdictions of Organization; Name

 

114

 

 

 

 

 

SECTION 8. EVENTS OF DEFAULT

 

114

 

 

 

 

 

Section 8.1

 

Events of Default

 

114

Section 8.2

 

Specified Equity Contributions

 

119

Section 8.3

 

Treatment of Certain Payments

 

120

 

 

 

 

 

SECTION 9. THE AGENTS

 

120

 

 

 

 

 

Section 9.1

 

Appointment

 

120

Section 9.2

 

Delegation of Duties

 

121

Section 9.3

 

Powers and Duties

 

121

Section 9.4

 

Exculpatory Provisions

 

121

-iii-

 


Page

Section 9.5

 

Reliance by the Agents

 

122

Section 9.6

 

Notice of Default

 

122

Section 9.7

 

Non-Reliance on Agents and Other Lenders

 

122

Section 9.8

 

Indemnification

 

123

Section 9.9

 

Agent in Its Individual Capacity

 

123

Section 9.10

 

Successor Administrative Agent, Collateral Agent, Swingline Lender and Issuing Bank

 

123

Section 9.11

 

Authorization to Release Liens and Guarantees

 

126

Section 9.12

 

Withholding Taxes

 

126

 

 

 

 

 

SECTION 10. MISCELLANEOUS

 

126

 

 

 

 

 

Section 10.1

 

Amendments and Waivers

 

126

Section 10.2

 

Notices

 

128

Section 10.3

 

No Waiver; Cumulative Remedies

 

129

Section 10.4

 

Survival of Representations and Warranties

 

130

Section 10.5

 

Payment of Expenses; Indemnification

 

130

Section 10.6

 

Successors and Assigns; Participations and Assignments

 

131

Section 10.7

 

Adjustments; Set-off

 

135

Section 10.8

 

Counterparts

 

136

Section 10.9

 

Severability

 

136

Section 10.10

 

Integration

 

136

Section 10.11

 

GOVERNING LAW

 

136

Section 10.12

 

Submission to Jurisdiction; Waivers

 

136

Section 10.13

 

Acknowledgments

 

137

Section 10.14

 

Confidentiality

 

137

Section 10.15

 

Release of Collateral and Guarantee Obligations; Subordination of Liens

 

138

Section 10.16

 

Accounting Changes

 

139

Section 10.17

 

WAIVERS OF JURY TRIAL

 

140

Section 10.18

 

USA PATRIOT ACT

 

140

Section 10.19

 

Effect of Certain Inaccuracies

 

140

Section 10.20

 

Usury Savings Clause

 

140

Section 10.21

 

Marshalling; Payments Set Aside

 

141

Section 10.22

 

Acknowledgement and Consent to Bail-In of EEA Financial Institutions

 

141

 

 

(a)

-iv-

 


 

 

(a)

 

ANNEXES:

(b)

 

 

 

 

 

(c)

 

A-1

 

Term Commitments

(d)

 

A-2

 

Revolving Commitments

(e)

 

 

 

 

 

(f)

 

SCHEDULES:

 

 

 

 

 

 

(g)

 

3.9

 

Existing Letters of Credit

(h)

 

4.3

 

Existence; Compliance with Law

(i)

 

4.4

 

Consents, Authorizations, Filings and Notices

(j)

 

4.6

 

Litigation

(k)

 

4.8

 

Real Property

(l)

 

4.14

 

Subsidiaries

(m)

 

4.17

 

UCC Filing Jurisdictions

(n)

 

6.10

 

Post-Closing Undertakings

(o)

 

7.2(d)

 

Existing Indebtedness

(p)

 

7.3(g)

 

Existing Liens

(q)

 

7.7

 

Existing Investments

(r)

 

7.12

 

Existing Negative Pledge Clauses

 

 

(a)

EXHIBITS:

 

(b)

A Form of Assignment and Assumption

BForm of Borrowing Notice

 

(c)

C Form of Compliance Certificate

DForm of Conversion/Continuation Notice

 

(d)

E Form of Guarantee and Collateral Agreement

F[Reserved]

 

(e)

G Form of Joinder Agreement

 

(f)

H-1 Form of Term B1 Loan Note

 

(g)

H-2 Form of Term B2 Loan Note

 

(h)

H-3 Form of Revolving Note

IForm of Prepayment Notice

JForm of Subordinated Intercompany Note

 

(i)

K Form of Exemption Certificate

 

(j)

L Form of Solvency Certificate

 

(k)

M Form of Closing Certificate

 

(l)

N-1 Form of Legal Opinion of Bass, Berry & Sims PLC

 

(m)

N-2 Form of Legal Opinion of Mintz Levin Cohn Ferris Glovsky and Popeo PC

 

 

-xvi-

 


 

CREDIT AGREEMENT, dated as of August 12, 2016 (as amended by Amendment No. 1 on February 13, 2017), among ENGILITY HOLDINGS, INC., a Delaware corporation (“Holdings”), ENGILITY CORPORATION, a Massachusetts corporation (the “Borrower”), the several banks and other financial institutions or entities from time to time parties to this Agreement (the “Lenders”) and MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent and Collateral Agent.

WHEREAS, the Borrower has requested the Lenders to provide and the Lenders have agreed to provide a $200,000,000 first lien term loan B1 facility, a $680,000,000 first lien term loan B2 facility and(a) Term B1 Term Loans in an aggregate principal amount of $195.0 million, (b) Term B2 Term Loans in an aggregate principal amount of $608.0 million and (c) a $165,000,000 revolving credit facility for the making of revolving loans and swingline loans and the issuance of letters of credit, each for the account of the Borrower;

NOW, THEREFORE, in consideration of the mutual covenants and undertakings herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:

(a)DEFINITIONS

 

a.

Defined Terms

.  As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.

ABR”:  for any day, a rate per annum equal to the highest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1% and (c) the Eurocurrency Rate applicable for an interest period of one month plus 1%.  For purposes hereof:  “Prime Rate” means the rate of interest as announced from time to time by the Administrative Agent as its prime rate in effect at its principal office in New York City, as in effect from time to time.  Any change in the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.

ABR Loans”:  Loans the rate of interest applicable to which is based upon the ABR.

Accounting Changes”:  as defined in Section 10.16.

Acquisition”:  as defined in the definition of “Permitted Acquisition.”

Act”:  as defined in Section 10.18.

Administrative Agent”:  Morgan Stanley, in its capacity as the administrative agent for the Lenders under this Agreement and the other Loan Documents, together with any of its successors and permitted assigns in such capacity in accordance with Section 9.10.

Affiliate”:  as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of a Person means the power, directly or indirectly to direct or cause the direction of the management and policies of such Person, in either case whether by contract or otherwise.

 

 


 

Affiliated Institutional Lender”:  (x) any investment fund managed or advised by Affiliates of Holdings that is a bona fide debt fund and (y) any bank, insurance company, investment bank or commercial finance company that is an Affiliate of Holdings, in the case of each clause (x) and (y) that extends credit or buys loans in the ordinary course of business.

Agents”:  the collective reference to the Collateral Agent and the Administrative Agent.

Aggregate Exposure”:  with respect to any Lender at any time, an amount equal to (a) until the Closing Date, the aggregate amount of such Lender’s Commitment  at such time and (b) thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender’s Term Loans, (ii) the aggregate amount of such Lender’s Revolving Commitments then in effect or, if the Revolving Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding and (iii) the aggregate amount of such Lender’s New Commitments then in effect, or if such New Commitments have been terminated, the amount of such Lender’s New Loans.

Aggregate Exposure Percentage”:  with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the total Aggregate Exposures of all Lenders at such time.

Agreed Purposes”:  as defined in Section 10.14.

Agreement”: this Credit Agreement, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

All-In Yield” means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, original issue discount, upfront fees, a LIBOR or U.S. Base Rate floor, or otherwise, in each case, incurred or payable by the Borrower generally to all the lenders of such Indebtedness; provided that original issue discount and upfront fees shall be equated to interest rate 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); and provided, further, that “All-In Yield” shall not include arrangement fees, structuring fees, commitment fees, underwriting fees and similar fees (regardless of whether paid in whole or in part to any or all lenders) or other fees not paid generally to all lenders of such Indebtedness.

“Amendment No. 1”: Amendment No. 1 to this Agreement, dated as of February 13, 2017.

“Amendment No. 1 Consenting Lender”: each Lender that has returned an executed counterpart to Amendment No. 1 to the Administrative Agent prior to the Amendment No. 1 Effective Date.

“Amendment No. 1 Effective Date”: as defined in Amendment No. 1.

Annual Operating Budget”:  as defined in Section 6.2(c).

Anti-Corruption Laws”: all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption.

Applicable Commitment Fee Rate”:  shall be 0.50% per annum.

Applicable Margin”:  for any day, with respect to (i) ABR Loans (including any Swingline Loan) under (x) the Revolving Facility and, 3.75% per annum, (y) the Term B2 Facility, 3.752.75%

-2-

 


 

per annum and (yz) the Term B1 Facility, 3.252.25% per annum and (ii) Eurocurrency Loans under (x) the Revolving Facility and, 4.75% per annum, (y) the Term B2 Facility, 4.753.75% per annum and (yz) the Term B1 Facility, 4.253.25% per annum.

Application”:  an application, in such form as the relevant Issuing Bank may specify from time to time, requesting such Issuing Bank to open a Letter of Credit.

Approved Fund”:  as defined in Section 10.6(b).

Asset Sale”:  any Disposition of Property or series of related Dispositions of Property by the Borrower or any of its Restricted Subsidiaries not in the ordinary course of business (a) under Section 7.5(e) or (b) not otherwise permitted under Section 7.5 (provided that nothing contained herein shall be considered a consent to a disposition not otherwise permitted under Section 7.5), in each case, which yields Net Cash Proceeds (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $10,000,000.

Assignment and Assumption”:  an Assignment and Assumption, substantially in the form of Exhibit A hereto.

Auction Agent” shall mean the Administrative Agent or its successor or permitted assign.

Authorized Officer”:  as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president or one of its vice presidents (or the equivalent thereof), and such Person’s chief financial officer, treasurer or secretary.

Available Amount”:  as at any date, the sum of, without duplication:

(a)$30,000,000;

(b)the aggregate Available Excess Cash Flow Amount as of such date;

(c)the Net Cash Proceeds received after the Closing Date and on or prior to such date from any Equity Issuance by, or capital contribution to, Holdings or the Borrower (which in the case of any such Equity Issuance by the Borrower, is not Disqualified Capital Stock) which, in the case of any such Equity Issuance by, or capital contribution to, Holdings, have been contributed in cash as common equity to the Borrower, in each case to the extent it is not a Specified Equity Contribution;

(d)the aggregate amount of proceeds received by Borrower or any Subsidiary Guarantor after the Closing Date and on or prior to such date that (i) would have constituted Net Cash Proceeds pursuant to clause (a) of the definition of “Net Cash Proceeds” except for the operation of any of (A) the Dollar threshold set forth in the definition of “Asset Sale” and (B) the Dollar threshold set forth in the definition of “Recovery Event” or (ii) constitutes Declined Proceeds;

-3-

 


 

(e)the amount received by the Borrower or any Subsidiary Guarantor in cash after the Closing Date from any dividend or other distribution by an Unrestricted Subsidiary;

(f)an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in cash, Cash Equivalents and Permitted Liquid Investments by the Borrower or any Subsidiary Guarantor in respect of any Investments made pursuant to Section 7.7(f)(ii)(B), (h)(B), or (u)(ii); and

(g)the aggregate amount actually received in cash, Cash Equivalents or Permitted Liquid Investments by the Borrower or any Subsidiary Guarantor in connection with the sale, transfer or other disposition of its ownership interest in any joint venture that is not a Subsidiary Guarantor or in any Unrestricted Subsidiary, in each case, to the extent of the Investment in such joint venture or Unrestricted Subsidiary;

in each case, that has not been previously applied pursuant to Section 7.6(b), Section 7.6(n), Section 7.7(f)(ii), (h)(B) or (u)(ii) or Section 7.8(a)(i).

Available Excess Cash Flow Amount” means, at any date of determination, an amount equal to (a) commencing with the fiscal year ending December 31, 2017, the sum of the amount of Excess Cash Flow (to the extent such Excess Cash Flow amount exceeds $0) for each fiscal year in respect of which consolidated financial statements have been delivered pursuant to Section 6.1(a) on or prior to such date, minus (b) the sum of the aggregate amount of prepayments of Term Loans required to be made pursuant to Section 2.12(c) (without giving effect to any reduction in such amounts pursuant to clause (ii)(B) of such section) in respect of Excess Cash Flow for each such fiscal year.

Available Revolving Commitment”:  as to any Revolving Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect (including any New Commitments which are Revolving Commitments) over (b) such Lender’s Revolving Extensions of Credit then outstanding; provided that in calculating any Revolving Lender’s Revolving Extensions of Credit under its Revolving Commitment for the purpose of determining such Revolving Lender’s Available Revolving Commitments pursuant to Section 2.9(a), the aggregate principal amount of Swingline Loans then outstanding shall be deemed to be zero.

Bail-In Action”:  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”:  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.

Basel III”: 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 or foreign regulatory authorities, in each case pursuant to Basel III.

Benefited Lender”:  as defined in Section 10.7(a).

-4-

 


 

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

Board of Directors”:  (a) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board; (b) with respect to a partnership, the Board of Directors of the general partner of the partnership, or any committee thereof duly authorized to act on behalf of such board or the board or committee of any Person serving a similar function; (c) with respect to a limited liability company, the sole member, managing member or members or any controlling committee of managing members thereof or any Person or Persons serving a similar function; and (d) with respect to any other Person, the board or committee of such Person serving a similar function.

Borrower”:  Engility Corporation, a Massachusetts corporation.

Borrowing Date”:  any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.

Borrowing Notice”:  a notice substantially in the form of Exhibit B hereto.

Business”:  the business activities and operations of Holdings and its Subsidiaries on the Closing Date immediately after giving effect to the transactions contemplated by this Agreement.

Business Day”:  a day (a) other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close and (b) with respect to notices and determinations in connection with, and payments of principal and interest on, Eurocurrency Loans, such day is also a day for trading by and between banks in Dollar deposits in the London interbank eurocurrency market.

Capital Expenditures”:  for any period, with respect to any Person, the aggregate of all cash expenditures by such Person for the acquisition or leasing (pursuant to a capital lease but excluding any amount representing capitalized interest) of fixed or capital assets, computer software or additions to equipment (including replacements, capitalized repairs and improvements during such period) which are required to be capitalized under GAAP on a balance sheet of such Person.

Capital Lease Obligations”:  as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal Property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP; provided that for purposes of this definition, “GAAP” shall mean generally accepted accounting principles in the United States as in effect on the Closing Date; provided, further, that any change in GAAP after the Closing Date will not cause any lease that was not or would not have been a capital lease prior to such change to be deemed a capital lease.

Capital Stock”:  any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, and any and all equivalent ownership interests in a Person (other than a corporation).

Cash Equivalents”:

-5-

 


 

(a)direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within eighteen months from the date of acquisition thereof;

(b)investments in commercial paper maturing within 270 days from the date of issuance thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

(c)investments in certificates of deposit, banker’s acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Administrative Agent or any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000 and that issues (or the parent of which issues) commercial paper rated at least “Prime-1” (or the then equivalent grade) by Moody’s or “A-1” (or the then equivalent grade) by S&P;

(d)fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria of clause (c) above;

(e)investments in “money market funds” within the meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (a) through (d) above; and

(f)other short-term investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in investments of a type analogous to the foregoing.

Cash Management Obligations”:  “Borrower Cash Management Obligations” as defined in the Guarantee and Collateral Agreement.

Certificated Security”:  as defined in the Guarantee and Collateral Agreement.

CFC”:  a controlled foreign corporation within the meaning of Section 957 of the Code.

Change in Law”:  (a) the adoption of any law, rule or regulation, or (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority.

Change of Control”:  as defined in Section 8.1(j).

Chattel Paper”:  as defined in the Guarantee and Collateral Agreement.

Closing Date”: August 12, 2016, the date on which the conditions precedent set forth in Section 5.1 shall have beenwere satisfied or waived and the Existing Term B1 Loans hereunder shall have been fundedand Existing Term B2 Loans were funded under the Existing Credit Agreement.

Closing Date Refinancing” shall mean the repayment and termination of all Indebtedness outstanding under (i) the Existing First Lien Credit Agreement and (ii) the Existing Second Lien Credit Agreement.

-6-

 


 

Code”:  the Internal Revenue Code of 1986, as amended from time to time.

Collateral”:  as defined in the Guarantee and Collateral Agreement and shall include the Real Estate Collateral.

Collateral Agent”:  Morgan Stanley, in its capacity as collateral agent for the Secured Parties under the Security Documents, together with any of its successors and permitted assigns in such capacity in accordance with Section 9.10.

Commitment”:  as to any Lender, the sum of the Term Commitments, the Revolving Commitments and the New Commitments (in each case, if any) of such Lender.

Committed Reinvestment Amount”:  as defined in the definition of “Reinvestment Prepayment Amount.”

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time and any successor statute.

Commonly Controlled Entity”:  an entity, whether or not incorporated, that is under common control with Holdings within the meaning of Section 4001 of ERISA or is part of a group that includes Holdings and that is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.

Commonly Controlled Plan”:  as defined in Section 4.12(b).

Compliance Certificate”:  a certificate duly executed by a Responsible Officer substantially in the form of Exhibit C hereto.

Confidential Information”:  as defined in Section 10.14.

Consolidated Current Assets”:  at any date, all amounts (other than cash, Cash Equivalents and Permitted Liquid Investments) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries at such date.

Consolidated Current Liabilities”:  at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries at such date, but excluding, without duplication, all Indebtedness consisting of Revolving Loans, L/C Obligations or Swingline Loans, to the extent otherwise included therein.

Consolidated EBITDA”:  of any Person for any period, Consolidated Net Income of such Person and its Restricted Subsidiaries for such period plus, without duplication and, if applicable, to the extent reflected as a charge in the statement of such Consolidated Net Income (regardless of classification) for such period, the sum of:

(a)provisions for taxes based on income (or similar taxes in lieu of income taxes), profits, capital (or equivalents), including federal, foreign, state, local, franchise, excise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period;

-7-

 


 

(b)Consolidated Interest Expense and, to the extent not reflected in such Consolidated Interest Expense, any net losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, amortization or write-off of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness (including commitment, letter of credit and administrative fees and charges with respect to the Facilities);

(c)depreciation and amortization expense and impairment charges (including deferred financing fees, capitalized software expenditures, intangibles (including goodwill), organization costs and amortization of unrecognized prior service costs and actuarial gains and losses related to pensions and other post-employment benefits);

(d)any extraordinary, unusual or non-recurring expenses or losses (including losses on sales of assets outside of the ordinary course of business and restructuring and integration costs or reserves, including any severance costs, costs associated with office and facility openings, closings and consolidations, relocation costs and other non-recurring business optimization expenses);

(e)any other non-cash charges, expenses or losses (except to the extent such charges, expenses or losses represent an accrual of or reserve for cash expenses in any future period or an amortization of a prepaid cash expense paid in a prior period);

(f)stock-option based and other equity-based compensation expenses;

(g)transaction costs, fees, losses and expenses (whether or not any transaction is actually consummated) (including the transactions contemplated hereby (including any amendments or waivers of the Loan Documents), and those payable in connection with the sale of Capital Stock, the incurrence of Indebtedness permitted by Section 7.2, transactions permitted by Section 7.4, Dispositions permitted by Section 7.5 or any Permitted Acquisition or other Investment permitted by Section 7.7 (in each case whether or not successful));

(h)[Reserved];

(i)proceeds from any business interruption insurance (to the extent not reflected as revenue or income in such statement of such Consolidated Net Income);

(j)the amount of cost savings and other operating improvements and synergies projected by the Borrower in good faith and certified in writing to the Administrative Agent to be realized as a result of any acquisition or Disposition (including the termination or discontinuance of activities constituting such business) of business entities or properties or assets, constituting a division or line of business of any business entity, division or line of business that is the subject of any such acquisition or Disposition, or from any operational change taken or committed to be taken during such period (in each case calculated on a pro forma basis as though such cost savings and other operating improvements and synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions to the extent already included in the Consolidated Net Income for such period, provided that (i) the Borrower shall have certified to the Administrative Agent that (A) such cost savings, operating improvements and synergies are reasonably anticipated to result from such actions, (B) such actions have been taken, or have been committed to be taken and the benefits resulting therefrom are anticipated by the Borrower to be realized within 24 months and (ii) no cost savings shall be added

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pursuant to this clause (j) to the extent already included in clause (d) above with respect to such period;

(k)cash expenses relating to earn-outs and similar obligations;

(l)charges, losses, lost profits, expenses or write-offs to the extent indemnified or insured by a third party, including expenses covered by indemnification provisions in any agreement in connection with a Permitted Acquisition or any other acquisition permitted by Section 7.7;

(m)losses recognized and expenses incurred in connection with the effect of currency and exchange rate fluctuations on intercompany balances and other balance sheet items;

(n)costs of surety bonds in connection with financing activities of such Person and its Restricted Subsidiaries; and

(o)costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and Public Company Costs;

minus, to the extent reflected as income or a gain in the statement of such Consolidated Net Income for such period, the sum of:

(a)any extraordinary, unusual or non-recurring income or gains (including gains on the sales of assets outside of the ordinary course of business);

(b)any other non-cash income or gains (other than the accrual of revenue in the ordinary course), but excluding any such items (i) in respect of which cash was received in a prior period or will be received in a future period or (ii) which represent the reversal in such period of any accrual of, or reserve for, anticipated cash charges in any prior period where such accrual or reserve is no longer required, all as determined on a consolidated basis; and

(c)gains realized and income accrued in connection with the effect of currency and exchange rate fluctuations on intercompany balances and other balance sheet items;

provided that for purposes of calculating Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for any period, (A) the Consolidated EBITDA of any Person or Properties constituting a division or line of business of any business entity, division or line of business, in each case, acquired by the Borrower or any of the Restricted Subsidiaries during such period and assuming any synergies, cost savings and other operating improvements to the extent certified by the Borrower as having been determined in good faith to be reasonably anticipated to be realizable within 12 months following such acquisition, or of any Subsidiary designated as a Restricted Subsidiary during such period, shall be included on a pro forma basis for such period (but assuming the consummation of such acquisition or such designation, as the case may be, occurred on the first day of such period) and (B) the Consolidated EBITDA of any Person or Properties constituting a division or line of business of any business entity, division or line of business, in each case, Disposed of by the Borrower or any of the Restricted Subsidiaries during such period, or of any Subsidiary designated as an Unrestricted Subsidiary during such period, shall be excluded for such period (assuming the consummation of such Disposition or such designation, as the case may be, occurred on the first day of such period).  With respect to each Subsidiary that is not a wholly-owned Subsidiary or any joint venture, for purposes of calculating Consolidated EBITDA, the amount of income attributable to such Subsidiary or joint venture, as applicable, that shall be counted for such purposes shall equal the product of (x) the Bor

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rower’s direct and/or indirect percentage ownership of such Subsidiary or joint venture and (y) the aggregate amount of the applicable item of such Subsidiary or joint venture, as applicable, except to the extent the application of GAAP already takes into account the non-wholly owned subsidiary relationship.  Notwithstanding the forgoing, Consolidated EBITDA shall be calculated without giving effect to the effects of purchase accounting or similar adjustments required or permitted by GAAP in connection with any Investment (including any Permitted Acquisition) and any other acquisition or Investment.  Unless otherwise qualified, all references to “Consolidated EBITDA” in this Agreement shall refer to Consolidated EBITDA of the Borrower.

Consolidated First Lien Net Leverage”:  at any date of determination, the aggregate principal amount of all Funded Debt of Holdings and its Restricted Subsidiaries on such date secured by Liens on a pari passu basis with the Obligations (including any such Permitted Other Indebtedness incurred pursuant to Section 7.2(bb)(i)(a)) minus Unrestricted Cash.

Consolidated First Lien Net Leverage Ratio”:  at any date of determination, the ratio of (a) Consolidated First Lien Net Leverage of Holdings and its Restricted Subsidiaries for the most recently ended Test Period to (b) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period.

Consolidated Interest Expense”:  of any Person for any period, (a) total cash interest expense (including that attributable to Capital Lease Obligations) of such Person and its Restricted Subsidiaries for such period with respect to all outstanding Indebtedness of such Person and its Restricted Subsidiaries, minus (b) any one time financing fees (to the extent included in such Person’s consolidated interest expense for such period), including, with respect to the Borrower, those paid in connection with the Loan Documents or in connection with any amendment thereof.  Unless otherwise qualified, all references to “Consolidated Interest Expense” in this Agreement shall refer to Consolidated Interest Expense of the Borrower.

Consolidated Net Income”:  of any Person for any period, the consolidated net income (or loss) of such Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP; provided that in calculating Consolidated Net Income of the Borrower and its consolidated Restricted Subsidiaries for any period, there shall be excluded (a) the income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary or is merged into or consolidated with the Borrower or any of its Subsidiaries and (b) the income (or loss) of any Person (other than a Restricted Subsidiary) in which the Borrower or any of its Restricted Subsidiaries has an ownership interest (including any joint venture), except to the extent that any such income is actually received by the Borrower or such Restricted Subsidiary in the form of dividends or similar distributions (which dividends and distributions shall be included in the calculation of Consolidated Net Income).  Notwithstanding the forgoing, for purposes of calculating Excess Cash Flow, Consolidated Net Income shall not include:  (i) extraordinary gains for such period, (ii) the cumulative effect of a change in accounting principles during such period, (iii) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, investment, recapitalization, asset disposition, issuance or repayment of debt, issuance of equity securities, refinancing transaction or amendment or other modification of any debt instrument (in each case, including any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction and (iv) any income (loss) for such period attributable to the early extinguishment of Indebtedness or Hedge Agreements.  Unless otherwise qualified, all references to “Consolidated Net Income” in this Agreement shall refer to Consolidated Net Income of the Borrower.  There shall be excluded from Consolidated Net Income for any period the purchase accounting effects of adjustments to inventory, Property and equipment, software and other intangible assets and deferred revenue required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the

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Borrower and the Restricted Subsidiaries) as a result of any consummated acquisition whether consummated before or after the Closing Date or the amortization or write-off of any amounts thereof.

Consolidated Total Assets”:  the total assets of Holdings and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as shown on the consolidated balance sheet of the Borrower for the most recently completed fiscal quarter for which financial statements have been delivered pursuant to Section 6.1(a) or (b).

Consolidated Total Net Leverage”:  at any date, the aggregate principal amount of all Funded Debt of Holdings and its Restricted Subsidiaries on such date, minus Unrestricted Cash.

Consolidated Total Net Leverage Ratio”:  as of any date of determination, the ratio of (a) Consolidated Total Net Leverage on such day to (b) Consolidated EBITDA of Holdings and the Restricted Subsidiaries for the most recently ended Test Period.

Consolidated Total Net Leverage Test”:  as of any date of determination, with respect to the last day of the most recently ended Test Period, the Consolidated Total Net Leverage Ratio shall be no greater than 5.75 to 1.00.

Consolidated Working Capital”:  at any date, the difference of (a) Consolidated Current Assets on such date minus (b) Consolidated Current Liabilities on such date, provided that, for purposes of calculating Excess Cash Flow, increases or decreases in Consolidated Working Capital shall be calculated without regard to changes in the working capital balance as a result of non-cash increases or decreases thereof that will not result in future cash payments or receipts or cash payments or receipts in any previous period, in each case, including, without limitation, any changes in Consolidated Current Assets or Consolidated Current Liabilities as a result of (i) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent, (ii) the effects of purchase accounting and (iii) the effect of fluctuations in the amount of accrued or contingent obligations, assets or liabilities under Hedge Agreements.

Continuing Directors”:  the directors of Holdings on the Closing Date and each other director of Holdings, if, in each case, such other director’s nomination for election to the Board of Directors of Holdings is approved by at least 51% of the then Continuing Directors or such other director receives the vote of the Sponsor and/or its Affiliates (excluding any operating portfolio companies of the Sponsor) or any other Permitted Investor in his or her nomination or election by the shareholders of Holdings.

Contractual Obligation”:  as to any Person, any provision of any security issued by such Person or of any written or recorded agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound.

Conversion/Continuation Notice”:  a Conversion/Continuation Notice substantially in the form of Exhibit D hereto.

“Converted Term B1 Loan”: shall mean each Existing Term B1 Loan held by an Amendment No. 1 Consenting Lender on the Amendment No. 1 Effective Date immediately prior to the extension of credit hereunder on the Amendment No. 1 Effective Date; provided that the amount of such Amendment No. 1 Consenting Lender’s Converted Term B1 Loans may be less than the amount of the Existing Term B1 Loans held by such Amendment No. 1 Consenting Lender, which lower amount shall be notified to such Amendment No. 1 Consenting Lender by the Administrative Agent prior to the Amendment No. 1 Effective Date.

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“Converted Term B2 Loan”: shall mean each Existing Term B2 Loan held by an Amendment No. 1 Consenting Lender on the Amendment No. 1 Effective Date immediately prior to the extension of credit hereunder on the Amendment No. 1 Effective Date; provided that the amount of such Amendment No. 1 Consenting Lender’s Converted Term B2 Loans may be less than the amount of the Existing Term B2 Loans held by such Amendment No. 1 Consenting Lender, which lower amount shall be notified to such Amendment No. 1 Consenting Lender by the Administrative Agent prior to the Amendment No. 1 Effective Date.

Declined Proceeds”:  as defined in Section 2.12(e).

Default”:  any condition or event that, after notice or lapse of time or both, would constitute an Event of Default.

Defaulting Lender”:  any Lender that has (a) failed to fund any portion of its Revolving Commitment within one Business Day of the date required to be funded by it hereunder, unless the subject of a good faith dispute, (b) notified the Borrower, the Administrative Agent or any Lender in writing, or has otherwise indicated through a public statement, that it does not intend to comply with its funding obligations generally under agreements in which it commits to extend credit, (c) failed, within three Business Days after receipt of a written request from the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Revolving Commitments, (d) 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 Business Days of the date when due, unless the subject of a good faith dispute, (e) become the subject of a Bail-In Action or (f) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, custodian, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, custodian, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment; provided that (i) the Administrative Agent and the Borrower may declare (A) by joint notice to the Lenders that a Defaulting Lender is no longer a “Defaulting Lender” or (B) that a Lender is not a Defaulting Lender if in the case of both clauses (A) and (B) the Administrative Agent and the Borrower each determines, in its sole respective discretion, that (x) the circumstances that resulted in such Lender becoming a “Defaulting Lender” no longer apply or (y) it is satisfied that such Lender will continue to perform its funding obligations hereunder and (ii) a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of voting stock or any other equity interest in such Lender or a parent company thereof by a Governmental Authority or an instrumentality thereof.

Defaulting Revolving Lender”:  as defined in Section 2.26.

Derivatives Counterparty”:  as defined in Section 7.6.

Discounted Value” means, with respect to any Term Loan, the amount obtained by discounting all Remaining Scheduled Payments with respect to the Prepaid Principal of such Term Loan from their respective scheduled due dates to the Prepayment Date with respect to such Prepaid Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Term Loans is payable) equal to the Reinvestment Yield with respect to such Prepaid Principal.

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Disinterested Director”:  as defined in Section 7.9.

Disposition”:  with respect to any Property, any sale, sale and leaseback, assignment, conveyance, transfer or other effectively complete disposition thereof.  The terms “Dispose” and “Disposed of” shall have correlative meanings.

Disqualified Capital Stock”:  Capital Stock that (a) requires the payment of any dividends (other than dividends payable solely in shares of Qualified Capital Stock), (b) matures or is mandatorily redeemable or subject to mandatory repurchase or redemption or repurchase at the option of the holders thereof (other than solely for Qualified Capital Stock), in each case in whole or in part and whether upon the occurrence of any event, pursuant to a sinking fund obligation on a fixed date or otherwise (including as the result of a failure to maintain or achieve any financial performance standards) or (c) are convertible or exchangeable, automatically or at the option of any holder thereof, into any Indebtedness, Capital Stock or other assets other than Qualified Capital Stock, in the case of clauses (a), (b) and (c), prior to the date that is 91 days after the final scheduled maturity date of the Loans (other than (i) upon payment in full of the Obligations (other than indemnification and other contingent obligations not yet due and owing) and termination of the Commitments or (ii) upon a “change in control”; provided that any payment required pursuant to this clause (ii) is subject to the prior repayment in full of the Obligations (other than indemnification and other contingent obligations not yet due and owing) that are accrued and payable and the termination of the Commitments); provided further, however, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Borrower or the Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.

Disqualified Institution”:  (a) business competitors of the Borrower and its Subsidiaries and their known Affiliates identified by the Borrower in writing to the Administrative Agent from time to time and (b) other Persons indentified by the Borrower to the Administrative Agent prior to the date hereof.

Dollars” and “$”:  dollars in lawful currency of the United States.

Domestic Subsidiary”:  any direct or indirect Restricted Subsidiary organized under the laws of the United States, any State thereof or the District of Columbia.

EEA Financial Institution”:  (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country”:  any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority”:  any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Eligible Assignee”: (a) any Lender, any Affiliate of a Lender and any Approved Fund of a Lender (any two or more Approved Funds being treated as a single Eligible Assignee for all purposes

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hereof) and (b) any commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act of 1933) and which extends credit or buys loans; provided, that no Affiliate of Holdings or the Sponsors shall be an Eligible Assignee other than a Sponsor Affiliated Lender or a Sponsor Affiliated Institutional Lender.

Engagement Letter”:  as defined in Section 10.10.

Environmental Laws”:  any and all applicable laws, rules, orders, regulations, statutes, ordinances, codes or decrees (including, without limitation, common law) of any international authority, foreign government, the United States, or any state, provincial, local, municipal or other Governmental Authority, regulating, relating to or imposing liability or standards of conduct concerning protection of the environment, natural resources or human health and safety as it relates to Releases of Materials of Environmental Concern, as has been, is now, or at any time hereafter is, in effect.

Environmental Liability”:  any liability, claim, action, suit, judgment or order under or relating to any Environmental Law for any damages, injunctive relief, losses, fines, penalties, fees, expenses (including reasonable fees and expenses of attorneys and consultants) or costs, whether contingent or otherwise, including those arising from or relating to:  (a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Materials of Environmental Concern, (c) exposure to any Materials of Environmental Concern, (d) the Release of any Materials of Environmental Concern or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Equity Issuance”:  any issuance by Holdings, the Borrower or any Restricted Subsidiary of its Capital Stock in a public or private offering.

ERISA”:  the Employee Retirement Income Security Act of 1974, as amended from time to time.  

EU Bail-In Legislation Schedule”:  the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

Eurocurrency Base Rate”:  for any Interest Period as to any Eurocurrency Loan, (i) the LIBO Rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time), two Business Days prior to the commencement of such Interest Period, (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays the LIBO Rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period or (iii) in the event the rates referenced in the preceding clauses (i) and (ii) are not available, the rate per annum determined by the Administrative Agent to be the average offered quotation rate by major banks in the London interbank market to Morgan Stanley for deposits (for delivery on the first day of the relevant period) in Dollars of amounts in same day funds comparable to the principal amount of the Eurocurrency Loan for which the Eurocurrency Base Rate is then being determined with maturities comparable to such Interest Period as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period; provided that if LIBO Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the LIBO Rate shall be equal to the Interpolated Rate; and provided, further, that if any such rate determined pursuant to the preceding clauses (i), (ii) or (iii) is below zero, the Eurocurrency Base Rate will be deemed to be zero.

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Eurocurrency Loans”:  Loans the rate of interest applicable to which is based upon the Eurocurrency Rate.

Eurocurrency Rate”:  with respect to each day during each Interest Period pertaining to a Eurocurrency Loan, a rate per annum determined for such day in accordance with the following formula:

Eurocurrency Base Rate

1.00 - Eurocurrency Reserve Requirements

 

provided, that, in the case of (x) Term B2 Loans, the Eurocurrency Rate shall not be less than 1.00% per annum and (y) Term B1 Loans and Revolving Loans, the Eurocurrency Rate shall not be less than 0.00% per annum.

Eurocurrency Reserve Requirements”:  for any day as applied to a Eurocurrency Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including basic, supplemental, marginal and emergency reserves) under any regulations of the Board or other Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the Federal Reserve System.

Eurocurrency Tranche”:  the collective reference to Eurocurrency Loans under a particular Facility the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).

Event of Default”:  any of the events specified in Section 8.1; provided that any requirement set forth therein for the giving of notice, the lapse of time, or both, has been satisfied.

Excess Cash Flow”:  for any fiscal year of the Borrower, the difference, if any, of (a) the sum, without duplication, of (i) Consolidated Net Income of the Borrower for such fiscal year, (ii) the amount of all non-cash charges (including depreciation, amortization and deferred tax expense) deducted in arriving at such Consolidated Net Income and cash receipts included in clause (i) of the definition of “Consolidated Net Income” and excluded in arriving at such Consolidated Net Income, (iii) the amount of the decrease, if any, in Consolidated Working Capital for such fiscal year and (iv) the aggregate net amount of non-cash loss on the Disposition of Property by the Borrower and its Restricted Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income; minus (b) the sum, without duplication (including, in the case of clauses (ii) and (vii) below, duplication across periods (provided that all or any portion of the amounts referred to in clauses (ii) and (vii) below with respect to a period may be applied in the determination of Excess Cash Flow for any subsequent period to the extent such amounts did not previously result in a reduction of Excess Cash Flow in any prior period)) of:

(i)the amount of all non-cash gains or credits included in arriving at such Consolidated Net Income (including credits included in the calculation of deferred tax assets and liabilities);

(ii)the aggregate amount (A) actually paid by the Borrower and its Restricted Subsidiaries in cash during such fiscal year on account of Capital Expenditures and Permitted Acquisitions and (B) committed during such fiscal year to be used to make Capital Expenditures or Permitted Acquisitions which in either case have been actually made or consummated or for which a binding agreement exists as of the time of determination of Excess Cash Flow for such

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fiscal year (in each case under this clause (ii) other than to the extent any such Capital Expenditure or Permitted Acquisition is made (or, in the case of the preceding clause (B), is expected to be made) with the proceeds of new long-term Indebtedness or an Equity Issuance or with the proceeds of any Reinvestment Deferred Amount);

(iii)the aggregate amount of all regularly scheduled principal payments and all prepayments of Indebtedness (including the Term Loans, but excluding prepayments made from the Available Amount or arising under Section 2.11(b)) of the Borrower and its Restricted Subsidiaries made during such fiscal year (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder and other than to the extent any such prepayments are the result of the incurrence of long-term indebtedness and other than optional prepayments of the Term Loans and optional prepayments of Revolving Loans and Swingline Loans to the extent accompanied by permanent optional reductions of the Revolving Commitments);

(iv)the amount of the increase, if any, in Consolidated Working Capital for such fiscal year;

(v)the aggregate net amount of non-cash gain on the Disposition of Property by the Borrower and its Restricted Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course of business), to the extent included in arriving at such Consolidated Net Income;

(vi)fees and expenses incurred in connection with the Refinancing or any Permitted Acquisition (whether or not consummated);

(vii)purchase price adjustments paid or received in connection with any Permitted Acquisition or any other acquisition permitted under Section 7.7(h) or (u);

(viii)(A) the amount of Investments made during such period (net of cash returns of such Investments (in such periods or otherwise) and excluding all such Investments made with the Available Amount) pursuant to paragraphs (d), (f) (i) and (ii) and (h) (provided that the aggregate amount of such Investments pursuant to paragraphs (f)(ii) and (h) reducing Excess Cash Flow during the term of this Agreement shall not exceed $25,000,000), and (u) of Section 7.7 (to the extent, in the case of clause (u), such Investment relates to Restricted Payments permitted under Section 7.6(c), (e), (h) or (i) other than Restricted Payments made with the Available Amount)) or such amounts committed during such period to be used to make Investments pursuant to such paragraphs of Section 7.7 which have been actually made or for which a binding agreement exists as of the time of determination of Excess Cash Flow for such period (but excluding Investments among the Borrower and its Restricted Subsidiaries) and (B) permitted Restricted Payments made in cash by the Borrower during such period (other than Restricted Payments made with the Available Amount) to the extent permitted by Section 7.6(c), (e), (h) or (i); provided that the amount of Restricted Payments made pursuant to Section 7.6(e) and deducted pursuant to this clause (viii) shall not exceed $10,000,000 in any fiscal year;

(ix)the amount (determined by the Borrower) of such Consolidated Net Income which is mandatorily prepaid or reinvested pursuant to Section 2.12(b) (or as to which a waiver of the requirements of such Section applicable thereto has been granted under Section 10.1) prior to the date of determination of Excess Cash Flow for such fiscal year as a result of any Asset Sale or Recovery Event;

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(x)the aggregate amount of any premium or penalty actually paid in cash that is required to be made in connection with any prepayment of Indebtedness;

(xi)cash payments by the Borrower and its Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and its Subsidiaries other than Indebtedness;

(xii)the aggregate amount of expenditures actually made by the Borrower and its Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period and are not deducted in calculating Consolidated Net Income;

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

(xiv)the amount of taxes (including penalties and interest) paid in cash in such period or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period;

(xv)the amount of cash payments made in respect of pension obligations and other post-employment benefits obligations in such period to the extent not deducted in arriving at such Consolidated Net Income;

(xvi)payments made in respect of the minority equity interests of third parties in any non-wholly owned Restricted Subsidiary in such period, including pursuant to dividends declared or paid on Capital Stock held by third parties in respect of such non-wholly-owned Restricted Subsidiary to the extent not deducted in arriving at such Consolidated Net Income; and

(xvii)the amount representing accrued expenses for cash payments (including with respect to retirement plan obligations) that are not paid in cash in such fiscal year, provided that such amounts will be added to Excess Cash Flow for the following fiscal year to the extent not paid in cash during such following fiscal year.

Excess Cash Flow Application Date”:  as defined in Section 2.12(c).

Excess Cash Flow Percentage”:  50%; provided, that, the Excess Cash Flow Percentage shall be reduced to (a) 25% if the Consolidated First Lien Net Leverage Ratio as of the last day of the relevant fiscal quarter is not greater than 3.50 to 1.00 and (b) 0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the relevant fiscal quarter is not greater than 3.00 to 1.00.

Exchange Act”:  as defined in Section 6.02(c).

Excluded Capital Stock”:  (a) any Capital Stock with respect to which, in the reasonable judgment of Administrative Agent (confirmed by written notice to the Borrower), (i) the cost of pledging such Capital Stock in favor of the Secured Parties under the Security Documents shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom or (ii) would result in material adverse tax consequences as demonstrated by the Borrower to the reasonable satisfaction of the Administrative Agent, (b) solely in the case of any pledge of voting Capital Stock of any CFC or any Foreign Subsidiary Holding Company to secure the Obligations, any voting Capital Stock of any class of such CFC or such Foreign Subsidiary Holding Company in excess of 65% of the outstanding voting Capital Stock of such class (such percentage to be adjusted by mutual agreement (not to be unreasonably withheld) upon any change in law as may be required to avoid adverse U.S.  federal income tax consequences to the Bor

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rower or any Subsidiary), (c) any Capital Stock to the extent the pledge thereof would violate any applicable Requirement of Law (except to the extent such Requirement of Law may be waived by agreement or to the extent ineffective under the Uniform Commercial Code), (d) the Capital Stock of any Unrestricted Subsidiary and (e) any Capital Stock of each such Subsidiary to the extent that (i) a pledge thereof to secure the Obligations is prohibited by any applicable Contractual Obligations (other than prohibitions which are ineffective under the Uniform Commercial Code), (ii) any Contractual Obligation prohibits such a pledge without the consent of the other party; provided that this clause (ii) shall not apply if (A) such other party is a Loan Party or a wholly-owned Subsidiary or (B) consent has been obtained to consummate such pledge and for so long as such Contractual Obligation or replacement or renewal thereof is in effect or (iii) a pledge thereof to secure the Obligations would give any other party to a Contractual Obligation the right to terminate its obligations thereunder (other than provisions which are ineffective under the Uniform Commercial Code or other applicable law); provided that this clause (iii) shall not apply if such other party is a Loan Party or a wholly-owned Subsidiary.

Excluded Collateral”:  as defined in Section 4.17(a).

Excluded Real Property”:  (a) any Real Property with respect to which, in the reasonable judgment of Administrative Agent (confirmed by written notice to the Borrower) the cost of providing a mortgage on such Real Property in favor of the Secured Parties under the Security Documents shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom and (b) any Real Property to the extent providing a mortgage on such Real Property would (i) result in adverse tax consequences as demonstrated by the Borrower to the reasonable satisfaction of the Administrative Agent, (ii) violate any applicable Requirement of Law (except to the extent such Requirement of Law may be waived by agreement or to the extent ineffective under the Uniform Commercial Code), (iii) be prohibited by any applicable Contractual Obligations (other than provisions which are ineffective under the Uniform Commercial Law or other applicable law) or (iv) give any other party (other than a Loan Party or a wholly-owned Subsidiary) to any contract, agreement, instrument or indenture governing such Real Property the right to terminate its obligations thereunder (other than provisions which are ineffective under the Uniform Commercial Code or other applicable law).

Excluded Subsidiary”:  (a) each Domestic Subsidiary that is not a Wholly-Owned Subsidiary (for so long as such Subsidiary remains a non-wholly-owned Restricted Subsidiary), (b) any Foreign Subsidiary Holding Company, (c) each Domestic Subsidiary that is a Subsidiary of a CFC, (d) each Unrestricted Subsidiary, (e) each Domestic Subsidiary to the extent that such Domestic Subsidiary is prohibited by any applicable Contractual Obligation or Requirement of Law (other than prohibitions which are ineffective under the Uniform Commercial Code or other applicable law) from guaranteeing the Obligations, (f) each Receivables Subsidiary and (g) any other Domestic Subsidiary that is an Immaterial Subsidiary or with respect to which, in the reasonable judgment of the Administrative Agent (confirmed by written notice to the Borrower) the cost of providing a guarantee is excessive in view of the benefits to be obtained by the Lenders.

Excluded Swap Obligation”:  with respect to any Guarantor (a) as it relates to all or a portion of the Guarantee Obligation of such Guarantor, any Swap Obligation if, and to the extent that, such Swap Obligation (or any Guarantee Obligation thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee Obligation of such Guarantor becomes effective with respect to such Swap Obligation or (b) as it relates to all or a portion of the grant by such Guarantor of a security interest, any Swap Obligation if, and to the extent that, such Swap Obligation (or such security interest in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order

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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 and the regulations thereunder at the time the security interest of such Guarantor becomes effective with respect to such Swap Obligation.  If a 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 Guarantee Obligation or security interest is or becomes illegal.

“Existing Credit Agreement”: that certain credit agreement dated as of August 12, 2016, among the Borrower, Holdings, the Administrative Agent and the several lenders from time to time party thereto.

Existing First Lien Credit Agreement”: that certain credit agreement dated as of May 23, 2014, as amended December 18, 2014, as further amended February 25, 2016, among the Borrower, Holdings, the Administrative Agent and the several lenders from time to time party thereto.

Existing Issuing Bank”:  each bank that has issued an Existing Letter of Credit.

Existing Letter of Credit”:  each letter of credit outstanding on the Closing Date as specified on Schedule 3.9.

Existing Loan Facility”:  as defined in Section 2.27(a).

Existing Second Lien Credit Agreement”; that certain credit agreement dated as of May 23, 2014, as amended December 18, 2014, among the Borrower, Holdings, the Administrative Agent and the several lenders from time to time party thereto.

“Existing Term B1 Loan”: the Term B1 Loans (as such term is defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement immediately prior to the Amendment No. 1 Effective Date.

“Existing Term B2 Loan”: the Term B2 Loans (as such term is defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement immediately prior to the Amendment No. 1 Effective Date.

Extended Loans”:  as defined in Section 2.27(a).

Extending Lender”:  as defined in Section 2.27(b).

Extension Election”:  as defined in Section 2.27(b).

Extension Request”:  as defined in Section 2.27(a).

Facility”:  each of (a) the Term B1 Commitments and the Term B1 Loans made thereunder (the “Term B1 Facility”), (bd) the Term B2 Commitments and the Term B2 Loans made thereunder (the “Term B2 Facility”), (ce) any New Commitments and the New Loans made thereunder (a “New Facility”), (df) the Revolving Commitments and the extensions of credit made thereunder (the “Revolving Facility”), (eg) any Refinancing Term Loans made pursuant to Section 2.29 hereof and (fh) any Replacement Revolving Facility Commitments and the Replacement Revolving Loans made thereunder.

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FATCA”:  Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with),  any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreements entered into in connection with the implementation of the foregoing, and any fiscal or regulatory legislation or rules adopted pursuant to any such intergovernmental agreement.

Federal Funds Effective Rate”:  for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

Fee Payment Date”:  commencing with September 30, 2016 (a) the last Business Day of each March, June, September and December and (b) the last day of the Revolving Commitment Period.

First Lien Net Leverage Test”: as of any date of determination, with respect to the last day of the most recently ended Test Period, the Consolidated First Lien Net Leverage Ratio shall be no greater than 4.00 to 1.00.

First Tier Foreign Subsidiary”:  any Foreign Subsidiary that is a direct subsidiary of a Domestic Subsidiary, other than a Domestic Subsidiary that is itself a Foreign Subsidiary Holding Company.

Fiscal Quarter”:  the then current fiscal quarter of the Borrower.

Flood Insurance Laws”:  collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

Foreign Subsidiary”:  any Restricted Subsidiary of the Borrower that is not a Domestic Subsidiary.

Foreign Subsidiary Holding Company”:  any Restricted Subsidiary of the Borrower which is a Domestic Subsidiary substantially all of the assets of which consist of the Capital Stock of one or more Foreign Subsidiaries that are CFCs.

Funded Debt”:  with respect to any Person (i) all Indebtedness of such Person of the types described in clauses (a), (b), to the extent reflected as a liability on the balance sheet in accordance with GAAP, (c), (e) or (g) of the definition of “Indebtedness” and (ii) all Indebtedness incurred under Sections 7.2(s), (y) and (bb).

Funding Office”:  the office of the Administrative Agent specified in Section 10.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders.

GAAP”:  generally accepted accounting principles in the United States, as in effect from time to time; provided, however, that if there occurs after the Closing Date any change in GAAP that af

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fects in any respect the calculation of any covenant contained in Section 7 or any financial definition, the Lenders and the Borrower shall negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant or definition with the intent of having the respective positions of the Lenders and the Borrower after such change in GAAP conform as nearly as possible to their respective positions as of the Closing Date and, until any such amendments have been agreed upon, the covenants in Section 7 and the financial definitions shall be calculated as if no such change in GAAP has occurred.

Governmental Authority”:  any nation or government, any state, province or other political subdivision thereof and any governmental entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and, as to any Lender, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).

Government Contract”:  as defined in the Guarantee and Collateral Agreement.

Grantor”:  as defined in the Guarantee and Collateral Agreement.

Guarantee and Collateral Agreement”:  the Guarantee and Collateral Agreement, substantially in the form of Exhibit E hereto, dated as of the date hereof by and among Holdings, the Borrower and each Subsidiary Guarantor, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

Guarantee Obligation”:  as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) pursuant to which the guaranteeing person has issued a guarantee, reimbursement, counterindemnity or similar obligation, in either case guaranteeing or by which such Person becomes contingently liable for any Indebtedness (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase Property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets or any Investment permitted under this Agreement.  The amount of any Guarantee Obligation of any guaranteeing Person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case, the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof (assuming such person is required to perform thereunder) as determined by such Person in good faith.

Guarantors”:  the collective reference to Holdings and the Subsidiary Guarantors.

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Hedge Agreements”:  all agreements with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions, in each case, entered into by the Borrower or any Restricted Subsidiary.

Highest Lawful Rate”:  the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.

Historical Financial Statements”:  as defined in Section 4.1(a).

Holdings”:  as defined in the preamble hereto and together with any of its permitted successors and assigns.

Immaterial Subsidiary”:  on any date, any Subsidiary of the Borrower that has had less than 5% of Consolidated Total Assets and 5% of annual consolidated revenues of the Borrower and its Restricted Subsidiaries as reflected on the most recent financial statements delivered pursuant to Section 6.1 prior to such date; provided that at no time shall all Immaterial Subsidiaries have in the aggregate Consolidated Total Assets or annual consolidated revenues (as reflected on the most recent financial statements delivered pursuant to Section 6.1 prior to such time) in excess of 7.5% of Consolidated Total Assets or annual consolidated revenues, respectively, of the Borrower and its Restricted Subsidiaries.

Increased Amount Date”:  as defined in Section 2.25.

Indebtedness” of any Person:  without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person for the deferred purchase price of Property or services already received, (d) all Guarantee Obligations by such Person of Indebtedness of others, (e) all Capital Lease Obligations of such Person, (f) all payments that such Person would have to make in the event of an early termination, on the date Indebtedness of such Person is being determined in respect of outstanding Hedge Agreements (such payments in respect of any Hedge Agreement with a counterparty being calculated subject to and in accordance with any netting provisions in such Hedge Agreement), (g) the principal component of all obligations, contingent or otherwise, of such Person (i) as an account party in respect of letters of credit (other than any letters of credit, bank guarantees or similar instrument in respect of which a back-to-back letter of credit has been issued under or permitted by this Agreement) and (ii) in respect of bankers’ acceptances; provided that Indebtedness shall not include (A) trade and other ordinary course payables, accrued expenses and intercompany liabilities arising in the ordinary course of business, (B) prepaid or deferred revenue arising in the ordinary course of business, (C) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy unperformed obligations of the seller of such asset or (D) earn-out and other contingent obligations until such obligations become a liability on the balance sheet of such Person in accordance with GAAP.  The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such Person in respect thereof.

Indebtedness for Borrowed Money”:  (a) to the extent the following would be reflected on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries prepared in accordance with GAAP, the principal amount of all Indebtedness of the Borrower and its Restricted Subsidiaries with

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respect to (i) borrowed money, evidenced by debt securities, bonds, debentures, acceptances, notes or other similar instruments and (ii) Capital Lease Obligations, (b) reimbursement obligations for letters of credit and financial guarantees (without duplication) (other than ordinary course of business contingent reimbursement obligations) and (c) Hedge Agreements; provided that the Obligations shall not constitute Indebtedness for Borrowed Money.

Indemnified Liabilities”:  as defined in Section 10.5.

Indemnitee”:  as defined in Section 10.5.

Insolvent”:  with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.

Instrument”:  as defined in the Guarantee and Collateral Agreement.

Intellectual Property”:  the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, copyrights, copyright licenses, domain names, patents, patent licenses, trademarks, trademark licenses, trade names, technology, know-how and processes, all applications and registrations in connection therewith and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

Interest Payment Date”:  (a) as to any ABR Loan, the last Business Day of each March, June, September and December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Eurocurrency Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any Eurocurrency Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and (d) as to any Loan (other than any Revolving Loan that is an ABR Loan and any Swingline Loan), the date of any repayment or prepayment made in respect thereof.

Interest Period”:  as to any Eurocurrency Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurocurrency Loan and ending (i) one, two, three, six or (if available from all Lenders under the Revolving Facility) twelve months under the Revolving Facility or (ii) one, two, three, six or (if available from all Lenders under the relevant Facility) twelve months under the Term Facilities (or such other period acceptable to all such Lenders, or, in the case of the borrowings to be made on the Amendment No. 1 Effective Date, such shorter period as to which the Administrative Agent shall consent) thereafter, as selected by the Borrower in its Borrowing Notice or Conversion/Continuation Notice, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurocurrency Loan and ending (i) one, two, three, six or (with the consent of each affected Lender under the Revolving Facility) twelve months under the Revolving Facility or (ii) one, two, three, six or (with the consent of each affected Lender under the relevant Facility) twelve months under the Term Facilities (or such other period acceptable to all such Lenders) thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not later than 1:00 P.M., New York City time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:

(i)if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of

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such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;

(ii)any Interest Period that would otherwise extend beyond the scheduled Revolving Termination Date or beyond the date final payment is due on the Term Loans shall end on the Revolving Termination Date or such due date, as applicable; and

(iii)any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month.

Interpolated Rate” means, in relation to the LIBO Rate, the rate which results from interpolating on a linear basis between:  (a) the applicable LIBO Rate for the longest period (for which that LIBO Rate is available) which is less than the Interest Period of that Loan and (b) the applicable LIBO Rate for the shortest period (for which that LIBO Rate is  available) which exceeds the Interest Period of that Loan, in each case, each as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period of that Loan.

Investments”:  as defined in Section 7.7.

Issuing Banks”:  (a) Morgan Stanley, for purposes of standby letters of credit only, (b) solely with respect to Existing Letters of Credit, Barclays Bank PLC and (c) any other Revolving Lender from time to time designated by the Borrower, in its sole discretion, as an Issuing Bank with the consent of such other Revolving Lender.

Joinder Agreement”:  an agreement substantially in the form of Exhibit G hereto.

Junior Debt”:  any Permitted Other Indebtedness incurred pursuant to Section 7.2(bb)(i)(b) or any refinancing of such Permitted Other Indebtedness pursuant Section 7.2(bb)(ii).

Latest Maturity Date”:  at any date of determination, the latest of the latest Revolving Termination Date and the latest maturity date in respect of any class of Term Loans, in each case then in effect on such date of determination.

L/C Commitment”:  the obligation of an Issuing Bank to issue, and of L/C Participants to participate in, Letters of Credit pursuant to Section 3.1 in an aggregate face amount at any one time outstanding not to exceed $35,000,000.

L/C Obligations”:  at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired face amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed.  The L/C Obligations of any Lender at any time shall be its Revolving Percentage of the total L/C Obligations at such time.

L/C Participants”:  the collective reference to all the Revolving Lenders other than the applicable Issuing Bank.

Lead Arrangers”:  Morgan Stanley, Barclays Bank PLC, Deutsche Bank Securities Inc., JPMorgan Chase Bank, N.A., KKR Capital Markets LLC, Regions Bank and SunTrust Robinson Humphrey, Inc. in their capacity as joint lead arrangers and joint bookrunners.

Lenders”:  as defined in the preamble hereto.

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Letters of Credit”:  as defined in Section 3.1(a).

LIBO Rate”:  the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (such page currently being the LIBOR01 page).

Lien”:  any mortgage, pledge, hypothecation, collateral assignment, encumbrance, lien (statutory or other), charge or other security interest or any other security agreement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).

Loan”:  any loan made by any Lender pursuant to this Agreement.

Loan Documents”:  the collective reference to this Agreement, Amendment No. 1, the Security Documents and the Notes (if any) and any amendment, waiver, supplement or other modification to any of the foregoing.

Loan Extension Amendment”:  as defined in Section 2.27(c).

Loan Parties”:  Holdings, the Borrower and each Subsidiary Guarantor.

Majority Facility Lenders”:  with respect to any Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Term Loans, New Loans or the Revolving Extensions of Credit, as the case may be, outstanding under such Facility (or (i) in the case of the Revolving Facility, prior to any termination of the Revolving Commitments under such Facility, the holders of more than 50% of the Revolving Commitments under such Facility or (ii) in the case of any New Facility that is a revolving credit facility, prior to any termination of the New Commitments under such Facility, the holders of more than 50% of the New Commitments under such Facility); provided, however, that determinations of the “Majority Facility Lenders” shall exclude any Commitments or Loans held by any Sponsor Affiliated Lender and any Defaulting Lender.

Make-Whole Premium Amount” means, with respect to any Term Loan, an amount equal to the Discounted Value of the Remaining Scheduled Payments with respect to the Prepaid Principal of such Term Loan.

Material Adverse Effect”:  a material adverse effect on (a) the business, operations, assets, financial condition or results of operations of the Borrower and its Restricted Subsidiaries, taken as a whole, (b) the material rights and remedies available to the Administrative Agent and the Lenders, taken as a whole, under the Loan Documents or (c) the ability of the Loan Parties, taken as a whole, to fully and timely perform their payment obligations under the Loan Documents.

Material Real Property”:  any Real Property located in the United States and owned in fee by a Loan Party on the Closing Date having an estimated fair market value (in the good faith judgment of such Loan Party) exceeding $5,000,000 and any after-acquired Real Property located in the United States owned in fee by a Loan Party having a gross purchase price exceeding $5,000,000 at the time of acquisition.

Materials of Environmental Concern”:  any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde insulation,

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asbestos, pollutants, contaminants, radioactivity and any other substances that are defined as hazardous or toxic under any Environmental Law, that are regulated pursuant to any Environmental Law.

Maximum Incremental Facilities Amount”:  at any date of determination, (a) the sum of (i) $150,000,000 plus (ii) an additional amount, if after giving effect to the incurrence of such additional amount, the Borrower would be in compliance with the First Lien Net Leverage Test (assuming the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated First Lien Net Leverage, whether or not such Indebtedness would otherwise be so included), minus (b) the sum of (i) the aggregate principal amount of New Commitments incurred pursuant to Section 2.25 prior to such date and (ii) the aggregate principal amount of Permitted Other Indebtedness issued or incurred (including any unused commitments obtained) pursuant to Section 7.2(bb)(i)(a) prior to such date.

MFN Adjustment”:  as defined in Section 2.25(a).

Minimum Tender Condition”:  as defined in Section 2.28(b).

Moody’s”:  Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.

Morgan Stanley”:  Morgan Stanley Senior Funding, Inc.

Mortgaged Properties”:  all Material Real Property that shall be subject to a Mortgage that is delivered pursuant to the terms of this Agreement.

Mortgage”:  any mortgage, deed of trust, hypothec, assignment of leases and rents or other similar document delivered on or after the Closing Date by any Loan Party in favor of, or for the benefit of, the Collateral Agent for the benefit of the Secured Parties, with respect to Mortgaged Properties, each substantially in form and substance reasonably acceptable to the Administrative Agent and the Borrower (taking into account the law of the jurisdiction in which such mortgage, deed of trust, hypothec or similar document is to be recorded), as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

Multiemployer Plan”:  a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which Holdings, the Borrower, or any Restricted Subsidiary currently has, or within the past five years has had, an obligation to contribute.

Net Cash Proceeds”:  (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash, Cash Equivalents and Permitted Liquid Investments (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) received by any Loan Party, net of (i) attorneys’ fees, accountants’ fees, investment banking fees, consulting fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset which is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) and other customary fees and expenses actually incurred by any Loan Party in connection therewith; (ii) taxes paid or reasonably estimated to be payable by any Loan Party as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements); (iii) the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant to clause (ii) above) (A) associated with the assets that are the subject of such event and (B) retained by the Borrower or any of the Restricted Subsidiaries, provided that the amount of any subsequent reduction of such reserve (other than in connection with a

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payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such event occurring on the date of such reduction and (iv) the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (iv)) attributable to minority interests and not available for distribution to or for the account of the Borrower or any Domestic Subsidiary as a result thereof and (b) in connection with any Equity Issuance or other issuance or sale of debt securities or instruments or the incurrence of Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, consulting fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.

New Facility”:  as defined in the definition of “Facility.”

New Lender”:  as defined in Section 2.25.

New Loans”:  any loan made by any New Lender pursuant to this Agreement.

New Revolving Loans”:  as defined in Section 2.25.

New Commitments”:  as defined in Section 2.25.

New Term Facility”: any New Commitments to provide New Term Loans and any New Term Loans under a New Facility.

New Term Lender”:  a Lender that has a New Term Loan.

New Term Loans”:  as defined in Section 2.25.

Non-Excluded Taxes”:  as defined in Section 2.20(a).

Non-Guarantor Subsidiary”:  any Subsidiary of the Borrower which is not a Subsidiary Guarantor.

Non-Recourse Debt”:  Indebtedness (a) with respect to which no default would permit (upon notice, lapse of time or both) any holder of any other Indebtedness of Holdings, the Borrower or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity and (b) as to which the lenders or holders thereof will not have any recourse to the capital stock or assets of Holdings, the Borrower or any of its Restricted Subsidiaries.

Non-US Lender”:  as defined in Section 2.20(d).

Note”:  any promissory note evidencing any Loan, which promissory note shall be substantially in the form of Exhibit H-1 hereto for Term B1 Loans, Exhibit H-2 hereto for Term B2 Loans and H-3 hereto for Revolving Loans, as applicable, or such other form as agreed upon by the Administrative Agent and the Borrower.

Obligations”:  the unpaid principal of and premium, if any, and interest on (including interest accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed or allowable in such proceeding) the Loans, the Reimbursement Obligations and all other obligations and liabilities of the Borrower to the Administrative Agent, the Collateral Agent or to any

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Lender (or, in the case of Specified Hedge Agreements or Cash Management Obligations of the Borrower or any of its Subsidiaries to the Administrative Agent, the Collateral Agent, any Lender or any Affiliate of any Lender (or any Affiliate that was a Lender or an Affiliate thereof at the time the documentation with regard to such Specified Hedge Agreements or Cash Management Obligations was entered into)), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, in each case, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Hedge Agreement or Cash Management Obligations or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent or any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise; provided that (a) obligations of the Borrower or any of the Subsidiary Guarantors under any Specified Hedge Agreement or any Cash Management Obligations shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (b) any release of Collateral or Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under Specified Hedge Agreements or Cash Management Obligations.  Notwithstanding anything to the contrary, the “Obligations” shall not include any Excluded Swap Obligations.

Other Taxes”:  any and all present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are imposed with respect to an assignment after the initial syndication (other than an assignment made pursuant to Section 2.24) as a result of a connection between the assignor and the jurisdiction imposing the tax other than connections arising from execution of, delivery of, performance under, receipt of payments under, a security interest under, engaging in a transaction under, or enforcement of any Loan Document.

Participant”:  as defined in Section 10.6(c).

Participant Register”:  as defined in Section 10.6(c)(i).

Patriot Act”:  as defined in Section 10.18.

Payment Amount”:  as defined in Section 3.5.

PBGC”:  the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).

Permitted Acquisition”:  (a) any acquisition (including, if applicable, in the case of any Intellectual Property, by way of license) approved by the Required Lenders, (b) any acquisition made solely with the Net Cash Proceeds of any substantially concurrent Equity Issuance or capital contribution (other than Disqualified Capital Stock) or (c) any acquisition of a majority controlling interest in the Capital Stock, or all or substantially all of the assets, of any Person, or of all or substantially all of the assets constituting a business, division, product line or business line of any Person (each, an “Acquisition”), if such Acquisition described in this clause (c) complies with the following criteria:

(i)no Event of Default pursuant to clause (a), (f) or (g) of Section 8.1 shall be in effect immediately prior or after giving effect to such Acquisition; and

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(ii)if the total consideration (other than any equity consideration (including by way of any substantially concurrent Equity Issuance or capital contribution (other than Disqualified Capital Stock)) in respect of such Acquisition exceeds $10,000,000, the Borrower shall have delivered to the Administrative Agent a certificate of the Borrower signed by a Responsible Officer to such effect, together with all relevant financial information for such Subsidiary or asset to be acquired reasonably requested by the Administrative Agent prior to such acquisition to the extent available.

Permitted Debt Exchange”:  as defined in Section 2.28(a).

Permitted Debt Exchange Notes”:  as defined in Section 2.28(a).

Permitted Debt Exchange Offer”:  as defined in Section 2.28(a).

Permitted Investors”:  the collective reference to the Sponsors and their Affiliates (but excluding any operating portfolio companies of the foregoing), the members of management of Holdings and its Subsidiaries that have ownership interests in Holdings as of the Closing Date, and the directors of Holdings and its Subsidiaries on, or as of no later than 60 days following, the Closing Date.

Permitted Liquid Investments”:  any of the following:  (a) securities issued or directly and fully and unconditionally guaranteed or insured by the United States government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition, (b) certificates of deposit, time deposits and eurodollar time deposits with maturities of 24 months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding 24 months and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $250,000,000, (c) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (a) and (b) above entered into with any financial institution meeting the qualifications specified in clause (b) above, (d) commercial paper having a rating of at least A-1 from S&P or P-1 1 from Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) and maturing within 24 months after the date of acquisition and Indebtedness and Preferred Stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of 24 months or less from the date of acquisition, (e) readily marketable direct obligations issued by any state of the United States or any political subdivision thereof having one of the two highest rating categories obtainable from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition, (f) marketable short-term money market and similar securities having a rating of at least P-1 or A-1 from Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) and in each case maturing within 24 months after the date of creation or acquisition thereof, (g) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AA- (or the equivalent thereof) or better by S&P or Aa3 (or the equivalent thereof) or better by Moody’s, (h) instruments equivalent to those referred to in clauses (a) through (g) above denominated in euro or pound sterling or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction including, without limitation, certificates of deposit or bankers’ acceptances of, and bank deposits with, any bank organized under the laws of any country that is a member of the European Economic Community or Canada or any subdivision thereof, whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof, in each case with maturities of not more than 24 months from the

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date of acquisition and (i) investment in funds which invest substantially all of their assets in Cash Equivalents of the kinds described in clauses (a) through (h) of this definition.

Permitted Other Indebtedness”:  subordinated or senior Indebtedness (which Indebtedness may be unsecured or secured and which, if secured, may either have the same lien priority as the Obligations or may be secured by a Lien ranking junior to the Lien securing the Obligations), in either case issued or incurred by any Loan Party, (a) the terms of which do not provide for scheduled principal payments, mandatory prepayments, redemptions or sinking fund payments prior to the date at least 180 days following the Term B2 Maturity Date (or, such later date that is the latest final maturity date of any incremental extensions of credit hereunder) (other than customary offers to repurchase upon a change of control, asset sale or casualty or condemnation event, customary acceleration rights after an event of default and AHYDO payments), (b) the covenants, events of default, guarantees, collateral and other terms of which (other than interest rates, fees, funding discounts and redemption or prepayment premiums), taken as a whole, are not more restrictive to the Borrower and its Restricted Subsidiaries than the terms of this Agreement; provided that a certificate of an Authorized Officer of the relevant Loan Party shall be delivered to the Administrative Agent at least five Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the issuance or incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirements (which shall be conclusive evidence that such terms and conditions satisfy the foregoing requirements unless the Administrative Agent notifies the Borrower within three Business Days after receipt of such certificate that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)), (c) if such Indebtedness is secured, such Indebtedness shall not be secured by any property or assets other than the Collateral and (d) no Subsidiary of the Borrower (other than a Guarantor) shall be an obligor under such Indebtedness.

Permitted Other Indebtedness Documents”:  all documents and instruments (including any guarantee, security agreement or mortgage and which may include any or all of the Loan Documents) issued or executed and delivered with respect to any Permitted Other Indebtedness by any Loan Party.

Permitted Other Indebtedness Obligations”: if any secured Permitted Other Indebtedness is issued or incurred, the collective reference to (a) the unpaid principal of and premium, if any, and interest at the applicable rate provided in the Permitted Other Indebtedness Documents (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed or allowable in such proceeding) on the indebtedness outstanding thereunder, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees, charges and disbursements of counsel that are required to be paid by the Borrower pursuant thereto) or otherwise.

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

Permitted Refinancings”:  with respect to any Person, refinancings, replacements, modifications, refundings, renewals or extensions of Indebtedness provided that (a) there is no increase in the principal amount (or accrued value) thereof (excluding accrued interest, fees, discounts, premiums and expenses), (b) the weighted average life to maturity of such Indebtedness is greater than or equal to the shorter of (i) the weighted average life to maturity of the Indebtedness being refinanced and (ii) the weighted average life to maturity that would result if all payments of principal on the Indebtedness being refinanced that were due on or after the date that is one year following the Term B2 Maturity Date were

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instead due one year following the Term B2 Maturity Date, (c) if the Indebtedness being refinanced, refunded, modified, renewed or extended is subordinated in right of payment to the Obligations, such refinancing, refunding, modification, renewal or extension is subordinated in right of payment to the Obligations (i) on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being refinanced, refunded, modified, renewed or extended, (ii) on terms consistent with the then-prevailing market terms for subordination of comparable Indebtedness or then prevailing market terms for subordinated high-yield Indebtedness or (iii) on terms reasonably satisfactory to the Administrative Agent, (d) the terms and conditions (including, if applicable, as to collateral) of any such refinanced, refunded, modified, renewed or extended Indebtedness are not materially less favorable to the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended, (e) no Default or Event of Default shall have occurred and be continuing at the time thereof or no Default or Event of Default would result from any such refinancing, refunding, modification, renewal or extension and (f) neither the Borrower nor any Restricted Subsidiary shall be an obligor or guarantor of any such refinancings, replacements, refundings, renewals or extensions except to the extent that such Person was such an obligor or guarantor in respect of the applicable Indebtedness being modified, refinanced, refunded, renewed or extended.

Permitted Subordinated Indebtedness”:  unsecured, senior subordinated or subordinated Indebtedness of the Borrower or any Restricted Subsidiary (including guarantees thereof by the Borrower or any Guarantor, as applicable), provided that (a) no scheduled principal payments, mandatory prepayments, redemptions or sinking fund payments of any Permitted Subordinated Indebtedness shall be required prior to the date at least 180 days following the Term B2 Maturity Date (or, such later date that is the latest final maturity date of any incremental extensions of credit hereunder) (other than customary offers to purchase upon a change of control, asset sale and customary acceleration rights upon an event of default and AHYDO payments), (b) the covenants and events of default of such Permitted Subordinated Indebtedness (i) shall be, taken as a whole, customary for Indebtedness of a similar nature as such Permitted Subordinated Indebtedness or (ii) shall otherwise not have been objected to by the Administrative Agent, after the Administrative Agent shall have been afforded a period of five Business Days to review such terms of such Permitted Subordinated Indebtedness, (c) the terms of subordination applicable to any Permitted Subordinated Indebtedness shall be (i) taken as a whole, customary for comparable unsecured subordinated high yield debt securities or (ii) shall otherwise not have been objected to by the Administrative Agent, after the Administrative Agent shall have been afforded a period of five Business Days to review such terms of such Permitted Subordinated Indebtedness and (d) no Default or Event of Default shall have occurred and be continuing at the time of incurrence of such Indebtedness or would result therefrom.

Person”:  an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

Plan”:  at a particular time, any employee benefit plan as defined in Section 3(3) of ERISA and in respect of which Holdings, the Borrower or any of its Restricted Subsidiaries is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA, but excluding any Multiemployer Plan.

Pledged Securities”:  as defined in the Guarantee and Collateral Agreement.

Pledged Stock”:  as defined in the Guarantee and Collateral Agreement.

Prepaid Principal” means, with respect to any Term Loan, the principal amount of such Term Loan that is to be prepaid.

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Prepayment Date” means, with respect to the Prepaid Principal of any Term Loan, the date on which such Prepaid Principal is to be prepaid.

Prepayment Notice”:  a Prepayment Notice substantially in the form of Exhibit I hereto.

Prime Rate”:  as defined in the definition of “ABR.”

Property”:  any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Capital Stock.

Public Company Costs”:  costs relating to compliance with the provisions of the Securities Act and the Exchange Act, as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity or debt securities, directors’ compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders or debtholders, directors and officers’ insurance and other executive costs, legal and other professional fees, and listing fees.

Qualified Capital Stock”:  any Capital Stock that is not Disqualified Capital Stock.

Rate Determination Notice”:  as defined in Section 2.22.

Ratio Calculation Date”:  as defined in Section 1.3(a).

Real Estate Collateral”:  Material Real Property on which a Lien is granted pursuant to any Security Document and all real estate interests on which a Lien is required to be granted under Section 6.8.

Real Property”:  collectively, all right, title and interest of the Borrower or any other Subsidiary in and to any and all parcels of real property owned, leased or operated by the Borrower or any other Subsidiary together with all improvements and appurtenant fixtures, easements and other property and rights incidental to the ownership, lease or operation thereof.

Receivables Facility” means any of one or more receivables financing facilities, as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the Obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to the Borrower and the Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Borrower or any Restricted Subsidiary sells its accounts receivable to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary that in turn funds such purchase by purporting to sell its accounts receivable to a Person that is not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables Subsidiary that in turn funds itself by borrowing from such a Person.

Receivables Fee” means distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Facility.

Receivables Subsidiary” means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities, and in each case engages only in activities reasonably related or incidental thereto.

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Recovery Event”:  any settlement of or payment in respect of any Property or casualty insurance claim or any condemnation proceeding relating to any asset of the Borrower or any Restricted Subsidiary, in an amount for each such event exceeding $1,000,000.

Refinancing”:  the repayment of certain existing Indebtedness of the Borrower on the Closing Date as further described in Section 6.9 (other than Existing Letters of Credit that have been deemed issued hereunder).

Refinancing Amendment”:  as defined in Section 2.29(e).

Refinancing Effective Date”:  as defined in Section 2.29(a).

Refinancing Term Loans”:  as defined in Section 2.29(a).

Refunded Swingline Loans”:  as defined in Section 2.7(b).

Register”:  as defined in Section 10.6(b)(iv).

Regulation U”:  Regulation U of the Board as in effect from time to time.

Reimbursement Obligation”:  the obligation of the Borrower to reimburse an Issuing Bank pursuant to Section 3.5 for amounts drawn under Letters of Credit issued by such Issuing Bank.

Reinvestment Deferred Amount”:  with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by any Loan Party for its own account in connection therewith that are not applied to prepay the Term Loans pursuant to Section 2.12 as a result of the delivery of a Reinvestment Notice.

Reinvestment Event”:  any Asset Sale or Recovery Event in respect of which a Loan Party has delivered a Reinvestment Notice.

Reinvestment Notice”:  a written notice signed on behalf of any Loan Party by a Responsible Officer stating that such Loan Party (directly or indirectly through a Subsidiary) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire assets or make investments useful in the Business.

Reinvestment Prepayment Amount”:  with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount contractually committed by the applicable Loan Party (directly or indirectly through a Subsidiary) to be expended prior to the relevant Reinvestment Prepayment Date (a “Committed Reinvestment Amount”), or actually expended prior to such date, in each case to acquire assets or make investments useful in the Business.

Reinvestment Prepayment Date”:  with respect to any Reinvestment Event, the earlier of (i) the date occurring 450 days after such Reinvestment Event and (ii) with respect to any portion of a Reinvestment Deferred Amount, the date on which any Loan Party shall have determined not to acquire assets or make investments useful in the Business with such portion of such Reinvestment Deferred Amount.

Reinvestment Yield” means, with respect to any Term Loan, 0.50% over the yield to maturity implied by (i) the yields reported, as of 10:00 a.m., New York City time, on the second Business Day preceding the Prepayment Date with respect to the Prepaid Principal of such Term Loan, on the dis

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play designated as “Page PX1” on the Bloomberg Financial Markets Services Screen (or, if not available, any other nationally recognized trading screen reporting online intraday trading in U.S. Treasury securities) for actively traded U.S. Treasury securities having a maturity equal to the period of time from such Prepayment Date through and including the first anniversary of the Closing Date, or (ii) if such yields are not reported as of such time or the yields reported as of such time are not ascertainable, the Treasury Constant Maturity Series Yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Prepayment Date with respect to such Prepaid Principal, in Federal Reserve Statistical Release H.15 (519) (or any comparable successor publication) for actively traded U.S. Treasury securities having a constant maturity equal to the period of time from such Prepayment Date through and including the first anniversary of the Closing Date.  Such implied yield will be determined, if necessary, by (x) converting U.S. Treasury bill quotations to bond-equivalent yields in accordance with accepted financial practice and (y) interpolating linearly between (1) the actively traded U.S. Treasury security with the maturity closest to and greater than period of time from such Prepayment Date through and including the first anniversary of the Closing Date and (2) the actively traded U.S. Treasury security with the maturity closest to and less than such period.  The Reinvestment Yield will be rounded to that number of decimal places used in the interest rate for the Term B2 Loans.

Release”:  any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or within or upon any building, structure or facility.

Remaining Scheduled Payments” means, with respect to the Prepaid Principal of any Term Loan, all payments of interest thereon that would be due after the Prepayment Date with respect to such Prepaid Principal if prepayment of such Prepaid Principal were made on the first anniversary of the Closing Date and a prepayment premium of 1.00% of such Prepaid Principal, provided that if such Prepayment Date is not an Interest Payment Date, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Prepayment Date and required to be paid on such Prepayment Date pursuant to Section 2.15.

Reorganization”:  with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.

Replacement Revolving Facilities”:  as defined in Section 2.29(c).

Replacement Revolving Facility Commitments”:  as defined in Section 2.29(c).

Replacement Revolving Facility Effective Date”:  as defined in Section 2.29(c).

Replacement Revolving Loans”:  as defined in Section 2.29(c).

Reportable Event”:  any of the events set forth in Section 4043(c) of ERISA with respect to a Single Employer Plan (other than a Single Employer Plan maintained by a Commonly Controlled Entity that is considered a Commonly Controlled Entity only pursuant to subsection (m) or (o) of Section 414 of the Code), other than those events as to which the thirty day notice period is waived by the PBGC in accordance with the regulations thereunder as of the date hereof (no matter how such notice requirements may be changed in the future).

Representatives”:  as defined in Section 10.14.

Repricing Transaction” shall mean (1) the incurrence by the Borrower of any Indebtedness (including, without limitation, any new or additional term loans under this Agreement) (i) the net

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proceeds of which are used to prepay or replace, in whole or in part, outstanding principal of the Term Loans, and (ii) the effect of which is to reduce the All-In Yield of such Indebtedness relative to the Term Loans so prepaid or replaced, and (2) any amendment to the Term Loans which has the effect of reducing the All-In Yield applicable to the Term Loans; provided that any refinancing or repricing of the Term Loans in connection with any Transformative Acquisition or in connection with a transaction that would result in a Change of Control shall not constitute a Repricing Transaction.

Required Lenders”:  at any time, the holders of more than 50% of (a) until the Closing Date, the Commitments then in effect and (b) thereafter, the sum of (i) the aggregate unpaid principal amount of the Term Loans then outstanding, (ii) the Revolving Commitments then in effect or, if the Revolving Commitments have been terminated, the Revolving Extensions of Credit then outstanding and (iii) the New Commitments then in effect in respect of any New Facility that is a revolving credit facility or, if such New Commitments have been terminated, the New Revolving Loans then outstanding.  For purposes of this definition, Required Lenders shall be determined by excluding all Loans and Commitments held or beneficially owned by a Sponsor Affiliated Lender and by a Defaulting Lender.

Requirement of Law”:  as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority (including, for the avoidance of doubt, any Sanctions, the Foreign Corrupt Practices Act of 1977, the Patriot Act, Trading with the Enemy Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and Basel III), in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.

Responsible Officer”:  the chief executive officer, president, vice president, chief financial officer (or similar title), controller, secretary or treasurer (or similar title) of Holdings or the Borrower, as applicable, or (with respect to Section 6.7) any Restricted Subsidiary and, with respect to financial matters, the chief financial officer (or similar title), controller or treasurer (or similar title) of Holdings or the Borrower, as applicable.

Restricted Payments”:  as defined in Section 7.6.

Restricted Subsidiary”:  any Subsidiary of the Borrower which is not an Unrestricted Subsidiary.

Revolving Commitment Period”:  the period from and including the day following the Closing Date to the Revolving Termination Date.

Revolving Commitments”:  as to any Revolving Lender, the obligation of such Lender, if any, to make Revolving Loans and participate in Swingline Loans and Letters of Credit in an aggregate principal and/or face amount not to exceed the amount set forth under heading “Revolving Commitment” opposite such Lender’s name on Annex A-2, or, as the case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Revolving Commitments as of the Closing Date is $165,000,000.

Revolving Extensions of Credit”:  as to any Revolving Lender at any time, an amount equal to the sum of, without duplication (a) the aggregate principal amount of all Revolving Loans held by such Lender then outstanding, (b) such Lender’s Revolving Percentage of the L/C Obligations then outstanding and (c) such Lender’s Revolving Percentage of the aggregate principal amount of Swingline Loans then outstanding.

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Revolving Facility”:  as defined in the definition of “Facility.”

Revolving Lender”:  each Lender that has a Revolving Commitment or that holds Revolving Loans.

Revolving Loans”:  as defined in Section 2.4(a).

Revolving Percentage”:  as to any Revolving Lender at any time, the percentage which such Lender’s Revolving Commitment then constitutes of the aggregate Revolving Commitments or, at any time after the Revolving Commitments shall have expired or terminated, the percentage which such Revolving Lender’s Revolving Extensions of Credit then outstanding constitutes of the aggregate Revolving Extensions of Credit then outstanding.

Revolving Termination Date”:  the fifth anniversary of the Closing Date or such earlier date as the Revolving Commitment terminates as provided herein.

S&P”:  Standard & Poor’s Ratings Group, Inc., or any successor to the rating agency business thereof.

Sanctions”:  any economic or financial sanctions or trade embargoes imposed, administered or enforced by administered by the Office of Foreign Assets Control of the U.S. Treasury Department or the U.S. State Department, the United Nations Security Council, the European Union or Her Majesty’s Treasury.

SEC”:  the Securities and Exchange Commission (or successors thereto or an analogous Governmental Authority).

Secured Parties”:  collectively, the Lenders, the Administrative Agent, the Collateral Agent, the Swingline Lender, any Issuing Bank, any other holder from time to time of any of the Obligations and, in each case, their respective successors and permitted assigns.

Securities Act”:  the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

Security”:  as defined in the Guarantee and Collateral Agreement.

Security Documents”:  the collective reference to the Guarantee and Collateral Agreement and all other security documents (including any Mortgages) hereafter delivered to the Administrative Agent or the Collateral Agent purporting to grant a Lien on any Property of any Loan Party to secure the Obligations.

Senior Notes” means the Borrower’s $300,000,000 senior notes due 2024, issued on the Closing Date pursuant to the Senior Notes Indenture.

Senior Notes Indenture” means that certain indenture, dated as of the Closing Date, by and between the Borrower and Deutsche Bank Trust Company Americas, as trustee, as the same may be amended, restated, substituted, replaced, refinanced, supplemented or otherwise modified from time to time in accordance with the terms hereof.

Single Employer Plan”:  any Plan subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA.

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Solvent”:  with respect to any Person, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise,” as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the solvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business and (d) such Person will be able to pay its debts as they mature.  For purposes of this definition, (i) “debt” means liability on a “claim,” (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured and (iii) except as otherwise provided by applicable law, the amount of “contingent liabilities” at any time shall be the amount thereof which, in light of all the facts and circumstances existing at such time, can reasonably be expected to become actual or matured liabilities.

Specified Equity Contribution”:  as defined in Section 8.2.

Specified Hedge Agreement”:  any Hedge Agreement (a) entered into by (i) the Borrower or any Subsidiary Guarantor and (ii) any Lender or any Affiliate thereof at the time such Hedge Agreement was entered into, as counterparty and (b) that has been designated by such Lender and the Borrower, by notice to the Administrative Agent, as a Specified Hedge Agreement.  The designation of any Hedge Agreement as a Specified Hedge Agreement shall not create in favor of the Lender or Affiliate thereof that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Guarantee and Collateral Agreement.  For the avoidance of doubt, all Hedge Agreements in existence on the Closing Date between the Borrower or any Subsidiary Guarantor and any Lender shall constitute Specified Hedge Agreements.

Sponsor Affiliated Institutional Lender”:  (x) any investment fund managed or advised by Affiliates of the Sponsor that is a bona fide debt fund and (y) any bank, insurance company, investment bank or commercial finance company that is an Affiliate of the Sponsor, in the case of each clause (x) and (y) that extends credit or buys loans in the ordinary course of business.

Sponsor Affiliated Lender”: a Sponsor or any Affiliate thereof that is not a Sponsor Affiliated Institutional Lender.

Sponsors”:  Kohlberg Kravis Roberts & Co. L.P., General Atlantic Service Company, LLC, and their respective Affiliates (but excluding any operating portfolio companies of the foregoing).

Subordinated Intercompany Note”:  a Subordinated Intercompany Note substantially in the form of Exhibit J hereto.

Subsidiary”:  as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person; provided that any joint venture that is not required to be consolidated with the Borrower and its consolidated Subsidiaries in accordance with GAAP shall not be deemed to be a “Subsidiary” for purposes hereof.  Unless otherwise qualified, all references to a “Subsid

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iary” or to “Subsidiaries” in this Agreement shall refer to a direct or indirect Subsidiary or Subsidiaries of the Borrower.

Subsidiary Guarantors”:  (a) each Subsidiary other than any Excluded Subsidiary and (b) any other Subsidiary of the Borrower that is a party to the Guarantee and Collateral Agreement.

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.

Swingline Commitment”:  the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.6 and of each Revolving Lender to participate in Swingline Loans pursuant to Section 2.7(c) in an aggregate principal amount at any one time outstanding not to exceed $35,000,000.

Swingline Lender”:  (a) Morgan Stanley, in its capacity as the lender of Swingline Loans or (b) upon the resignation of Morgan Stanley as a Swingline Lender, any Revolving Lender from time to time designated by the Borrower, in its sole discretion, as the Swingline Lender (with the consent of such other Revolving Lender).

Swingline Loans”:  as defined in Section 2.6(a).

Swingline Participation Amount”:  as defined in Section 2.7(c).

Taxes”:  all present and future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Term B1 Commitment”:  as to any Lender, the obligation of such Lender, if any, to make a Term B1 Loan to the Borrower on the Amendment No. 1 Effective Date in a principal amount not to exceed the amount set forth under the heading “Term B1 Commitment” opposite such Lender’s name on Annex A-1, or, as the case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto.  The aggregate amount of the Term B1 Commitments is $200,000,0002,437,673.62.

Term B1 Facility”:  as defined in the definition of “Facility.”

Term B1 Lender”:  each Lender that has a Term B1 Commitment or, following the termination of the Term B1 Loan Commitments, has a Term B1 Loan outstanding.

“Term B1 Loan”:  as defined in Section 2.1(a).

Term B1 Maturity Date”:  the fourth anniversary of the Closing Date.

Term B1 Loan”: as defined in Section 2.1(a).

Term B2 Commitment”:  as to any Lender, the obligation of such Lender, if any, to make a Term B2 Loan to the Borrower on the Amendment No. 1 Effective Date in a principal amount not to exceed the amount set forth under the heading “Term B2 Commitment” opposite such Lender’s name on Annex A-1, or, as the case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto.  The aggregate amount of the Term B2 Commitments is $680,000,00046,295,610.40.

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Term B2 Facility”:  as defined in the definition of “Facility.”

Term B2 Lender”:  each Lender that has a Term B2 Commitment or, following the termination of the Term Loan B2 Commitments, has a Term B2 Loan outstanding.

“Term B2 Loan”:  as defined in Section 2.1(b).

Term B2 Maturity Date”:  the seventh anniversary of the Closing Date.

Term B2 Loan”: as defined in Section 2.1.

Term Commitment”:  any Term B1 Commitment, Term B2 Commitment and/or any New Commitments, as applicable.

Term Facility”:  the Term B1 Facility, Term B2 Facility and/or any New Term Facility, as applicable.

Term Lender”:  any Term B1 Lender, any Term B2 Lender and/or any New Term Lender, as applicable.

Term Loan”:  any Term B1 Loan, any Term B2 Loan, any Refinancing Term Loan and/or any New Term Loans, as applicable.

“Term Loan Refinancing” shall mean (i) the repayment (including by conversion to Term B1 Loans) of the Existing Term B1 Loans on the Amendment No. 1 Effective Date and (ii) the repayment (including by conversion to Term B2 Loans) of the Existing Term B2 Loans on the Amendment No. 1 Effective Date.

Term Percentage”:  as to any Term Lender, prior to the initial funding of the Term Loans, the percentage which the sum of such Lender’s Term Commitments then constitutes of the aggregate Term Commitments or, at any time after the initial funding of the Term Loans, the percentage which the aggregate principal amount of such Lender’s Term Loans then outstanding constitutes of the aggregate principal amount of the Term Loans then outstanding.

Test Period”:  on any date of determination, the period of four consecutive fiscal quarters of the Borrower (in each case taken as one accounting period) most recently ended on or prior to such date for which financial statements have been or are required to be delivered pursuant to Section 6.1.

Tranche”:  as defined in Section 2.25.

Transferee”:  any Eligible Assignee or Participant.

Trigger Date”:  as defined in Section 2.12(b).

Type”:  as to any Loan, its nature as an ABR Loan or Eurocurrency Loan.

United States”:  the United States of America.

Unrestricted Cash”:  the sum of all cash, cash Equivalents and Permitted Liquid Investments to the extent not subject to any Lien (other than the Liens described in Section 7.3) to the extent held by Holdings, the Borrower and its Restricted Subsidiaries on the applicable date, in each case determined on a consolidated basis in accordance with GAAP.

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Unrestricted Subsidiary”:  (i) any Subsidiary of the Borrower that is designated after the Closing Date by a resolution of the Board of Directors of the Borrower as an Unrestricted Subsidiary, but only to the extent that, such Subsidiary:  (a) has no Indebtedness other than Non-Recourse Debt; (b) is not party to any agreement, contract, arrangement or understanding with Holdings, the Borrower or any Restricted Subsidiary unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to Holdings, the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of Holdings or the Borrower; (c) is a Person with respect to which neither Holdings, the Borrower nor any of the Restricted Subsidiaries has any direct or indirect obligation (x) to subscribe for additional Capital Stock or warrants, options or other rights to acquire Capital Stock or (y) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and (d) does not guarantee or otherwise provide credit support after the time of such designation for any Indebtedness of Holdings, the Borrower or any of its Restricted Subsidiaries.  If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes hereof.  Subject to the foregoing, the Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary or any Restricted Subsidiary to be an Unrestricted Subsidiary; provided that (i) such designation shall only be permitted if no Default or Event of Default would be in existence following such designation, (ii) any designation of an Unrestricted Subsidiary as a Restricted Subsidiary shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and (iii) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary shall be deemed to be an Investment in an Unrestricted Subsidiary and shall reduce amounts available for Investments in Unrestricted Subsidiaries permitted by Section 7.7 in an amount equal to the fair market value of the Subsidiary so designated; provided that the Borrower may subsequently redesignate any such Unrestricted Subsidiary as a Restricted Subsidiary so long as the Borrower does not subsequently redesignate such Restricted Subsidiary as an Unrestricted Subsidiary for a period of the succeeding four fiscal quarters; provided, further, that, at the time of each designation or subsequent redesignation, the Borrower shall deliver to the Administrative Agent an officer’s certificate executed by an Authorized Officer of the Borrower, certifying the Borrower’s compliance with the preceding clauses.

US Lender”:  as defined in Section 2.20(e).

Wholly-Owned Subsidiary”:  as to any Person, any other Person all of the Capital Stock of which (other than directors’ qualifying shares or similar nominal shares) is owned by such Person directly or indirectly through its Wholly-Owned Subsidiaries.

Write-Down and Conversion Powers”:  with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

 

b.

Other Definitional Provisions

.

i.Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.

ii.As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to the Borrower and

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its Subsidiaries not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP, (ii) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,” and (iii) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time (to the extent such amendments, supplements, restatements or other modifications are not restricted by this Agreement).

iii.The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Annex, Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

iv.The term “license” shall include sub-license.  The term “documents” includes any and all documents whether in physical or electronic form.

The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

 

c.

Pro Forma Calculations

.  Solely for purposes of determining whether any action is otherwise permitted to be taken hereunder, the Consolidated Total Net Leverage Ratio and the Consolidated First Lien Net Leverage Ratio shall be calculated as follows:

(a)In the event that the Borrower or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires or extinguishes any Indebtedness subsequent to the commencement of the period for which such ratio is being calculated but prior to or simultaneously with the event for which the calculation of such ratio is made (a “Ratio Calculation Date”), then such ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, retirement or extinguishment of Indebtedness as if the same had occurred at the beginning of the applicable four-quarter period.

(b)For purposes of making the computation referred to above, if any acquisitions, Dispositions or designations of Unrestricted Subsidiaries or Restricted Subsidiaries are made (or committed to be made pursuant to a definitive agreement) during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the relevant Ratio Calculation Date, Consolidated EBITDA shall be calculated on a pro forma basis, assuming that all such acquisitions, Dispositions and designations had occurred on the first day of the four-quarter reference period in a manner consistent, where applicable, with the pro forma adjustments set forth in clause (j) of and the last proviso of the first sentence of the definition of “Consolidated EBITDA.”  If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such period shall have made any acquisition or Disposition, in each case with respect to a business or an operating unit of a business, that would have required adjustment pursuant to this provision, then such ratio shall be calculated giving pro forma effect thereto for such period as if such acquisition or Disposition had occurred at the beginning of the applicable four-quarter period.

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d.

Certifications

.  All certifications and other statements made by any officer, director or employee of a Loan Party pursuant to any Loan Document are and will be made on behalf of such Loan Party and not in such officer’s, director’s or employee’s individual capacity.

(b)AMOUNT AND TERMS OF COMMITMENTS

 

a.

Term Commitments

.

i.Subject to the terms and conditions set forth herein, each Term B1 Lender agrees (x) to make a loan to the Borrower denominated in Dollars (a “Term B1 Loan”) on the ClosingAmendment No. 1 Effective Date in an aggregate amount not to exceed the amount of its Term B1 Commitment. and (y) to the conversion of each Converted Term B1 Loan of such Lender into a Term B1 Loan of such Lender as of the Amendment No. 1 Effective Date in a principal amount equal to the principal amount of such Lender’s Converted Term B1 Loans immediately prior to such conversion; provided that each Term B1 Loan converted pursuant to clause (y) on the Amendment No. 1 Effective Date shall initially be a Eurocurrency Loan with an Interest Period equal to the remaining Interest Period on the applicable Converted Term B1 Loan immediately prior to the effectiveness of Amendment No. 1.  The Term B1 Loans may from time to time be Eurocurrency Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.13.  Subject to Sections 2.13(a) and 2.14, all amounts owed hereunder with respect to the Term B1 Loans shall be paid in full no later than the Term B1 Maturity Date.  Each Lender’s Term B1 Commitment shall terminate immediately and without further action on the ClosingAmendment No. 1 Effective Date after giving effect to the funding of such Term B1 Commitment on such date.  

ii.Subject to the terms and conditions set forth herein, each Term B2 Lender agrees (x) to make a loan to the Borrower denominated in Dollars (a “Term B2 Loan”) on the ClosingAmendment No. 1 Effective Date in an aggregate amount not to exceed the amount of its Term B2 Commitment. and (y) to the conversion of each Converted Term B2 Loan of such Lender into a Term B2 Loan of such Lender as of the Amendment No. 1 Effective Date in a principal amount equal to the principal amount of such Lender’s Converted Term B1 Loans immediately prior to such conversion; provided that each Term B2 Loan converted pursuant to clause (y) on the Amendment No. 1 Effective Date shall initially be a Eurocurrency Loan with an Interest Period equal to the remaining Interest Period on the applicable Converted Term B2 Loan immediately prior to the effectiveness of Amendment No. 1.  The Term B2 Loans may from time to time be Eurocurrency Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.13.  Subject to Sections 2.13(a) and 2.14, all amounts owed hereunder with respect to the Term B2 Loans shall be paid in full no later than the Term B2 Maturity Date.  Each Lender’s Term B2 Commitment shall terminate immediately and without further action on the ClosingAmendment No. 1 Effective Date after giving effect to the funding of such Term B2 Commitment on such date.

 

b.

Procedure for Term Loan Borrowing

.  The Borrower shall give the Administrative Agent an irrevocable fully executed Borrowing Notice (which notice must be received by the Administrative Agent prior to 12:00 Noon, New York City time, one Business Day prior to the anticipated ClosingAmendment No. 1 Effective Date) requesting that the Term Lenders make the Term Loans on the ClosingAmendment No. 1 Effective Date and specifying the amount to be borrowed and the requested Interest Period, if applicable.  Upon receipt

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of such notice the Administrative Agent shall promptly notify each Term Lender thereof.  Not later than 11:00 A.M., New York City time, on the ClosingAmendment No. 1 Effective Date each Term Lender shall make available to the Administrative Agent at the Funding Office an amount in like funds as received by the Administrative Agent equal to the Term Loan or Term Loans to be made by such Lender.  The Administrative Agent shall credit the account designated in writing by the Borrower to the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by the Term Lenders in immediately available funds.

 

c.

Amortization of Term Loans

.

i.The Term B1 Loans of each Term B1 Lender shall be payable in equal consecutive quarterly installments commencing on DecemberMarch 31, 20162017 on the last Business Day of each March, June, September and December following the Closing Date in an amount equal to two and one half of one percent (2.50%) of the stated principal amount of the Term B12 Loans in effect on the ClosingAmendment No. 1 Effective Date (as adjusted to reflect any prepayments thereof), with the remaining balance thereof payable on the Term B1 Maturity Date; provided, that, with respect to any Term B1 Lender which has a portion of its Term B1 Loan purchased pursuant to Section 2.11(b), the amount of each payment otherwise payable in respect thereof pursuant to this Section 2.3(b) shall be reduced by deducting therefrom an amount equal to the principal amount of the Term B1 Loan so purchased multiplied by two and one half of one percent (2.50%).

ii.The Term B2 Loans of each Term B2 Lender shall be payable in equal consecutive quarterly installments commencing on March 31, 2017 on the last Business Day of each March, June, September and December following the Closing Date in an amount equal to one quarter of one percent (0.25%) of the stated principal amount of the Term B2 Loans in effect on the Amendment No. 1 Effective Date (as adjusted to reflect any prepayments thereof), with the remaining balance thereof payable on the Term B2 Maturity Date; provided, that, with respect to any Term B2 Lender which has a portion of its Term B2 Loan purchased pursuant to Section 2.11(b), the amount of each payment otherwise payable in respect thereof pursuant to this Section 2.3(b) shall be reduced by deducting therefrom an amount equal to the principal amount of the Term B2 Loan so purchased multiplied by one quarter of one percent (0.25%).

 

d.

Revolving Commitments

.

i.Subject to the terms and conditions hereof, each Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”) in Dollars to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which when added to such Lender’s Revolving Percentage of the sum of (i) the L/C Obligations then outstanding and (ii) the aggregate principal amount of the Swingline Loans then outstanding, does not exceed the amount of such Lender’s Revolving Commitment.  During the Revolving Commitment Period, the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof.  The Revolving Loans may from time to time be Eurocurrency Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and 2.13.

ii.The Borrower shall repay all outstanding Revolving Loans made to it on the Revolving Termination Date.

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e.

Procedure for Revolving Loan Borrowing

.  The Borrower may borrow under the Revolving Commitments during the Revolving Commitment Period on any Business Day; provided that the Borrower shall give the Administrative Agent a fully executed Borrowing Notice (which notice must be received by the Administrative Agent (i) in the case of Eurocurrency Loans, prior to 12:00 Noon, New York City time, three Business Days prior to the requested Borrowing Date or (ii) in the case of ABR Loans, prior to 10:00 a.m., New York City time, on the proposed Borrowing Date), specifying (x) the amount and Type of Revolving Loans to be borrowed, (y) the requested Borrowing Date and (z) in the case of Eurocurrency Loans, the respective amounts of each such Type of Loan and the respective lengths of the initial Interest Period therefor.  Each borrowing by the Borrower under the Revolving Commitments shall be in an amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple of $100,000 in excess thereof (or, if the then aggregate Available Revolving Commitments are less than $1,000,000, such lesser amount) and (y) in the case of Eurocurrency Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof; provided that the Swingline Lender may request, on behalf of the Borrower, borrowings under the Revolving Commitments that are ABR Loans in other amounts pursuant to Section 2.7(a).  Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each Revolving Lender thereof.  Each Revolving Lender will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Borrower at the Funding Office prior to 11:00 A.M., New York City time, on the Borrowing Date requested by the Borrower in funds immediately available to the Administrative Agent.  Such borrowing will then be made available to the Borrower by the Administrative Agent crediting the account designated in writing by the Borrower to the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by such Revolving Lenders and in like funds as received by the Administrative Agent.  If no election as to the Type of a Revolving Loan is specified, then the requested Loan shall be an ABR Loan.  If no Interest Period is specified with respect to any requested Eurocurrency Loan, the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

f.

Swingline Commitment

.

i.(a) Subject to the terms and conditions hereof, the Swingline Lender agrees to make a portion of the credit otherwise available to the Borrower under the Revolving Commitments from time to time during the Revolving Commitment Period by making swing line loans (“Swingline Loans”) in Dollars to the Borrower; provided that (i) the aggregate principal amount of Swingline Loans outstanding at any time shall not exceed the Swingline Commitment then in effect (provided that the Swingline Loans outstanding at any time, when aggregated with the Swingline Lenders’ other outstanding Revolving Loans, may exceed the Swingline Commitment then in effect) and (ii) the Borrower shall not request, and the Swingline Lender shall not make, any Swingline Loan if, after giving effect to the making of such Swingline Loan, the aggregate amount of the Available Revolving Commitments under the Revolving Commitments would be less than zero.  During the Revolving Commitment Period, the Borrower may use the Swingline Commitment by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof.  The Swingline Loans shall be ABR Loans only.  The Swingline Lender shall not be obligated to make Swingline Loans if (A) it has elected not to do so after the occurrence and during the continuation of a Default or Event of Default or (B) any of the Lenders is a Defaulting Lender but, in the case of this clause (B) only to the extent that (i) the Swingline Commitments of such Defaulting Lender may not be reallocated pursuant to clause (a) of Section 2.26 or (ii) other arrangements satisfactory to it and Borrower to eliminate such Swingline Lender’s risk with respect to the Defaulting Lender’s participation in such Swingline Loan (including cash collateralization by the Borrower of such Defaulting Lender’s pro rata share of the outstanding Swingline Loans) have not been entered into.

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ii.The Borrower shall repay to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the Revolving Termination Date.

 

g.

Procedure for Swingline Borrowing; Refunding of Swingline Loans

.

i.Whenever the Borrower desires that the Swingline Lender make Swingline Loans it shall give the Swingline Lender and the Administrative Agent a fully executed Borrowing Notice (which notice must be received by the Swingline Lender and the Administrative Agent not later than 1:00 P.M., New York City time, New York City time, on the proposed Borrowing Date, specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date (which shall be a Business Day during the Revolving Commitment Period).  Each borrowing under the Swingline Commitment shall be in an amount equal to $500,000 or a whole multiple of $100,000 in excess thereof.  Not later than 3:00 P.M., New York City time, on the Borrowing Date specified in a fully executed Borrowing Notice in respect of Swingline Loans, the Swingline Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the amount of the Swingline Loan to be made by the Swingline Lender.  The Administrative Agent shall make the proceeds of such Swingline Loan available to the Borrower on such Borrowing Date by depositing such proceeds in the account of the Borrower with the Administrative Agent or as otherwise directed by the Borrower on such Borrowing Date in immediately available funds.

ii.The Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs such Swingline Lender to act on its behalf), request each Revolving Lender to make, and each such Revolving Lender hereby agrees to make, subject to satisfaction of the conditions set forth in Section 5.2, a Revolving Loan, in an amount equal to such Revolving Lender’s Revolving Percentage of the aggregate amount of the Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date of such notice, to repay such Swingline Lender.  In connection with any resignation of the Administrative Agent pursuant to Section 9.10, the Swingline Lender shall request each Revolving Lender to make, and each such Revolving Lender hereby agrees to make, a Revolving Loan, in an amount equal to the outstanding Swingline Loans made by the retiring Administrative Agent in its capacity as Swingline Lender, such Revolving Loans to be made on the effective date of such resignation.  Each Revolving Lender shall make the amount of Revolving Loans available to the Administrative Agent at the Funding Office in immediately available funds on the date of such request or, if such request is made after 10:00 A.M., New York City time on any Business Day, not later than 10:00 A.M., New York City time, on the next Business Day.  The proceeds of such Revolving Loans shall be immediately made available by the Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the Refunded Swingline Loans.

iii.If prior to the time a Revolving Loan would have otherwise been made pursuant to Section 2.7(b), one of the events described in Section 8.1(f) shall have occurred and be continuing with respect to the Borrower or if for any other reason, as determined by the Swingline Lender in its sole discretion, Revolving Loans may not be made as contemplated by Section 2.7(b), each Revolving Lender shall, on the date such Revolving Loan was to have been made pursuant to the Borrowing Notice referred to in Section 2.7(b), purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the “Swingline Participation Amount”) equal to (A) such Revolving Lender’s Revolving Percentage times (B) the sum of the aggregate principal amount of Swingline Loans then outstanding that were to have been repaid with such Revolving Loans.  

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iv.Whenever, at any time after the Swingline Lender has received from any Revolving Lender such Lender’s Swingline Participation Amount with respect to any Swingline Loans, the Swingline Lender receives any payment on account of such Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline Participation Amount with respect thereto (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all such Swingline Loans then due); provided, however, that in the event that such payment received by the Swingline Lender is required to be returned, such Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.

v.Each Revolving Lender’s obligation to make the Loans referred to in Section 2.7(b) and to pay the Swingline Participation Amount pursuant to Section 2.7(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such Revolving Lender or the Borrower may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Section 5, (iii) any adverse change in the condition (financial or otherwise) of the Borrower or any other Loan Party, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

 

h.

Repayment of Loans

.  

i.The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of the appropriate Revolving Lender or Term Lender, as the case may be, (i) the then unpaid principal amount of each Revolving Loan of such Revolving Lender made to the Borrower outstanding on the Revolving Termination Date (or on such earlier date on which the Loans become due and payable pursuant to Section 8.1) and (ii) the principal amount of each outstanding Term Loan of such Term Lender made to the Borrower in installments according to the amortization schedule set forth in Section 2.3 (or on such earlier date on which the Loans become due and payable pursuant to Section 8.1).  The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Loans made to the Borrower from time to time outstanding from the date made until payment in full thereof at the rates per annum, and on the dates, set forth in Section 2.15.  

ii.Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.  

iii.The Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant to Section 10.6(b)(iv), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder and any Note evidencing such Loan, the Type of such Loan and each Interest Period applicable thereto, (ii) the amount of any principal, interest and fees, as applicable, due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.  

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iv.The entries made in the Register and the accounts of each Lender maintained pursuant to Section 2.8(c) shall, to the extent permitted by applicable law, be presumptively correct absent demonstrable error of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the failure of the Administrative Agent or any Lender to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.  

v.The Borrower shall repay all Existing Term B1 Loans (other than Converted Term B1 Loans) and Existing Term B2 Loans (other than Converted Term B2 Loans) on the Amendment No. 1 Effective Date, together with all accrued interest on all Existing Term B1 Loans and Existing Term B2 Loans to but excluding the Amendment No. 1 Effective Date.

 

i.

Commitment Fees, etc.

i.The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a commitment fee for the period from and including the Closing Date to the last day of the Revolving Commitment Period, computed at the Applicable Commitment Fee Rate on the average daily amount of the Available Revolving Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on each Fee Payment Date; provided that (i) for purposes of calculating any fees owing in accordance with this Section 2.9(a), the Available Revolving Commitment for the Swingline Lender shall exclude any outstanding Swingline Loans and (ii) the Swingline Lender shall not be entitled to any commitment fee with respect to its Swingline Commitment separate from that to which it is entitled with respect to its Available Revolving Commitment; provided, further, that (i) any commitment fee accrued with respect to any of the Revolving Commitments of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall be payable by the Borrower so long as such commitment fee shall otherwise have been due and payable by the Borrower prior to such time of such Lender becoming a Defaulting Lender and (ii) no commitment fee shall accrue on any of the Revolving Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.  

ii.The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the dates as set forth in any fee agreements with the Administrative Agent.  

 

j.

Termination or Reduction of Revolving Commitments

.  The Borrower shall have the right, upon not less than two Business Days’ notice to the Administrative Agent, to terminate the Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments; provided that no such termination or reduction of Revolving Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Loans made on the effective date thereof, the total Revolving Extensions of Credit would exceed the total Revolving Commitments.  Any such partial reduction shall be in an amount equal to $1,000,000, or a whole multiple of $500,000 in excess thereof, and shall reduce permanently the Revolving Commitments then in effect.  Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind any notice of termination under this Section 2.10 if such termination would have resulted from a refinancing of all of the Loans, which refinancing shall not be consummated or shall otherwise be delayed.  

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k.

Optional Prepayments

.  

i.The Borrower may at any time and from time to time prepay the Revolving Loans, the Swingline Loans or the Term Loans, in whole or in part, without premium or penalty (except as set forth in clause (d) below), upon delivery of a Prepayment Notice delivered to the Administrative Agent no later than 12:00 Noon, New York City time, three Business Days prior thereto, in the case of Eurocurrency Loans, and no later than 12:00 Noon, New York City time, on the prepayment date, in the case of ABR Loans that are Revolving Loans, Term Loans or Swingline Loans, which notice shall specify (x) the date and amount of prepayment, (y) whether the prepayment is of Swingline Loans, Revolving Loans, Term Loans or New Loans and (z) whether the prepayment is of Eurocurrency Loans or ABR Loans; provided that if a Eurocurrency Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.21.  Upon receipt of any such Prepayment Notice the Administrative Agent shall promptly notify each relevant Lender thereof.  If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein (provided that such notice may be conditioned on receiving the proceeds of any refinancing), together with (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) accrued interest to such date on the amount prepaid.  Partial prepayments of Term Loans and of Revolving Loans shall be in an aggregate principal amount of (i) $1,000,000 or a whole multiple of $100,000 in excess thereof (in the case of prepayments of ABR Loans) or (ii) $1,000,000 or a whole multiple of $500,000 in excess thereof (in the case of prepayments of Eurocurrency Loans), and in each case shall be subject to the provisions of Section 2.18.  Partial prepayments of Swingline Loans shall be in an aggregate principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.  

ii.Notwithstanding anything to the contrary contained in this Section 2.11 or any other provision of this Agreement and without otherwise limiting the rights in respect of prepayments of the Loans of the Borrower and its Subsidiaries, so long as no Default or Event of Default has occurred and is continuing, Holdings, the Borrower and its Subsidiaries may repurchase outstanding Term Loans pursuant to this Section 2.11(b) on the following basis:

 

1.

Holdings, the Borrower and any Subsidiary may, from time to time, purchase or prepay Term Loans, in each case, on a non-pro rata basis through (x) Dutch auction procedures open to all applicable Lenders on a pro rata basis in accordance with customary procedures to be agreed between Holdings or the Borrower and the Auction Agent or (y) open market purchases;

 

2.

With respect to all repurchases made by Holdings, the Borrower or a Subsidiary of the Borrower, such repurchases shall be deemed to be voluntary prepayments pursuant to this Section 2.11 in an amount equal to the aggregate principal amount of such Term Loans; provided that

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notwithstanding such characterization as a voluntary prepayment, no such repurchase shall operate to reduce any percentage amount set forth in Section 2.3; provided, further, that such repurchases shall not be subject to the provisions of paragraph (a)  of this Section 2.11, Section 2.18 and Section 2.21;

 

3.

Upon the purchase by Holdings, the Borrower or any Subsidiary of the Borrower of any Term Loans, automatically and without the necessity of any notice or any other action all principal and accrued and unpaid interest on the Term Loans so repurchased shall be deemed to have been paid for all purposes and shall be cancelled and no longer outstanding for all purposes of this Agreement and all other Loan Documents (and in connection with any Term Loan purchased pursuant to this Section 2.11(b), the Administrative Agent is authorized to make appropriate entries in the Register to reflect such cancellation);

 

4.

failure by Holdings, the Borrower or a Subsidiary of the Borrower to make any payment to a Lender required by an agreement permitted by this Section 2.11(b) shall not constitute an Event of Default under Section 8.1(a);

 

5.

no proceeds of any Revolving Loans may be used directly to purchase Term Loans;

 

6.

after giving effect to all Term Loans purchased and cancelled pursuant to this Section 2.11(b), the aggregate principal amount of all Loans and Commitments then held by all Sponsor Affiliated Lenders (whether by assignment, participation or other derivative transaction) shall not exceed 25% of the sum of (i) the aggregate unpaid principal amount of

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the Term Loans then outstanding and (ii) the Revolving Commitments then in effect, or, if the Revolving Commitments have been terminated, the Revolving Extensions of Credit then outstanding.

iii.In connection with any optional prepayments by the Borrower of the Loans pursuant to Section 2.11(a) or Section 2.11(b), such prepayments shall be applied on a pro rata basis to the then outstanding Loans being prepaid irrespective of whether such outstanding Loans are ABR Loans or Eurocurrency Loans; provided that if all Lenders elect to participate in an Offer on a pro rata basis in accordance with their respective principal amounts then due and owing, prepayments pursuant to Section 2.11(b) shall be applied first to ABR Loans to the full extent thereof before application to Eurocurrency Loans.

iv.Notwithstanding anything in this Section 2.11 to the contrary, in the event that the Borrower consummates any Repricing Transaction, then the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Lenders, if such Repricing Transaction is consummated prior to the date that is six months after the ClosingAmendment No. 1 Effective Date, a premium of 1.00% of the principal amount of the Term Loans subject to such Repricing Transaction.

 

l.

Mandatory Prepayments

.  

i.If any Indebtedness (excluding any Indebtedness incurred in accordance with Section 7.2) shall be incurred by Holdings, the Borrower or any Restricted Subsidiary, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied no later than one Business Day after the date of receipt of such Net Cash Proceeds toward the prepayment of the Term Loans as set forth in Section 2.12(d).  

ii.If on any date Holdings, the Borrower or any Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered to the Administrative Agent in respect thereof, such Net Cash Proceeds shall be applied not later than five Business Days after such date toward the prepayment of the Term Loans as set forth in Section 2.12(d); provided that, notwithstanding the foregoing, (x) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (y) on the date (the “Trigger Date”) that is six months after any such Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date; provided that unless and until the aggregate amount of Net Cash Proceeds from all such Asset Sales or Recovery Events, after giving effect to the reinvestment rights set forth herein, exceeds $25,000,000 in any fiscal year of the Borrower, no such prepayment shall be required pursuant to this Section 2.12(b).  

iii.If, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2017, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the sum of (A) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such fiscal year (other than to the extent made with the proceeds of the incur

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rence of Indebtedness) and solely to the extent accompanied by permanent optional reductions of the Revolving Commitments and (B) all optional prepayments of Term Loans during such fiscal year (including optional prepayments pursuant to Section 2.11(b)), in each case other than to the extent any such prepayment is funded with the proceeds of long-term Indebtedness, toward the prepayment of Term Loans as set forth in Section 2.12(d).  Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten days after the date on which the financial statements referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders.  

iv.Amounts to be applied in connection with prepayments pursuant to this Section 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 2.18(b) until paid in full.  In connection with any mandatory prepayments by the Borrower of the Term Loans pursuant to Section 2.12, such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans; provided that if no Lender exercises the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 2.12(e), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurocurrency Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.21.  Each prepayment of the Term Loans under this Section 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.  

v.Each Lender may elect (in its sole discretion) to decline all (but not less than all) of its pro rata share (such amount, the “Declined Proceeds”) of any mandatory prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 a.m., on the date that is three (3) Business Days 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 Declined Proceeds by any Lender shall be retained by the Borrower and its Restricted Subsidiaries and/or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with the terms of this Agreement.

vi.On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 7.2(aa), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay Term Loans in an aggregate principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness.

vii.Beginning on the Closing Date, the Borrower shall apply 100% of all cash proceeds net of all fees, commissions, costs and other expenses, from any issuance or incurrence of Refinancing Term Loans and Replacement Revolving Facility Commitments (other than solely by means of extending or renewing then existing Refinancing Term Loans and Replacement Revolving Facility Commitments without resulting in any net proceeds), no later than three (3) Business Days after the date on which such Refinancing Term Loans and/or Replacement Revolving Facility Commitments are incurred, to prepay Term Loans and/or Revolving Commitments in accordance with Section 2.29.

viii.In the event and on such occasion that the total outstanding Revolving Extensions of Credit exceed the total Revolving Commitments, the Borrower shall prepay Revolving Loans and/or Swingline Loans (or, if no such Loans are outstanding, deposit in a cash collateral account opened by the

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Administrative Agent an amount equal to the necessary aggregate then undrawn and unexpired amount of such Letters of Credit) made to the Borrower, in an aggregate amount equal to the amount by which the Revolving Extensions of Credit exceed the total Revolving Commitments.  Each prepayment shall be applied to the Revolving Loans included in the repaid Loans such that each Revolving Lender receives its ratable share of such prepayment (based upon the respective Aggregate Exposures of the Revolving Lenders at the time of such prepayment).

 

m.

Conversion and Continuation Options

.  

i.The Borrower may elect from time to time to convert Eurocurrency Loans made to the Borrower to ABR Loans by giving the Administrative Agent prior irrevocable written notice of such election no later than 12:00 Noon, New York City time, on the third Business Day preceding the proposed conversion date; provided that if any Eurocurrency Loan is so converted on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.21.  The Borrower may elect from time to time to convert ABR Loans made to the Borrower to Eurocurrency Loans by giving the Administrative Agent prior irrevocable written notice of such election no later than 12:00 Noon, New York City time, on the third Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor); provided that no ABR Loan under a particular Facility may be converted into a Eurocurrency Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such conversions.  Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.  

ii.Any Eurocurrency Loan may be continued as such by the Borrower giving irrevocable written notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1 and no later than 12:00 Noon, New York City time, on the third Business Day preceding the proposed continuation date, of the length of the next Interest Period to be applicable to such Loans; provided that if any Eurocurrency Loan is so continued on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.21; provided, further, that no Eurocurrency Loan under a particular Facility may be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such continuations; and provided, further, that (i) if the Borrower shall fail to give any required notice as described above in this paragraph such Eurocurrency Loans shall be automatically continued as Eurocurrency Loans having an Interest Period of one month’s duration on the last day of such then-expiring Interest Period and (ii) if such continuation is not permitted pursuant to the preceding proviso, such Eurocurrency Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period.  Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.  

 

n.

Minimum Amounts and Maximum Number of Eurocurrency Tranches

.  Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions, continuations and optional prepayments of Eurocurrency Loans and all selections of Interest Periods shall be in such amounts and be made pursuant to such elections so that (a) after giving effect thereto, the aggregate principal amount of the Eurocurrency Loans comprising each Eurocurrency Tranche shall

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be equal to a minimum of $1,000,000 or a whole multiple of $500,000 in excess thereof and (b) no more than twelve Eurocurrency Tranches shall be outstanding at any one time.  

 

o.

Interest Rates and Payment Dates

.  

i.Each Eurocurrency Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurocurrency Base Rate determined for such day plus the Applicable Margin for such Eurocurrency Loan.  

ii.Each ABR Loan shall bear interest at a rate per annum equal to ABR plus the Applicable Margin for such ABR Loan.  

iii.Upon the occurrence and during the continuance of any Event of Default pursuant to Section 8.1(a) or (f), (i) if all or a portion of the principal amount of any Loan or Reimbursement Obligation shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to (x) in the case of the Loans, the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section 2.15 plus 2.00% or (y) in the case of Reimbursement Obligations, the rate applicable to ABR Loans under the Revolving Facility plus 2.00%, and (ii) if all or a portion of any interest payable on any Loan or Reimbursement Obligation or any commitment fee or other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then applicable to ABR Loans under the relevant Facility plus 2.00% (or, in the case of any such other amounts that do not relate to a particular Facility, the rate then applicable to ABR Loans under the Revolving Facility plus 2.00%), in each case, with respect to clauses (i) and (ii) above, from the date of such non-payment until such amount is paid in full (after as well as before judgment); provided that no amount shall be payable pursuant to this Section 2.15(c) to a Defaulting Lender so long as such Lender shall be a Defaulting Lender; provided further no amounts shall accrue pursuant to this Section 2.15(c) on any overdue Loan, Reimbursement Obligation, commitment fee or other amount payable to a Defaulting Lender so long as such Lender shall be a Defaulting Lender.

iv.Interest shall be payable by the Borrower in arrears on each Interest Payment Date; provided that interest accruing pursuant to paragraph (c) of this Section 2.15 shall be payable from time to time on demand.  

 

p.

Computation of Interest and Fees

.  

i.Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to ABR Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed.  The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a Eurocurrency Rate.  Any change in the interest rate on a Loan resulting from a change in the ABR or the Eurocurrency Reserve Requirements shall become effective as of the opening of business on the day on which such change becomes effective.  The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate.  

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ii.Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be presumptively correct in the absence of demonstrable error.  The Administrative Agent shall, at the reasonable request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 2.15(a) and Section 2.15(b).  

 

q.

Inability to Determine Interest Rate

.  If prior to the first day of any Interest Period for any Eurocurrency Loan:  

(c)the Administrative Agent shall have determined (which determination shall be presumptively correct absent demonstrable error) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurocurrency Rate for such Interest Period, or

(d)the Administrative Agent shall have received notice from the Majority Facility Lenders in respect of the relevant Facility that by reason of any changes arising after the date of this Agreement the Eurocurrency Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as certified by such Lenders) of making or maintaining their affected Loans during such Interest Period,

the Administrative Agent shall give telecopy notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter.  If such notice is given (x) any Eurocurrency Loans under the relevant Facility requested to be made on the first day of such Interest Period shall be made as ABR Loans, (y) any Loans under the relevant Facility that were to have been converted on the first day of such Interest Period to Eurocurrency Loans shall be continued as ABR Loans and (z) any outstanding Eurocurrency Loans under the relevant Facility shall be converted, on the last day of the then-current Interest Period with respect thereto, to ABR Loans.  Until such notice has been withdrawn by the Administrative Agent (which action the Administrative Agent will take promptly after the conditions giving rise to such notice no longer exist), no further Eurocurrency Loans under the relevant Facility shall be made or continued as such, nor shall the Borrower have the right to convert Loans under the relevant Facility to Eurocurrency Loans.  

 

a.

Pro Rata Treatment and Payments

.  

i.Each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Revolving Commitments shall be made pro rata according to the respective Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders.  Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans or New Term Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Term Lenders or New Term Lenders, as applicable, pro rata according to the respective amounts then due and owing to such Lenders, other than payments pursuant to Section 2.11(b) or 2.24.

ii.Each mandatory prepayment of the Term Loans shall be allocated between each Term Facility and any New Facility comprising Term Loans, if any, pro rata, except as affected by the opt-out provision under Section 2.12(e).  Each optional prepayment of the Term Loans shall be allocated between the Facilities as directed by the Borrower.  Each optional prepayment of the Term Loans or New Term Loans shall be allocated to the Lenders holding such Loans on a pro rata basis, based on the principal amount of such Loans held by such Lender of the Term Loans or New Term Loans applied to the re

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maining installments thereof as specified by the Borrower (except for prepayments pursuant to Section 2.11(b) or Section 2.24) and each mandatory prepayment of the Term Loans or New Term Loans shall be allocated to the Lenders holding such Loans on a pro rata basis, based on the principal amount of such Loans held by such Lender of the Term Loans or New Term Loans and shall be applied to the remaining installments thereof in direct order of maturity.  Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.

iii.Each payment (including prepayments) to be made by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders.  Each payment (including prepayments) to be made by the Borrower on account of principal of and interest on the New Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the New Revolving Loans then held by the New Lenders.  Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to the Issuing Bank that issued such Letter of Credit.  

iv.All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff, deduction or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Funding Office, in immediately available funds.  Any payment received by the Administrative Agent after 2:00 P.M., New York City time may be considered received on the next Business Day in the Administrative Agent’s sole discretion.  The Administrative Agent shall distribute such payments to the relevant Lenders promptly upon receipt in like funds as received.  If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day.  If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day.  In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.  

v.Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent.  A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be presumptively correct in the absence of demonstrable error.  If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall give notice of such fact to the Borrower and the Administrative Agent shall also be entitled to recover such amount with interest thereon, for each day from such Borrowing Date until the date such amount is paid to the Administrative Agent, at the rate per annum applicable to ABR Loans under the relevant Facility, on demand, from the Borrower.  Nothing herein shall be deemed to limit the rights of the Administrative Agent or the Borrower against any Defaulting Lender.  

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vi.Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount.  If such payment is not made to the Administrative Agent by the Borrower within three Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each relevant Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate.  Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.  

 

b.

Requirements of Law

.  

i.Except with respect to Taxes, which are addressed in Section 2.20, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority first made, in each case, subsequent to the date hereof:  

 

1.

shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the Eurocurrency Rate hereunder; or

 

2.

shall impose on such Lender any other condition not otherwise contemplated hereunder;

and the result of any of the foregoing is to increase the cost to such Lender, by an amount which such Lender reasonably deems to be material, of making, converting into, continuing or maintaining Eurocurrency Loans or issuing or participating in Letters of Credit (in each case hereunder), or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender, in Dollars, within thirty Business Days after the Borrower’s receipt of a reasonably detailed invoice therefor (showing with reasonable detail the calculations thereof), any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable.  If any Lender becomes entitled to claim any additional amounts pursuant to this Section 2.19, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled.  

ii.If any Lender shall have reasonably determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by such Lender or any entity controlling such Lender with

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any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) from any Governmental Authority first made, in each case, subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s or such entity’s capital as a consequence of its obligations hereunder or under or in respect of any Letter of Credit to a level below that which such Lender or such entity could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such entity’s policies with respect to capital adequacy or liquidity requirements) by an amount deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a reasonably detailed written request therefor (consistent with the detail provided by such Lender to similarly situated borrowers), the Borrower shall pay to such Lender, in Dollars, such additional amount or amounts as will compensate such Lender or such entity for such reduction.  

iii.A certificate prepared in good faith as to any additional amounts payable pursuant to this Section 2.19 submitted by any Lender to the Borrower (with a copy to the Administrative Agent) shall be presumptively correct in the absence of demonstrable error.  Notwithstanding anything to the contrary in this Section 2.19, the Borrower shall not be required to compensate a Lender pursuant to this Section 2.19 for any amounts incurred more than 180 days prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor; provided that if the circumstances giving rise to such claim have a retroactive effect, then such 180-day period shall be extended to include the period of such retroactive effect.  The obligations of the Borrower pursuant to this Section 2.19 shall survive the termination of this Agreement and the payment of the Obligations.

Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign 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, issued or implemented.

 

c.

Taxes

.  

i.Except as otherwise provided in this Agreement or as required by law, all payments made by the Borrower or any Loan Party under this Agreement and the other Loan Documents to the Administrative Agent or any Lender under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any Taxes.  The term “Non-Excluded Taxes” shall mean Taxes other than (i) net income Taxes, branch profits Taxes and franchise Taxes (and net worth Taxes and capital Taxes imposed expressly in lieu of net income Taxes) imposed on the Administrative Agent or any Lender (A) by the jurisdiction (or any political subdivision thereof) under the laws of which the Administrative Agent or any Lender (or, in the case of a pass-through entity, any of its beneficial owners) is organized or in which its applicable lending office is located or (B) as a result of a present or former connection between the Administrative Agent or such Lender or beneficial owner and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Loan Document) and (ii) any tax, assessment or other governmental charge that would not have been imposed but for a failure by any Lender, the Administrative Agent or any financial institution through which any payment is made to enter into or to comply with any applicable certification, documentation, information or other reporting requirement or agreement concerning United States

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accounts maintained by the Lender, the Administrative Agent or any such financial institution or concerning United States ownership of the Lender, or any substantially similar requirement or agreement, if entering into or complying with such requirement or agreement is required by statute or regulation of the United States as a precondition to relief or exemption from such tax, assessment or other governmental charge; provided that such certification, documentation, information or other reporting requirement or agreement has been requested by the Borrower.  If any such nonexcluded Taxes or Other Taxes are required to be withheld from any amounts payable by or on behalf of the Borrower or any Loan Party under this Agreement and the other Loan Documents to the Administrative Agent, any Issuing Bank or any Lender hereunder, the amounts payable by the applicable Loan Party shall be increased to the extent necessary to yield to the Administrative Agent, such Issuing Bank or such Lender (after deduction or withholding of all Non-Excluded Taxes and Other Taxes including Non-Excluded Taxes attributable to amounts payable under this Section 2.20(a)) interest or any such other amounts payable at the rates or in the amounts specified in this Agreement or the relevant Loan Document; provided, however, that the Borrower or any Loan Party under this Agreement and the other Loan Documents shall not be required to pay to or increase any such amounts payable to or in respect of any Lender or the Administrative Agent with respect to any Non-Excluded Taxes or Other Taxes (i) that are attributable to such Lender’s (or, in the case of a pass-through entity, any of its beneficial owners’) or the Administrative Agent’s failure to comply with the requirements of paragraph (d) or (e), as applicable, of this Section 2.20, (ii) that are U.S. federal withholding Taxes resulting from any Requirement of Law in effect on the date such Lender becomes a party hereto, unless such Taxes are imposed as a result of any change in facts, occurring after such Lender becomes a party hereto, that is attributable to the Borrower or any Loan Party, except (in the case of an assignment) to the extent that such Lender’s assignor (if any) was entitled, at the time of such assignment, to receive additional amounts from the Borrower or any Loan Party under this Agreement and the other Loan Documents with respect to such Taxes pursuant to this paragraph or (iii) that are U.S. federal withholding Taxes imposed under FATCA.  

ii.In addition, the Borrower or any Loan Party under this Agreement and the other Loan Documents shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.  

iii.Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower and any Loan Party under this Agreement and the other Loan Documents, as promptly as possible thereafter the Borrower shall send to the Administrative Agent for the account of the Administrative Agent or Lender, as the case may be, a certified copy of an original official receipt received by the Borrower showing payment thereof if such receipt is obtainable, or, if not, such other evidence of payment as may reasonably be required by the Administrative Agent or such Lender.  The Borrower or any Loan Party under this Agreement and the other Loan Documents shall indemnify the Administrative Agent, the Issuing Bank and the Lenders for any payments by them of Non-Excluded Taxes or Other Taxes (including any incremental taxes, interest or penalties on any such Other Taxes) that become payable by the Administrative Agent, any Issuing Bank or any Lender within thirty days after the Lender, the Issuing Bank or the Administrative Agent delivers to the Borrower (with a copy to the Administrative Agent) either (a) a copy of the receipt issued by a Governmental Authority evidencing payment of such Taxes or (b) certificates as to the amount of such payment or liability prepared in good faith.  

iv.(i) Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) (a “Non-US Lender”) shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the Lender from which the related participation shall have been purchased) (i) two accurate and complete copies of IRS Form W-8ECI, W-8 EXP, W-8BEN, W-8BEN-E or W-8IMY (together with any applicable underlying IRS forms required from each of its beneficial owners) or (ii) in the case of a Non-US Lender claiming exemption from United States federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” a state

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ment substantially in the form of Exhibit K hereto and two accurate and complete copies of IRS Form W-8BEN, W-8BEN-E, W-8ECI, W-8 EXP or W-8IMY (together with any applicable underlying IRS forms required from each of its beneficial owners), or any subsequent versions or successors to such forms, in each case properly completed and duly executed by such Non-US Lender claiming complete exemption from, or a reduced rate of, United States federal withholding tax on all payments by the Borrower or any Loan Party under this Agreement and the other Loan Documents.  Such forms shall be delivered by each Non-US Lender on or before the date it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such Participant purchases the related participation) and from time to time thereafter upon the request of the Borrower or the Administrative Agent.  In addition, each Non-US Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-US Lender.  Each Non-US Lender shall (i) promptly notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the United States taxing authorities for such purpose) and (ii) take such steps as shall not be disadvantageous to it, in its reasonable judgment, and as may be reasonably necessary (including the re-designation of its lending office pursuant to Section 2.23) to avoid any requirement of applicable laws of any such jurisdiction that the Borrower or any Loan Party make any deduction or withholding for taxes from amounts payable to such Lender.  Notwithstanding any other provision of this paragraph, a Non-US Lender shall not be required to deliver any form pursuant to this paragraph that such Non-US Lender is not legally able to deliver.  

(ii)The Administrative Agent shall deliver to the Borrower, on or before the date on which it becomes the Administrative Agent hereunder, whichever of the following is applicable:  (A) two accurate and complete copies of IRS Form W-9, or any subsequent versions or successors to such form and certify that such Administrative Agent is not subject to backup withholding; or (B) two accurate and complete copies of IRS Form W-8IMY certifying on Part I and Part IV of such IRS Form W-8IMY (or applicable successor form or Parts) that it is a U.S. branch that has agreed to be treated as a U.S. person for United States federal withholding Tax purposes with respect to payments received by it from the Borrower in its capacity as an intermediary.  The Administrative Agent shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide the certification described in the preceding sentence.

(iii)If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Taxes imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (iii), “FATCA” shall include any amendment made to FATCA after the date of this Agreement.

v.Each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) (a “US Lender”) shall deliver to the Borrower and the Administrative Agent two accurate and complete copies of IRS Form W-9, or any subsequent versions or successors to such form and certify that such lender is not subject to backup withholding.  Such forms shall be delivered by each US Lender on or before the date it becomes a party to this Agreement.  In addition, each US Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such US Lender.  Each US Lender shall promptly notify the Borrower at any time it determines that it is no

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longer in a position to provide any previously delivered certifications to the Borrower (or any other form of certification adopted by the United States taxing authorities for such purpose).  

vi.If the Administrative Agent or any Lender determines, in good faith, that it has received a refund of any Non-Excluded Taxes or Other Taxes (including any incremental taxes, interest or penalties on any such Other Taxes) as to which it has been indemnified by the Borrower or any Loan Party or with respect to which the Borrower or any Loan Party has paid additional amounts pursuant to this Section 2.20, it shall promptly pay over the amount of such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower or any Loan Party under this Section 2.20 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender incurred in good faith in connection with obtaining such refund and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority.  This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Borrower or any other Person.  In no event will the Administrative Agent or any Lender be required to pay any amount to the Borrower the payment of which would place the Administrative Agent or such Lender in a less favorable net after-tax position than the Administrative Agent or such Lender would have been in if the additional amounts giving rise to such refund of any Non-Excluded Taxes or Other Taxes had never been paid.  The agreements in this Section 2.20 shall survive the termination of this Agreement and the payment of the Obligations.  

 

d.

Indemnity

.  Other than with respect to Taxes, which shall be governed solely by Section 2.20, the Borrower agrees to indemnify each Lender for, and to hold each Lender harmless from, any loss or expense (other than lost profits, including the loss of Applicable Margin) that such Lender may actually sustain or incur as a consequence of (a) any failure by the Borrower in making a borrowing of, conversion into or continuation of Eurocurrency Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) any failure by the Borrower in making any prepayment of or conversion from Eurocurrency Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment, conversion or continuation of Eurocurrency Loans on a day that is not the last day of an Interest Period with respect thereto.  A reasonably detailed certificate as to (showing in reasonable detail the calculation of) any amounts payable pursuant to this Section 2.21 submitted to the Borrower by any Lender shall be presumptively correct in the absence of demonstrable error.  This covenant shall survive the termination of this Agreement and the payment of the Obligations.  

 

e.

Illegality

.  Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof, in each case, first made after the date hereof, shall make it unlawful for any Lender to make or maintain Eurocurrency Loans as contemplated by this Agreement, such Lender shall promptly give notice thereof (a “Rate Determination Notice”) to the Administrative Agent and the Borrower, and (a) the commitment of such Lender hereunder to make Eurocurrency Loans, continue Eurocurrency Loans as such and convert ABR Loans to Eurocurrency Loans shall be suspended during the period of such illegality and (b) such Lender’s Loans then outstanding as Eurocurrency Loans, if any, shall be converted automatically to ABR Loans on the respective last days of

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the then current Interest Periods with respect to such Loans or within such earlier period as required by law.  If any such conversion of a Eurocurrency Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 2.21.  

 

f.

Change of Lending Office

.  Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.19, 2.20(a) or 2.22 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event with the object of avoiding the consequences of such event; provided that such designation is made on terms that, in the good faith judgment of such Lender, cause such Lender and its lending office(s) to suffer no material economic, legal or regulatory disadvantage and; provided, further, that nothing in this Section 2.23 shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.19, 2.20(a) or 2.22.  

 

g.

Replacement of Lenders

.  The Borrower shall be permitted to (a) replace with a financial institution or financial institutions, or (b) prepay, without premium or penalty (but subject to Section 2.21), the Loans of, any Lender that (i) requests reimbursement for amounts owing or otherwise results in increased costs imposed on the Borrower or on account of which the Borrower is required to pay additional amounts to any Governmental Authority pursuant to Section 2.19, 2.20 or 2.21 (to the extent a request made by a Lender pursuant to the operation of Section 2.21 is materially greater than requests made by other Lenders) or gives a notice of illegality pursuant to Section 2.22, (ii) is a Defaulting Lender or defaults in its obligation to comply with its obligations under Section 3.4 or (iii) has refused to consent to any waiver or amendment with respect to any Loan Document that requires such Lender’s consent and has been consented to by the Required Lenders; provided that, in the case of a replacement pursuant to clause (a) above, (A) such replacement does not conflict with any Requirement of Law, (B) the replacement financial institution or financial institutions shall purchase, at par, all Loans and other amounts owing to such replaced Lender on or prior to the date of replacement, (C) the Borrower shall be liable to such replaced Lender under Section 2.21 (as though Section 2.21 were applicable) if any Eurocurrency Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (D) the replacement financial institution or financial institutions, (x) if not already a Lender, shall be reasonably satisfactory to the Administrative Agent to the extent that an assignment to such replacement financial institution of the rights and obligations being acquired by it would otherwise require the consent of the Administrative Agent pursuant to Section 10.6(b)(i)(B) and (y) shall pay (unless otherwise paid by the Borrower) any processing and recordation fee required under Section 10.6(b)(ii)(B), (E) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 10.6, (F) the Borrower shall pay all additional amounts (if any) required pursuant to Section 2.19 or 2.20, as the case may be, in respect of any period prior to the date on which such replacement shall be consummated, (G) if applicable, the replacement financial institution or financial institutions shall consent to such amendment or waiver and (H) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender.  Prepayments pursuant to clause (b) above (i) shall be accompanied by accrued and unpaid interest on the principal amount so prepaid up to the date of such prepayment and (ii) shall not be subject to the provisions of Section 2.18.

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h.

Incremental Loans

.  

i.The Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more new term loan or revolving commitments (the “New Commitments”) hereunder, in an aggregate amount for all such New Commitments not in excess of the Maximum Incremental Facilities Amount.  Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be effective, which date shall be reasonably acceptable to the Administrative Agent; provided that any Lender offered or approached to provide all or a portion of any New Commitments may elect or decline, in its sole discretion, to provide such New Commitments.

Such New Commitments shall become effective as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Commitments and to the making of any Tranche of New Loans pursuant thereto and after giving effect to any Permitted Acquisition or similar Investment consummated in connection therewith (provided, however, that, if the proceeds of any New Loans shall be used for a Permitted Acquisition, the Lenders providing such New Loans may waive any such Default or Event of Default existing on the applicable Increased Amount Date); (ii) the proceeds of any New Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including, without limitation, Permitted Acquisitions and Investments permitted under Section 7.7 and prepayments or refinancing of Permitted Other Indebtedness); (iii) the New Loans shall share ratably in the Collateral; (iv) no Lender shall be obligated to provide any portion of any New Commitment; (v) the New Loans that are term loans (“New Term Loans”) shall share ratably or less in any mandatory prepayments of the existing Term Loans; (vi) in the case of any New Term Loans, the maturity date thereof shall not be earlier than the Term B2 Maturity Date and the weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of Term B2 Loans; (vii) in the case of any New Loans that are revolving loans or commitments (“New Revolving Loans”) the maturity date or commitment termination date thereof shall not be earlier than the Revolving Termination Date and such New Revolving Loans shall not require any scheduled commitment reductions prior to the Revolving Termination Date; (viii) the New Revolving Loans shall share ratably or less in any mandatory prepayments of the existing Revolving Loans; (ix) all terms and documentation with respect to any New Loans which differ from those with respect to the Loans under the applicable Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent permitted by clauses (vi) and (vii) above and the last sentence of this paragraph); (x) such New Loans or New Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; (xi) with respect to any Mortgages that exist at the time of such New Loans, modifications to such Mortgages may be recorded and the Borrower shall deliver or cause to be delivered any title endorsements reasonably requested by Administrative Agent; (xii) the Borrower shall deliver or cause to be delivered any customary legal opinions, including legal opinions from local counsel with respect to any mortgage modifications, or other documents reasonably requested by Administrative Agent in connection with any such transaction, including any supplements or amendments to the Security Documents providing for such New Loans to be secured thereby; (xiii) with respect to any New Term Loans incurred on or prior to the date that is 18 months after the Closing Date, if the All-In Yield relating to the New Term Loans exceeds the All-In Yield then in effect with respect to the Term B2 Loans by more than 50 basis points the Applicable Margin relating to (x) the existing Term B2 Loans shall be adjusted so that the All-In Yield relating to such New Term Loans does not exceed the All-In Yield applicable to the existing Term B2 Loans by more than 50 basis points (the amount of any such adjustment, the “MFN Adjustment”) and (y) the All-In Yield applicable to the existing Term B1 Loans shall be adjusted by an amount equal to the MFN Adjustment; (xiv) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such

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New Loans; and (xv) the New Loans shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral.  Any New Loans made on an Increased Amount Date that have terms and provisions that differ from those of the Term Loans or Revolving Loans, as applicable, outstanding on the date on which such New Loans are made shall be designated as a separate tranche (a “Tranche”) of Term Loans or Revolving Loans, as applicable, for all purposes of this Agreement, except as the relevant Joinder Agreement otherwise provides.  For the avoidance of doubt, the rate of interest and the amortization schedule (if applicable) of any New Commitments shall be determined by the Borrower and the applicable New Lenders and shall be set forth in the applicable Joinder Agreement.  

ii.On any Increased Amount Date on which any New Commitment become effective, subject to the foregoing terms and conditions, each lender with a New Commitment (each, a “New Lender”) shall become a Lender hereunder with respect to such New Commitment.  

iii.The terms and provisions of the New Commitments of any Tranche shall be, except as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable Loans and for purposes of this Agreement, any New Loans or New Commitments shall be deemed to be Term Loans, Revolving Loans or Revolving Commitments, as applicable.  Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.25.

 

i.

Certain Provisions Regarding Defaulting Lenders

.  Notwithstanding anything to the contrary contained in this Agreement, if any Swingline Commitment or L/C Commitment exists at the time a Revolving Lender becomes a Defaulting Lender (such Lender, a “Defaulting Revolving Lender”) then:

 

(a)

all or any part of such Swingline Commitment and L/C Commitment shall be reallocated among the non-Defaulting Revolving Lenders in accordance with their respective Revolving Percentages but only to the extent (i) the sum of all non-Defaulting Revolving Lenders’ Revolving Extensions of Credit plus such Defaulting Revolving Lender’s Revolving Extensions of Credit do not exceed the total of all non-Defaulting Revolving Lenders’  Revolving Commitments, (ii) the Revolving Extension of Credit of any such non-Defaulting Revolving Lender does not exceed such Revolving Lender’s Revolving Commitment after giving effect to the reallocation and (iii) the conditions set forth in Section 5.2 are satisfied at such time;

 

(b)

if the reallocation described in clause (a) above cannot, or can only partially, be effected, the Borrower shall (i) first, within one Business Day following notice by the Administrative Agent, prepay any outstanding Swingline Loans to the extent the Swingline Commitments related thereto have not been reallocated pursuant to clause (a) above and (ii) second, within five Business Days following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s Revolving Percentage of the L/C Commitment (after giving effect to any partial reallocation pursuant to clause (a) above) for so long as such L/C Commitment is outstanding; and

 

(c)

if the L/C Commitment of the non-Defaulting Revolving Lenders is reallocated pursuant to clause (a) above, then the fees payable to the Lenders pursuant to Section 2.9 and Section 3.3 shall be adjusted in accordance with such non-Defaulting Revolving Lenders’ Percentages.

 

j.

Extended Loans

.

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i.Notwithstanding anything to the contrary in this Agreement, the Borrower may at any time and from time to time request that all or a portion of a class of Loans (an “Existing Loan Facility”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Loans (any such Loans which have been so converted, “Extended Loans”) and to provide for other terms consistent with this Section 2.27.  In order to establish any Extended Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders under the applicable Existing Loan Facility) (an “Extension Request”) setting forth the proposed terms of the Extended Loans to be established which shall be identical to the class of Loans from which such Extended Loans are to be converted except that:

 

1.

all or any of the scheduled amortization payments of principal of the Extended Loans may be delayed to later dates than the scheduled amortization payments of principal of the class of Loans being converted to the extent provided in the applicable Loan Extension Amendment;

 

2.

the interest margins with respect to the Extended Loans may be different from the interest margins for the class of Loans being converted and upfront fees may be paid to the Extending Lenders, in each case, to the extent provided in the applicable Loan Extension Amendment;

 

3.

the Loan Extension Amendment may provide for other covenants and terms that apply solely to any period after the latest final maturity of all classes of Loans in effect on the effective date of the Loan Extension Amendment immediately prior to the establishment of such Extended Loans; and

 

4.

no Extended Loans may be optionally prepaid prior to the date on which the Loans under the class from which they were converted are repaid unless such optional prepayment is accompanied by a pro rata optional prepayment of the Loans under such class that were not converted.

Any Extended Loans converted pursuant to any Extension Request shall be designated as a class of Extended Loans for all purposes of this Agreement; provided that any Extended Loans converted may, to the

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extent provided in the applicable Loan Extension Amendment, be designated as an increase in any previously established  class of Extended Loans.

ii.The Borrower shall provide the applicable Extension Request to all Lenders of such class that is subject to the Extension Request at least five (5) Business Days prior to the date on which Lenders under such class being converted are requested to respond.  No Lender shall have any obligation to agree to have any of its Loans of such class converted into Extended Loans pursuant to any Extension Request.  Any Lender (an “Extending Lender”) wishing to have all or a portion of its Loans under such class being converted into Extended Loans shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Loans of such class which it has elected to request be converted into Extended Loans (subject to any minimum denomination requirements reasonably imposed by the Administrative Agent).  In the event that the aggregate amount of Loans under such class being converted exceeds the amount of Extended Loans requested pursuant to the Extension Request, Loans subject to Extension Elections shall be converted to Extended Loans on a pro rata basis based on the amount of Loans included in each such Extension Election. Notwithstanding the conversion of any Loans, if such extension relates to the Revolving Commitments, such Extending Lender shall be treated identically to all other Revolving Lenders for purposes of determining its pro rata share of any borrowing or repayment of Revolving Loans and the obligations of a Revolving Lender in respect of Swingline Loans and Letters of Credit, except that the applicable Loan Extension Amendment may provide that the maturity date of such Swingline Loans and/or L/C Commitment may be extended and the related obligations to make Swingline Loans and issue Letters of Credit may be continued so long as the Swingline Lender and/or the applicable Issuing Bank, as applicable, have consented to such extensions in their sole discretion (it being understood that no consent of any other Lender shall be required in connection with any such extension).

iii.Extended Loans shall be established pursuant to an amendment (a “Loan Extension Amendment”) to this Agreement among the Borrower, the Administrative Agent and each Extending Lender providing an Extended Loan thereunder which shall be consistent with the provisions set forth in paragraph (a) above (but which shall not require the consent of any other Lender).  Each Loan Extension Amendment shall be binding on the Lenders, the Loan Parties and the other parties hereto.  In connection with any Loan Extension Amendment, the Loan Parties and the Collateral Agent shall enter into confirmations or reaffirmations to the Security Documents as may be reasonably requested by the Collateral Agent (which shall not require any consent from any Lender) in order to ensure that the Extended Loans are provided with the benefit of the applicable Security Documents.

 

k.

Permitted Debt Exchanges

.

i.Notwithstanding anything to the contrary contained in this Agreement, pursuant to one or more offers (each, a “Permitted Debt Exchange Offer”) made from time to time by the Borrower to all Lenders (other than any Lender that, if requested by the Borrower, is unable to certify that it is either a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended) or an institutional “accredited investor” (as defined in Rule 501 under the Securities Act of 1933, as amended)) with outstanding Term Loans under one or more classes of Term Loans (as determined by the Borrower) on the same terms, the Borrower may from time to time following the Closing Date consummate one or more exchanges of Term Loans for Permitted Other Indebtedness in the form of notes (such notes, “Permitted Debt Exchange Notes,” and each such exchange a “Permitted Debt Exchange”), so long as the following conditions are satisfied:  (i) no Default or Event of Default shall have occurred and be continuing at the time the offering document in respect of a Permitted Debt Exchange Offer is delivered to the relevant Lenders, (ii) the aggregate principal amount (calculated on the face

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amount thereof) of Term Loans exchanged shall equal the aggregate principal amount (calculated on the face amount thereof) of Permitted Debt Exchange Notes issued in exchange for such Term Loans, (iii) the aggregate principal amount (calculated on the face amount thereof) of all Term Loans exchanged under each applicable class by the Borrower pursuant to any Permitted Debt Exchange shall automatically be cancelled and retired by the Borrower on date of the settlement thereof (and, if requested by the Administrative Agent, any applicable exchanging Lender shall execute and deliver to the Administrative Agent an Assignment and Assumption, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest in the Term Loans being exchanged pursuant to the Permitted Debt Exchange to the Borrower for immediate cancellation), (iv) if the aggregate principal amount of all Term Loans (calculated on the face amount thereof) of a given class tendered by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds the principal amount thereof of the applicable class actually held by it) shall exceed the maximum aggregate principal amount of Term Loans of such class offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans under the relevant class tendered by such Lenders ratably up to such maximum based on the respective principal amounts so tendered, or if such Permitted Debt Exchange Offer shall have been made with respect to multiple classes without specifying a maximum aggregate principal amount offered to be exchanged for each class, and the aggregate principal amount of all Term Loans (calculated on the face amount thereof) of all classes tendered by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds the principal amount thereof actually held by it) shall exceed the maximum aggregate principal amount of Term Loans of all relevant classes offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans across all classes subject to such Permitted Debt Exchange Offer tendered by such Lenders ratably up to such maximum amount based on the respective principal amounts so tendered, (v) each such Permitted Debt Exchange Offer shall be made on a pro rata basis to the Lenders (other than any Lender that, if requested by the Borrower, is unable to certify that it is either a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended) or an institutional “accredited investor” (as defined in Rule 501 under the Securities Act of 1933, as amended)) of each applicable class based on their respective aggregate principal amounts of outstanding Term Loans under each such class, (vi) all documentation in respect of such Permitted Debt Exchange shall be consistent with the foregoing, and all written communications generally directed to the Lenders in connection therewith shall be in form and substance consistent with the foregoing and made in consultation with the Borrower and the Administrative Agent and (vii) any applicable Minimum Tender Condition shall be satisfied.  

ii.With respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this Section 2.28, (i) such Permitted Debt Exchanges (and the cancellation of the exchanged Term Loans in connection therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.11 or 2.12, and (ii) such Permitted Debt Exchange Offer shall be made for not less than $25,000,000 in aggregate principal amount of Term Loans, provided that subject to the foregoing clause (ii) the Borrower may at its election specify as a condition (a “Minimum Tender Condition”) to consummating any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the Borrower’s discretion) of Term Loans of any or all applicable classes be tendered.  Upon the consummation of any Permitted Debt Exchange, the outstanding principal amount of the applicable class of Term Loans shall automatically be deemed reduced in an aggregate amount equal to the principal amount of Term Loans exchanged in such Permitted Debt Exchange.

iii.In connection with each Permitted Debt Exchange, the Borrower shall provide the Administrative Agent at least 10 Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and the Borrower and the Administrative Agent, acting

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reasonably, shall mutually agree to such procedures as may be necessary or advisable to accomplish the purposes of this Section 2.28 and without conflict with Section 2.28(d); provided that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant Lenders are required to indicate their election to participate in such Permitted Debt Exchange shall be not less than five (5) Business Days following the date on which the Permitted Debt Exchange Offer is made.

iv.The Borrower shall be responsible for compliance with, and hereby agrees to comply with, all applicable securities and other laws in connection with each Permitted Debt Exchange, it being understood and agreed that (x) neither the Administrative Agent nor any Lender assumes any responsibility in connection with the Borrower’s compliance with such laws in connection with any Permitted Debt Exchange and (y) each Lender shall be solely responsible for its compliance with any applicable “insider trading” laws and regulations to which such Lender may be subject under the Securities Exchange Act of 1934, as amended.

 

l.

Refinancing Amendments

.