EX-10.1 2 exhibit101-shoalsxconforme.htm EX-10.1 Document
Exhibit 10.1

Execution Version

[***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601 (b)(10)

Such excluded information is not material and would likely cause competitive harm to the registrant if publicly disclosed.

AMENDMENT NO. 6

AMENDMENT NO. 6, dated as of March 19, 2024 (this “Amendment”), to the Credit Agreement dated as of November 25, 2020, by and among Shoals Technologies Group, Inc., a Delaware corporation (the “Borrower”), Wilmington Trust, National Association (“Wilmington Trust”), as Collateral Agent, JPMorgan Chase Bank, N.A. (“JPMorgan”), as Administrative Agent and each L/C Issuer and lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) (as amended by the Incremental Amendment No. 1, dated as of December 22, 2020, Amendment No. 2, dated as of December 30, 2020, Amendment No. 3, dated as of August 26, 2021, Amendment No. 4, dated as of March 18, 2022, Amendment No. 5, dated as of May 2, 2022 and as further amended, restated, amended and restated, supplemented or modified from time to time prior to the date hereof, the “Credit Agreement” and, as amended by this Amendment, the “Amended Credit Agreement”); capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement.
WHEREAS, the Borrower has requested that the 2024 Refinancing Revolving Lenders (as defined below) provide Refinancing Revolving Credit Commitments in U.S. Dollars in an aggregate principal amount of $200 million (the “2024 Refinancing Revolving Credit Commitments” and the loans thereunder, the “2024 Refinancing Revolving Credit Loans”) to refinance in full the Revolving Credit Commitments existing on the Amendment No. 6 Effective Date (immediately prior to the effectiveness of this Amendment) (such existing Revolving Credit Commitments, the “Existing Revolving Credit Commitments”), and to make certain corresponding modifications to the Credit Agreement;
WHEREAS, the Company has requested that Shoals Technologies Group, Inc., a Delaware corporation (the “Parent Borrower”), be joined to the Credit Agreement as the Company and a Borrower thereunder;
WHEREAS, the Company has requested that all of the Lenders under the Credit Agreement and the Agents agree to amend the Existing Credit Agreement in accordance with Section 10.01 of the Existing Credit Agreement as set forth herein; and
WHEREAS, all of the Lenders and the Agents are willing, on and subject to the terms and conditions hereof, to agree to the amendments set forth herein and to the joinder to the Credit Agreement of the Parent Borrower.
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.    Refinancing Revolving Credit Commitments.
(a)    Each financial institution listed on Schedule A (each a “2024 Refinancing Revolving Lender” and collectively, the “2024 Refinancing Revolving Lenders”) hereby commits to provide a 2024 Refinancing Revolving Credit Commitment in Dollars in the amount set forth opposite such 2024 Refinancing Revolving Lender’s name in the second column of the chart in Schedule A to the Borrower on the Amendment No. 6 Effective Date (as defined below) on the terms and subject to the conditions set forth herein. On the Amendment No. 6 Effective Date, (x) the Existing Revolving Credit Commitments will be terminated and replaced with the 2024 Refinancing Revolving Credit Commitments of the 2024 Refinancing Revolving Lenders as set forth on Schedule A hereto and (y) each Revolving Credit Lender (immediately prior to the effectiveness of this Amendment) that is not also a 2024 Refinancing Revolving Lender will cease to be a Revolving Credit Lender; provided, any Revolving
    

    


Credit Borrowings outstanding under the Existing Revolving Credit Commitments existing immediately prior to giving effect to this Amendment shall be deemed to have been made under the 2024 Refinancing Revolving Credit Commitments and shall be deemed to be 2024 Refinancing Revolving Credit Loans for all purposes.
(b)    Pursuant to Section 2.18 of the Credit Agreement and subject to the terms and conditions set forth herein, effective as of the Amendment No. 6 Effective Date, for all purposes of the Loan Documents (i) the 2024 Refinancing Revolving Credit Commitments shall constitute “Revolving Credit Commitments”, “Refinancing Revolving Credit Commitments”, and “Commitments” (ii) any 2024 Refinancing Revolving Credit Loans shall constitute “Revolving Credit Loans”, “Refinancing Revolving Credit Loans”, and “Loans”, (iii) each 2024 Refinancing Revolving Lender shall constitute a “Revolving Credit Lender” and “Lender” and shall have all the rights and obligations of a Lender holding a Revolving Credit Commitment and (iv) other related terms will have correlative meanings mutatis mutandis.
(c)    All Letters of Credit outstanding under the Credit Agreement on the Amendment No. 6 Effective Date shall remain outstanding under the Amended Credit Agreement. Each 2024 Refinancing Revolving Lender’s risk participation in each such Letter of Credit shall be determined in accordance with such 2024 Refinancing Revolving Lender’s pro rata share, as provided in Section 2.03(c) of the Credit Agreement, as if such Letter of Credit had been issued on the Amendment No. 6 Effective Date immediately after giving effect to paragraph (a) above. For the avoidance of doubt, each L/C Issuer acting in such capacities immediately prior to the effectiveness of this Amendment shall continue to act in such capacities immediately following the effectiveness hereof.
(d)    Each 2024 Refinancing Revolving Lender acknowledges that all notice requirements set forth in the Credit Agreement with respect to the refinancing contemplated by this Amendment have been satisfied.
Section 2.    Amendments.
(a)    Amendments to Existing Credit Agreement. (i) The Credit Agreement (excluding the Schedules (other than Schedule 2.01(B)), which shall continue to be the Schedules under the Credit Agreement, as amended hereby) is, effective as of the Amendment No. 6 Effective Date amended to delete the stricken text (indicated in the same manner as the following example: stricken text) and to add the double-underlined text (indicated in the same manner as the following example: double-underlined text) as set forth on Exhibit A hereto, (ii) Schedule 2.01(B) to the Credit Agreement is hereby replaced in its entirety with Schedule A hereto and (iii) the Exhibits to the Credit Agreement are amended and restated in their entirety as set forth in Exhibit B hereto (the “Amended Exhibits”).
(b)    Amendments to Guaranty Agreement. Each Lender hereby authorizes and consents to the following amendment to the Guaranty (the “Existing Guaranty”, and as amended hereby, the “Amended Guaranty”):
(i)    the definition of “Guarantor” in Section 1.01 thereof shall be hereby amended and replaced in its entirety as follows:
““Guarantor” means (a) the Company and each Restricted Subsidiary listed on the signature pages hereof under the caption “Guarantors” and each Restricted Subsidiary that becomes a party to this Agreement after the Closing Date, (b) solely with respect to Obligations of the Company and the Restricted Subsidiaries in respect of Secured Hedge Agreements or Secured Cash Management Obligations, each Borrower (other than with respect to its own obligations) and (c) with respect to any Obligations of any Borrower, any other Borrower that is jointly and severally liable with respect to such Obligations in accordance with Section 11.02 of the Credit Agreement (other than with respect to its own Obligations); provided that, notwithstanding anything to the contrary, no Excluded Subsidiary (as defined in the Credit Agreement) shall be required to be a Guarantor.”
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(ii)    Section 3.02(b) thereof shall be hereby amended and replaced in its entirety as follows:
“Each Guarantor hereby agrees that upon the occurrence and during the continuance of an Event of Default and after notice from the Collateral Agent (acting at the direction of the Required Lenders), all Indebtedness owed by it to any Subsidiary of the Company shall be fully subordinated to the Secured Obligations until the occurrence of the Termination Date”.
(iii)    each reference to “Revolving Facility Administrative Agent” shall be replaced with a reference to the “Administrative Agent” and each reference to the “Blackstone Representative” shall be removed and in each case, any related conforming changes as set forth in Exhibit F of the Amended Exhibits shall be made.
(c)    Amendments to Security Agreement. Each Lender hereby authorizes and consents to the following amendments to the Security Agreement (the “Existing Security Agreement”, and as amended hereby, the “Amended Security Agreement”):
(i)    the definition of “Grantors” in Section 1(c) thereof shall be hereby amended and replaced in its entirety as follows:
““Grantors” means the Borrower and each other Guarantor.”
(ii)    the definition of “Guarantors” in Section 1(c) thereof shall be hereby amended and replaced in its entirety as follows:
““Guarantors” means (i) each Restricted Subsidiary party to the Guaranty, (ii) each Subsidiary that shall, at any time after the date hereof, become a “Guarantor” pursuant to Section 6.10 of the Credit Agreement or Section 4.14 of the Guaranty, (iii) solely with respect to the Obligations of the Company and the Restricted Subsidiaries in respect of Secured Hedge Agreements or Secured Cash Management Obligations, each Borrower (other than with respect to its own obligations) and (v) with respect to any Obligations of the Borrower, any other Borrower that is jointly and severally liable with respect to such Obligations in accordance with Section 11.01 of the Credit Agreement (other than with respect to its own Obligations).”
(iii)    the introductory paragraph of Section 2(a) thereof shall be hereby amended and replaced in its entirety as follows:
“The Borrower and each other Guarantor listed on the signature pages hereof, in order to secure its Secured Obligations, hereby grants to the Collateral Agent for the benefit of the Secured Parties a continuing security interest in all of its right, title and interest (the “Transaction Liens”) in the following property of the Borrower or such other Guarantor, as the case may be, whether now owned or existing or hereafter acquired or arising and regardless of where located (the “Collateral”)”.
(iv)    each reference to “Revolving Facility Administrative Agent” shall be replaced with a reference to the “Administrative Agent” and each reference to the “Blackstone Representative” shall be removed and in each case, any related conforming changes as set forth in Exhibit G of the Amended Exhibits shall be made.
(d)    Schedules to Closing Date Certificate. Each of Schedules 1.01B, 1.01D and 5.11 to the Closing Date Certificate is, effective as of the Amendment No. 6 Effective Date, hereby replaced in its entirety with Schedules 1.01B, 1.01D and 5.11 hereto, and shall for all purposes be the schedules referred to in the Amended Credit Agreement, as applicable.
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Section 3.    Representations and Warranties. The Borrower hereby represents and warrants that as of the Amendment No. 6 Effective Date (as defined below), after giving effect to this Amendment, (i) no Default or Event of Default has occurred and is continuing and (ii) the representations and warranties of the Borrower and each other Loan Party contained in the Credit Agreement or in the other Loan Documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, such representations and warranties were true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
Section 4.    Effectiveness. This Amendment shall become effective on the date (such date, the “Amendment No. 6 Effective Date”) that the following conditions have been satisfied:
(i)    The Administrative Agent shall have received executed signature pages hereto from each Loan Party, each 2024 Refinancing Revolving Lender, each L/C Issuer and each Revolving Credit Lender;
(ii)    The 2024 Refinancing Revolving Lenders and the Administrative Agent shall have received at least three (3) Business Days prior to the Amendment No. 6 Effective Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Amendment No. 6 Effective Date by any 2024 Refinancing Revolving Lender that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act. No later than three (3) Business Days prior to the Amendment No. 6 Effective Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Borrower shall have delivered to each 2024 Refinancing Revolving Lender a Beneficial Ownership Certificate to the extent expressly required under the Beneficial Ownership Regulation in relation to the Borrower as has been reasonably requested in writing at least five (5) Business Days prior to the Amendment No. 6 Effective Date by any 2024 Refinancing Revolving Lender;
(iii)    The Administrative Agent shall have received a customary officer’s certificate of (x) each Loan Party with respect to (A) its Organization Documents (which may be in the form of a certification from such Loan Party that there have been no changes from the Organization Documents previously delivered to the Administrative Agents (as defined in the Credit Agreement) as of the Closing Date), (B) resolutions and (C) incumbency and (y) the Borrower certifying that the conditions set forth in clauses (vi), (vii) and (xi) below have been satisfied;
(iv)    Each requesting 2024 Refinancing Revolving Lender, as applicable, shall have received Revolving Credit Notes executed by the Borrower in favor of such Lender;
(v)    The Administrative Agent shall have received a legal opinion from each of (x) Kirkland & Ellis LLP, New York counsel to the Loan Parties and (y) Bradley Arant Boult Cummings LLP, Tennessee and Alabama counsel to the Loan Parties, each addressed to the Lenders on the Amendment No. 6 Effective Date;
(vi)    Each of the representations and warranties contained in Section 3 hereof shall be true and correct in all material respects on and as of the Amendment No. 6 Effective Date (or, to the extent qualified by materiality, in all respects);
(vii)    No Default or Event of Default shall exist, or would exist after giving effect to the 2024 Refinancing Revolving Credit Commitments on the Amendment No. 6 Effective Date or from the application of any proceeds therefrom;
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(viii)    The Administrative Agent shall have received a certificate attesting to the Solvency of the Company and its Subsidiaries (on a consolidated basis) on the Amendment No. 6 Effective Date, after giving effect to the 2024 Refinancing Revolving Credit Commitments, from Borrower’s chief financial officer;
(ix)    JPMorgan shall have received the fees in the amounts previously agreed in writing to be received on the Amendment No. 6 Effective Date pursuant to that certain Engagement Letter, dated as of January 19, 2024, by and among JPMorgan and the Borrower, and all reasonable and documented out-of-pocket expenses (including the reasonable fees, charges and disbursements of Davis Polk & Wardwell LLP) required to be paid or reimbursed for which invoices have been presented a reasonable period of time prior to the Amendment No. 6 Effective Date shall have been paid;
(x)    The Administrative Agent shall have received good standing certificates or certificates of status, as applicable, and related bring downs, for each Loan Party;
(xi)    Since December 31, 2022, no Material Adverse Effect shall have occurred or is reasonably expected to occur;
(xii)    The Administrative Agent, Collateral Agent, and the Revolving Credit Lenders each shall have received all fees and other amounts due and payable on or prior to the Amendment No. 6 Effective Date, including all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Loan Parties under the Credit Agreement for which invoices have been presented a reasonable period of time prior to the Amendment No. 6 Effective Date (which for the avoidance of doubt, shall include the fees, charges and disbursements of Ballard Spahr LLP, as counsel to the Collateral Agent); and
(xiii)    The Collateral Agent shall have received the Global Intercompany Note duly executed Borrower and the other Restricted Subsidiaries party thereto; and
(xiv)    All Initial Term Loans outstanding immediately prior to the Amendment No. 6 Effective Date shall have been repaid in full prior to, or substantially concurrently with, the Amendment No. 6 Effective Date.
For purposes of determining whether the conditions set forth in this Section 4 have been satisfied, by releasing its signature page hereto, the Administrative Agent, each Lender, each Additional Lender and each L/C Issuer party hereto shall be deemed to have consented to, approved, accepted or be satisfied with each document or other matter required hereunder to be consented to or approved by, or acceptable or satisfactory to such Lender such Additional Lender or such L/C Issuer, as the case may be.
Section 5.    Post-Closing Covenant.
Within 10 days of the Amendment No. 6 Effective Date (or such later time as may be agreed by the Collateral Agent in its reasonable discretion), the Borrower shall have delivered to Collateral Agent’s office located at 77 Upper Rock Circle, 8th floor, Rockville, MD 20850, Attn: Teisha Wright, the original signatures of Borrower and the other Restricted Subsidiaries party to the Global Intercompany Note.
Section 6.    Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or other electronic transmission of an executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment. The Administrative Agents may also require that any such documents and signatures delivered by telecopier or other electronic transmission be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier or other electronic transmission. The words “execution,” “signed,” “signature,” and words of like import in this Amendment shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect,
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validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
Section 7.    Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
Section 8.    Effect of Amendment; Reaffirmation.
(a)    This Amendment shall constitute an “Refinancing Amendment”, and a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents and the 2024 Refinancing Revolving Credit Commitments shall constitute “Refinancing Revolving Credit Commitments” and “Revolving Credit Commitments” for all purposes of the Credit Agreement and the other Loan Documents. 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 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 Credit Agreement or any other Loan Document. Except as expressly set forth herein, each and every term, condition, obligation, covenant and agreement contained in the 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 party hereto 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 Collateral Documents. This Amendment shall constitute a Loan Document for purposes of the Credit Agreement, and from and after the Amendment No. 6 Effective Date, all references to the Credit Agreement in any Loan Document and all references in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement, shall, unless expressly provided otherwise, refer to the Amended Credit Agreement. 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.
(b)    Each Loan Party hereby (i) affirms and confirms the covenants and agreements contained in each Loan Document to which it is a party, including, in each case, such covenants and agreements as in effect immediately after giving effect to this Amendment and the transactions contemplated thereby, (ii) affirms and confirms its guarantee of (and, in the case of the Borrower, its principal obligation with respect to) of the Secured Obligations pursuant to the Guaranty, (iii) affirms and confirms its prior pledges and grants of Liens on the Collateral to secure the Secured Obligations and other commitments under the Collateral Documents to which it is a party and (iv) agrees that (x) the Guaranty and each Collateral Document to which it is a party shall continue to be in full force and effect in accordance with and subject to the terms and conditions and such Guaranty and Collateral Documents, after giving effect to this Amendment and (y) all guarantees, Liens, pledges, grants and other commitments thereunder shall continue to be in full force and effect and shall secure the Secured Obligations (after giving effect to this Amendment) including, without limitation, the 2024 Refinancing Revolving Credit Commitments and 2024 Refinancing Revolving Credit Loans and shall accrue to the benefit of the Agents and the other Secured Parties, including without limitation, the 2024 Refinancing Revolving Lenders.
Section 9.    Amendment; Modification and Waiver. This Amendment may not be amended, modified or waived except as permitted under Section 10.01 of the Credit Agreement.
Section 10.    GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
Section 11.    Severability. If any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this
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Amendment shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 12.    WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
Section 13.    Existing Lender Instruction to Administrative Agent and Collateral Agent. Each of the undersigned Revolving Credit Lenders party to the Credit Agreement immediately prior to the effectiveness of this Amendment (the “Existing Lenders”), who collectively constitute all of the Lenders under the Credit Agreement immediately prior to the effectiveness of this Amendment, hereby (i) authorize and direct the Administrative Agent and Collateral Agent under the Credit Agreement to execute and deliver this Amendment and any documents related hereto, (ii) acknowledge and agree that the undersigned Lenders constitute all of the Existing Lenders necessary to direct the Administrative Agent and the Collateral Agent to execute such documents; and (iii) acknowledge and agree that the direction set forth in this Amendment constitutes an instruction, consent and request of the Existing Lenders under the Loan Documents, including Section 9.03 of the Credit Agreement. Each of the undersigned 2024 Refinancing Revolving Lenders party hereto, who collectively constitute all of the 2024 Refinancing Revolving Lenders under the Credit Agreement immediately following the effectiveness of this Amendment, hereby (i) authorize and direct the Collateral Agent under the Credit Agreement to execute and deliver this Amendment and any documents related thereto, (ii) acknowledge and agree that the undersigned 2024 Refinancing Revolving Lenders constitute all of the 2024 Refinancing Revolving Lenders necessary to direct the Collateral Agent to execute such documents; and (iii) acknowledge and agree that the direction set forth in this Amendment constitutes an instruction, consent and request of the 2024 Refinancing Revolving Lenders under the Loan Documents, including Section 9.03 of the Credit Agreement.
Section 14.    Joinder. Immediately following the effectiveness of the amendments set forth in Section 2 above, the Parent Borrower (i) shall automatically become a party to the Credit Agreement as the Company, (ii) agrees to be bound by all of the provisions of the Credit Agreement and the other Loan Documents applicable to it as the Company and Borrower with the same force and effect as if it were an original signatory to the Credit Agreement in such capacity and (iii) agrees that all references to any “Borrower” or the “Company” in the Credit Agreement and in the other Loan Documents shall be deemed to include the Parent Borrower. Without limiting the generality of the foregoing, the Parent Borrower hereby expressly assumes the obligations of the Company under the Credit Agreement and the other Loan Documents (including, without limitation, the payment of any Commitment Fees and/or fees pursuant to Section 2.03(g) of the Credit Agreement) and shall perform all the obligations of the Company under, and to be bound in all respects by the terms of, the Credit Agreement, to the same extent and with the same force and effect as if the undersigned were a signatory thereto as the Company.
[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.
SHOALS TECHNOLOGIES GROUP, INC., as Borrower and a Guarantor
By:    /s/ Dominic Bardos    
    Name: Dominic Bardos
    Title: Chief Financial Officer
SHOALS INTERMEDIATE PARENT, INC., as a Guarantor
By:    /s/ Dominic Bardos    
    Name: Dominic Bardos
    Title: Chief Financial Officer and Treasurer
SHOALS TECHNOLOGIES GROUP, LLC, as a Guarantor
By:    /s/ Dominic Bardos    
    Name: Dominic Bardos
    Title: Chief Financial Officer and Treasurer

[Signature Page to Shoals Amendment No. 6]    


JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, L/C Issuer and Additional Lender
By:    /s/ Jason R. Williams    
    Name: Jason R. Williams
    Title: Authorized Officer

[Signature Page to Shoals Amendment No. 6]    


WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent
By:    /s/ Jay Campbell    
    Name: Jay Campbell
    Title: Assistant Vice President
[Signature Page to Shoals Amendment No. 6]    


Bank of America, N.A.,
as a Lender
By:    /s/ Ryan Vetsch    
    Name: Ryan Vetsch
    Title: SVP
Citibank, N.A.,
as a Lender
By:    /s/ Thomas Benavides    
    Name: Thomas Benavides
    Title: Director
FIFTH THIRD BANK, NATIONAL ASSOCIATION,
as a Lender
By:    /s/ J. Austin Rissler    
    Name: J. Austin Rissler
    Title: Senior Vice President
GOLDMAN SACHS BANK USA,
as a Lender and L/C Issuer
By:    /s/ Andrew B. Vernon    
    Name: Andrew B. Vernon
    Title: Authorized Signatory
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By:    /s/ Mylissa Merten    
    Name: Mylissa Merten
    Title: Vice President




[Signature Page to Shoals Amendment No. 6]
    


Exhibit A
Amended Credit Agreement

[See attached]

    
    

Exhibit A to Amendment No. 56
Conformed through Amendment No. 56
dated May 2March 19, 20224
[***] Certain information in this document has been
excluded pursuant to Regulation S-K, Item 601 (b)(10)

Such excluded information is not material and would likely
cause competitive harm to the registrant if publicl disclosed.


CREDIT AGREEMENT
by and among
SHOALS HOLDINGS LLC,
as Company,
SHOALS TECHNOLOGIES GROUP, INC.,
as
Parent BorrowerCompany,
SHOALS INTERMEDIATE HOLDINGS LLC,
as Holdings,
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as
Term Loan Administrative Agent and Collateral Agent,
JPMORGAN CHASE BANK, N.A.,
as
Revolving Facility Administrative Agent,
THE LENDERS PARTY HERETO FROM TIME TO TIME
and

JPMORGAN CHASE BANK, N.A. and
GUGGENHEIM SECURITIES, LLC,
as Lead Arrangers and Bookrunners

Originally dated as of November 25, 2020
(as amended by Incremental Facility Amendment No. 1, dated as of December 22, 2020,
as further amended by Amendment No. 2, dated as of December 30, 2020,
as further amended by Amendment No. 3, dated as of August 26, 2021,
as further amended by Amendment No. 4, dated as of March 18, 2022, and
as further amended by Amendment No. 5, dated as of May 2, 2022, and as further amended by Amendment No. 6, dated as of March 19, 2024)


    
    


Table of Contents
Page
ARTICLE I

Definitions and Accounting Terms

Section 1.01 Defined Terms................................................................................................................. 1
Section 1.02 Other Interpretive Provisions...................................................................................... 941
Section 1.03 Accounting Terms....................................................................................................... 951
Section 1.04 Rounding..................................................................................................................... 951
Section 1.05 References to Agreements, Laws, Etc......................................................................... 952
Section 1.06 Times of Day............................................................................................................... 952
Section 1.07 Timing of Payment or Performance............................................................................ 952
Section 1.08 Currency Equivalents Generally................................................................................. 952
Section 1.09 Certain Calculations and Tests.................................................................................... 962
Section 1.10 Interest Rates............................................................................................................... 985
Section 1.11 Divisions..................................................................................................................... 995

ARTICLE II

The Commitments and Credit Extensions

Section 2.01 The Loans.................................................................................................................... 995
Section 2.02 Borrowings, Conversions and Continuations of Loans............................................... 996
Section 2.03 Letters of Credit...................................................................................................... 10197
Section 2.04 [Reserved]................................................................................................................. 1095
Section 2.05 Prepayments.............................................................................................................. 1095
Section 2.06 Termination or Reduction of Commitments............................................................. 1106
Section 2.07 Repayment of Loans............................................................................................... 11706
Section 2.08 Interest....................................................................................................................... 1107
Section 2.09 Fees........................................................................................................................... 1107
Section 2.10 Computation of Interest and Fees........................................................................... 11807
Section 2.11 Evidence of Indebtedness.......................................................................................... 1108
Section 2.12 Payments Generally................................................................................................ 11908
Section 2.13 Sharing of Payments................................................................................................. 1210
Section 2.14 Incremental Credit Extensions.................................................................................. 1211
Section 2.15 Extensions of Term Loans and Revolving Credit Commitments........................... 12614
Section 2.16 Defaulting Lenders.................................................................................................. 12816
Section 2.17 Permitted Debt Exchanges............................................................... [Reserved] 12917
Section 2.18 Refinancing Facilities.............................................................................................. 13217

ARTICLE III

Taxes, Increased Costs Protection and Illegality

Section 3.01 Taxes....................................................................................................................... 13318
Section 3.02 Inability to Determine Rates; SOFR Benchmark Replacement.............................. 13722
Section 3.03 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Term Benchmark Loans..................................................................................................................................................... 13924
Section 3.04 Funding Losses....................................................................................................... 14026
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Section 3.05 Matters Applicable to All Requests for Compensation........................................... 14126
Section 3.06 Replacement of Lenders under Certain Circumstances............................................ 1427
Section 3.07 Survival................................................................................................................... 14328

ARTICLE IV

Conditions Precedent to Credit Extensions

Section 4.01 Closing Date Conditions......................................................................................... 14328
Section 4.02 Conditions to Subsequent Credit Extensions.......................................................... 14530

ARTICLE V

Representations and Warranties

Section 5.01 Existence, Qualification and Power; Compliance with Laws................................. 14631
Section 5.02 Authorization; No Contravention............................................................................ 14631
Section 5.03 Governmental Authorization; Other Consents........................................................ 14631
Section 5.04 Binding Effect......................................................................................................... 14632
Section 5.05 Financial Statements; No Material Adverse Effect................................................. 14732
Section 5.06 Litigation................................................................................................................. 14732
Section 5.07 Ownership of Property; Liens................................................................................. 14732
Section 5.08 Environmental Compliance..................................................................................... 14732
Section 5.09 Taxes....................................................................................................................... 14833
Section 5.10 Compliance with ERISA......................................................................................... 14833
Section 5.11 Subsidiaries; Capital Stock..................................................................................... 14833
Section 5.12 Margin Regulations; Investment Company Act........................................................ 1349
Section 5.13 Disclosure.................................................................................................................. 1349
Section 5.14 Intellectual Property; Licenses, Etc........................................................................... 1349
Section 5.15 Solvency.................................................................................................................... 1350
Section 5.16 Collateral Documents................................................................................................ 1350
Section 5.17 Use of Proceeds......................................................................................................... 1350
Section 5.18 Sanctions and Anti-Corruption Laws........................................................................ 1350
Section 5.19 Labor Matters.......................................................................................................... 15136
Section 5.20 Compliance with Law............................................................................................. 15136

ARTICLE VI

Affirmative Covenants

Section 6.01 Financial Statements............................................................................................... 15136
Section 6.02 Certificates; Other Information............................................................................... 15237
Section 6.03 Notices.................................................................................................................... 15439
Section 6.04 Maintenance of Existence....................................................................................... 15439
Section 6.05 Maintenance of Properties...................................................................................... 15439
Section 6.06 Maintenance of Insurance....................................................................................... 15439
Section 6.07 Compliance with Laws............................................................................................ 15540
Section 6.08 Books and Records.................................................................................................. 15540
Section 6.09 Inspection Rights..................................................................................................... 15540
Section 6.10 Covenant to Guarantee Secured Obligations and Give Security............................ 15541
Section 6.11 Use of Proceeds...................................................................................................... 15641
Section 6.12 Further Assurances and Post-Closing Covenants................................................... 15641
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Section 6.13 Designation of Restricted and Unrestricted Subsidiaries........................................ 15742
Section 6.14 Payment of Taxes.................................................................................................... 15742
Section 6.15 Lender Calls............................................................................................................ 15743
Section 6.16 Maintenance of Ratings.......................................................................................... 15843
Section 6.17 Anti-Terrorism; Sanctions; Anti-Corruption........................................................... 15843

ARTICLE VII

Negative Covenants

Section 7.01 Liens........................................................................................................................ 15843
Section 7.02 [Reserved]............................................................................................................... 15944
Section 7.03 Indebtedness............................................................................................................ 15944
Section 7.04 Merger and Consolidation....................................................................................... 16651
Section 7.05 Limitation on Sales of Assets and Subsidiary Stock............................................... 16853
Section 7.06 Restricted Payments & Modification of Subordinated Indebtedness Documents.. 16954
Section 7.07 Affiliate Transactions............................................................................................. 17862
Section 7.08 Limitation on Restrictions on Distributions from Restricted Subsidiaries and Negative Pledges.................................................................................................................................................. 18266
Section 7.09 Financial Covenant................................................................................................. 18569
Section 7.10 Permitted Activities of Holdings, Amendment No. 3 Guarantor and the Parent Borrower and Shoals Intermediate........................................................................................................ 18569
Section 7.11 Nature of Business.................................................................................................. 18671
Section 7.12 Amendments of Material Documents..................................................................... 18671
Section 7.13 Changes in Fiscal Year............................................................................................. 1871

ARTICLE VIII

Events of Default and Remedies

Section 8.01 Events of Default...................................................................................................... 1871
Section 8.02 Remedies Upon Event of Default........................................................................... 18974
Section 8.03 Exclusion of Immaterial Subsidiaries..................................................................... 19074
Section 8.04 Application of Funds............................................................................................... 19074
Section 8.05 Permitted Holders’ Right to Cure........................................................................... 19276

ARTICLE IX

Administrative Agents and Other Agents

Section 9.01 Appointment and Authorization of Agents............................................................. 19377
Section 9.02 Delegation of Duties............................................................................................... 19478
Section 9.03 Liability of Agents.................................................................................................. 19478
Section 9.04 Reliance by Agents................................................................................................. 19781
Section 9.05 Notice of Default; No Other Duties........................................................................ 19782
Section 9.06 Credit Decision; Disclosure of Information by Agents............................................. 1983
Section 9.07 Indemnification of Agents......................................................................................... 1983
Section 9.08 Agents in their Individual Capacities...................................................................... 19984
Section 9.09 Successor Agents.................................................................................................... 19984
Section 9.10 Administrative Agents May File Proofs of Claim.................................................. 20185
Section 9.11 Collateral and Guaranty Matters............................................................................. 20186
Section 9.12 Other Agents; Arrangers and Managers................................................................ 203187
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Section 9.13 Appointment of Supplemental Administrative Agents......................................... 203187
Section 9.14 Withholding Tax................................................................................................... 204188
Section 9.15 Secured Cash Management Obligations; Secured Hedge Agreements................. 204189
Section 9.16 Certain ERISA Matters......................................................................................... 204189

ARTICLE X

Miscellaneous

Section 10.01 Amendments, Etc.................................................................................................... 21905
Section 10.02 Notices and Other Communications; Facsimile Copies.......................................... 21094
Section 10.03 No Waiver; Cumulative Remedies.......................................................................... 21296
Section 10.04 Attorney Costs and Expenses.................................................................................. 21296
Section 10.05 Indemnification by the Company............................................................................ 21397
Section 10.06 Payments Set Aside................................................................................................. 21498
Section 10.07 Successors and Assigns........................................................................................... 21499
Section 10.08 Confidentiality........................................................................................................ 22103
Section 10.09 Setoff....................................................................................................................... 22204
Section 10.10 Counterparts............................................................................................................ 22204
Section 10.11 Integration............................................................................................................... 22304
Section 10.12 Survival of Representations and Warranties........................................................... 22305
Section 10.13 Severability............................................................................................................. 22305
Section 10.14 GOVERNING LAW, JURISDICTION, SERVICE OF PROCESS....................... 22305
Section 10.15 WAIVER OF RIGHT TO TRIAL BY JURY......................................................... 22406
Section 10.16 Binding Effect......................................................................................................... 22406
Section 10.17 Judgment Currency................................................................................................. 22406
Section 10.18 Lender Action......................................................................................................... 22506
Section 10.19 USA PATRIOT Act................................................................................................ 22507
Section 10.20 Obligations Absolute............................................................................................... 22507
Section 10.21 No Advisory or Fiduciary Responsibility............................................................... 22607
Section 10.22 Acknowledgment and Consent to Bail-In of Affected Financial Institutions......... 22608
Section 10.23 Acknowledgement Regarding Any Supported QFCs............................................. 22708
Section 10.24 Acknowledgment of Intercreditor Agreements....................................................... 22709
Section 10.25 Interest Rate Limitation........................................................................................... 22809

ARTICLE XI

Co-Borrower Arrangements

Section 11.01 Addition of Co-Borrowers...................................................................................... 22810
Section 11.02 Status of Co-Borrowers........................................................................................... 22911
Section 11.03 Resignation of Co-Borrowers and the Amendment No. 3 Guarantor..................... 23011



SCHEDULES
Schedule 2.01(A) —    Initial Term Commitments[Reserved]
Schedule 2.01(B) —    Revolving Credit Commitments
Schedule 6.12    —    Post-Closing Covenants
Schedule 10.02    —    EachThe Administrative Agent’s Office, Certain Addresses for Notices


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EXHIBITS
Exhibit A    —    Committed Loan Notice
Exhibit C-1    —    Term Note[Reserved]
Exhibit C-2    —    Revolving Credit Note
Exhibit D-1    —    Closing Date Certificate
Exhibit D-2    —    Compliance Certificate
Exhibit E    —    Assignment and Assumption
Exhibit F    —    Guaranty
Exhibit G    —    Security Agreement
Exhibit H    —    Discounted Prepayment Option Notice[Reserved]
Exhibit I    —    Lender Participation Notice[Reserved]
Exhibit J    —    Discounted Voluntary Prepayment Notice[Reserved]
Exhibit K    —    Form of Pari Passu Intercreditor Agreement
Exhibit L    —    United States Tax Compliance Certificate
Exhibit M    —    Form of Junior Lien Intercreditor Agreement
Exhibit N    —    Solvency Certificate
Exhibit O    —    Form of Secured Party Joinder
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CREDIT AGREEMENT
This CREDIT AGREEMENT, originally dated as of November 25, 2020 (as amended by Incremental Facility Amendment No. 1, as further amended by Amendment No. 2, and as further amended by Amendment No. 3, as further amended by Amendment No. 4, as further amended by Amendment No. 5, and as further amended by Amendment No. 6, the “Agreement”), is by and among SHOALS HOLDINGSTECHNOLOGIES GROUP, LLINC., a Delaware limited liability companycorporation (the “Company”), SHOALS INTERMEDIATE HOLDINGS LLC, a Delaware limited liability company (Holdings”), WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as Term Loan Administrative Agent and Collateral Agent, JPMORGAN CHASE BANKJPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Revolving Facility Administrative Agent, and each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”).
PRELIMINARY STATEMENTS
WHEREAS, the Company has Shoals Holdings LLC, a Delaware limited liability company (the “Initial Borrower”), requested that the Lenders extend credit directly to or on behalf of the Company in the form of (i) Initial Term Loans (as defined in the Original Credit Agreement) in an initial aggregate principal amount equal to $350.0 million and (ii) a Revolving Credit Facility in an initial aggregate principal amount of $100.0 million;
WHEREAS, the proceeds of the Initial Term Loans funded on the Closing Date, together with cash on hand at Shoals Intermediate Holdings LLC, a Delaware limited liability company (“Initial Holdings”) and its Subsidiaries, will bewere used by the CompanyInitial Borrower on the Closing Date (i) to finance the Closing Distribution (as defined below), (ii) to pay any Transaction Expenses (as defined below), (iii) to pay for the Closing Date Refinancing (as defined below) and (iv) for working capital and general corporate purposes; and
WHEREAS, on and as of the Amendment No. 1 Effective Date, the proceeds of any Revolving Credit Loans will bewere used by the Borrower for working capital, capital expenditures and other general corporate purposes.;
WHEREAS, on and as of the Amendment No. 3 Effective Date, Shoals Technologies Group, Inc. (the “Parent Borrower”) was added as an additional Borrower under the Revolving Credit Facility.;
WHEREAS, on and as of the Amendment No. 6 Effective Date, the Parent Borrower assumed the obligations of the Initial Borrower under this Agreement and the other Loan Documents; and
WHEREAS, (a) prior to, or substantially concurrently with, the Amendment No. 6 Effective Date, all Initial Term Loans were repaid in full, and as a result thereof, Wilmington Trust was no longer required to serve as Term Loan Administrative Agent under this Agreement; the provisions of Article III, Article IX and Section 10.04 and Section 10.05, together with any other indemnification, expense reimbursement or similar provision contained in any other Loan Document, continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Term Loan Administrative Agent under this Agreement, (b)on and as of the Amendment No. 6 Effective Date, the Parent Borrower assumed the obligations of the Initial Borrower under this Agreement and the other Loan Documents.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I

Definitions and Accounting Terms
Section 1.01    Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
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2022 Incremental Revolving Credit Commitments” shall have the meaning provided in Amendment No. 5. For the avoidance of doubt, the 2022 Incremental Revolving Credit Commitments were made pursuant to a Revolving Credit Commitment Increase.
2022 Incremental Revolving Credit Loans” means a Revolving Credit Loan that is made pursuant to the 2022 Incremental Revolving Credit Commitments. For the avoidance of doubt, each 2022 Incremental Revolving Credit Loan is a Revolving Credit Loan.
“2024 Refinancing Revolving Credit Commitments” shall have the meaning provided in Amendment No. 6. For the avoidance of doubt, the 2024 Refinancing Revolving Credit Commitments were made pursuant to a Refinancing Amendment and each 2024 Refinancing Revolving Credit Commitment is a Revolving Credit Commitment.
“2024 Refinancing Revolving Credit Loans” means a Revolving Credit Loan that is made pursuant to the 2024 Refinancing Revolving Credit Commitments. For the avoidance of doubt, each 2024 Refinancing Revolving Credit Loan is a Revolving Credit Loan.
    Acceptable Discount” has the meaning specified in Section 2.05(d)(iii).
Acceptance Date” has the meaning specified in Section 2.05(d)(ii).
Accounting Changes” has the meaning specified in the definition of “GAAP”.
Acquired Indebtedness” means with respect to any Person (x) Indebtedness (1) of any other Person or any of its Subsidiaries existing at the time such other Person becomes a Restricted Subsidiary, (2) assumed in connection with the acquisition of assets from such other Person or (3) of a Person at the time such Person merges with or into or consolidates or otherwise combines with the Company or any Restricted Subsidiary, in each case to the extent not contemplated in connection with such transaction and (y) Indebtedness secured by a Lien encumbering any asset acquired by such Person to the extent such Indebtedness is not incurred in contemplation thereof. Acquired Indebtedness shall be deemed to have been Incurred, with respect to clause (x)(1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (x)(2) of the preceding sentence, on the date of consummation of such acquisition of assets and, with respect to clause (x)(3) of the preceding sentence, on the date of the relevant merger, amalgamation, consolidation or other combination.
Additional Assets” means:
(1)    any property or assets (other than Capital Stock) used or to be used by the Company, a Restricted Subsidiary or otherwise useful in a Similar Business (it being understood that capital expenditures on property or assets already used in a Similar Business or to replace any property or assets that are the subject of such Asset Disposition shall be deemed an investment in Additional Assets);
(2)    the Capital Stock of a Person that is engaged in a Similar Business and becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Company or a Restricted Subsidiary; or
(3)    Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary.
Additional Lender” has the meaning specified in Section 2.14(d).
Adjusted Daily Simple SOFR” means an interest rate per annum equal to (a) the Daily Simple SOFR, plus 0.10%; provided that Adjusted Daily Simple SOFR shall not be less than the applicable Floor.
Adjusted Term SOFR” means, for any Interest Period, an interest rate per annum equal to (a) Term SOFR for such Interest Period, plus, with respect to Revolving Credit Loans that are Term
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Benchmark Loans with an Interest Period of (i) one month, 0.10%, (ii) three months, 0.15%, and (iii) six months, 0.25, 0.10%; provided that Adjusted Term SOFR shall not be less than the applicable Floor.
Administrative Agent Fee Letter” means that certain (i) letter agreement, dated as of the Closing Date, by and between the Company, the Term Loan Administrative Agent and the Collateral Agent, and Wilmington Trust, National Association in its capacity as term loan administrative agent under the Original Credit Agreement, and (ii) letter agreement, dated as of December 18, 2020, by and between the Company and the Revolving Facility Administrative Agent.
Administrative Agent’s Office” means, with respect to anythe Administrative Agent, such Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as such Administrative Agent may from time to time notify the Company and the Lenders.
Administrative Agents” means, collectively, the Revolving Facility Administrative Agent and the Term Loan Administrative Agent.
Administrative Agent” means, subject to Section 9.13, JPMorgan (and any of its Affiliates selected by JPMorgan to act as administrative agent for any of the applicable facilities provided hereunder), solely in its capacity as administrative agent for the Revolving Credit Lenders under the Loan Documents, or any successor administrative agent appointed in accordance with Section 9.09.
Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the applicable Administrative Agent.
Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
Affiliate” means, with respect to any specified Person, any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this Agreement, “control” or “controls”, when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
Affiliate Transaction” has the meaning specified in Section 7.07(a).
Affiliated Lender” means, at any time, any Lender that is an Affiliate of Holdingsthe Company (other than any of its Subsidiaries).
“Affiliate Transaction” has the meaning specified in Section 7.07(a).
Agent-Related Persons” means the Agents, together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
Agents” means, collectively, the Term Loan Administrative Agent, Revolving Facility Administrative Agent, the Collateral Agent, and the Supplemental Administrative Agents (if any).
Aggregate Commitments” means the Commitments of all the Lenders.
Agreement” means this Credit Agreement.
Agreement Currency” has the meaning specified in Section 10.16.
AHYDO Catch-Up Payment” means any payment required to be made under the terms of Indebtedness in order to avoid the application of Section 163(e)(5) of the Internal Revenue Code to such Indebtedness.
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Amendment No. 1 Effective Date” means December 22, 2020.
Amendment No. 1 Effective Date Agreement Among Lenders” means the Agreement Among Lenders, dated as of the Amendment No. 1 Effective Date, by and between, the Term Loan Administrative Agent, the Collateral Agent, the Revolving Facility Administrative Agent and each Lender as of the Amendment No. 1 Effective Date.
Amendment No. 2” means that certain Amendment No. 2, dated as of December 30, 2020, by and among the Loan Parties, Term Loan Administrative Agent, (as defined in the Original Credit Agreement) the Collateral Agent and the Lenders party thereto.
Amendment No. 2 Effective Date” shall have the meaning provided in Amendment No. 2.
Amendment No. 3 Contribution and Exchange” means (1) the contribution by the Co-Borrower of one hundred (100) units of the Amendment No. 3 Target (the “Units”) to the Amendment No. 3 Guarantor, subject to the Indebtedness incurred by the Co-Borrower in connection with its acquisition of the Amendment No. 3 Target on the Amendment No. 3 Effective Date (the “Amendment No. 3 Indebtedness”), in exchange for two hundred nine thousand, four hundred thirty-seven (209,437) common units of the Amendment No. 3 Guarantor pursuant to the terms and conditions set forth in the Amendment No. 3 Subscription Agreement, (2) the contribution by the Amendment No. 3 Guarantor of the Units to Holdings, subject to the Amendment No. 3 Indebtedness and (3) the contribution by Holdings of the Units to the Company, subject to the Amendment No. 3 Indebtedness. For the avoidance of doubt, the Amendment No. 3 Contribution and Exchange shall be deemed not to be an issue or sale of the Capital Stock of Holdings or a Restricted Subsidiary or otherwise a contribution to the Company for any other purpose hereunder.
“Amendment No. 3” shall mean Amendment No. 3 to this Agreement, dated as of August 26, 2021.
Amendment No. 3 Effective Date” means August 26, 2021.
Amendment No. 3 Guarantor” means Shoals Parent LLC, a Delaware limited liability company.
Amendment No. 3 Target” means Shoals Connect LLC, a Delaware limited liability company.
Amendment No. 3 Subscription Agreement” means that certain Common Unit Subscription Agreement, dated as of the Amendment No. 3 Effective Date, by and among the Co-Borrower and the Amendment No. 3 GuarantorShoals Parent LLC, a Delaware limited liability company.
“Amendment No. 4” shall mean Amendment No. 4 to this Agreement, dated as of March 18, 2022.
Amendment No. 5” shall mean Amendment No. 5 to this Agreement, dated as of May 2, 2022.
Amendment No. 5 Effective Date” shall mean May 2, 2022, the first Business Day on which all conditions precedent set forth in Section 4 of Amendment No. 5 are satisfied.
“Amendment No. 6” shall mean Amendment No. 6 to this Agreement, dated as of March 19, 2024.
“Amendment No. 6 Effective Date” shall mean March 19, 2024, the first Business Day on which all conditions precedent set forth in Section 4 of Amendment No. 6 are satisfied.
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Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, as amended (“FCPA”) and any similar laws, rules or regulations issued, administered or enforced by any Governmental Authority having jurisdiction over the Borrower.
Anti-Terrorism Laws” means all applicable laws and regulations or ordinances relating to terrorism or money laundering in any jurisdiction in which Holdings, the Borrower, or any of the Restricted Subsidiaries is located or is doing business, including Executive Order No. 13224, the USA PatriotPATRIOT Act, the Bank Secrecy Act, and the Money Laundering Control Act of 1986 (i.e., 18 USC. §§ 1956 and 1957).
Applicable Discount” has the meaning specified in Section 2.05(d)(iii).
Applicable Lending Office” means for any Lender, such Lender’s office, branch or affiliate designated for Term Benchmark Loans, Base Rate Loans, L/C Advances or Letters of Credit, as applicable, as notified to the applicable Administrative Agent, any of which offices may be changed by such Lender.
Applicable Percentage” means, at any time (a) with respect to any Lender with a Commitment of any Class, the percentage equal to a fraction the numerator of which is the amount of such Lender’s Commitment of such Class at such time and the denominator of which is the aggregate amount of all Commitments of such Class of all Lenders (provided that (i) in the case of Section 2.16 when a Defaulting Lender shall exist, “Applicable Percentage” with respect to the Revolving Credit Facility shall be determined by disregarding any Defaulting Lender’s Revolving Credit Commitment and (ii) if the Revolving Credit Commitments have terminated or expired, the Applicable Percentages of the Lenders shall be determined based upon the Revolving Credit Commitments most recently in effect) and (b) with respect to the Loans of any Class, a percentage equal to a fraction the numerator of which is such Lender’s Outstanding Amount of the Loans of such Class and the denominator of which is the aggregate Outstanding Amount of all Loans of such Class.
Applicable Proceeds” has the meaning specified in Section 2.05(b)(ii)(A).
Applicable Rate” means a percentage per annum equal to:
(a)    for Term Benchmark Loans that are Initial Term Loans[reserved],
(i) on and after the Amendment No. 2 Effective Date until the later of either (1) February 28, 2021 or (2) December 31, 2022 so long as the Borrower has prepaid the Initial Term Loans on or prior to February 28, 2021 in an amount that results in the aggregate outstanding principal amount of Initial Term Loans being equal to or less than the sum of (A) $200.0 million minus (B) any mandatory prepayments (including any mandatory prepayments set forth in Section 2.05(b) hereof) of the principal amount of Term Loans or amortization payments made prior to February 28, 2021, 3.25% and
(ii) thereafter, either (1) if the Borrower has consummated an IPO the Net Cash Proceeds of which have been used to repay the principal amount of Initial Term Loans in an amount no less than $70.0 million, 5.75% or (2) otherwise, 6.00%,
(b)    for Base Rate Loans that are Initial Term Loans[reserved],
(i) on and after the Amendment No. 2 Effective Date until the later of either (1) February 28, 2021 or (2) December 31, 2022 so long as the Borrower has prepaid the Initial Term Loans on or prior to February 28, 2021 in an amount that results in the aggregate outstanding principal amount of Initial Term Loans being equal to or less than the sum of (A) $200.0 million minus (B) any mandatory prepayments (including any mandatory prepayments set forth in Section 2.05(b) hereof) of the principal amount of Term Loans or amortization payments made prior to February 28, 2021, 2.25% and
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(ii) thereafter, either (1) if the Borrower has consummated an IPO the Net Cash Proceeds of which have been used to repay the principal amount of Initial Term Loans in an amount no less than $70.0 million, 4.75% or (2) otherwise, 5.00%,
(c)    for Term Benchmark Loans that are(i) until delivery of financial statements and a related Compliance Certificate for the first full fiscal quarter commencing after the Amendment No. 6 Effective Date pursuant to Section 6.01, for Revolving Credit Loans, that are Term Benchmark Loans, 3.2.50% and for Base Rate Loans that are Revolving Credit Loans, 21.250%, and (ii) thereafter, the percentages per annum set forth in the table below, based upon the Consolidated First Lien Secured Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

Pricing
Level
Consolidated First Lien Secured Leverage RatioTerm Benchmark LoansBase Rate Loans
Igreater than 3.00:1.003.00%2.00%
IIless than or equal to 3.00:1.00 and greater than 2.00:1.002.75%1.75%
IIIless than or equal to 2.00:1.00 and greater than 1.00:1.002.50%1.50%
IVless than or equal to 1.00:1.002.25%1.25%

(d)    for letter of credit fees, 3.25%, and
(e)    for the Commitment Fee, (i) until delivery of financial statements and a related Compliance Certificate for the first full fiscal quarter commencing after the Amendment No. 16 Effective Date pursuant to Section 6.01, 0.530% and (ii) thereafter, the percentages per annum set forth in the table below, based upon the Consolidated First Lien Secured Leverage Ratio as set forth in the most recent Compliance Certificate received by the Revolving Facility Administrative Agent pursuant to Section 6.02(a):

Pricing
Level
Consolidated First Lien Secured Leverage RatioCommitment
Fees
I
greater than 53.500:1.00
0.540%
II
less than or equal to 53.500:1.00 and greater than 42.500:1.00
0.375%
III
less than or equal to 42.500:1.00 and greater than 1.00:1.00
0.2530%
IVless than or equal to 1.00:1.000.25%


Any increase or decrease in the Applicable Rate pursuant to clause (c) or clause (e) above resulting from a change in the Consolidated First Lien Secured Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a).
Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the Consolidated First Lien Secured Leverage Ratio set forth in any Compliance Certificate delivered to the Revolving Facility Administrative Agent is inaccurate for any reason and the result thereof is that the Lenders received interest or fees for any period
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based on an Applicable Rate that is less than that which would have been applicable had the Consolidated First Lien Secured Leverage Ratio been accurately determined, then, for all purposes of this Agreement, the “Applicable Rate” for any day occurring within the period covered by such Compliance Certificate shall retroactively be deemed to be the relevant percentage as based upon the accurately determined Consolidated First Lien Secured Leverage Ratio for such period, and any shortfall in the interest or fees theretofore paid by the Borrower for the relevant period pursuant to Section 2.09 as a result of the miscalculation of the Consolidated First Lien Secured Leverage Ratio shall be deemed to be (and shall be) due and payable under the relevant provisions of Section 2.09, as applicable, at the time the interest or fees for such period were required to be paid pursuant to such Section, in accordance with the terms of this Agreement); provided, that, notwithstanding the foregoing, unless an Event of Default described in Section 8.01(f) has occurred and is continuing with respect to the Borrower, such shortfall shall be due and payable five (5) Business Days following the determination described above.
Notwithstanding the foregoing, the Applicable Rate in respect of any Class of Extended Revolving Credit Commitments and any Incremental Term Loans, Extended Term Loans or Revolving Credit Loans made pursuant to any Extended Revolving Credit Commitments shall be the applicable percentages per annum set forth in the relevant Incremental Facility Amendment or Extension Offer.
Appropriate Lender” means, at any time, (a) with respect to Loans of any Class, the Lenders of such Class and (b) with respect to any Letters of Credit, (i) the relevant L/C Issuer and (ii) the Revolving Credit Lenders.
Approved Commercial Bank” means a commercial bank with a consolidated combined capital and surplus of at least $5.0 billion.
Approved Foreign Bank” has the meaning specified in the definition of “Cash Equivalents.”
Approved Fund” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.
Asset Disposition” means:
(a)    the voluntary sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Leaseback Transaction) of the Company or any of the Restricted Subsidiaries (each referred to in this definition as a “disposition”); or
(b)    the issuance or sale of Capital Stock of any Restricted Subsidiary (other than Preferred Stock or Disqualified Stock of Restricted Subsidiaries issued in compliance with Section 7.03 hereof or directors’ qualifying shares and shares issued to foreign nationals as required under applicable law), whether in a single transaction or a series of related transactions;
in each case, other than:
(1)    a disposition by the Company or a Restricted Subsidiary to the Company or a Restricted Subsidiary, including pursuant to any Intercompany License Agreement; provided that any disposition by a Loan Party to a Restricted Subsidiary that is not a Loan Party shall not exceed in the aggregate the greater of $1640.0 million and 25.0% of LTM EBITDA; provided further that the foregoing shall not prohibit any non-exclusive licenses of IP Rights pursuant to any Intercompany License Agreement by Loan Parties to Restricted Subsidiaries that are not Loan Parties to utilize intellectual property in the jurisdiction of organization of such Restricted Subsidiaries that are not Loan Parties;
(2)    a disposition of cash, Cash Equivalents or Investment Grade Securities, including any marketable securities portfolio owned by the Company and its Subsidiaries on the Closing Date;
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(3)    a disposition of inventory, goods or other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business, including any disposition of disposed, abandoned or discontinued operations;
(4)    a disposition of obsolete, worn-out, uneconomical, negligible, immaterial, damaged, non-core or surplus property, equipment or other assets or property, equipment or other assets that are no longer economically practical or commercially desirable to maintain or used or useful in the business of the Company and the Restricted Subsidiaries whether now or hereafter owned or leased or acquired in connection with an acquisition or used or useful in the conduct of the business of the Company and the Restricted Subsidiaries (including by conveying, selling, assigning, transferring, licensing or sublicensing, ceasing to enforce, allowing the lapse, abandonment or invalidation of or discontinuing the use, prosecution or maintenance of, putting into the public domain or other disposition of any IP Rights that are, in the reasonable judgment of the Company or the Restricted Subsidiaries, no longer used or useful, or economically practicable to maintain, or in respect of which the Company or any Restricted Subsidiary determines in its reasonable judgment that such action or inaction is desirable);
(5)    transactions permitted under Section 7.04(a) hereof or a transaction that constitutes a Change of Control;
(6)    an issuance of Capital Stock by a Restricted Subsidiary to the Company or to another Restricted Subsidiary or as part of or pursuant to an equity incentive or compensation plan approved by the Board of Directors;
(7)    any dispositions of Capital Stock, properties or assets in a single transaction or series of related transactions with a fair market value (as determined in good faith by the Company) of less than the greater of $1640.0 million and 25.0% of LTM EBITDA;
(8)    any Restricted Payment that is permitted to be made, and is made, under Section 7.06 and the making of any Permitted Payment or Permitted Investment;
(9)    dispositions in connection with Permitted Liens, Permitted Intercompany Activities, Permitted IPO Reorganization and Permitted Tax Restructuring;
(10)    dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or consistent with past practice or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(11)    conveyances, sales, assignments, transfers, licenses, sublicenses, cross-licenses or other dispositions of any IP Rights or other general intangibles and licenses, sublicenses, cross-licenses, leases or subleases of other property, in each case, in the ordinary course of business or consistent with past practice or pursuant to a services, research or development agreement in which the counterparty to such agreement receives a license in any IP Rights that result from such agreement;
(12)    the lease, assignment, license, sublease or sublicense of any real or personal property in the ordinary course of business or consistent with industry practice;
(13)    foreclosure, condemnation, expropriation, forced disposition or any similar action with respect to any property or other assets or the granting of Liens not prohibited by this Agreement;
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(14)    the sale, discount or other disposition (with or without recourse, and on customary or commercially reasonable terms and for credit management purposes) of inventory, accounts receivable or notes receivable arising in the ordinary course of business or consistent with past practice, or the conversion or exchange of accounts receivable for notes receivable;
(15)    any issuance or sale of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary or any other disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary or an Immaterial Subsidiary (other than, in each case, any Unrestricted Subsidiary the primary assets of which are cash or Cash Equivalents);
(16)    any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Company or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(17)    (i) dispositions of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased, (ii) dispositions of property to the extent that the proceeds of such disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased) and (iii) to the extent allowable under Section 1031 of the Code or comparable law or regulation, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(18)    (i) any disposition of Securitization Assets or Receivables Assets, or participations therein, in connection with any Qualified Securitization Financing or Receivables Facility permitted hereunder or (ii) the disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent with past practice;
(19)    any financing transaction with respect to property constructed, acquired, leased, renewed, relocated, expanded, replaced, repaired, maintained, upgraded or improved (including any reconstruction, refurbishment, renovation and/or development of real property) by the Company or any Restricted Subsidiary after the Closing Date, including Sale and Leaseback Transactions and asset securitizations, permitted by this Agreement;
(20)    sales, transfers or other dispositions of Investments in joint ventures or similar entities, to the extent required by, or made pursuant to customary buy/sell arrangements between the parties set forth in the joint venture arrangements or other similar binding arrangements;
(21)    any surrender or waiver of contractual rights or the settlement, release, surrender or waiver of contractual, tort, litigation or other claims of any kind;
(22)    the unwinding of any Cash Management Obligations or Hedging Obligations;
(23)    transfers of property or assets subject to Casualty Events upon receipt of the net proceeds of such Casualty Event; provided that any Cash Equivalents received by Holdings, the Borrower or any of the Restricted Subsidiaries in respect of such Casualty Event shall be deemed to be Net Available Cash of an Asset Disposition and such Net Available Cash shall be applied in accordance with Section 2.05(b)(ii);
(24)    [reserved];
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(25)    dispositions of (i) assets (including Capital Stock) acquired in a transaction after the Closing Date, which assets are not useful in the core or principal business of the Company and the Restricted Subsidiaries or (ii) assets (including Capital Stock) made in connection with the approval of any applicable antitrust authority or otherwise necessary or advisable in the reasonable determination of the Company to consummate any acquisition, provided that, in each case, such disposition shall have been consummated within 365 days of such acquisition;
(26)    any disposition in connection with the Transactions;
(27)    any disposition of non-revenue producing assets to a Person who is providing services related to such assets, the provision of which have been or are to be outsourced by the Company or any Restricted Subsidiary to such Person;
(28)    any Sale and Leaseback Transactions not prohibited under Section 7.03 hereof so long as Holdings, the Borrower or any Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;
(29)    dispositions of noncore assets acquired in connection with a Permitted Acquisition or other permitted investment or made to obtain the approval of an anti-trust authority, and any other disposition to comply with any order of an agency, authority or other regulatory body or any applicable law or regulation;
(29)    any disposition of assets not constituting Collateral of less than the greater of $132.0 million and 20% of LTM EBITDA.
Assignees” has the meaning specified in Section 10.07(b).
Assignment and Assumption” means (a) an Assignment and Assumption substantially in the form of Exhibit E and (b) in the case of any assignment of Term Loans in connection with a Permitted Debt Exchange conducted in accordance with Section 2.17, such form of assignment (if any) as may have been requested by the applicable Administrative Agent in accordance with Section 2.17(a)(viii) or, in each case, any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the applicable Administrative Agent..
Attorney Costs” means and includes all reasonable fees, expenses and disbursements of any law firm or other external legal counsel.
Audited Financial Statements” means the audited consolidated balance sheets of the Company (or a passive holding company of the Company) and related statements of income, changes in equity and cash flows of the Company (or a passive holding company of the Company) for the fiscal years ended December 31, 2019 and December 31, 2018.
Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
Availability Period” means, with respect to the Revolving Credit Facility, the period from and after the Amendment No. 56 Effective Date to but excluding the earlier of the Maturity Date for the Revolving Credit Facility and the date of termination of the Revolving Credit Commitments in accordance with the provisions of this Agreement.
Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
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Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
Bankruptcy Code” means Title 11 of the United State Code, as amended, or any similar federal or state law for the relief of debtors.
Bankruptcy Event” means, with respect to any Person, such Person or its parent entity becomes (other than via an Undisclosed Administration) the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the applicable Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person or its parent entity.
Base Rate” means: a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of: (a) the Prime Rate in effect on such day; (b) ½ of 1.00% per annum above the Federal Funds Rate in effect on such day; and (c) solely with respect to Loans from and after the Amendment No. 5 Effective Date, the Adjusted Term SOFR for a one-month Interest Period on such day (or if such day is not a U.S. Government Securities Business Day, the immediately preceding U.S. Government Securities Business Day), after giving effect to any applicable Floor plus 1.00%. Any change in the Base Rate for Dollar-denominated Loans due to a change in the Prime Rate, the Federal Funds Rate, or the Adjusted Term SOFR shall be effective from and including the Closingeffective Ddate of such change in the Prime Rate, the Federal Funds Rate, or the Adjusted Term SOFR, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.02 (for the avoidance of doubt, only until an amendment to the applicable rate of interest has become effective in accordance with the terms of this Agreement), then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, (i) with respect to the Term Loans, if the Base Rate as determined pursuant to the foregoing would be less than 2.00%, such rate shall be deemed to be 2.00% for purposes of this Agreement and (ii) with respect to the Revolving Credit Loans, if the Base Rate as determined pursuant to the foregoing would be less than 1.50%, such rate shall be deemed to be 1.50% for purposes of this Agreement.
Base Rate Borrowing” means a Borrowing in respect of a Class of Base Rate Loans.
Base Rate Loan” means a Loan that bears interest at a rate based on the Base Rate.
Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
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    Blackstone Credit” means Blackstone Alternative Credit Advisors LP and its managed, advised or sub-advised funds and accounts.
    Blackstone Entities” means Blackstone Credit, the Warehouse Entity, any of their respective Affiliates, and shall include, without limitation, each Blackstone Investor and certain funds, accounts and clients managed, or advised by Blackstone Credit or any of their respective Affiliates, as the context may require.
    Blackstone Fee Letter” means that certain letter agreement, dated as of the Closing Date, by and between the Company and Blackstone Credit.
    Blackstone Investor” means any investor (or an Affiliate of such investor) of a fund managed or advised by Blackstone Credit to which investor (or an Affiliate of such investor) Blackstone Credit is providing certain administrative and other services.
    Blackstone Representative” means Blackstone Alternative Credit Advisors LP, and, after the Closing Date, any successor or assign that is a Blackstone Entity appointed by the previous Blackstone Representative that fulfilled the role as Blackstone Representative hereunder.
Board of Directors” means (1) with respect to the Company or any corporation, the board of directors or managers, as applicable, of the corporation, or any duly authorized committee thereof; (2) with respect to any partnership, the board of directors or other governing body of the general partner, as applicable, of the partnership or any duly authorized committee thereof; (3) with respect to a limited liability company, the managing member or members or any duly authorized controlling committee thereof; and (4) with respect to any other Person, the board or any duly authorized committee of such Person serving a similar function. Whenever any provision requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or approval shall be deemed to have been taken or made if approved by a majority of the directors on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board approval). Unless the context requires otherwise, Board of Directors means the Board of Directors of the Company.
Borrower” means, collectively, (i) the Company, (ii) the Parent Borrower and (ii) each Co-Borrower (or, as the context requires, any one of them).
Borrower Materials” has the meaning specified in Section 6.02.
Borrowing” means Loans of the same Class, Type and currency, made, converted or continued on the same date and, in the case of Term Benchmark Loans, as to which a single Interest Period is in effect.
Borrowing Minimum” means in the case of a Borrowing denominated in Dollars, $1.0 million.
Borrowing Multiple” means in the case of a Borrowing denominated in Dollars, $100,000.
Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, in addition to the foregoing, a Business Day shall be any such day that is only a U.S. Government Securities Business Day (a) in relation to SOFR Loans and any interest rate settings, fundings, disbursements, settlements or payments of any such SOFR Loan, or any other dealings of such SOFR Loan, any such day that is only a U.S. Government Securities Business Day. and (b) in relation to Loans referencing the Adjusted Term SOFR Rate and any interest rate settings, fundings, disbursements, settlements or payments of any such Loans referencing the Adjusted Term SOFR Rate or any other dealings of such Loans referencing the Adjusted Term SOFR Rate.
Business Successor” means (i) any former Subsidiary of Holdingsthe Company and (ii) any Person that, after the Closing Date, has acquired, merged or consolidated with a Subsidiary of Holdingsthe Company (that results in such Subsidiary ceasing to be a Subsidiary of Holdingsthe Company), or acquired (in one transaction or a series of transactions) all or substantially all of the property and assets or business of a Subsidiary or assets constituting a business unit, line of business or division of a Subsidiary of Holdingsthe Company.
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Capital Stock” of any Person means any and all shares of, rights to purchase or acquire, warrants, options or depositary receipts for, or other equivalents of, or partnership or other interests in (however designated), equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into, or exchangeable for, such equity.
Capitalized Lease Obligation” means an obligation that is required to be classified and accounted for as a capitalized lease (and, for the avoidance of doubt, not a straight-line or operating lease) for financial reporting purposes in accordance with GAAP. The amount of Indebtedness represented by such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made as determined in accordance with GAAP, and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty; provided, that notwithstanding any other provision contained herein, for all purposes under this Agreement and the other Loan Documents, all obligations of the Company and the Restricted Subsidiaries that are or would be characterized as an operating lease prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update shall continue to be accounted for as an operating lease (and not as a Capitalized Lease Obligation) for purposes of this Agreement regardless of any change in GAAP following January 1, 2015 (that would otherwise require such obligation to be recharacterized as a Capitalized Lease Obligation)).
Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of licensed or purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.
Captive Insurance Subsidiary” means any Subsidiary of the Company that is subject to regulation as an insurance company (or any Subsidiary thereof).
Cash Collateral” has the meaning specified in Section 2.03(f).
Cash Collateralize” has the meaning specified in Section 2.03(f).
Cash Equivalents” means any of the following types of Investments, to the extent owned by Holdingsthe Company or any Restricted Subsidiary:
(1)    U.S. Dollars or any other foreign currency held by Holdingsthe Company and its Restricted Subsidiaries from time to time in the ordinary course of business or consistent with past practice;
(2)    securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (provided that the full faith and credit obligation of the United States is pledged in support thereof), with maturities of 36 months or less from the date of acquisition;
(3)    certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits, demand deposits or bankers’ acceptances having maturities of not more than two years from the date of acquisition thereof issued by any lender or by any bank, trust company or any other financial institution (a) whose commercial paper is rated at least “A-2” or the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s (or, if at the time, neither S&P nor Moody’s is rating such obligations, then a comparable rating from another Nationally Recognized Statistical Rating Organization selected by the Company) or (b) having combined capital and surplus in excess of $100.0 million;
(4)    repurchase obligations for underlying securities of the types described in clauses (2), (3), (7) and (8) entered into with any bank meeting the qualifications specified in clause (3) above;
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(5)    securities with maturities of two years or less from the date of acquisition backed by standby letters of credit issued by any Person meeting the qualifications in clause (3) above;
(6)    commercial paper and variable or fixed rate notes issued by any Person meeting the qualifications specified in clause (3) above (or by the parent company thereof) maturing within two years after the date of creation thereof, or if no rating is available in respect of the commercial paper or variable or fixed rate notes, the issuer of which has an equivalent rating in respect of its long-term debt;
(7)    marketable short-term money market and similar securities, having a rating of at least “P-2” or “A-2” from either S&P or Moody’s, respectively, (or, if at the time, neither S&P nor Moody’s is rating such obligations, then a comparable rating from another Nationally Recognized Statistical Rating Organization selected by the Company);
(8)    readily marketable direct obligations issued by any state, province, commonwealth or territory of the United States of America or any political subdivision, taxing authority or any agency or instrumentality thereof, rated BBB- (or the equivalent) or better by S&P or Baa3 (or the equivalent) or better by Moody’s(or, if at the time, neither S&P nor Moody’s is rating such obligations, then a comparable rating from another Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of not more than two years from the date of acquisition;
(9)    readily marketable direct obligations issued by any foreign government or any political subdivision, taxing authority or agency or instrumentality thereof, with a rating of “BBB-” or higher from S&P or “Baa3” or higher by Moody’s or the equivalent of such rating by such rating organization (or, if at the time, neither S&P nor Moody’s is rating such obligations, then a comparable rating from another Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of not more than two years from the date of acquisition;
(10)    Investments with average maturities of 24 months or less from the date of acquisition in money market funds with a rating of “A” or higher from S&P or “A-2” or higher by Moody’s or the equivalent of such rating by such rating organization (or, if at the time, neither S&P nor Moody’s is rating such obligations, then a comparable rating from another Nationally Recognized Statistical Rating Organization selected by the Company);
(11)    with respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of investment therein, (ii) certificates of deposit of, bankers’ acceptance of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 270 days from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank;
(12)    Indebtedness or Preferred Stock issued by Persons with a rating of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s (or, if at the time, neither S&P nor Moody’s is rating such obligations, then a comparable rating from another Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of 24 months or less from the date of acquisition;
(13)    bills of exchange issued in the United States of America, Canada, the United Kingdom, Japan or a member state of the European Union eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);
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(14)    investments in industrial development revenue bonds that (i) “re-set” interest rates not less frequently than quarterly, (ii) are entitled to the benefit of a remarketing arrangement with an established broker dealer and (iii) are supported by a direct pay letter of credit covering principal and accrued interest that is issued by any bank meeting the qualifications specified in clause (3) above;
(15)    Cash Equivalents or instruments similar to those referred to in the clauses above denominated in U.S. Dollars;
(16)    any investment company, money market, enhanced high yield, pooled or other investment fund investing 90.0% or more of its assets in instruments of the types specified in the clauses above;
(17)    for purposes of clause (2) of the definition of “Asset Disposition,” any marketable securities portfolio owned by Holdingsthe Company and its Subsidiaries on the Closing Date; and
(18) credit card receivables and debit card receivables in the ordinary course of business or consistent with past practice, so long as such are considered cash equivalents under GAAP and are so reflected on Holdings’the Company’s balance sheet.
In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a country outside the United States of America, Cash Equivalents shall also include (a) investments of the type and maturity described in the clauses above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (b) other short-term investments utilized by Foreign Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in the clauses above and in this paragraph.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clause (1) above, provided that such amounts are converted into any currency listed in clause (1) as promptly as practicable and in any event within 10 Business Days following the receipt of such amounts. For the avoidance of doubt, any items identified as Cash Equivalents under this definition (other than clause (17) above) will be deemed to be Cash Equivalents for all purposes under this Agreement regardless of the treatment of such items under GAAP.
Cash Management Bank” means (x) any Lender, any Agent or any Affiliate of the foregoing on the Closing Date or at the time it provides any treasury, depository, credit or debit card, purchasing card, and/or cash management services or automated clearing house transfers of funds to Holdingsthe Company or any Restricted Subsidiary or conducting any automated clearing house transfers of funds and (y) any other Person designated by the Company by written notice to eachthe Administrative Agent that enters into any treasury, depository, credit or debit card, purchasing card, and/or cash management services or automated clearing house transfers of funds to Holdingsthe Company or any Restricted Subsidiary or conducting any automated clearing house transfers of funds; provided that, in the case of this clause (y), such Person shall have appointed eachthe Administrative Agent and the Collateral Agent as its agents under the applicable Loan Documents and agreed to be bound by the provisions of Article IX in favor of the Agent as if it were a Lender and shall have been deemed to have made the representations and warranties set forth in Section 9.06 in favor of the Agents, in each case, pursuant to a writing substantially in the form of Exhibit O or otherwise reasonably satisfactory to the Company, each and the Administrative Agent and the Blackstone Representative.
 “Cash Management Obligations” means obligations in respect of any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements, electronic fund transfer, treasury services and cash management services, including controlled disbursement services, working capital lines, lines of credit, overdraft facilities, foreign exchange facilities, deposit and other accounts and merchant services, or other cash management arrangements or any automated clearing house arrangements, (2) other obligations in respect of netting or setting off arrangements, credit, debit or
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purchase card programs, stored value card and similar arrangements and (3) obligations in respect of any other services related, ancillary or complementary to the foregoing (including any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management services, corporate credit and purchasing cards and related programs or any automated clearing house transfers of funds).
Casualty Event” means any event that gives rise to the receipt by Holdingsthe Company or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, assets or real property (including any improvements thereon) to replace or repair such equipment, assets or real property.
CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.
Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) 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, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
Change of Control” means:
(1)    at any time prior to the consummation of an IPO, the Permitted Holders shall cease to control and own, directly or indirectly, of record and beneficially (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act or any successor provisions) more than 50% of the voting interests (for the election of directors) in the outstanding voting securities having ordinary voting power for the election of directors of Holdings; or
(2)    at any time following the consummation of an IPO,“Change of Control” means (1) any “person” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the ClosingAmendment No. 6 Effective Date), other than one or more Permitted Holders or a Parent Entity, that is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 of the Exchange Act as in effect on the Closing Date) of more than 50.0% of the total voting power of the Voting Stock of Holdingsthe Company; provided that (x) so long as Holdingsthe Company is a Subsidiary of any Parent Entity (and such Parent Entity shall have provided “know your customer” information reasonably requested by anythe Administrative Agent and the Lenders and such Parent Entity is not a Sanctioned Person), no Person shall be deemed to be or become a beneficial owner of more than 50.0% of the total voting power of the Voting Stock of Holdingsthe Company unless such Person shall be or become a beneficial owner of more than 50.0% of the total voting power of the Voting Stock of such Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent Entity) and (y) any Voting Stock of which any Permitted Holder is the beneficial owner shall not in any case be included in any Voting Stock of which any such Person is the beneficial owner; or
(32)     HoldingsBorrower shall fail to beneficially own, directly (or indirectly through one or more Intermediate Holding Companies), 100% of the issued and outstanding Capital Stock of the CompanyShoals Intermediate.
Notwithstanding the foregoing, a Change of Control shall be deemed not to have occurred pursuant to clauses (1) or (2) above at any time if the Permitted Holders have, at such time, directly or indirectly, the right or the ability, by voting power, contract or otherwise, to elect or designate for election at least a majority of the board of directors of Holdingsthe Company.
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Notwithstanding the preceding or any provision of Section 13d-3 of the Exchange Act, (i) a Person or group shall not be deemed to beneficially own Voting Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more Permitted Holders, the issued and outstanding Voting Stock of Holdingsthe Company owned, directly or indirectly, by any Permitted Holders that are part of such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of determining whether a Change of Control has occurred, (iii) a Person or group will not be deemed to beneficially own the Voting Stock of another Person as a result of its ownership of Voting Stock or other securities of such other Person’s parent entity (or related contractual rights) unless it owns 50.0% or more of the total voting power of the Voting Stock entitled to vote for the election of directors of such parent entity having a majority of the aggregate votes on the board of directors (or similar body) of such parent entity and (iv) the right to acquire Voting Stock (so long as such Person does not have the right to direct the voting of the Voting Stock subject to such right) or any veto power in connection with the acquisition or disposition of Voting Stock will not cause a party to be a beneficial owner.
Charges” has the meaning provided in the definition of “Consolidated EBITDA”.
Class” (a) when used with respect to Lenders, refers to whether such Lenders hold a particular Class of Commitments or Loans, (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Credit Commitments, Initial Term Commitments or Extended Revolving Credit Commitments, in each case, that are designated as an additional Class of Commitments, or commitments in respect of any Incremental Term Loans that are designated as an additional Class of Term Loans and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Revolving Credit Loans, Initial Term Loans, Extended Term Loans that are designated as an additional Class of Term Loans, Incremental Term Loans that are designated as an additional Class of Term Loans and any Loans made pursuant to any other Class of Commitments.
Closing Date” means the date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.
Closing Date Certificate” means a, collectively, the Closing Date cCertificate ofexecuted by a Responsible Officer of the Company on the Closing Date substantially in the form attached as Exhibit D-1 hereto as supplemented pursuant to Amendment No. 6 on the Amendment No. 6 Effective Date.
Closing Date Refinancing” has the meaning specified in Section 4.01(k).
Closing Distribution” means those certain distributions on or shortly after the Closing Date from the Company to Initial Holdings and from there to direct or indirect equity holders of Initial Holdings in an aggregate amount not to exceed $350.0 million plus amounts funded from cash on hand at Initial Holdings and its Subsidiaries.
CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
Co-Borrowers” means Wholly Owned Subsidiaries that are Restricted Subsidiaries from time to time designated by the Company to the respective Administrative Agents as “borrowers” in accordance with Section 11.01, and “Co-Borrower” means any one of them.
Code” means the U.S. Internal Revenue Code of 1986, as amended.
Collateral” means all the “Collateral” as defined in the Collateral Documents and all other property of whatever kind and nature pledged or charged (or purported to be) as collateral under any Collateral Document, and shall include the Mortgaged Properties.
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Collateral Agent” means Wilmington Trust, solely in its capacity as collateral agent under any of the Loan Documents, or any successor collateral agent appointed in accordance with Section 9.09.
Collateral and Guarantee Requirement” means, at any time, the requirement that:
(a)    the Collateral Agent shall have received each Collateral Document required to be delivered (i) on the Closing Date pursuant to Section 4.01(a)(iii) or (ii) thereafter pursuant to Section 6.10, Section 6.12 or the Collateral Documents, in each case, duly executed by each Loan Party that is a party thereto;
(b)    all Secured Obligations shall have been unconditionally guaranteed (the “Guarantees”), jointly and severally, by Holdings, any Intermediate Holding Company, any Holding Company, each Borrower (except as to its own obligations) and each other Restricted Subsidiary that is a Material Subsidiary (other than any Excluded Subsidiary) including as of the ClosingAmendment No. 6 Effective Date those that are listed on Schedule 1.01D to the Closing Date Certificate (each, a “Guarantor”);
(c)    the Secured Obligations and the Guarantees shall have been secured pursuant to, the Security Agreement or other applicable Collateral Document by a valid and perfected security interest subject to no other Liens (other than Permitted Liens) in (i) all the Capital Stock of the Company and each Intermediate Holding Company, if any, and (ii) all Capital Stock (other than Excluded Equity) held directly by Holdings, the Borrower or any Guarantor in any Wholly Owned Subsidiary, in each case, subject to no Liens other than Permitted Liens.
(d)    except to the extent otherwise provided hereunder or under any Collateral Document, the Secured Obligations and the Guarantees shall have been secured by a perfected security interest (other than in the case of mortgages, to the extent such security interest may be perfected by delivering certificated securities and instruments, filing personal property financing statements or other similar documentation, or in the case of IP Rights, to the extent such security interest may be perfected by making any necessary filings with the United States Patent and Trademark Office or United States Copyright Office, as applicable) in, and mortgages on, substantially all tangible and intangible assets of Holdings, the Borrower, any Intermediate Holding Company and each other Guarantor (including, without limitation, accounts receivable, inventory, equipment, investment property, intellectual property, intercompany receivables, other general intangibles and proceeds of the foregoing but excluding real property (other than with respect to Material Real Property), Excluded Property and IP Rights subsisting outside the United States), in each case, with the priority required by the Collateral Documents; provided that security interests in real property shall be limited to the Mortgaged Properties;
(e)    in the event any Guarantor is added that is organized in a Covered Jurisdiction other than the United States, such Loan Party shall grant a perfected lien on substantially all of its assets (other than (i) Excluded Property and (ii) IP Rights subsisting outside of the United States) pursuant to arrangements reasonably agreed between the Administrative Agents and the Company subject to customary limitations in such Covered Jurisdiction to be reasonably agreed to between the Administrative Agents and the Company; and
(f)    the Collateral Agent shall have received (i) counterparts of a Mortgage with respect to each Material Real Property required to be delivered pursuant to Section 4.031 (b) (if applicable), Section 6.10, and/or Section 6.12, as applicable, duly executed and delivered by the record owner of such property, (ii) a title insurance policy for such Mortgaged Property (or marked-up title insurance commitment having the effect of a title insurance policy) (the “Mortgage Policies”), in an amount reasonably acceptable to the Blackstone Representative and the Revolving Facility Administrative Agent, insuring the Lien of each such Mortgage as a valid first priority Lien on the property described therein, free of any other Liens except Permitted Liens, together with such endorsements, coinsurance and reinsurance as the Blackstone Representative or the Revolving Facility Administrative Agent may reasonably request and to the extent available in each applicable jurisdiction, (iii) a Survey with respect to each Mortgaged
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Property, provided, however, that a Survey shall not be required to the extent that (A) an existing survey together with an “affidavit of no change” satisfactory to the Title Company is delivered to the Collateral Agent and the Title Company and (B) the Title Company removes the standard survey exception and provides reasonable and customary survey-related endorsements and other coverages in the applicable Mortgage Policy, (iv) a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Loan Party relating thereto), (v) a copy of, or a certificate as to coverage under, and a declaration page relating to, any flood insurance policies required by Section 6.06 hereof, each of which (A) shall be endorsed or otherwise amended to name the Collateral Agent as mortgagee and loss payee, (B) shall (1) identify the addresses of each property located in a special flood hazard area, (2) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating thereto and (3) provide that the insurer will give the Collateral Agent thirty (30) days written notice of cancellation, non-renewal or change in coverage and (4) shall be otherwise in form and substance reasonably satisfactory to the Blackstone Representative and the Revolving Facility Administrative Agent, (vi) if reasonably requested by the Collateral Agent (acting at the direction of the Blackstone Representative), the Revolving FacilityRequired Lenders) or the Administrative Agent, or the Blackstone Representative, a legal opinion regarding due authorization, execution and enforceability of such Mortgage from counsel to the Company in form and substance reasonably acceptable to the Blackstone Representative and the Revolving Facility Administrative Agent, and (vii) such existing abstracts, existing appraisals, and other documents as the Blackstone Representative or the Revolving Facility Administrative Agent may reasonably request with respect to any such Mortgaged Property; and
(g)    the Collateral Agent shall not enter into any Mortgage after the Amendment No. 6 Effective Date until the date that occurs thirty (30) days after the Borrower has delivered to the Collateral Agent and the Lenders (which may be delivered electronically) the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Party of that fact and (if applicable) notification to the applicable Loan Party that flood insurance coverage is not available and (B) certification by the applicable Loan Party of receipt of such notice; and (iii) if such notice is required to be provided to the applicable Loan Party and flood insurance is available in the community in which such real property is located, evidence of required flood insurance; it being agreed that if the any Lender does not provide a written objection within thirty (30) days following receipt thereof, it shall be deemed to be satisfied.
The foregoing definition shall not require the creation or perfection of pledges of or security interests in particular assets if and for so long as the Blackstone Representative, the Revolving Facility Administrative Agent and the Company agree in writing that the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets (including adverse tax consequences) outweighs the benefits to be obtained by the Lenders therefrom.
The Administrative Agents (with the written consent of the Blackstone Representative) may grant extensions of time for the perfection of security interests in or the obtaining of title insurance and surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Company and the Blackstone Representative, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary:
(A)    Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in the Collateral
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Documents and, to the extent appropriate in the applicable jurisdiction, as agreed between the Administrative Agents, the Blackstone Representative and the Company;
(B)    the Collateral and Guarantee Requirement shall not apply to any Excluded Property;
(C)    no deposit account control agreement, securities account control agreement or other control agreements or control arrangements shall be required with respect to any deposit account, securities account or other asset specifically requiring perfection through control agreements;
(D)    no actions in any jurisdiction other than the Covered Jurisdictions or that are necessary to comply with the Laws of any jurisdiction other than the Covered Jurisdictions shall be required in order to create any security interests in assets located, titled, registered or filed outside of the Covered Jurisdictions and no actions in any jurisdiction shall be required in order to create any security interests in IP Rights, subsisting outside the United States (it being understood that there shall be no security agreements, pledge agreements, or share charge (or mortgage) agreements governed under the Laws of any jurisdiction other than the Covered Jurisdictions);
(E)    general statutory limitations, financial assistance, corporate benefit, capital maintenance rules, fraudulent preference, “thin capitalization” rules, retention of title claims and similar principle may limit the ability of a Foreign Subsidiary to provide a Guarantee or Collateral or may require that the Guarantee or Collateral be limited by an amount or otherwise, in each case as reasonably determined by the Company in consultation with the Administrative Agents and the Blackstone Representative; and
(F)    no stock certificates of Immaterial Subsidiaries or Unrestricted Subsidiaries shall be required to be delivered to the Collateral Agent.
Collateral Documents” means, collectively, the Security Agreement, the Mortgages, collateral assignments, Security Agreement Supplements, security agreements, pledge agreements or other similar agreements delivered to the Collateral Agent and the Lenders pursuant to Section 4.01(a)(iii), Section 6.10 or Section 6.12, the Guaranty and each of the other agreements, instruments or documents that creates or purports to create a Lien or Guarantee in favor of the Collateral Agent for the benefit of the Secured Parties.
Commitment” means any Term Commitment, a Revolving Credit Commitment or an Extended Revolving Credit Commitment.
Commitment Fee” has the meaning provided in Section 2.09(a).
Committed Loan Notice” means a notice of (a) a Term Borrowing, (b) a Revolving Credit Borrowing, (cb) a conversion of Loans from one Type to the other or (dc) a continuation of Term Benchmark Loans pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
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.
Compensation Period” has the meaning specified in Section 2.12(c)(ii).
Compliance Certificate” means a certificate substantially in the form of Exhibit D-2.
Compounded SOFR” means the compounded average of SOFRs for the applicable SOFR Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate (which may include compounding in arrears with a lookback and/or suspension period as a mechanism to
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determine the interest amount payable prior to the end of each Interest Period) being established by the applicable Administrative Agent in accordance with:
    (1)     the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded SOFR; provided that:
    (2)     if, and to the extent that, the applicable Administrative Agent determines that Compounded SOFR cannot be determined in accordance with clause (1) above, then the rate, or methodology for this rate, and conventions for this rate that the applicable Administrative Agent determines in its reasonable discretion are substantially consistent with any evolving or then-prevailing market convention for determining compounded SOFR for U.S. dollar-denominated syndicated credit facilities at such time;
provided, further, that if the applicable Administrative Agent decides that any such rate, methodology or convention determined in accordance with clause (1) or clause (2) is not administratively feasible for the applicable Administrative Agent, then Compounded SOFR will be deemed unable to be determined for purposes of the definition of “SOFR Benchmark Replacement.”
Consolidated Cash Interest Expense” shall mean, for any period, the Consolidated Interest Expense excluding any non-cash interest expense of Holdingsthe Company and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.
Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense and capitalized fees, including amortization or write-off of (i) goodwill, software and intangible assets and non-cash organization costs, (ii) deferred financing and debt issuance fees, costs and expenses, (iii) capitalized expenditures (including Capitalized Software Expenditures), customer acquisition costs and incentive payments, media development costs, conversion costs and contract acquisition costs, the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and amortization of favorable or unfavorable lease assets or liabilities and (iv) capitalized fees related to any Qualified Securitization Financing or Receivables Facility, of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP and any write down of assets or asset value carried on the balance sheet.
Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(1)    increased (without duplication) by:
(a)    Fixed Charges of such Person for such period (including (w) non-cash rent expense, (x) net losses or any obligations on any Hedging Obligations or other derivative instruments, (y) bank, letter of credit and other financing fees and (z) costs of surety bonds in connection with financing activities, plus amounts excluded from the definition of “Consolidated Interest Expense” and any non-cash interest expense), to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(b)    (x) Taxes and tax expenses (including, without limitation, foreign, federal, state, local, provincial, territorial, local, unitary, franchise, excise, foreign withholding, property, value added, withholding and similar taxes (including any future taxes or other levies which replace or are intended to be in lieu of such taxes and any penalties and interest related to such taxes or arising from tax examinations) paid or accrued during such period, including penalties and interest related thereto or arising from any tax examination), (y) without duplication, any tax distributions made pursuant to Section 7.06(b)(ix)(C) and (z) the net tax expense associated with any adjustments made pursuant to the definition of “Consolidated Net
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Income” in each case, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(c)    Consolidated Depreciation and Amortization Expense of such Person for such period to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(d)    any (x) Transaction Expenses and (y) fees, costs, expenses or charges (other than Consolidated Depreciation and Amortization Expense, but including, but not limited to rationalization, tax, legal and other expenses) related to any actual, proposed or contemplated Equity Offering (including any expense relating to enhanced accounting functions or other transaction costs associated with becoming a public company, including Public Company Costs), Permitted Investment, Restricted Payment, acquisition, disposition, consolidation, restructuring recapitalization or the incurrence of Indebtedness permitted to be incurred by this Agreement (including a refinancing thereof) (whether or not successful and including any such transaction consummated prior to the Closing Date), including (i) such fees, expenses or charges (including rating agency fees, consulting fees and other related expenses and/or letter of credit or similar fees) related to the offering or incurrence of, or ongoing administration of this Agreement, the Facilities, and other credit facilities, any Securitization Fees, any other Indebtedness permitted to be Incurred under this Agreement or any Equity Offering, and (ii) any amendment, waiver or other modification of this Agreement, Receivables Facilities, Securitization Facilities, any other credit facilities, any Securitization Fees, any other Indebtedness or any Equity Offering, in each case, whether or not consummated, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(e)    (i) the amount of any charge, expense, cost, accrual, reserve or loss of any kind (collectively, “Charges”) attributable to or associated with any (a) restructuring, or (b) carve out, integration, implementation of new initiatives, business optimization activities, cost savings, cost rationalization programs, operating expense reductions, synergies and/or similar initiatives, retention, recruiting, relocation, signing bonuses, Charges in connection with a single or one-time event (including without limitation, in connection with facility openings, pre-openings, closings, reconfigurations and/or consolidations), contract termination Charges, stock option and other equity-based compensation expenses, any Charges associated with any stock subscription or shareholder agreement or any employee benefit trust, severance costs, any Charges associated with any modification of any pension or post-retirement employee benefit plan, indemnities and expenses, including, without limitation, any one time expense relating to enhanced accounting function or other transaction costs, including those associated with becoming a standalone entity or a public company (including, for the avoidance of doubt, Public Company Costs) and (ii) fees, costs and expenses associated with acquisition related litigation and settlement thereof, in each case, whether or not consummated, to the extent deducted (and not added back) in computing Consolidated Net Income; provided that the amount added to Consolidated EBITDA pursuant to this clause (e) (with respect to the activities set forth in clause (e)(i)(b)) and clause (g) below, when taken together, shall not exceed 3520% of Consolidated EBITDA (calculated (i) with respect to any calculation pursuant to Section 7.06, prior to giving effect to the adjustments hereunder and (ii) with respect to any other calculation herein, after giving effect to the adjustments hereunder); plus
(f)    any other non-cash charges, write-downs, write-offs, expenses, losses, increase in expenses or items reducing Consolidated Net Income for such period including (i) non-cash losses on non-cash asset retirement costs, non-cash expense relating to the vesting of warrants, the sale of assets and any write-offs or write-downs,
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deferred revenue or impairment charges, including such charges, write-downs, write-offs, expenses, losses or other items pushed down to Holdingsthe Company and its Restricted Subsidiaries), (ii) impairment charges, amortization (or write offs) of financing costs (including debt discount, debt issuance costs and commissions and other fees associated with Indebtedness, including this Agreement) of such Person and its Subsidiaries and/or, (iii) the impact of acquisition method accounting adjustment and any non-cash write-up, write-down or write-off with respect to re-valuing assets, inventory (including any impact of changes to inventory valuation policy methods) or other inventory adjustments and liabilities in connection with the Transactions or any Investment, deferred revenue or any effects of adjustments resulting from the application of purchase accounting, purchase price accounting (including any step-up in inventory and loss of profit on the acquired inventory) and/or (iv) non-cash charges, costs and expenses associated with the Wire Insulation Shrinkback Matter (provided that if any such non-cash charge, write-down, expense, loss or item represents an accrual or reserve for potential cash items in any future period, (A) the Company may elect not to add back such non-cash charge, expense or loss in the current period and (B) to the extent the Company elects to add back such non-cash charge, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA when paid (it being understood that any cash payments in respect of the Wire Insulation Shrinkback Matter may be offset on a dollar-for-dollar basis with any cash settlement or monetary award received from a supplier in litigation related to the Wire Insulation Shrinkback Matter and shall not be subtracted from Consolidated EBITDA), or other items classified by the Company as special items less other non-cash items of income increasing Consolidated Net Income (excluding any amortization of a prepaid cash item that was paid in a prior period or such non-cash item of income to the extent it represents a receipt of cash in any future period); plus
(g)    the amount of pro forma “run rate” cost savings, operating expense reductions, other operating improvements and initiatives and synergies (net of actual cash savings) projected by the Company to result from action either taken or expected to be taken in connection with, and within 18 months following, (i) any acquisition (including the commencement of activities constituting a business) or material disposition (including the termination or discontinuance of activities constituting a business), in each case of business entities or of properties or assets constituting a division or line of business (including, without limitation, a product line), and/or (ii) any other operational change or initiatives (including, to the extent applicable, in connection with the Transactions or any restructuring) (which, in each of the cases (i), (ii) and (iii) above, will be added to Consolidated EBITDA as so projected until fully realized and calculated on a pro forma basis as though such synergies, cost savings, operating expense reductions, other operating improvements and initiatives had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; or with respect to actions being taken in connection with acquisitions, dispositions, operational changes, initiatives or such other transactions or occurrences described in this clause (g) which occurred prior to the Closing Date, within 18 months of the Closing Date; provided that the amount added to Consolidated EBITDA pursuant to this clause (g) and clause (e) (with respect to business optimizationthe activities set forth in clause (e)(i)(b) above), when taken together, shall not exceed 3520% of Consolidated EBITDA (calculated (i) with respect to any calculation pursuant to Section 7.06, prior to giving effect to the adjustments hereunder and (ii) with respect to any other calculation herein, after giving effect to the adjustments hereunder); plus
(h)    any costs or expenses incurred by Holdings, the Company or a Restricted Subsidiary or a Parent Entity pursuant to any management equity plan, stock option plan, phantom equity plan, profits interests or any other management,
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employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto), employment, termination or severance agreement, or any stock subscription or equityholder agreement, and any costs or expenses in connection with the roll-over, acceleration or payout of Capital Stock held by management, in each case to the extent that such costs or expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Capital Stock (other than Disqualified Stock) of the Company; plus
(i)    cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to clause (2) below for any previous period and not added back; plus
(j)    any net loss included in the Consolidated Net Income attributable to non-controlling or minority interests pursuant to the application of Accounting Standards Codification Topic 810-10-45; plus
(k)    the amount of any non-controlling or minority interest Charges; plus
(l)    unrealized or realized losses due to foreign exchange adjustments including, without limitation, losses and expenses in connection with currency and exchange rate fluctuations, and unrealized or realized losses or other obligations from hedging activities or other derivative instruments; plus
(m)    with respect to any joint venture, an amount equal to the proportion of those items described in clauses (b) and (c) above relating to such joint venture corresponding to the Company’s and the Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restricted Subsidiary) to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(n)    the amount of any costs or expenses relating to payments made to stock appreciation or similar rights, stock option, restricted stock, phantom equity, profits interests or other interests or rights holders of Holdingsthe Company or any of its Subsidiaries or any Parent Entity in connection with, or as a result of, any distribution being made to equityholders of such Person or any of its Subsidiaries or any Parent Entities, which payments are being made to compensate such holders as though they were equityholders at the time of, and entitled to share in, such distribution; plus
(o)    adjustments and add backs (i) contained in the financial model provided to the Lenders on November 15, 2020, (ii) reflected in a quality of earnings report made available to the Lenders conducted by financial advisors (which financial advisors are (A) nationally recognized or (B) reasonably acceptable to the Administrative Agents and Blackstone Representative (it being understood and agreed that any of the “Big Four” accounting firms, FTI, Alvarez & Marsal and BDO are acceptable)) and retained by the Company or (iii) consistent with Regulation S-X; plus
(p)    the amount of any management, monitoring, consulting, transaction or advisory fees and related indemnities and expenses pursuant to any Sponsor management agreement and payments made to the Sponsor for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities and payments to outside directors of the Company (or its direct or indirect parent companies), in each case, to the extent permitted to be paid under this Agreement; plus
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and
(2)    decreased (without duplication) by non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period (other than non-cash gains relating to the application of Accounting Standards Codification Topic 840—Leases) and unrealized or realized gains due to foreign exchange adjustments including, without limitation, gains in connection with currency and exchange rate fluctuations, and unrealized or realized gains or other obligations from hedging activities or other derivative instruments.
Consolidated First Lien Secured Leverage Ratio” means, as of any date of determination, the ratio of (x) the Consolidated Total Indebtedness that is secured by a Lien on the Collateral (other than a Lien that is junior to the Lien securing the Secured Obligations) as of such date to (y) LTM EBITDA.
Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:
(1)    consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount or premium resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of any Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations, and (e) net payments, if any made (less net payments, if any, received), pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (i) Securitization Fees, (ii) penalties and interest relating to taxes, (iii) annual agency or similar fees paid to the administrative agents, collateral agents and other agents under any Facility, (iv) any additional interest or liquidated damages owing pursuant to any registration rights obligations, (v) costs associated with obtaining Hedging Obligations, (vi) accretion or accrual of discounted liabilities other than Indebtedness, (vii) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or purchase accounting in connection with the Transactions or any acquisition, (viii) amortization, expensing or write-off of deferred financing fees, amendment and consent fees, debt issuance costs, debt discount or premium, terminated hedging obligations and other commissions, fees and expenses, discounted liabilities, original issue discount and any other amounts of non-cash interest and, adjusted to the extent included, to exclude any refunds or similar credits received in connection with the purchasing or procurement of goods or services under any purchasing card or similar program, (ix) any expensing of bridge, arrangement, structuring, commitment, agency, consent and other financing fees and any other fees related to the Transactions or any acquisitions after the Closing Date, (x) any accretion of accrued interest on discounted liabilities and any prepayment, make-whole or breakage premium, penalty or cost and (xi) interest expense with respect to Indebtedness of any direct or indirect parent of such Person resulting from push-down accounting; plus
(2)    consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less
(3)    interest income for such period.
For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.
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Consolidated Net Income” means, with respect to any Person for any period, the net income (loss) of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided, however, that there will not be included in such Consolidated Net Income:
(1)    any net income (loss) of any Person if such Person is not a Restricted Subsidiary (including any net income (loss) from investments recorded in such Person under the equity method of accounting), except that the Company’s receipts from any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed (or to the extent converted into cash or Cash Equivalents) by such Person during such period to the Company or a Restricted Subsidiary as a dividend or other distribution or return on investment;
(2)    solely for the purpose of determining the amount available for Restricted Payments under Section 7.06(a) hereof, any net income (loss) of any Restricted Subsidiary (other than the Guarantors) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Company or a Guarantor by operation of the terms of such Restricted Subsidiary’s articles, charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other than (a) restrictions that have been waived or otherwise released (or such Person reasonably believes such restriction could be waived or released and is using commercially reasonable efforts to pursue such waiver or release), (b) restrictions pursuant to this Agreement or other similar indebtedness, and (c) restrictions specified in Section 7.08(b)(xiv)(i)), except that Company’s equity in the net income of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed (or to the extent converted, or having the ability to be converted, into cash or Cash Equivalents) by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause);
(3)    any gain (or loss) (a) in respect of facilities no longer used or useful in the conduct of the business of the Company or the Restricted Subsidiaries, abandoned, closed, disposed or discontinued operations (excluding held for sale discontinued operations until actually disposed of) other than in the ordinary course of business, (b) on disposal, abandonment or discontinuance of disposed, abandoned, closed or discontinued operations, and (c) attributable to asset dispositions, abandonments, sales or other dispositions of any asset (including pursuant to any Sale and Leaseback Transaction) or the designation of an Unrestricted Subsidiary other than in the ordinary course of business;
(4)    (a) any extraordinary, exceptional, unusual or nonrecurring loss, charge or expense, Transaction Expenses, Public Company Costs, restructuring and duplicative running costs, restructuring charges or reserves (whether or not classified as restructuring expense on the consolidated financial statements), relocation costs, start-up or initial costs for any project or new production line, division or new line of business, integration and facilities’ or bases’ opening costs, facility consolidation and closing costs, severance costs and expenses, one-time charges (including compensation charges), payments made pursuant to the terms of change in control agreements that the Company or a Subsidiary or a Parent Entity had entered into with employees of Holdingsthe Company, any of its Subsidiaries or a Parent Entity, costs relating to pre-opening, opening and conversion costs for facilities, losses, costs related to facility or property disruptions or shutdowns, signing, retention and completion bonuses (including management bonus pools), recruiting costs, costs incurred in connection with any strategic or cost savings initiatives, transition costs, contract terminations, litigation and arbitration fees, costs and charges, expenses in connection with one-time rate changes, costs incurred with acquisitions, investments and dispositions (including travel and out-of-pocket costs, human resources costs (including relocation bonuses), litigation and arbitration costs, charges, fees and
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expenses (including payments of legal settlements, fines, judgements or orders), management transition costs, advertising costs, losses associated with temporary decreases in work volume and expenses related to maintain underutilized personnel) and non-recurring product and intellectual property development, other business optimization expenses or reserves (including costs and expenses relating to business optimization programs and new systems design and costs or reserves associated with improvements to IT and accounting functions), retention charges (including charges or expenses in respect of incentive plans), system establishment costs and implementation costs) and operating expenses attributable to the implementation of strategic or cost-savings initiatives, and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities and charges resulting from changes in estimates, valuations and judgments) and professional, legal, accounting, consulting and other service fees incurred with any of the foregoing and (b) any charge, expense, cost, accrual or reserve of any kind associated with acquisition related litigation and settlements thereof;
(5)    (a) at the election of the Company with respect to any quarterly period, the cumulative effect of a change in law, regulation or accounting principles and changes as a result of the adoption or modification of accounting policies, (b) subject to the last paragraph of the definition of “GAAP,” the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such period (including any impact resulting from accounting changes) and (c) any costs, charges, losses, fees or expenses in connection with the implementation or tracking of such changes or modifications specified in the foregoing clauses (a) and (b);
(6)    (a) any equity-based or non-cash compensation or similar charge, cost or expense or reduction of revenue, including any such charge, cost, expense or reduction arising from any grant of stock, stock appreciation or similar rights, stock options, restricted stock, phantom equity, profits interests or other interests, or other rights or equity- or equity based incentive programs (“equity incentives”), any income (loss) associated with the equity incentives or other long-term incentive compensation plans (including under deferred compensation arrangements of Holdingsthe Company or any Parent Entity or Subsidiary and any positive investment income with respect to funded deferred compensation account balances), roll-over, acceleration or payout of Capital Stock by employees, directors, officers, managers, contractors, consultants, advisors or business partners (or their respective Controlled Investment Affiliates or Immediate Family Members) of Holdingsthe Company or any Parent Entity or Subsidiary, and any cash awards granted to employees of Holdingsthe Company and its Subsidiaries in replacement for forfeited awards, (b) any non-cash losses realized in such period in connection with adjustments to any employee benefit plan due to changes in estimates, actuarial assumptions, valuations, studies or judgments or non-cash compensation expense resulting from the application of Accounting Standards Codification Topic 718, Compensation—Stock Compensation and (c) any net pension or post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, amortization of such amounts arising in prior periods, amortization of the unrecognized obligation (and loss or cost) existing at the date of initial application of Statement of Financial Accounting Standards No. 87, 106 and 112, and any other item of a similar nature;
(7)    any income (loss) from the extinguishment, conversion or cancellation of Indebtedness, Hedging Obligations or other derivative instruments (including deferred financing costs written off, premiums paid or other expenses incurred);
(8)    any unrealized or realized gains or losses in respect of any Hedging Obligations or any ineffectiveness recognized in earnings related to hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions;
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(9)    any fees, losses, costs, expenses or charges incurred during such period (including any transaction, retention bonus or similar payment and earn outs), or any amortization thereof for such period, in connection with (a) any acquisition, recapitalization, Investment, Asset Disposition, disposition, dividend, issuance or repayment of Indebtedness (including such fees, expense or charges related to the offering, issuance and rating of the Loans, other securities and any of the Facilities), issuance of Capital Stock, refinancing transaction or amendment or modification of any debt instrument (including any amendment or other modification of the Loans, other securities and any of the Facilities), in each case, including the Transactions, any such transaction consummated prior to, on or after the Closing Date and 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, in each case whether or not successful (including, for the avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with Accounting Standards Codification Topic 805—Business Combinations and any adjustments resulting from the application of Accounting Standards Codification Topic 460—Guarantees or any related pronouncements) and (b) complying with the requirements under, or making elections permitted by, the documentation governing any Indebtedness;
(10)    any unrealized or realized gain or loss resulting in such period from currency translation increases or decreases or transaction gains or losses, including those related to currency remeasurements of Indebtedness (including any net loss or gain resulting from Hedging Obligations for currency risk), intercompany balances, other balance sheet items, Hedging Obligations or other obligations of Holdingsthe Company or any Restricted Subsidiary owing to Holdingsthe Company or any Restricted Subsidiary and any other realized or unrealized foreign exchange gains or losses relating to the translation of assets and liabilities denominated in foreign currencies;
(11)    any unrealized or realized income (loss) or non-cash expense attributable to movement in mark-to-market valuation of foreign currencies, Indebtedness or derivative instruments pursuant to GAAP;
(12)    any non-cash increase in expenses (including expenses pushed down to Holdingsthe Company and its Restricted Subsidiaries) (a) resulting from the revaluation of inventory (including any impact of changes to inventory valuation policy methods) or other inventory adjustments or (b) due to recapitalization accounting or to purchase accounting associated with the Transactions or any other acquisition or the amortization or write-off of any amounts thereof (including, without limitation, with respect to inventory, property and equipment, leases, software, goodwill, intangible assets, in-process research and development, deferred revenue (including deferred costs related thereto and deferred rent) and debt line items thereof, resulting from the application of acquisition method accounting, recapitalization accounting or purchase accounting, as the case may be, in relation to the Transactions or any consummated acquisition (by merger, consolidation, amalgamation or otherwise), joint venture investment or other Investment or the amortization or write-off or write-down of any amounts thereof;
(13)    any impairment charge, write-off or write-down, including impairment charges, write-offs or write-downs related to bad debt expense, intangible assets, long-lived assets, goodwill, investments in debt or equity securities (including any losses with respect to the foregoing in bankruptcy, insolvency or similar proceedings) and investments recorded using the equity method or as a result of a change in law or regulation and the amortization of intangibles arising pursuant to GAAP;
(14)    (a) accruals and reserves (including contingent liabilities) that are established or adjusted in connection with the Transactions or within 18 months after the closing of any acquisition or disposition that are so required to be established or adjusted as a result of such acquisition or disposition in accordance with GAAP, or changes as a result of adoption or modification of accounting policies and (b) earn-out, non-compete and
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contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments thereof and purchase price adjustments;
(15)    any income (loss) related to any realized or unrealized gains and losses resulting from Hedging Obligations or embedded derivatives that require similar accounting treatment (including embedded derivatives in customer contracts), and the application of Accounting Standards Codification Topic 815—Derivatives and Hedging and its related pronouncements or mark to market movement of other financial instruments pursuant to Accounting Standards Codification Topic 825—Financial Instruments, or the equivalent accounting standard under GAAP or an alternative basis of accounting applied in lieu of GAAP;
(16)    any non-cash expenses, accruals or reserves related to adjustments to historical tax exposures and any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowances related to such item;
(17)    [reserved];
(18)    the amount of loss or discount on sale of Securitization Assets, Receivables Assets and related assets in connection with a Qualified Securitization Financing or Receivables Facility; and
(19)    (i) payments to third parties in respect of research and development, including amounts paid upon signing, success, completion and other milestones and other progress payments, to the extent expensed, (ii) at the election of the Company with respect to any quarterly period, effects of adjustments to accruals and reserves during a period relating to any change in the methodology of calculating reserves for returns, rebates and other chargebacks (including government program rebates), and (iii) at the election of the Company with respect to any quarterly period, an amount equal to the net change in deferred revenue at the end of such period from the deferred revenue at the end of the previous period.
In addition, to the extent not already excluded (or included, as applicable) in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall be increased by the amount of: (i) any expenses, charges or losses that are reimbursed by indemnification or other reimbursement provisions in connection with any investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder, or, so long as the Company has made a determination that it reasonably expects that such amount will in fact be paid or reimbursed within 365 days of the date of such evidence (net of any amount so added back in a prior period to the extent not so reimbursed within the applicable 365-day period) and (ii) to the extent covered by insurance (including business interruption insurance) and actually reimbursed, or, so long as the Company has made a determination that it reasonably expects that such amount will in fact be paid or reimbursed by the insurer and only to the extent that such amount is in fact reimbursed within 365 days of the date of such evidence (net of any amount so added back in a prior period to the extent not so reimbursed within the applicable 365-day period), expenses, charges or losses with respect to liability or Casualty Events or business interruption. In addition, to the extent not already excluded in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall be decreased by the amount of any tax distributions made pursuant to Section 7.06(b)(ix)(C) as though such amounts had been paid as taxes directly by such Person for such periods.
Consolidated Total Indebtedness” means, with respect to Holdingsthe Company and its Restricted Subsidiaries, as of any date of determination, an amount equal to (a) the aggregate principal amount of outstanding third-party Indebtedness for borrowed money (excluding Indebtedness with respect to Cash Management Obligations and intercompany Indebtedness as of such date), plus (b) the aggregate principal amount of Purchase Money Obligations and unreimbursed drawings under letters of credit of Holdingsthe Company and its Restricted Subsidiaries outstanding on such date (provided that
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any unreimbursed amount under commercial letters of credit shall not be counted as Consolidated Total Indebtedness until five Business Days after such amount is drawn), plus (c) the undrawn Reserved Indebtedness Amount (to the extent included in clause (a) above), plus (d) the amount of Indebtedness of the type described in clause (a) or (b) hereof incurred by the Parent Borrowerthe Company and guaranteed by Holdings or its Restricted Subsidiaries minus (e) the aggregate amount of unrestricted cash and Cash Equivalents included on the consolidated balance sheet of HoldingsCompany and its Restricted Subsidiaries as of the end of the most recent fiscal period for which consolidated financial statements are available, which shall not be less than $0 (provided that the cash proceeds of any proposed incurrence of Indebtedness shall not be included in this clause (e) for purposes of calculating the Interest Coverage Ratio, the Consolidated Total Leverage Ratio, the Consolidated Total Senior Secured Leverage Ratio or the Consolidated First Lien Secured Leverage Ratio, as applicable) with such pro forma adjustments as are consistent with the pro forma adjustments set forth in Section 1.09. For the avoidance of doubt, Consolidated Total Indebtedness shall exclude obligations under the TRA, Indebtedness in respect of any Hedging Obligations, Capitalized Lease Obligations, operating leases, undrawn letters of credit, earnout obligations not more than five (5) Business Days past due and payable and if not recognized as debt on the balance sheet in accordance with GAAP and any Receivables Facility or Securitization Facility.
Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio of (x) Consolidated Total Indebtedness as of such date to (y) LTM EBITDA.
Consolidated Total Senior Secured Leverage Ratio” means, as of any date of determination, the ratio of (x) the Consolidated Total Indebtedness that is secured by a Lien as of such date to (y) LTM EBITDA.
Consolidated Working Capital” means, at any date, the excess of (a) the sum of (i) all amounts (other than cash and Cash Equivalents) 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 Holdingsthe Company and its Restricted Subsidiaries at such date and (ii) long-term accounts receivable over (b) the sum of (i) 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 Holdingsthe Company and its Restricted Subsidiaries on such date and (ii) long-term deferred revenue, but excluding, without duplication, (a) the current portion of any Funded Debt or other long-term liabilities, (b) all Indebtedness consisting of Revolving Credit Loans and L/C Obligations to the extent otherwise included therein, (c) the current portion of interest, (d) the current portion of current and deferred income taxes, (e) the current portion of any Capitalized Lease Obligations, (f) deferred revenue arising from cash receipts that are earmarked for specific projects, (g) the current portion of deferred acquisition costs and (h) current accrued costs associated with any restructuring or business optimization (including accrued severance and accrued facility closure costs).
Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing in any manner, whether directly or indirectly, any Non-Financing Lease Obligation, dividend or other obligation that does not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”), including any obligation of such Person, whether or not contingent:
(1)    to purchase any such primary obligation or any property constituting direct or indirect security therefor;
(2)    to advance or supply funds:
(a)    for the purchase or payment of any such primary obligation; or
(b)    to maintain the working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or
(3)    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 against loss in respect thereof.
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Contract Consideration” has the meaning specified in the definition of “Excess Cash Flow.”
Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
Control” has the meaning specified in the definition of “Affiliate.”
Controlled Investment Affiliate” means, as to any Person, any other Person, which directly or indirectly is in control of, is controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily for making direct or indirect equity or debt investments in the Company and/or other companies.
Covered Entity” means any of the following:
(i)    a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b);
(ii)    a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b); or
(iii)    a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).
Covered Jurisdiction” means the United States (and each State thereof and the District of Columbia) and the jurisdiction of organization of any Restricted Subsidiary that becomes a Guarantor pursuant to the last sentence of the definition of “Guarantor.”
Covered Party” shall have the meaning provided in Section 10.213.
Credit Agreement Refinanced Debt” has the meaning specified in the definition of “Credit Agreement Refinancing Indebtedness.”
Credit Agreement Refinancing Indebtedness” means (a) Permitted Pari Passu Refinancing Debt, (b) Permitted Junior Refinancing Debt, or (c) Permitted Unsecured Refinancing Debt obtained pursuant to a Refinancing Amendment, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Term Loans, Incremental Term Loans, Refinancing Term Loans, Revolving Credit Loans, Incremental Revolving Credit Commitments or Refinancing Revolving Credit Loans hereunder (including any successive Credit Agreement Refinancing Indebtedness) (“Credit Agreement Refinanced Debt”); provided that (i) such extending, renewing or refinancing Indebtedness is in an original aggregate principal amount not greater than (A) the aggregate principal amount of the Credit Agreement Refinanced Debt, plus (B) accrued, capitalized and unpaid interest thereon, any fees, premiums (including any makewhole), accrued interest associated therewith, or other reasonable amount paid, and fees, costs and expenses, commissions or underwriting discounts incurred in connection therewith, (ii) the terms applicable to such Credit Agreement Refinancing Indebtedness comply with the Required Debt Terms and (iii) such Credit Agreement Refinanced Debt (other than contingent indemnification obligations not yet accrued and payable and Letters of Credit that have been Cash Collateralized or back-stopped or as to which other arrangements reasonably satisfactory to the Revolving Facility Administrative Agent and the applicable L/C Issuer have been made) shall be repaid, defeased or satisfied and discharged, and (unless otherwise agreed by all Lenders holding such Credit Agreement Refinanced Debt) all accrued interest, fees and premiums (if any) in connection therewith shall be paid on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained.
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Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
Cumulative Consolidated Net Income” means, for any period, Consolidated Net Income for such period, taken as a single accounting period. Cumulative Consolidated Net Income shall not be less than $0.
Cure Amount” has the meaning specified in Section 8.05.
Cure Period” has the meaning specified in Section 8.05.
Cure Right” has the meaning specified in Section 8.05.
Customary Intercreditor Agreement” means (a) to the extent executed in connection with any incurrence of  Indebtedness secured by Liens on the Collateral that are intended to rank equal in priority to the Liens on the Collateral securing the Secured Obligations (but without regard to the control of remedies), a customary intercreditor agreement (which may take the form of a “waterfall” or similar provision) (x) substantially in the form attached as Exhibit K, together with any changes thereto which are reasonably acceptable to the Administrative Agents and the Blackstone Representative and as may be adjusted to reflect the priority of the Priority Payment Obligations or (y) in form and substance reasonably acceptable to the Administrative Agents, the Blackstone Representative and the Company, which agreement shall provide, inter alia, that the Liens on the Collateral securing such other Indebtedness to the extent validly perfected and not subject to other Liens ranking senior to the Liens securing such Indebtedness but junior to the Liens securing the Secured Obligations shall rank equal in priority to the Liens on the Collateral securing the Secured Obligations (but without regard to the control of remedies), (b) to the extent executed in connection with the incurrence of Indebtedness secured by Liens on the Collateral which are intended to rank junior to the Liens on the Collateral securing the Secured Obligations, a customary intercreditor agreement (x) substantially in the form attached as Exhibit M, together with any changes thereto which are reasonably acceptable to the Administrative Agents and the Blackstone Representative and as may be adjusted to reflect the priority of the Priority Payment Obligations or (y) in form and substance reasonably acceptable to the Administrative Agents, the Blackstone Representative and the Company, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank junior to the Liens on the Collateral securing the Secured Obligations and (c) to the extent executed in connection with an Incremental Facility Amendment with respect to the Revolving Credit Facility, a customary agreement among lenders for a first out/last out facility in form and substance reasonably acceptable to the Required Lenders, the Administrative Agents and the Company (which for the avoidance of doubt shall include a customary buy-out right of the Revolving Credit Facility in favor of the Term Lenders). For the avoidance of doubt, the Amendment No. 1 Effective Date Agreement Among Lenders shall constitute a Customary Intercreditor Agreement of the type contemplated by clause (a) and (c) of the preceding sentence..
Daily Simple SOFR means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower. If by 5:00 p.m. (New York City time) on the second (2nd) U.S. Government Securities Business Day immediately following any SOFR Determination Date, SOFR in respect of such SOFR Determination Date has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to the Daily Simple SOFR has not occurred, then SOFR for such SOFR Determination Date will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website.
Debt Fund Affiliate” means an Affiliated Lender that is a bona fide debt fund or investment vehicle that is primarily engaged in, or advises funds or other investment vehicles that are
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primarily engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its business, and whose managers have fiduciary duties to the investors in such fund or investment vehicle independent of, or in addition to, their fiduciary duties to Holdingsthe Company and its Subsidiaries.
Debtor Relief Laws” means the Bankruptcy Code of the United States and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
Declined Proceeds” has the meaning specified in Section 2.05(b)(v).
Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
Default Rate” means, means, solely during the occurrence and continuance of an Event of Default under Section 8.01(a) or under Section 8.01(f), an interest rate equal, (a) with respect to any overdue principal for any Loan, the applicable interest rate for such Loan plus 2.0% per annum and (b) with respect to any other overdue amount (including overdue interest), the interest rate applicable to Base Rate Loans that are Term Loans plus 2.0% per annum, in each case, to the fullest extent permitted by applicable Laws and which shall be payable on demand by the Required Lenders.
Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans required to be funded by it, (ii) fund any portion of its participations in Letters of Credit required to be funded by it or (iii) pay over to the applicable Administrative Agent, the L/C Issuer or any other Lender any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the applicable Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Company or anythe Administrative Agent, the L/C Issuer or any other Lender in writing that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan cannot be satisfied), (c) has failed, within three (3) Business Days after request by anythe Administrative Agent, the L/C Issuer or any other Lender, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Loans and participations in then outstanding Letters of Credit under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Administrative Agent’s, L/C Issuer’s or Lender’s receipt of such certification in form and substance satisfactory to it and the applicable Administrative Agent, or (d) after the date of this Agreement, has become the subject of a Bankruptcy Event.
Designated Non-Cash Consideration” means the fair market value (as determined in good faith by the Company) of non-cash consideration received by Holdingsthe Company or any of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Non-Cash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent payment, redemption, retirement, sale or other disposition of such Designated Non-Cash Consideration. A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compliance with Section 7.05 hereof.
Designated Preferred Stock” means Preferred Stock of Holdingsthe Company or a Parent Entity (other than Disqualified Stock) (a) that is issued for cash (other than to the Company or a Subsidiary of the Company or an employee stock ownership plan or trust established by the Company or
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any such Subsidiary for the benefit of their employees to the extent funded by the Company or such Subsidiary) and (b) that is designated as “Designated Preferred Stock” pursuant to an Officer’s Certificate of the Company at or prior to the issuance thereof, the Net Cash Proceeds of which are excluded from the calculation set forth in Section 7.06(a) hereof.
Discount Range” has the meaning specified in Section 2.05(d)(ii).
Discounted Prepayment Option Notice” has the meaning specified in Section 2.05(d)(ii).
Discounted Voluntary Prepayment” has the meaning specified in Section 2.05(d)(i).
Discounted Voluntary Prepayment Notice” has the meaning specified in Section 2.05(d)(v).
Disinterested Director” means, with respect to any Affiliate Transaction, a member of the Board of Directors having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of the Board of Directors shall be deemed not to have such a financial interest by reason of such member’s holding Capital Stock of the Company or any options, warrants or other rights in respect of such Capital Stock.
Disqualified Lenders” means (i) such banks, financial institutions, other institutional lenders (or related funds of such institutional lenders) or other Persons separately identified in writing by the Company to the Term Loan Administrative Agent (as defined in the Original Credit Agreement) prior to November 24, 2020 (or identified in writing after November 24, 2020 and prior to the Closing Date, if the disqualification of such person is reasonably acceptable to the Blackstone Representative) (a copy of any such writings delivered to the Term Loan Agent Administrative Agent (as defined in the Original Credit Agreement) pursuant to this clause (i) shall have been delivered to the Revolving Facility Administrative Agent prior to the Amendment No. 1 Effective Date), (ii) competitors of the Company or any of its Subsidiaries identified in writing from time to time by email to the Administrative Agents, or (iii) in the case of clauses (i) and (ii), any of their affiliates (other than affiliates that are bona fide debt investment funds primarily engaged in, or that advise funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, notes, bonds or similar extensions of credit or securities in the ordinary course of its business and whose managers have fiduciary duties to the investors therein independent of or in addition to their duties to such bank, financial institution, other institutional lender or competitor, as applicable) that are (A) identified by you or, in the case of clause (i), the Sponsor in writing from time to time or (B) clearly identifiable solely on the basis of similarity of such affiliates’ name to the name of any entity identified in writing pursuant to clauses (i) and (ii) or (iv) Excluded Affiliates; provided, that any additional designation permitted by the foregoing shall not become effective until three (3) Business Days following delivery to the Administrative Agents by email at the following address JPMDQ_Contact@jpmorgan.com; provided, further, that in no event shall any notice given pursuant to this definition apply to retroactively disqualify any Person who previously acquired and continues to hold, any Loans, Commitments or participations prior to the receipt of such notice. For the avoidance of doubt, eachthe Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders and shall not be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or have any liability with respect to or arising out of any assignment or participation to or disclosure of confidential information to, a Disqualified Lender. EachThe Administrative Agent shall be permitted, upon request of any Lender or Participant, to make available the list of Disqualified Lenders upon request by the inquiring Lender or disclose to such inquiring Lender or Participant whether such specific potential Assignee or Participant is on the list of Disqualified Lenders. Notwithstanding anything set forth herein, Disqualified Lenders shall not include any entity within the credit division of The Blackstone Group Inc. that is not engaged as a principal primarily in private equity or venture capital transactions.
Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event:
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(1)    matures or is mandatorily redeemable for cash or in exchange for Indebtedness pursuant to a sinking fund obligation or otherwise; or
(2)    is or may become (in accordance with its terms) upon the occurrence of certain events or otherwise redeemable or repurchasable for cash or in exchange for Indebtedness at the option of the holder of the Capital Stock in whole or in part,
in each case on or prior to the earlier of (a) the Stated Maturity of the Loans or (b) the date on which there are no Loans outstanding; provided, however, that (i) only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock and (ii) any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or asset sale (howsoever defined or referred to) shall not constitute Disqualified Stock if any such redemption or repurchase obligation is subject to compliance by the relevant Person with Section 7.06 hereof; provided, however, that if such Capital Stock is issued to any future, current or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) (excluding the Permitted Holders (but not excluding any future, current or former employee, director, officer, manager, contractor, consultant or advisor) or Immediate Family Members), of Holdingsthe Company, any of its Subsidiaries, any Parent Entity or any other entity in which Holdingsthe Company or a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate” by the Board of Directors (or the compensation committee thereof) or any other plan for the benefit of current, former or future employees (or their respective Controlled Investment Affiliates or Immediate Family Members) of Holdingsthe Company or its Subsidiaries or by any such plan to such employees (or their respective Controlled Investment Affiliates or Immediate Family Members), such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by Holdingsthe Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
Dollar” and “$” mean lawful money of the United States.
Dollar Equivalent” means, on any date of determination, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount in any other currency, the equivalent in Dollars of such amount, determined by the applicable Administrative Agent or the L/C Issuer, as applicable, pursuant to Section 1.08 using the Exchange Rate with respect to such currency at the time in effect under the provisions of such Section.
Domestic Foreign Holding Company” means any Domestic Subsidiary substantially all the assets of which consist (directly or indirectly) of Capital Stock (including, for this purpose, any debt or other instrument treated as equity for U.S. federal income tax purposes) and/or indebtedness (as determined for U.S. tax purposes) of one or more Foreign Subsidiaries that are CFCs or other entities described in this definition and incidental cash and Cash Equivalents and other incidental assets related thereto.
Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.
EEA Financial Institution” means (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
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        Effective Yield” means, with respect to any term loan facility or other term loans, as of any date of determination, the sum of (i) the higher of (A) the Adjusted Term SOFR on such date for a deposit in Dollars or Euros, as applicable, with a maturity of three months and (B) the Floor applicable to Adjusted Term SOFR, if any, with respect thereto as of such date, (ii) the Applicable Rate (or other applicable margin) as of such date for Adjusted Term SOFR Loans (or other loans that accrue interest by reference to a similar reference rate) without giving effect to any pricing step-downs and (iii) the amount of original issue discount and upfront fees thereon (converted to yield assuming a four-year average life and without any present value discount or, if less, the remaining life to maturity, and assuming that the commitments under any such facility that is a revolving facility are fully drawn), but excluding the effect of any amendment, arrangement, structuring, commitment, underwriting, syndication and any similar fees payable to any lead arranger (or its Affiliates) in connection with the commitment or syndication of such Indebtedness, consent fees paid to consenting lenders, ticking fees on undrawn commitments, call protection and any other fees not paid or payable generally to all lenders in the primary syndication of such term loan facility or other term loans; provided, that the amounts set forth in clauses (i) and (ii) above for any term loans that are not incurred under this Agreement shall be based on the stated interest rate basis for such term loans.
Eligible Assignee” means any Assignee permitted by and consented to in accordance with Section 10.07(b).
Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetlands, flora and fauna.
Environmental Laws” means any and all applicable Laws relating to pollution, the protection of the environment, natural resources or to the generation, transport, storage, use, treatment, Release or threat of Release of any hazardous materials or, to the extent relating to exposure to hazardous materials, human health.
Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) of any Loan Party or any of its respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage or treatment of any Hazardous Materials, (c) exposure of any Person to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other consensual arrangement to the extent liability is assumed or imposed with respect to any of the foregoing.
Equity Offering” means (x) a sale of Capital Stock (other than through the issuance of Disqualified Stock or Designated Preferred Stock or an Excluded Contribution) other than (a) offerings registered on Form S-8 (or any successor form) under the Securities Act or any similar offering in other jurisdictions or other equity securities of Holdingsthe Company or any Parent Entity and (b) issuances of Capital Stock to any Subsidiary of Holdings or Holdingsthe Company or the Company or (y) a cash equity contribution to Holdingsthe Company or any of its Restricted Subsidiaries.
ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
ERISA Affiliate” means any trade or business (whether or not incorporated) that is under common control with any Loan Party and is treated as a single employer within the meaning of Section 414 of the Code or Section 4001 of ERISA.
ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA with respect to a Pension Plan, whether or not waived, or a failure to make any required contribution to a Multiemployer Plan; (d) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan, notification of any Loan Party or ERISA Affiliate
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concerning the imposition of Withdrawal Liability or notification that a Multiemployer Plan is insolvent or in reorganization within the meaning of Title IV of ERISA or in endangered or critical status, within the meaning of Section 305 of ERISA; (e) the filing of a notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; (h) a determination that any Pension Plan is, or is expected to be, in “at-risk” status (within the meaning of Section 303(i)(4)(A) of ERISA or Section 430(i)(4)(A) of the Code); or (i) the occurrence of a non-exempt prohibited transaction with respect to any Pension Plan maintained or contributed to by any Loan Party (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could result in liability to any Loan Party.
EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
Event of Default” has the meaning specified in Section 8.01.
Excess Cash Flow” means, with respect to Holdings and the Restricted Subsidiaries, for any period, an amount equal to the excess of:
(a)    the sum, without duplication, of:
(i)    Consolidated Net Income of Holdings and the Restricted Subsidiaries for such period;
(ii)    an amount equal to the amount of all non-cash charges (including depreciation and amortization) to the extent deducted in arriving at such Consolidated Net Income;
(iii)    decreases in Consolidated Working Capital for such period (other than any such decreases arising from acquisitions by Holdings and the Restricted Subsidiaries completed during such period or the application of purchase accounting);
(iv)    an amount equal to the aggregate net non-cash loss on Asset Dispositions or other dispositions of property or assets by Holdings and the Restricted Subsidiaries during such period (other than Asset Dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; and
(v)    cash receipts in respect of Swap Contracts during such period to the extent not otherwise included in Consolidated Net Income; over
(b)    the sum, without duplication, of:
(i)    an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income and cash charges to the extent included in arriving at such Consolidated Net Income;
(ii)    without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of capital expenditures or acquisitions made in cash during such period, except to the extent that such capital expenditures or acquisitions were financed with the proceeds of an incurrence or issuance of Funded Debt (other than a revolving line of credit) of Holdings or its Restricted Subsidiaries;
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(iii)    the aggregate amount of all principal payments of Indebtedness of Holdings and its Restricted Subsidiaries (including (A) the principal component of Capitalized Lease Obligations and (B) the amount of repayments of Term Loans pursuant to Section 2.07(a) and any mandatory prepayment of Term Loans pursuant to Section 2.05(b) to the extent required due to an Asset Disposition that resulted in an increase to such Consolidated Net Income and not in excess of the amount of such increase but excluding (X) all other prepayments of Term Loans, (Y) all prepayments under the Revolving Credit Facility and (Z) all prepayments in respect of any other revolving credit facility, except, in the case of clause (Z), to the extent there is an equivalent permanent reduction in commitments thereunder) made during such period, except to the extent financed with the proceeds of an incurrence or issuance of other Funded Debt (other than a revolving line of credit) of Holdings or its Restricted Subsidiaries;
(iv)    an amount equal to the aggregate net non-cash gain on Asset Dispositions by Holdings and its Restricted Subsidiaries during such period (other than Asset Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income;
(v)    increases in Consolidated Working Capital for such period (other than any such increases arising from acquisitions by Holdings and its Restricted Subsidiaries completed during such period or the application of purchase accounting);
(vi)    cash payments by Holdings and its Restricted Subsidiaries during such period in respect of long-term liabilities of Holdings and its Restricted Subsidiaries other than Indebtedness (including such Indebtedness specified in clause (b)(iii) above);
(vii)    without duplication of amounts deducted pursuant to clause (xi) below in prior periods, the amount of Investments made during such period pursuant to Section 7.06(b) (other than those under clauses (a), (c), (d) or (e) of the definition of Permitted Investments) except to the extent that such Investments and acquisitions were financed with the proceeds of an incurrence or issuance of Funded Debt (other than a revolving line of credit) of Holdings or its Restricted Subsidiaries;
(viii)    the amount of Restricted Payments paid during such period (A) pursuant to Section 7.06(b) (other than those under Section 7.06(b)(xvii) or clauses (a), (c), (d) or (e) of the definition of Permitted Investments), (B) with amounts available for Restricted Payments pursuant to Section 7.06(a), except to the extent that such Restricted Payments were financed with the proceeds of an incurrence or issuance of Funded Debt (other than a revolving line of credit) of Holdings or its Restricted Subsidiaries and (C) pursuant to the TRA;
(ix)    the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by Holdings and its Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness except to the extent that such amounts were financed with the proceeds of an incurrence or issuance of Funded Debt (other than a revolving line of credit) of Holdings or its Restricted Subsidiaries;
(x)    the aggregate amount of expenditures actually made by Holdings 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 or otherwise were not deducted or added back in determining Consolidated Net Income for such period and were not financed with the proceeds of an incurrence or issuance of Indebtedness for borrowed money (other than a revolving line of credit) of Holdings or its Restricted Subsidiaries;
(xi)    without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by Holdings or any of the
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Restricted Subsidiaries pursuant to binding contracts, commitments, letters of intent or purchase orders (the “Contract Consideration”) entered into during such period, relating to Permitted Investments (other than those under clauses (a), (d) or (e) of the definition of Permitted Investments, but including in joint ventures), capital expenditures or acquisitions to be consummated or made during the period of four consecutive fiscal quarters of Holdings following the end of such period except to the extent intended to be financed with the proceeds of an incurrence or issuance of other Indebtedness of Holdings or its Restricted Subsidiaries; provided that to the extent the aggregate amount utilized to finance such Permitted Investments, capital expenditures or acquisitions during such period of four consecutive fiscal quarters (excluding such payments financed with long term Indebtedness for borrowed money (other than a revolving line of credit)) is less than the Contract Consideration, the amount of such shortfall, shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters;    
(xiii)    the amount of cash taxes (including penalties and interest) paid 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; and
(xiv)    cash expenditures in respect of Swap Contracts during such fiscal year to the extent not deducted in arriving at such Consolidated Net Income.
Exchange Act” means the Securities Exchange Act of 1934.
Exchange Rate” means, on any day, for purposes of determining the Dollar Equivalent of any currency other than Dollars, the rate at which such other currency may be exchanged into Dollars at the time of determination on such day on the Reuters WRLD Page for such currency. In the event that such rate does not appear on any Reuters WRLD Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the applicable Administrative Agent and the Company, or, in the absence of such an agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the applicable Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about such time as the applicable Administrative Agent shall elect after determining that such rates shall be the basis for determining the Exchange Rate, on such date for the purchase of Dollars for delivery two Business Days later, provided that if at the time of any such determination, for any reason, no such spot rate is being quoted, the applicable Administrative Agent may use any reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.
Excluded Affiliate” means any of Blackstone Credit’s or any of its affiliates’ deal teams that are engaged (x) primarily as principals in private equity or venture capital or (y) in the sale of the Company and its subsidiaries, including through the provision of advisory services.
Excluded Contribution” means Net Cash Proceeds or property or assets received by Holdingsthe Company as capital contributions to the equity (other than through the issuance of Disqualified Stock or Designated Preferred Stock) of Holdingsthe Company after the Closing Date or from the issuance or sale (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by Holdingsthe Company or any Subsidiary of Holdingsthe Company for the benefit of their employees to the extent funded by Holdingsthe Company or any Restricted Subsidiary) of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of Holdingsthe Company.
Excluded Equity” means Capital Stock (i) of any Unrestricted Subsidiary, any Immaterial Subsidiary and/or any non-Wholly Owned Subsidiary, (ii) of any Subsidiary acquired pursuant to a Permitted Investment financed with Indebtedness permitted pursuant to Section 7.03(v)(x) if such Capital Stock is pledged and/or mortgaged as security for such Indebtedness and if and for so long as the terms of such Indebtedness prohibit the creation of any other Lien on such Capital Stock, (iii) that is voting Capital Stock of any Foreign Subsidiary of the Company that is a CFC or Subsidiary of the
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Company that is a Domestic Foreign Holding Company, in excess of 65% of the issued and outstanding voting Capital Stock of such CFC or Domestic Foreign Holding Company, (iv) of any Subsidiary with respect to which the Administrative Agents (acting at the direction of the Required Lenders) and the Company have determined in their reasonable judgment and agreed in writing that the costs of providing a pledge of such Capital Stock or perfection thereof (including adverse tax consequences) outweighs the benefits to be obtained by the Secured Parties therefrom, (v) of any Captive Insurance Subsidiaries, not-for-profit subsidiaries, special purpose entities (including any special purpose entity used to effect a Qualified Securitization Financing) and (vi) of any Subsidiary organized outside the United States the pledge of which is prohibited by applicable Laws or which would reasonably be expected to result in a violation or breach of, or conflict with, fiduciary duties of such Subsidiary’s officers, directors or managers after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction or other applicable law.
Excluded Property” means (i) any fee-owned real property that is not a Material Real Property and any leasehold interests in real property (it being understood and agreed that no action shall be required with respect to creation or perfection of security interests with respect to such leasehold interests, including to obtain landlord waivers, estoppels or collateral access letters)), (ii) motor vehicles and other assets subject to certificates of title, to the extent a Lien thereon cannot be perfected by the filing of a UCC financing statement (or analogous procedures under applicable Laws in the relevant Covered Jurisdiction), letter of credit rights to the extent a Lien thereon cannot be perfected by the filing of a UCC financing statement (or analogous procedures under applicable Laws in the relevant Covered Jurisdiction) and commercial tort claims with a value of less than $10.0 million, (iii) assets for which a pledge thereof or a security interest therein is prohibited by applicable law, rule or regulation, of any applicable jurisdiction or other applicable law or which would require governmental (including regulatory) consent, approval, license or authorization to provide such pledge thereof or security interest therein unless such consent, approval, license or authorization has been received, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code, (iv) margin stock, (v) any cash, cash equivalents (including securities entitlements and related assets) held in payroll, healthcare, employee wage and benefits, tax (including sales tax) escrow, fiduciary and trust accounts (including any securities entitlements or related assets contained therein) or, except to the extent otherwise constituting proceeds of Collateral, deposit accounts, (vi) any segregated funds held in escrow for the benefit of an unaffiliated third party (other than the Borrower or a Guarantor), (vii) any lease, license or other agreements, or any property subject to a purchase money security interest, Capitalized Lease Obligation or similar arrangements, in each case to the extent permitted under the Loan Documents, to the extent that a pledge thereof or the grant of a security interest therein would violate or invalidate such lease, license or agreement, purchase money, capitalized lease or similar arrangement, or create a right of termination or payment in favor of any other party thereto (other than a Borrower or a Guarantor or a Subsidiary of a Guarantor) after giving effect to the applicable anti-assignment clauses of the Uniform Commercial Code and applicable Laws, other than the proceeds and receivables thereof the assignment of which is expressly deemed effective under applicable Laws notwithstanding such prohibition, (viii) any intent-to-use trademark or service mark application in the United States prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, only to the extent, if any, that, and solely during the period, if any, in which, the grant, attachment, or enforcement of a security interest therein would impair the validity or enforceability of such intent-to-use trademark or service mark application under applicable U.S. federal law, (ix) Excluded Equity, (x) [reserved], (xi) any governmental licenses or state or local franchises, charters or authorizations, to the extent a security interest in any such licenses, franchise, charter or authorization would be prohibited or restricted thereby (including any legally effective prohibition or restriction) after giving effect to the applicable anti-assignment provisions of the UCC or other similar applicable law, (xii) the assets of any CFC or Domestic Foreign Holding Company or any Subsidiary thereof, (xiii) any assets to the extent a security interest in such assets would result in adverse tax consequences that are not de minimis as reasonably determined by the Company, in consultation with (but without the consent of) the Administrative Agents and the Blackstone Representative and (xiv) any assets with respect to which the Company and the Administrative Agents (acting at the direction of the Required Lenders) reasonably agree in writing that the cost and/or burden of obtaining or perfecting such security are excessive in relation to the benefits to the Lenders afforded thereby.
Excluded Subsidiary” means (a) each Subsidiary listed on Schedule 1.01C of the Closing Date Certificate, (b) any Subsidiary that is prohibited by applicable Law, rule or regulation or by
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any contractual obligation existing on the Closing Date or on the date such Subsidiary is acquired (so long as in respect of any such contractual obligation, such prohibition is not incurred in contemplation of such acquisition) from guaranteeing the Secured Obligations or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee unless such consent, approval, license or authorization has been received, (c) [reserved], (d) any Foreign Subsidiary, (e) any Restricted Subsidiary acquired pursuant to a Permitted Investment that, at the time of such Permitted Investment, has assumed secured Indebtedness permitted under this Agreement not incurred in contemplation of such Permitted Investment and each Restricted Subsidiary that is a Subsidiary thereof that guarantees such Indebtedness, in each case, to the extent such secured Indebtedness prohibits such Subsidiary from becoming a Guarantor (provided that each such Restricted Subsidiary shall cease to be an Excluded Subsidiary under this clause (e) if such secured Indebtedness is repaid or becomes unsecured, if such Restricted Subsidiary ceases to be an obligor with respect to such secured Indebtedness or such prohibition no longer exists, as applicable), (f) any Immaterial Subsidiary or Unrestricted Subsidiary, (g) Captive Insurance Subsidiaries, (h) not-for-profit Subsidiaries, (i) special purpose entities (including any entity used to effect any Qualified Securitization Financing), (j) any non-Wholly Owned Subsidiary, (k)(i) any Domestic Subsidiary of a Foreign Subsidiary that is a CFC and (ii) any Domestic Foreign Holding Company, (l) JV Entities, (m) any Subsidiary that is an “investment company” under the Investment Company Act of 1940, as amended, (n) any Restricted Subsidiary, the provision of a Guarantee by which would reasonably be expected to result in adverse tax consequences to the Company or any of the Restricted Subsidiaries that are not de minimis, as reasonably determined by the Company, in consultation with (but without the consent of) the Administrative Agents and the Blackstone Representative and (o) any other Subsidiary with respect to which the Administrative Agents (solely in the case of the Term Loan Administrative Agent, acting at the direction of the Blackstone Representative)Agent and the Company reasonably agree that the cost, burden or other consequences (including any tax consequences) of providing a Guarantee outweighs, or is excessive in relation to the value afforded thereby; provided, however, that, subject to the consent of the Administrative Agents (not to be unreasonably withheld, delayed or conditioned), any Restricted Subsidiary that would otherwise constitute an Excluded Subsidiary hereunder that elects to become a Guarantor pursuant to the definition thereof shall no longer constitute an Excluded Subsidiary.
Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and solely to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest pursuant to the Collateral Documents to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the Guarantee of such Guarantor or the grant of such security interest would otherwise have become effective with respect to such related Swap Obligation but for such Guarantor’s failure to constitute an “eligible contract participant” at such time.
Excluded Taxes” means any of the following Taxes imposed on or, with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient’s being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, any U.S. federal withholding Tax that is imposed on amounts payable to such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect at the time such Lender acquires such interest in the Loan or Commitment (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding Tax pursuant to Section 3.01, or (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(f) and (d) any withholding Taxes imposed pursuant to FATCA.
Original Credit Agreement” means this Agreement, as in effect immediately prior to the Amendment No. 1 Effective Date.
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Existing Credit Agreement” means that certain Credit Agreement, dated as of May 25, 2017, as amended, restated, supplemented or otherwise modified from time to time, by and among the Company, Holdings, the subsidiary guarantors from time to time party thereto, the lenders and other financial institutions party thereto from time to time and MB Financial Bank, N.A., as administrative agent, swingline lender and issuing lender.
Extended Revolving Credit Commitment” has the meaning specified in Section 2.15(a).
Extended Term Loans” has the meaning specified in Section 2.15(a).
Extension” has the meaning specified in Section 2.15(a).
Extension Offer” has the meaning specified in Section 2.15(a).
Facility” means a Class of Term Loans or a Revolving Credit Facility, as the context may require.
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.
FATCA” means current Sections 1471 through 1474 of the Code (and any amended or successor version to the extent such version is substantively comparable and not materially more onerous to comply with) or any current or future Treasury regulations promulgated thereunder or other official administrative interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above) and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Section of the Code.
Federal Funds Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the Federal Reserve Bank of New York’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
Federal Reserve Bank of New York’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America.
Fee Letters” mean (a) that certain Blackstone Fee Letter and (b) the Administrative Agent Fee Letters.
Financial Covenant” has the meaning set forth in Section 7.09.
Financial Covenant Event of Default” has the meaning set forth in Section 8.01(b).
Fixed Charges” means, with respect to any Person for any period, the sum of: (without duplication)
(a)    Consolidated Interest Expense of such Person for such period; plus
(b)    all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock of any Restricted Subsidiary of such Person during such period; plus
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(c)    all cash dividends, or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Stock of such Person during such period.
Flood Insurance Laws” means, collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
Floor” means (i) for the Term Loans, a rate of interest equal to 1.00% and (ii) for the Revolving Credit Loans, a rate of interest equal to 0.50%.
Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to or by, or entered into with, any Loan Party or any Restricted Subsidiary with respect to employees outside the United States.
Foreign Subsidiary” means a Subsidiary (which may be a corporation, limited liability company, partnership or other legal entity) that is not organized under the laws of the United States, any state thereof or the District of Columbia.
FRB” means the Board of Governors of the Federal Reserve System of the United States.
Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
Funded Debt” means all Indebtedness of Holdingsthe Company and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans.
GAAP” means generally accepted accounting principles in the United States of America as in effect on the date of any calculation or determination required hereunder; provided that if the Company notifies the Administrative Agents that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if anythe Administrative Agent notifies the Company that the Required Lenders request amendment of any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided, further, that any such election, once made, shall be irrevocable.
If there occurs a change in GAAP and such change would cause a change in the method of calculation of any standards, terms or measures (including all computations of amounts and ratios) used in this Agreement (an “Accounting Change”), then the Company may elect that such standards, terms or measures shall be calculated as if such Accounting Change had not occurred.
Global Intercompany Note” collectively, (a) that certain Second Amended and Restated Global Intercompany Note and Subordination Agreement, dated as of the Amendment No. 16 Effective Date, by and among Holdings, the Borrower and the other Restricted Subsidiaries party thereto and (b) each other supplement delivered in connection therewith.
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Governmental Authority” means the government of the United States, any other nation or government, any state, provincial, country, territorial or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (includes any supra-national bodies such as the European Union or the European Central Bank).
Governmental Authorization” means any authorization, approval, consent, franchise, license, covenant, order, ruling, permit, certification, exemption, notice, declaration or similar right, undertaking or other action of, to or by, or any filing, qualification or registration with any Governmental Authority.
Granting Lender” has the meaning specified in Section 10.07(h).
Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person, including any such obligation, direct or indirect, contingent or otherwise, of such Person:
(1)    to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or
(2)    entered into primarily for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term “Guarantee” will not include (x) endorsements for collection or deposit in the ordinary course of business or consistent with past practice and (y) standard contractual indemnities or product warranties provided in the ordinary course of business, and provided, further, that the amount of any Guarantee shall be deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made and (ii) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee or, if such Guarantee is not an unconditional guarantee of the entire amount of the primary obligation and such maximum amount is not stated or determinable, the amount of such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.
Guarantors” has the meaning specified in the definition of “Collateral and Guarantee Requirement.” For avoidance of doubt, the Company in its sole discretion may cause any Restricted Subsidiary that is not a Guarantor to Guarantee the Secured Obligations by causing such Restricted Subsidiary to execute and deliver to the Administrative Agents a Guaranty Supplement (as defined in the Guaranty and to satisfy the Collateral and Guarantee Requirement), and any such Restricted Subsidiary shall thereafter be a Guarantor, Loan Party and Subsidiary Guarantor (and not an Excluded Subsidiary) hereunder for all purposes; provided that (i) if such Restricted Subsidiary is not organized in an existing Covered Jurisdiction, the jurisdiction or organization of such Restricted Subsidiary shall be reasonably satisfactory to the Collateral Agent, and the Administrative Agents and the Blackstone Representative, including taking into account imposition of fiduciary duties and/or (ii) if acting as Collateral Agent or Administrative Agent or entering into Loan Documents with Subsidiaries in such jurisdiction is prohibited by applicable Law or would expose the Collateral Agent or the Administrative Agent, in its capacity as such, to material additional liabilities or political risk.
Guaranty” means, collectively, (a) the Guaranty substantially in the form of Exhibit F and (b) each other guaranty and guaranty supplement delivered pursuant to Section 6.10.
Hazardous Materials” means all explosive or radioactive substances or wastes, and all other chemicals, pollutants, contaminants, substances or wastes of any nature regulated pursuant to any
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Environmental Law due to their dangerous or deleterious properties or characteristics, including petroleum or petroleum distillates, friable asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, per- and polyfluoroalkyl substances and toxic mold.
Hedge Bank” means (x) any Person that is a Lender, an Agent or an Affiliate of the foregoing on the Closing Date, or at the time it enters into a Swap Contract with a Loan Party or any Restricted Subsidiary and (y) any other Person designated by the Company with notice to eachthe Administrative Agent that enters into a Swap Contract with a Loan Party or any Restricted Subsidiary; provided that, in the case of this clause (y), such Person shall have appointed eachthe Administrative Agent and the Collateral Agent as its agents under the applicable Loan Documents and agreed to be bound by the provisions of Article IX in favor of the Agent as if it were a Lender and shall have been deemed to have made the representations and warranties set forth in Section 9.06 in favor of the Agents, in each case, pursuant to a writing substantially in the form of Exhibit O or otherwise reasonably satisfactory to the Company, each and the Administrative Agent and the Blackstone Representative.
Hedging Obligations” means, with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contracts, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate, commodity price or currency risks either generally or under specific contingencies.
Holding Company” means any Person so long as such Person directly or indirectly holds 100% of the total voting power of the Voting Stock of HoldingsShoals Intermediate, and at the time such Person acquired such voting power, no Person and no group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any such group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) (other than any Permitted Holder), shall have beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of such Person.
Holdings” has the meaning specified in the introductory paragraph to this Agreement.
Honor Date” has the meaning specified in Section 2.03(c)(i).
Immaterial Subsidiary” means, at any date of determination, each Restricted Subsidiary of the Company that (i) has not guaranteed any other Indebtedness of the Company and (ii) has Total Assets and total revenues of less than 5.0% of Total Assets and, together with all other Immaterial Subsidiaries (as determined in accordance with GAAP), has Total Assets and total revenues of less than 10.0% of Total Assets, in each case, measured at the end of the most recent fiscal period for which consolidated financial statements are available (which may be internal consolidated financial statements) and revenues on a pro forma basis giving effect to any acquisitions or dispositions of companies, division or lines of business since such balance sheet date or the start of such four quarter period, as applicable, and on or prior to the date of acquisition of such Subsidiary.
Immediate Family Members” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships, the estate of such individual and such other individuals above) and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.
Increased Amount” has the meaning specified in Section 7.01(b).
Incremental Facilities” has the meaning specified in Section 2.14(a).
Incremental Facility Amendment” has the meaning specified in Section 2.14(d).
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Incremental Facility Amendment No. 1” means that certain Incremental Facility Amendment No. 1, dated as of the Amendment No. 1 Effective Date, by and between the Loan Parties, Revolving Facility Administrative Agent,the Term Loan Administrative Agent (as defined in the Original Credit Agreement), the Administrative Agent, Collateral Agent and the Lenders party thereto.
Incremental Facility Closing Date” has the meaning specified in Section 2.14(d).
Incremental Incurrence Test” has the meaning specified in Section 2.14 (a).
Incremental Revolving Credit Commitments” has the meaning specified in Section 2.14(ea).
Incremental Revolving Lender” has the meaning specified in Section 2.14(d).
Incremental Term Loans” has the meaning specified in Section 2.14(a).
Incur” means issue, create, assume, enter into any Guarantee of, incur, extend or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and the terms “Incurred,” “Incurring” and “Incurrence” have meanings correlative to the foregoing and any Indebtedness pursuant to any revolving credit or similar facility shall only be “Incurred” at the time any funds are borrowed thereunder.
Indebtedness” means, with respect to any Person on any date of determination (without duplication):
(1)    the principal of indebtedness of such Person for borrowed money;
(2)    the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3)    all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit or other instruments plus the aggregate amount of drawings thereunder that have not been reimbursed) (except to the extent such reimbursement obligations relate to trade payables and such obligations are satisfied within 30 days of Incurrence);
(4)    the principal component of all obligations of such Person to pay the deferred and unpaid purchase price of property (except trade payables or similar obligations, including accrued expenses owed, to a trade creditor), which purchase price is due more than one year after the date of placing such property in service or taking final delivery and title thereto;
(5)    Capitalized Lease Obligations of such Person;
(6)    the principal component of all obligations, or liquidation preference, of such Person with respect to any Disqualified Stock or, with respect to any Restricted Subsidiary, any Preferred Stock (but excluding, in each case, any accrued dividends);
(7)    the principal component of all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness will be the lesser of (a) the fair market value of such asset at such date of determination (as determined in good faith by the Company) and (b) the amount of such Indebtedness of such other Persons;
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(8)    Guarantees by such Person of the principal component of Indebtedness of the type referred to in clauses (1), (2), (3), (4), (5) and (9) hereof of other Persons to the extent guaranteed by such Person; and
(9)    to the extent not otherwise included in this definition, net obligations of such Person under Hedging Obligations (the amount of any such obligations to be equal at any time to the net payments under such agreement or arrangement giving rise to such obligation that would be payable by such Person at the termination of such agreement or arrangement);
with respect to clauses (1), (2), (3), (4), (5) and (9) above, if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP.
The amount of Indebtedness of any Person at any time in the case of a revolving credit or similar facility shall be the total amount of funds borrowed and then outstanding. The amount of any Indebtedness outstanding as of any date shall be (a) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (b) the principal amount of Indebtedness, or liquidation preference thereof, in the case of any other Indebtedness. Indebtedness shall be calculated without giving effect to the effects of Financial Accounting Standards Board Accounting Standards Codification Topic No. 815—Derivatives and Hedging and related pronouncements to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.
Notwithstanding the foregoing, in no event shall the following constitute Indebtedness:
    (i)    Contingent Obligations Incurred in the ordinary course of business or consistent with past practice, other than Guarantees or other assumptions of Indebtedness;
    (ii)    Cash Management Obligations;
    (iii)    any lease, concession or license of property (or Guarantee thereof) which would be considered an operating lease under GAAP as in effect on December 31, 2018, Non-Financing Lease Obligations, Sale and Leaseback Transactions or any prepayments of deposits received from clients or customers in the ordinary course of business or consistent with past practice;
    (iv)    obligations under any license, permit or other approval (or Guarantees given in respect of such obligations) incurred prior to the Closing Date or in the ordinary course of business or consistent with past practice;
    (v)    in connection with the purchase by the Borrower or any Restricted Subsidiary of any business, any deferred or prepaid revenue, post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided, however, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid in a timely manner;
    (vi)    for the avoidance of doubt, any obligations in respect of workers’ compensation claims, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage Taxes;
    (vii)     obligations under or in respect of Qualified Securitization Financing or Receivables Facilities;
    (viii)    deferred obligations owing to the Permitted Holders pursuant to management agreements in effect on the Closing Date;
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    (ix)    obligations of any Parent Entity appearing on the balance sheet of the Company solely by reason of push down accounting under GAAP;
    (x)    Capital Stock (other than in the case of clause (6) above, Disqualified Stock or Preferred Stock of a Restricted Subsidiary);
    (xi)    amounts owed to dissenting stockholders (including in connection with, or as a result of, exercise of dissenters’ or appraisal rights and the settlement of any claims or action (whether actual, contingent or potential)), pursuant to or in connection with a consolidation, amalgamation, merger or transfer of assets that complies with Section 7.04 hereof; or
    (xii)    obligations under the TRA[reserved].
Indemnified Liabilities” has the meaning specified in Section 10.05.
Indemnified Taxes” means (a) all Taxes, other than Excluded Taxes, imposed on or in respect of any payment made by or on account of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
Indemnitees” has the meaning specified in Section 10.05.
Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing; provided, however, that such firm or appraiser is not an Affiliate of the Company.
Information” has the meaning specified in Section 10.08.
Initial Agreement” has the meaning specified in Section 7.08(b)(xvi).
“Initial Holdings” has the meaning specified in the introductory paragraph to this Agreement.
Initial Revolving Credit Facility Cap” has the meaning specified in Section 2.14(f).
Initial Term Commitment” means, as to any Lender, its obligation to make an Initial Term Loan to the Company on the Closing Date pursuant to Section 2.01 in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01(A) under the caption “Initial Term Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. The initial aggregate amount of the Initial Term Commitments is $350.0 million.
Initial Term Lender” means, at any time, any Lender that has an Initial Term Commitment or an Initial Term Loan at such time.
Initial Term Loan” means a Loan made pursuant to Section 2.01(a)(i). Initial Term Loans made pursuant to Section 2.01(a) on the Closing Date shall be deemed to constitute one Class of Loans for all purposes hereunder.
Intercompany License Agreement” means any cost sharing agreement, commission or royalty agreement, license or sublicense agreement, distribution agreement, services agreement, IP Rights assignment or transfer agreement, any related agreements or similar agreements, in each case where all parties to such agreement are one or more of Holdings, the Company or a Restricted Subsidiary.
Interest Coverage Ratio” means the ratio of (a) LTM EBITDA as of such date to (b) Consolidated Cash Interest Expense as of such date.
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Interest Payment Date” means (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided, that if any Interest Period for a Term Benchmark Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made.
Interest Period” means, as to each Term Benchmark Loan, the period commencing on the date such Loan is disbursed or converted to or continued as a Term Benchmark Loan and ending on the date one, three or six months thereafter; provided, that:
(a)    any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b)    any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c)    no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.
Intermediate Holding Company” means any wholly-owned Subsidiary of a Holdings Company that directly or indirectly through another Intermediate Holding Company, owns 100.0% of the issued and outstanding Capital Stock of the Company.
Investment” means, with respect to any Person, (a) all investments by such Person in other Persons (including Affiliates) in the form of any advances, loans or other extensions of credit (excluding (i) accounts receivable, trade credit, advances or extensions of credit to customers, suppliers, future, present or former employees, directors, officers, managers, contractors, consultants or advisors (or their respective Controlled Investment Affiliates or Immediate Family Members) of any Person in the ordinary course of business or consistent with past practice, (ii) any debt or extension of credit represented by a bank deposit other than a time deposit, (iii) intercompany advances arising from cash management, tax and accounting operations and (iv) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms)) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or the Incurrence of a Guarantee of any obligation of, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such other Persons and all other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP and (b) any purchase or other acquisition (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business and capital expenditures), of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person; provided, that endorsements of negotiable instruments and documents in the ordinary course of business or consistent with past practice will not be deemed to be an Investment.
For purposes of Sections 6.13 and 7.06 hereof:
(1)    “Investment” will include the portion (proportionate to Holdings’the Company’s equity interest in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net assets of such Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, Holdingsthe Company will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) Holdings’the Company’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to Holdings’the Company’s equity interest in such Subsidiary)
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of the fair market value of the net assets (as determined by the Company in good faith) of such Subsidiary at the time that such Subsidiary is so re-designated a Restricted Subsidiary;
(2)    any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, in each case as determined by the Company in good faith; and
(3)    if Holdingsthe Company or any Restricted Subsidiary issues, sells or otherwise disposes of Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto, such Person is no longer a Restricted Subsidiary, any investment by Holdingsthe Company or any Restricted Subsidiary in such Person remaining after giving effect thereto shall not be deemed to be an Investment at such time.
The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash and Cash Equivalents by Holdingsthe Company or a Restricted Subsidiary in respect of such Investment to the extent such amounts do not increase any other baskets under this Agreement.
Investment Grade Securities” means:
(1)    securities issued or directly and fully Guaranteed or insured by the United States or Canadian government or any agency or instrumentality thereof (other than Cash Equivalents);
(2)    securities issued or directly and fully guaranteed or insured by the Canadian, United Kingdom or Japanese governments, a member state of the European Union, or any agency or instrumentality thereof (other than Cash Equivalents);
(3)    debt securities or debt instruments with a rating of “BBB-” or higher from S&P or “Baa3” or higher by Moody’s or the equivalent of such rating by such rating organization or, if no rating of Moody’s or S&P then exists, the equivalent of such rating by any other Nationally Recognized Statistical Rating Organization, but excluding any debt securities or instruments constituting loans or advances among Holdingsthe Company and its Subsidiaries;
(4)    investments in any fund that invests exclusively in investments of the type described in clauses (1), (2) and (3) above which fund may also hold cash and Cash Equivalents pending investment or distribution; and
(5)    corresponding instruments in countries other than the United States customarily utilized for high quality investments.
IP Rights” has the meaning specified in Section 5.14.
IPO” means any transaction whereby, or upon the consummation of which, a Parent Entity of Holdings’ or Holdings’the Company or the Company’s common equity interests are, or may thereafter be, offered or sold (whether through an initial primary underwritten public offering or otherwise) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act, or to the equivalent registration documents filed with the equivalent authority in the applicable foreign jurisdiction.
“IP Rights” has the meaning specified in Section 5.14.
ISDA CDS Definitions” has the meaning specified in Section 10.01.
ISP” means, with respect to any Letter of Credit, the “International Standby Practices  1998” published by the Institute of International Banking Law & Practice, Inc.  (or such later version thereof as may be in effect at the time of issuance).
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JPMorgan” has the meaning specified in the introductory paragraph to this Agreement.
Judgment Currency” has the meaning specified in Section 10.17.
Junior Priority Indebtedness” means Indebtedness of the Borrower and/or the Guarantors that is secured by Liens on the Collateral ranking junior in priority to the Liens securing the Secured Obligations of the Borrower and/or the Guarantors as permitted by this Agreement.
JV Entity” means any joint venture of Holdingsthe Company or any Restricted Subsidiary that is not a Subsidiary.
L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the applicable Honor Date or refinanced as a Revolving Credit Borrowing.
L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
L/C Exposure” means, at any time, the sum of (a) the undrawn portion of the Outstanding Amount of all Letters of Credit at such time and (b) the Outstanding Amount of all L/C Borrowings in respect of Letters of Credit that have not yet been reimbursed by or on behalf of the Company at such time. The L/C Exposure of any Revolving Credit Lender at any time shall be its Applicable Percentage of the aggregate L/C Exposure at such time.
L/C Issuer” means (i) each of the Revolving Credit Lenders and (ii) any other Lender (or any of its Affiliates) that becomes an L/C Issuer in accordance with Section 2.03(j) or Section 10.07(j); in the case of each of clause (i) through (ii) above, in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
L/C Issuer Sublimit” means with respect to (a) (i) JPMorgan, on the Amendment No. 16 Effective Date, $17.5 million20,500,000, (ii) Goldman Sachs Bank USA, on the Amendment No. 16 Effective Date, $15 million7,375,000, (iii) UBS Bank of America, N.AG, Stamford Branch,. on the Amendment No. 16 Effective Date, $7.5 million7,375,000, (iv) Morgan Stanley Senior Funding, IncCitibank, N.A., on the Amendment No. 16 Effective Date, $4 million, (v) Credit Suisse AG, Cayman Islands Branch7,375,000 and (v) Fifth Third Bank, National Association, on the Amendment No. 16 Effective Date, $3 million and (vi) Barclays Bank PLC, on the Amendment No. 1 Effective Date, $3 million and7,375,000 and (b) with respect to any other L/C Issuer, such amount as may be mutually agreed between the Company and such L/C Issuer and notified in writing to the Revolving Facility Administrative Agent by such parties.
L/C Obligation” means, as at any date of determination, the aggregate maximum amount then available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts in respect of Letters of Credit, including all L/C Borrowings. For all purpose under this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, the “Outstanding Amount” of such Letter of Credit shall be deemed to be the amount so remaining available to be drawn.
Latest Maturity Date” means, at any date of determination, the latest Maturity Date applicable to any Loan or Commitment hereunder at such time, including the latest maturity date of any Extended Term Loan or Incremental Term Loan, in each case as extended in accordance with this Agreement from time to time.
Laws” means, collectively, all international, foreign, federal, state, provincial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents
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or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
LCT Election” has the meaning specified in Section 1.09(a).
LCT Public Offer” has the meaning specified in Section 1.09(a).
LCT Test Date” has the meaning specified in Section 1.09(a).
Lender” has the meaning specified in the introductory paragraph to this Agreement and, as the context requires, includes an L/C Issuer, and its successors and assigns as permitted hereunder, each of which is referred to herein as a “Lender.”
Lender Participation Notice” has the meaning specified in Section 2.05(d)(iii).
Letter of Credit” means any letter of credit issued hereunder. A Letter of Credit may be a commercial letter of credit or a standby letter of credit.
Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the relevant L/C Issuer.
Letter of Credit Expiration Date” means, for Letters of Credit under the Revolving Credit Facility, the day that is five (5) Business Days prior to the scheduled Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
Letter of Credit Sublimit” means an amount equal to the lesser of (a) $50.0 million and (b) the aggregate amount of Revolving Credit Commitments.
Lien” means any mortgage, pledge, security interest, encumbrance, lien, hypothecation or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof); provided that in no event shall Non-Financing Lease Obligations be deemed to constitute a Lien.
Limited Condition Transaction” means (1) any Investment or acquisition (whether by merger, amalgamation, consolidation or other business combination or the acquisition of Capital Stock or otherwise and which may include, for the avoidance of doubt, a transaction that may constitute a Change of Control), whose consummation is not conditioned on the availability of, or on obtaining, third party financing, (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment; and (3) any dividend or distribution declared by Holdingsthe Company or any of its rRestricted sSubsidiaries following an initial public offering of such entity.
Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan or a Revolving Credit Loan (including any Incremental Term Loans, any Extended Term Loans or loans made pursuant to Extended Revolving Credit Commitments).
Loan Documents” means, collectively, (i) this Agreement, (ii) the Notes, (iii) each Guaranty, (iv) the Collateral Documents, (v) each Letter of Credit Application, (vi) any Customary Intercreditor Agreement, (vii) the Global Intercompany Note, (viii) the Fee Letters, (ix) Incremental Facility Amendment No. 1, (x) Amendment No. 2 and, (xi) Amendment No. 3, (xii) Amendment No. 4, (xiii) Amendment No. 5 and (xiv) Amendment No. 6, in each case as amended.
Loan Parties” means, collectively, (i) the Borrower, and (ii) Holdings, and (iii) each other Guarantor.
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Local Time” means local time in New York City, with respect to the times for (i) the determination of “Dollar Equivalent” and (ii) the receipt and sending of notices by and to and the disbursement by or payment to anythe Administrative Agent, any L/C Issuer or Lender with respect to Loans and Letters of Credit denominated in Dollars.
LTM EBITDA” means Consolidated EBITDA of Holdingsthe Company measured for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements are available, in each case with such pro forma adjustments giving effect to such Indebtedness, acquisition or Investment, as applicable, since the start of such four quarter period and as are consistent with the pro forma adjustments set forth in Section 1.09; provided, that to the extent LTM EBITDA is being tested as of the last day of any Test Period, the financial statements used for such calculation shall be those referenced in the definition of “Test Period.”
Make Whole Amount” means, as of any date of determination, an amount in cash equal to the sum of (i) 2.00% of the aggregate amount of Term Loans being prepaid plus (ii) the interest payments that would have been paid on the principal amount of Initial Term Loans so prepaid if such principal amount had been outstanding from the date of prepayment to the first anniversary of the Closing Date and paid on such date, assuming that all such interest accrues at the interest rate applicable to Adjusted Term SOFR Loans (assuming a one-month Interest Period) plus the Applicable Margin for Adjusted Term SOFR Loans, in each case, discounted to the date of prepayment or acceleration at a rate equal to the treasury rate plus 0.50%; provided, that following any acceleration, the Make Whole Amount shall be reduced by the amount of any interest (other than interest payable at the Default Rate) accruing after the date of such acceleration that is actually paid in cash to the Lenders.
Management Advances” means loans or advances made to, or Guarantees with respect to loans or advances made to, future, present or former employees, directors, officers, managers, contractors, consultants or advisors (or their respective Controlled Investment Affiliates or Immediate Family Members) of any Parent Entity, Holdingsthe Company or any Restricted Subsidiary:
(1)    (a) in respect of travel, entertainment, relocation or moving related expenses, payroll advances and other analogous or similar expenses or payroll expenses, in each case Incurred in the ordinary course of business or consistent with past practice or (b) for purposes of funding any such person’s purchase of Capital Stock (or similar obligations) of Holdingsthe Company, its Subsidiaries or any Parent Entity with (in the case of this clause (1)(b)) the approval of the Board of Directors;
(2)    in respect of relocation or moving related expenses, payroll advances and other analogous or similar expenses or payroll expenses, in each case Incurred in connection with any closing or consolidation of any facility or office; or
(3)    not exceeding the greater of $38.0 million and 5.0% of LTM EBITDA in the aggregate outstanding at the time of incurrence.
Management Stockholders” means the members of management of Holdingsthe Company (or any Parent Entity) or its Subsidiaries who are holders of Capital Stock of Holdingsthe Company or of any Parent Entity on the Closing Date or become holders of such Capital Stock.
Master Agreement” has the meaning specified in the definition of “Swap Contract.”
Material Adverse Effect” means a material adverse effect on (a) the business or financial condition or results of operations of Holdingsthe Company and its Restricted Subsidiaries, taken as a whole, (b) the material rights and remedies (taken as a whole) of the Administrative Agents, the Collateral Agent or the Lenders under the Loan Documents (other than due to the action or inaction of anythe Administrative Agent, the Collateral Agent or the Lenders) or (c) the ability of the Borrower and the Guarantors, taken as a whole, to perform their payment obligations under the Loan Documents.
“Material Acquisition” means any Acquisition in which the aggregate consideration payable by the Company and/or any Restricted Subsidiary has a value of $250,000,000 or more.
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Material Intellectual Property” means any IP Right owned by the Company and its Subsidiaries that is material to the business of Company and the Restricted Subsidiaries after giving effect to any designation of an Unrestricted Subsidiary, taken as a whole (whether owned as of the Closing Date or thereafter acquired).
Material Real Property” means (a) any fee interest in real property owned by a Loan Party on the ClosingAmendment No. 6 Effective Date, having a fair market value in excess of $12,5,000,000, as set forth on Schedule 1.01B to the Closing Date Certificate and (b) any fee interest in real property acquired by any Loan Party following the ClosingAmendment No. 6 Effective Date located in the United States with a fair market value in excess of $12,5,000,000.
Material Subsidiary” means, at any date of determination, each Restricted Subsidiary of the Company that is not an Immaterial Subsidiary (but including, in any case, any Restricted Subsidiary that has been designated as a Material Subsidiary as provided in, or has been designated as an Immaterial Subsidiary in a manner that does not comply with, the definition of “Immaterial Subsidiary”).
Maturity Date” means (a) with respect to the Revolving Credit Facility (if any), the fifth anniversary of the Amendment No. 16 Effective Date, and (b) with respect to any Extended Revolving Credit Commitments, the maturity date applicable to such Extended Revolving Credit Commitments in accordance with the terms hereof, (c) with respect to Initial Term Loans, the sixth anniversary of the Closing Date or (d) with respect to any (i) Extended Term Loan, the maturity date applicable to such Extended Term Loan in accordance with the terms hereof or (ii) Incremental Term Loan, the maturity date applicable to such Incremental Term Loan in accordance with the terms hereof; provided, that if any such day is not a Business Day, the Maturity Date shall be the Business Day immediately preceding such day.
Maximum Rate” has the meaning specified in Section 10.25.
Maximum Tender Condition” has the meaning specified in Section 2.17(b).
MFN Adjustment” has the meaning specified in Section 2.14(b).
MFN Qualifying Term Loans” means any term loans that are (i) secured by the Collateral on a pari passu basis with the Initial Term Loans and (ii) pari passu in right of payment with the Initial Term Loans.
Minimum Extension Condition” has the meaning specified in Section 2.15(b).
Minimum TenderExtension Condition” has the meaning specified in Section 2.175(b).
Minimum Tranche Amount” has the meaning specified in Section 2.15(b).
Moody’s” means Moody’s Investors Service, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
Mortgage” means, collectively, the deeds of trust, trust deeds, deeds of hypothecation, security deeds, immovable hypothecs, and mortgages creating and evidencing a Lien on a Mortgaged Property made by the Loan Parties in favor or for the benefit of the Collateral Agent on behalf of the Secured Parties in form and substance reasonably satisfactory to the Collateral Agent, and the Administrative Agents and the Blackstone Representative, and any other mortgages executed and delivered pursuant to Section 4.01 and Section 6.10 and/or Section 6.12, as applicable, in each case, as amended, restated, amended and restated, supplemented or modified from time to time.
Mortgage Policies” has the meaning specified in paragraph (f) of the definition of Collateral and Guarantee Requirement.
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Mortgaged Property” means each Material Real Property which shall be subject to a Mortgage delivered pursuant to Section 4.01, Section 6.10 and/or Section 6.12, as applicable.
Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the immediately preceding six (6) years, has made or been obligated to make contributions.
Nationally Recognized Statistical Rating Organization” means a nationally recognized statistical rating organization within the meaning of Rule 436 under the Securities Act.
Net Available Cash” with respect to any Asset Disposition or Casualty Event (as applicable) means cash proceeds received (including any cash proceeds received from the sale or other disposition of any non-cash consideration received in any Asset Disposition, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or received in any other non-cash form) therefrom, in each case net of:
(1)    all legal, accounting, consulting, investment banking, survey costs, title and recording expenses, title insurance premiums, payments made in order to obtain a necessary consent or required by applicable law, brokerage and sales commissions, relocation expenses, commissions, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or similar fees) in connection with such transaction;
(2)    all Taxes paid, reasonably estimated to be payable, Tax reserves set aside or payable or accrued as a liability under GAAP (including, for the avoidance of doubt, any income, withholding and other Taxes payable as a result of the distribution or deemed distribution of such proceeds to Holdings or any of its Subsidiaries, transfer taxes, deed or mortgage recording taxes and Taxes that would be payable in connection with any repatriation of such proceeds), as a consequence of such transaction, including distributions made in accordance with Section 7.06(b)(ix)(C) or any transactions occurring or deemed to occur to effectuate a payment under this Agreement;
(3)    in the case of any Asset Disposition of assets that do not constitute Collateral, all payments made on any Indebtedness which is secured by any assets subject to such transaction, in accordance with the terms of any Lien upon such assets, or which by applicable law is required to be repaid out of the proceeds from such transaction;
(4)    all distributions and other payments required to be made to non-controlling interest or minority interest holders (other than any Parent Entity, Holdings or any of its respective Subsidiaries) in Subsidiaries or joint ventures as a result of such transaction;
(5)    all costs associated with unwinding any related Hedging Obligations in connection with such transaction;
(6)    the deduction of appropriate amounts required to be provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the assets disposed of in such transaction and retained by Holdings or any Restricted Subsidiary after such transaction, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction;
(7)    any portion of the purchase price from such transaction placed in escrow, whether for the satisfaction of any indemnification obligations in respect of such transaction, as a reserve for adjustments to the purchase price associated with any such transaction or otherwise in connection with such transaction; and
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(8)    the amount of any liabilities (other than Indebtedness in respect of this Agreement and any other Indebtedness secured on an equal or junior priority basis with the foregoing) directly associated with such asset being sold and retained by Holdings or any of its Restricted Subsidiaries.
Net Cash Proceeds,” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually Incurred in connection with such issuance or sale and net of Taxes paid or reasonably estimated to be actually payable as a result of such issuance or sale (including, for the avoidance of doubt, any income, withholding and other Taxes payable as a result of the distribution of such proceeds to the Company and after taking into account any available tax credit or deductions and any tax sharing agreements, and including any distributions made in accordance with Section 7.06(b)(ix)(C)).
Net Short Lender” has the meaning specified in Section 10.01.
Non-Consenting Lender” has the meaning specified in Section 3.06(d).
Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).
Non-Financing Lease Obligation” means any other lease obligation that is not required to be accounted for as a financing or capital lease in accordance with GAAP. For the avoidance of doubt, an operating lease shall be considered a Non-Financing Lease Obligation.
Non-Loan Party” means any Restricted Subsidiary that is not a Borrower or Guarantor.
Note” means a Term Note or a Revolving Credit Note as the context may require.
NYFRB” means the Federal Reserve Bank of New York.
NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Rate in effect on such day and (b) the Overnight Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided, that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the applicable Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Obligations” means any principal, interest (including Post-Petition Interest and fees accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Borrower or any Guarantor whether or not a claim for Post-Petition Interest or fees is allowed in such proceedings), penalties, fees, expenses, indemnifications, reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities payable under the documentation governing any Indebtedness.
Offered Loans” has the meaning specified in Section 2.05(d)(iii).
Officer” means, with respect to any Person, (1) the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, any Assistant Treasurer, any Managing Director, the Secretary or any Assistant Secretary (a) of such Person or (b) if such Person is owned or managed by a single entity, of such entity, or (2) any other individual designated as an “Officer” for the purposes of this Agreement by the Board of Directors of such Person.
Officer’s Certificate” means, with respect to any Person, a certificate signed by one Officer of such Person.
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Organization Documents” means (a) with respect to any corporation or company, the certificate or articles of incorporation, the memorandum and articles of association, any certificates of change of name and/or the bylaws; (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, declaration, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
Other Applicable Indebtedness” has the meaning specified in Section 2.05(b)(ii)(C).
Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).
Outstanding Amount” means (a) with respect to any Loan on any date, the outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments thereof (including any refinancing of outstanding Unreimbursed Amounts under Letters of Credit or L/C Borrowings as a Revolving Credit Borrowing) occurring on such date; and (b) with respect to any Letter of Credit, Unreimbursed Amount, L/C Borrowing or L/C Obligations on any date, the Dollar Equivalent of the outstanding amount thereof on such date after giving effect to any related L/C Credit Extension occurring on such date and any other changes thereto as of such date, including as a result of any reimbursements of outstanding Unreimbursed Amounts under related Letters of Credit (including any refinancing of outstanding Unreimbursed Amounts under related Letters of Credit or related L/C Credit Extensions as a Revolving Credit Borrowing) or any reductions in the maximum amount available for drawing under related Letters of Credit taking effect on such date.
Overnight Rate shall mean, for any day, the rate comprised of both overnight federal funds and overnight eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the Federal Reserve Bank of New York’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
Parent Entity” means any direct or indirect parent of Holdingsthe Company.
Parent Entity Expenses” means:
(1)    fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) Incurred or paid by any Parent Entity in connection with reporting obligations under or otherwise Incurred or paid in connection with compliance with applicable laws, rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, this Agreement or any other agreement or instrument relating to the Loans, the Guarantees or any other Indebtedness of Holdingsthe Company or any Restricted Subsidiary, including in respect of any reports filed or delivered with respect to the Securities Act, Exchange Act or the rules and regulations promulgated thereunder;
(2)    customary salary, bonus, severance, indemnity, insurance (including premiums therefor) and other benefits payable to any employee, director, officer, manager, contractor,
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consultant or advisor of any Parent Entity or other Persons under its articles, charter, by-laws, partnership agreement or other organizational documents or pursuant to written agreements with any such Person;
(3)    obligations of any Parent Entity in respect of director and officer insurance (including premiums therefor) to the extent relating to Holdingsthe Company and its Subsidiaries;
(4)    (x) general corporate operating and overhead fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) and following the first public offering of the Company’s Capital Stock or the Capital Stock of any Parent Entity, listing fees and other costs and expenses attributable to being a publicly traded company of any Parent Entity and (y) other operational expenses of any Parent Entity related to the ownership or operation of the business of Holdingsthe Company or any of its Restricted Subsidiaries;
(5)    expenses Incurred by any Parent Entity in connection with (i) any offering, sale, conversion or exchange of Capital Stock or Indebtedness (whether or not consummated or successful) and, after the consummation of an initial public offering, any Public Company Costs and (ii) any related compensation paid to employees, directors, officers, managers, contractors, consultants or advisors (or their respective Controlled Investment Affiliates or Immediate Family Members) of such Parent Entity;
(6)    amounts payable pursuant to any management services or similar agreements or the management services provisions in an investor rights agreement or other equityholders’ agreement (including any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the reasonable determination of the Company to the Lenders when taken as a whole, as compared to the management services or similar agreements as in effect immediately prior to such amendment or replacement), solely to the extent such amounts are not paid directly by Holdingsthe Company or its Subsidiaries; and
(7)    amounts to finance Investments that would otherwise be permitted to be made pursuant to Section 7.06 hereof if made by Holdingsthe Company or a Restricted Subsidiary; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment, (B) such Parent Entity shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or equity interests) to be contributed to the capital of Holdingsthe Company or one of its Restricted Subsidiaries or (2) the merger, consolidation or amalgamation of the Person formed or acquired into Holdingsthe Company or one of its Restricted Subsidiaries (to the extent not prohibited by Section 7.04 hereof) in order to consummate such Investment, (C) such Parent Entity and its Affiliates (other than Holdingsthe Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent Holdingsthe Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Agreement and such consideration or other payment is included as a Restricted Payment under this Agreement, (D) any property received by Holdingsthe Company shall not increase amounts available for Restricted Payments pursuant to Section 7.06(a) hereof and (E) such Investment shall be deemed to be made by Holdingsthe Company or such Restricted Subsidiary pursuant to a provision of Section 7.06 hereof or pursuant to the definition of “Permitted Investment.”
Pari Passu Indebtedness” means Indebtedness of the Company which ranks equally in right of security to the Secured Obligations (but subject to the priorities applicable to the Priority Payment Obligations) or of any Guarantor if such Indebtedness ranks equally in right of payment and security to the Guaranty of the Secured Obligations (but subject to the priorities applicable to the Priority Payment Obligations).
Participant” has the meaning specified in Section 10.07(e).
Participant Register” has the meaning specified in Section 10.07(e).
“Payment” has the meaning assigned to it in Section 9.03(q).
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“Payment Notice” has the meaning assigned to it in Section 9.03(q)(i).
PBGC” means the Pension Benefit Guaranty Corporation.
Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA) other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding six (6) years.
Permitted Acquisition” means the purchase or other acquisition of property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person, or equity interests in a Person that, upon the consummation thereof, will be a Restricted Subsidiary of the Company (including as a result of a merger or consolidation); provided that (i) except in the case of a Limited Condition Transaction (in which case, compliance with this clause (i) shall be determined in accordance with Section 1.09(a)), immediately before and immediately after giving pro forma effect to any such purchase or other acquisition, no Event of Default shall have occurred and be continuing, (ii) after giving effect to any such purchase or other acquisition, the Company shall be in compliance with the covenant in Section 7.11 and (iii) to the extent required by the Collateral and Guarantee Requirement, (A) the property, assets and businesses acquired in such purchase or other acquisition shall become Collateral and (B) any such newly created or acquired Restricted Subsidiary (other than an Excluded Subsidiary) shall become Guarantors, in each case in accordance with Section 6.10; provided, further that, to the extent the total consideration for a Permitted Acquisition exceeds $25,000,000, the Company shall have delivered to the Administrative Agents and the Blackstone Representative on or prior to the date of such Permitted Acquisition customary financial information as reasonably requested by anythe Administrative Agent (solely in the case of the Term Loan Administrative Agent, acting at the direction of the Blackstone Representative) or the Blackstone Representative and a quality of earnings report, in each case, solely to the extent available.
Permitted Alternative Incremental Facilities Debt” has the meaning specified in Section 7.03(b)(xx).
Permitted Asset Swap” means the concurrent purchase and sale or exchange of assets used or useful in a Similar Business or a combination of such assets and cash, Cash Equivalents between the Company or any of the Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received in excess of the value of any cash or Cash Equivalents sold or exchanged must be applied in accordance with Section 7.05 hereof.
Permitted Debt Exchange” has the meaning specified in Section 2.17(a).
Permitted Debt Exchange Notes” has the meaning specified in Section 2.17(a).
Permitted Debt Exchange Offer” has the meaning specified in Section 2.17(a).
Permitted Holders” means, collectively, (i) the Sponsor, (ii) Dean Solon, the Management Stockholders (including any Management Stockholders holding Capital Stock through an equityholding vehicle) and rollover equity investors, (iii) any heirs, executors, administrators, testamentary trustees, legatees or beneficiaries of a person identified in clause (ii) above, (iv) any trust, the beneficiaries of which, or a corporation or partnership, the stockholders or partners of which, include only a person identified in clause (ii) above, his or her spouse, parents, siblings, members of his or her immediate family (including adopted children and step children) and/or direct lineal descendants) (v) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing, any Holding Company, Permitted Plan or any Person or group that becomes a Permitted Holder specified in the last sentence of this definition are members and any member of such group; provided that, in the case of such group and without giving effect to the existence of such group or any other group, Persons referred to in subclauses (i) through (iv), collectively, have beneficial ownership of more than 50.0% of the total voting power of the Voting Stock of Holdingsthe
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Company or any Parent Entity, (vi) any Holding Company and (vii) any Permitted Plan. Any Person or group whose acquisition of beneficial ownership constitutes a Change of Control the Event of Default resulting from which is waived in accordance with the requirements of this Agreement, will thereafter, together with its Affiliates, constitute an additional Permitted Holder.
Permitted Intercompany Activities” means any transactions between or among the Company and the Restricted Subsidiaries that are entered into in the ordinary course of business or consistent with past practice of the Company and the Restricted Subsidiaries and, in the reasonable determination of the Company are necessary or advisable in connection with the ownership or operation of the business of the Company and the Restricted Subsidiaries, including (i) payroll, cash management, purchasing, insurance and hedging arrangements; (ii) management, technology and licensing arrangements; and (iii) customary loyalty and rewards programs.
Permitted Investments” means (in each case, by the Company or any of the Restricted Subsidiaries):
(a)    Investments in (i) a Restricted Subsidiary (including the Capital Stock of, or guarantees of obligations of, a Restricted Subsidiary) or the Company or (ii) a Person (including the Capital Stock of any such Person) that will, upon the making of such Investment, become a Restricted Subsidiary; provided that the aggregate amount of Investments pursuant to this clause (a) in Persons that are not Loan Parties shall not exceed the greater of $381.0 million and 50% of LTM EBITDA
(b)    Investments in another Person if such Person is engaged, directly or through entities that will be Restricted Subsidiaries, in any Similar Business and as a result of such Investment such other Person, in one transaction or a series of transactions, is merged, amalgamated, consolidated or otherwise combined with or into, or transfers or conveys all or substantially all its assets (or such division, business unit, product line or business) to, or is liquidated into, the Company or a Restricted Subsidiary, and any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation, combination, transfer or conveyance;
(c)    (i) Permitted Acquisitions and (ii) any Investment held by a Restricted Subsidiary acquired pursuant to a Permitted Acquisition at the time of such Permitted Acquisition; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation, combination, transfer or conveyance; provided, further, that the aggregate amount of Investments in Persons pursuant to this clause (c) that are not Loan Parties shall not exceed the greater of $161.0 million and 100% of LTM EBITDA; provided that the foregoing limitation shall not apply in the event that, after giving pro forma effect to the applicable Permitted Acquisition, 75% of Consolidated EBITDA of the target is or will become attributable to the Loan Parties;
(d)    Investments in cash, Cash Equivalents or Investment Grade Securities;
(e)    Investments in receivables owing to the Company or any Restricted Subsidiary created or acquired in the ordinary course of business or consistent with past practice;
(f)    Investments in payroll, travel, entertainment, relocation, moving related and similar advances that are made in the ordinary course of business or consistent with past practice;
(g)    Management Advances;
(h)    Investments (including debt obligations and equity interests) (a) received in settlement, compromise or resolution of debts created in the ordinary course of business or consistent with past practice, (b) in exchange for any other Investment or accounts receivable, endorsements for collection or deposit and trade arrangements, (c) as a result of foreclosure, perfection or enforcement of any Lien, (d) in satisfaction of judgments or (e) pursuant to any plan of reorganization or similar arrangement including upon the bankruptcy or insolvency of a debtor or litigation, arbitration or other disputes or otherwise with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
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(i)    Investments made as a result of the receipt of promissory notes or other non-cash consideration (including earn-outs) from a sale or other disposition of property or assets, including an Asset Disposition;
(j)    Investments existing or pursuant to binding commitments, agreements or arrangements in effect on the Closing Date; provided that any such Investment in an outstanding amount in excess of $1.0 million shall be listed on Schedule 1.01G to the Closing Date Certificate and (b) any modification, replacement, renewal, reinvestment or extension of Investments existing on the Closing Date; provided that the amount of any such Investment may not be increased except (i) as required by the terms of such Investment or binding commitment as in existence on the Closing Date (including in respect of any unused commitment), plus any accrued but unpaid interest (including any accretion of interest, original issue discount or the issuance of pay-in-kind securities) and premium payable by the terms of such Indebtedness thereon and fees and expenses associated therewith as of the Closing Date or (ii) as otherwise permitted under this Agreement;
(k)    Hedging Obligations, including any terminations or unwinding thereof, which transactions or obligations are not prohibited by Section 7.03 hereof;
(l)    pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or Liens otherwise described in the definition of “Permitted Liens” or made in connection with Liens permitted under Section 7.01 hereof;
(m)    any Investment to the extent made using Capital Stock of Holdingsthe Company (other than Disqualified Stock) or Capital Stock of any Parent Entity or any Unrestricted Subsidiary (other than an Unrestricted Subsidiary whose only material assets are cash and Cash Equivalents) as consideration;
(n)    any transaction to the extent constituting an Investment that is permitted and made in accordance with Section 7.07(b) hereof (except those described in Sections 7.07(b)(i), (iv), (viii), (ix) and (xiv));
(o)    Investments consisting of (i) asset purchases (including acquisitions of inventory, supplies, materials, equipment and similar assets) or (ii) licenses, sublicenses, cross-licenses, leases, subleases, assignments, transfers, contributions or other Investments of IP Rights or other intangibles or services in the ordinary course of business pursuant to any joint research or development, joint venture, strategic alliance or marketing arrangements with other Persons or any Intercompany License Agreement and any other Investments made in connection therewith;
(p)    (i) Guarantees of Indebtedness not prohibited by Section 7.03 hereof and (other than with respect to Indebtedness) guarantees, keepwells and similar arrangements in the ordinary course of business or consistent with past practice, and (ii) performance guarantees and Contingent Obligations with respect to obligations that are permitted by this Agreement;
(q)    Investments consisting of earnest money deposits required in connection with a purchase agreement, or letter of intent, or other acquisitions to the extent not otherwise prohibited by this Agreement;
(r)    Investments of a Restricted Subsidiary acquired after the Closing Date or of an entity merged or amalgamated into or consolidated with the Company or merged or amalgamated into or consolidated with a Restricted Subsidiary after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation, or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(s)    any Investment in any Subsidiary or any joint venture in the ordinary course of business or consistent with past practice (including any cash management arrangements, cash pooling arrangements, intercompany loans or activities related thereto);
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(t)    [reserved];
(u)    contributions to a “rabbi” trust for the benefit of any employee, director, officer, manager, contractor, consultant, advisor or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Company, and Investments relating to non-qualified deferred payment plans in the ordinary course of business or consistent with past practice;
(v)    Investments in joint ventures and similar entities and Unrestricted Subsidiaries having a fair market value, when taken together with all other Investments made pursuant to this clause that are at that time outstanding, not to exceed the greater of $2256.0 million and 35.0% of LTM EBITDA at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value), plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) in respect of such Investments received by the Company or a Restricted Subsidiary (without duplication for purposes of Section 7.06 of any amounts applied pursuant to Section 7.06(a)) with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value; provided, however, that if any Investment pursuant to this clause is made in any Person that is not the Company or a Restricted Subsidiary at the date of the making of such Investment and such person becomes the Company or a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (i) or (ii) above and shall cease to have been made pursuant to this clause;
(w)    additional Investments having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (w) that are at that time outstanding, not to exceed the greater of $2873.0 million and 45.0% of LTM EBITDA (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value) plus unused amounts pursuant to Section 7.06(b)(xvii)(i) and Section 7.06(b)(xxiv), plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) in respect of such Investments received by the Company or a Restricted Subsidiary (without duplication for purposes of Section 7.06 of any amounts applied pursuant to Section 7.06(a)); provided that if such Investment is in Capital Stock of a Person that subsequently becomes the Company or a Restricted Subsidiary, such Investment shall thereafter be deemed permitted under clause (i) or (ii) above and shall not be included as having been made pursuant to this clause (w);
(x)    any Investment in a Similar Business having an aggregate fair market value, taken together with all other Investments made pursuant to this clause that are at that time outstanding, not to exceed the greater of $1640.0 million and 25.0% of LTM EBITDA (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value), plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) in respect of such Investments (without duplication for purposes of Section 7.06 of any amounts applied pursuant to Section 7.06(a) hereof) with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value; provided, however, that if any Investment pursuant to this clause is made in any Person that is not the Company or a Restricted Subsidiary at the date of the making of such Investment and such Person becomes the Company or a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (a) or (b) above and shall cease to have been made pursuant to this clause;
(y)    [reserved];
(z)    [reserved];
(aa)    [reserved];
(bb)    Investments by an Unrestricted Subsidiary entered into prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary as described under Section 6.13;
(cc)    [reserved];
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(dd)    [reserved];
(ee)    guaranty and indemnification obligations arising in connection with surety bonds issued in the ordinary course of business or consistent with past practice;
(ff)    Investments (a) consisting of purchases and acquisitions of assets or services in the ordinary course of business or consistent with past practice, (b) made in the ordinary course of business or consistent with past practice in connection with obtaining, maintaining or renewing client, franchisee and customer contacts and loans, (c)(i) advances, loans, extensions of credit (including the creation of receivables) or (ii) prepayments made to, and guarantees with respect to obligations of, franchisees, distributors, suppliers, lessors, licensors and licensees, in each case in the ordinary course of business or consistent with past practice or (d) received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business or consistent with past practice;
(gg)    Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business or consistent with past practice;
(hh)    Investments consisting of endorsements for collection or deposit and trade arrangements with customers (or any comparable or similar provisions in other applicable jurisdictions) in the ordinary course of business or consistent with past practice;
(ii)    non-cash Investments in connection with tax planning and reorganization activities, Investments in connection with any Permitted Intercompany Activities, Permitted IPO Reorganization and Permitted Tax Restructuring and related transactions;
(jj)    Investments made from casualty insurance proceeds in connection with the replacement, substitution, restoration or repair of assets on account of a Casualty Event; and
(kk)    so long as no Event of Default shall have occurred and is continuing or would result therefrom, any other Investment so long as, immediately after giving pro forma effect to the Investment and the incurrence of any Indebtedness the net proceeds of which are used to make such Investment, the Consolidated Total Leverage Ratio shall be no greater than 4.75 to 1.00.
Permitted IPO Reorganization” means any transaction taken by Holdingsthe Company or any of its Restricted Subsidiaries in connection with and reasonably related to consummating an initial public offering, so long as, immediately after giving effect thereto, there is no material adverse impact on the value of or anythe Administrative Agent’s rights in the Collateral, taken as a whole, and such Permitted IPO Reorganization is not otherwise materially adverse to the Lenders provided that, in each case, at the time of giving effect to such Permitted IPO Reorganization, the Borrower and the Restricted Subsidiaries otherwise comply with Section 6.10.
Permitted Junior Refinancing Debt” means secured Indebtedness incurred by the Company and Guarantees with respect thereto by any Loan Party; provided that (i) such Indebtedness is secured by the Collateral on a junior basis to the Secured Obligations and the obligations in respect of any Permitted Pari Passu Refinancing Debt, in each case pursuant to a Customary Intercreditor Agreement, and is not secured by any property or assets of Holdingsthe Company and its Restricted Subsidiaries other than the Collateral and (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Term Loans, Incremental Term Loans, Refinancing Term Loans, Revolving Credit Loans, Incremental Revolving Credit Commitments or Refinancing Revolving Credit Loans.
Permitted Liens” means with respect to any Person:
(a)    Liens on assets or property of a Restricted Subsidiary that is not a Guarantor securing Indebtedness and other Obligations of such Restricted Subsidiary that is not a Guarantor;
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(b)    pledges, deposits or Liens (a) in connection with workmen’s compensation laws, payroll taxes, unemployment insurance laws, employers’ health tax and other social security laws or similar legislation or other insurance related obligations (including in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto), (b) securing liability, reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees or similar instruments) for the benefit of insurance carriers under insurance or self-insurance arrangements or otherwise supporting the payments of items set forth in the foregoing clause (a), or (c) in connection with bids, tenders, completion guarantees, contracts, leases, utilities, licenses, public or statutory obligations, or to secure the performance of bids, trade contracts, government contracts and leases, statutory obligations, surety, stay, indemnity, warranty, release, judgment, customs, appeal, performance bonds, guarantees of government contracts, return of money bonds, bankers’ acceptance facilities and obligations of a similar nature (including those to secure health, safety and environmental obligations), and obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, or as security for contested taxes or import or customs duties or for the payment of rent, or other obligations of like nature, in each case incurred in the ordinary course of business or consistent with past practice;
(c)    Liens with respect to outstanding motor vehicle fines and Liens imposed by law or regulation, including carriers’, warehousemen’s, mechanics’, landlords’, suppliers’, materialmen’s, repairmen’s, architects’, construction contractors’ or other similar Liens, in each case (i) for amounts not overdue for a period of more than 60 days or, if more than 60 days overdue, are unfiled (or if filed have been discharged or stayed) and no other action has been taken to enforce such Liens or (ii) that are bonded or being contested in good faith by appropriate proceedings;
(d)    Liens for Taxes, assessments or other governmental charges which are not yet due and payable or delinquent or which are being contested in good faith by appropriate proceedings or the nonpayment of which is permitted by applicable bankruptcy law; provided that appropriate reserves to the extent required pursuant to GAAP (or other applicable accounting principles) have been made in respect thereof; or for property Taxes on property of the Company or one of its Subsidiaries has determined to abandon if such abandonment is otherwise permitted hereunder, and the sole recourse for such Tax is to such property;
(e)    encumbrances, charges, ground leases, easements (including reciprocal easement agreements), survey exceptions, restrictions, encroachments, protrusions, by-law, regulation, zoning restrictions or reservations of, or rights of others for, licenses, rights of way, servitudes, sewers, electric lines, drains, telegraph, telephone and cable television lines and other similar purposes, or zoning, building codes or other restrictions (including minor defects and irregularities in title and similar encumbrances) as to the use of real properties, exceptions shown on any Mortgage Policy, or Liens incidental to the conduct of the business of such Person or to the ownership of its properties, including servicing agreements, development agreements, site plan agreements, subdivision agreements, facilities sharing agreements, cost sharing agreements and other similar agreements, charges or encumbrances, which do not in the aggregate materially interfere with the ordinary course conduct of the business of the Company and the Restricted Subsidiaries, taken as a whole;
(f)    Liens (a) securing Hedging Obligations or Cash Management Obligations and the costs thereof; (b) that are rights of set-off, rights of pledge or other bankers’ Liens (i) relating to treasury, depository and cash management services or any automated clearing house transfers of funds in the ordinary course of business or consistent with past practice, (ii) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company or any of its Subsidiaries or consistent with past practice or (iii) relating to purchase orders and other agreements entered into with customers of the Company or any Restricted Subsidiary in the ordinary course of business or consistent with past practice; (c) on cash accounts securing Indebtedness and other Obligations permitted to be Incurred under Section 7.03(b)(viii)(v) with financial institutions; (d) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business or consistent with past practice and not for speculative purposes; and/or (e) (i) of a collection bank arising under Section 4-210 of the UCC or any comparable or successor provision on items in the course of collection and (ii) in favor of a banking or other financial institution
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or electronic payment service providers arising as a matter of law encumbering deposits (including the right of set-off) arising in the ordinary course of business in connection with the maintenance of such accounts and (iii) arising under customary general terms and conditions of the account bank in relation to any bank account maintained with such bank and attaching only to such account and the products and proceeds thereof, which Liens, in any event, do not secure any Indebtedness;
(g)    leases, licenses, subleases and sublicenses and Liens on the property covered thereby (including real property and IP Rights) entered into in the ordinary course of business, consistent with past practice or which do not (x) interfere in any material respect with the business of the Company or any Restricted Subsidiary, taken as a whole or (y) secure any Indebtedness;
(h)    Liens securing or otherwise arising out of judgments, decrees, attachments, orders or awards not giving rise to an Event of Default under Section 8.01(h) hereof;
(i)    Liens (i) securing Capitalized Lease Obligations, or Purchase Money Obligations, or securing the payment of all or a part of the purchase price of, or securing Indebtedness or other Obligations Incurred to finance or refinance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business; provided that (a) the aggregate principal amount of Indebtedness secured by such Liens is otherwise permitted to be Incurred under this Agreement and (b) any such Liens may not extend to any assets or property of the Company or any Restricted Subsidiary other than assets and property affixed or appurtenant thereto and accessions, additions, improvements, proceeds, dividends or distributions thereof, including after-acquired property that is (A) affixed or incorporated into the property or assets covered by such Lien, (B) after-acquired property or assets subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets and (C) the proceeds and products thereof and customary security deposits; provided that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender; and (ii) any interest or title of a lessor, sublessor, franchisor’s, licensor or sublicensor or secured by a lessor’s, sublessor’s, licensor’s or sublicensor’s interest under any Capitalized Lease Obligations or Non-Financing Lease Obligations;
(j)    Liens arising from UCC financing statements, including precautionary financing statements (or similar filings) regarding operating leases or consignments entered into by the Company and the Restricted Subsidiaries;
(k)    Liens existing on the Closing Date, including any Liens securing any Refinancing Indebtedness of any Indebtedness secured by such Liens; provided that any Lien securing Indebtedness or other obligations in excess of $1.0 million shall be listed on Schedule 1.01H to the Closing Date Certificate;
(l)    Liens on property, other assets or shares of stock of a Person at the time such Person becomes a Subsidiary (or at the time the Company or a Subsidiary acquires such property, other assets or shares of stock, including any acquisition by means of a merger, amalgamation, consolidation or other business combination transaction with or into the Company or any Restricted Subsidiary); provided, however, that such Liens are not created, Incurred or assumed in anticipation of or in connection with such other Person becoming a Subsidiary (or such acquisition of such property, other assets or stock); provided, further, that such Liens are limited to all or part of the same property, other assets or stock (plus property and assets affixed or appurtenant thereto and additions, improvements, accessions, proceeds, dividends or distributions thereof, including after-acquired property that is (i) affixed or incorporated into the property or assets covered by such Lien, (ii) after-acquired property or assets subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets and (iii) the proceeds and products thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the Obligations relating to any Indebtedness or other obligations to which such Liens relate;
(m)    Liens securing Obligations relating to any Indebtedness or other Obligations of the Company or such Restricted Subsidiary owing to the Company or another Restricted Subsidiary, or
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Liens in favor of the Company or any Restricted Subsidiary, anythe Administrative Agent or the Collateral Agent;
(n)    Liens securing Refinancing Indebtedness Incurred to refinance Indebtedness that was previously so secured, and permitted to be secured under this Agreement; provided that any such Lien is limited to all or part of the same property or assets (plus property and assets affixed or appurtenant thereto and additions, improvements, accessions, proceeds, dividends or distributions thereof, including after-acquired property that is (i) affixed or incorporated into the property or assets covered by such Lien, (ii) after-acquired property or assets subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets and (iii) the proceeds and products thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Obligations relating to the Indebtedness or other obligations being refinanced or is in respect of property or assets that is or could be the security for or subject to a Permitted Lien hereunder and such Liens have equal or lesser priority than the Liens in respect of the Indebtedness being refinanced;
(o)    (a) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any government, statutory or regulatory authority, developer, landlord or other third party on property which the Company or any Restricted Subsidiary does not own in fee, but has easement rights over, or on any leased property and subordination or similar arrangements relating thereto and (b) any condemnation or eminent domain proceedings affecting any real property;
(p)    any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint venture securing financing arrangement, joint venture or similar arrangement pursuant to any joint venture securing financing arrangement, joint venture or similar agreement;
(q)    Liens on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets;
(r)    Liens arising out of conditional sale, title retention, hire purchase, consignment or similar arrangements for the sale or purchase of goods entered into in the ordinary course of business or consistent with past practice
(s)    Liens securing the Secured Obligations and the Guarantees;
(t)    Liens securing Indebtedness and other Obligations under Section 7.03(b)(v) hereof; provided that if such Indebtedness is assumed, such Liens shall only be permitted if such Liens are limited to all or part of the same property or assets, including Capital Stock (plus property and assets affixed or appurtenant thereto and additions, improvements, accessions, proceeds, dividends or distributions thereof, including after-acquired property that is (i) affixed or incorporated into the property or assets covered by such Lien, (ii) after-acquired property or assets subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets and (iii) the proceeds and products thereof) acquired, or of any Person acquired or merged, consolidated or amalgamated with or into the Company or any Restricted Subsidiary, in any transaction to which such Indebtedness or other Obligation relates;
(u)    Liens securing Indebtedness and other Obligations under Section 7.03(a) or Sections 7.03(b)(xi), (xiv) or (xx) hereof (provided that, (w) in the case of Section 7.03(b)(vii), the related Indebtedness represented by such Capitalized Lease Obligations, Purchase Money Obligations or other obligations shall not be secured by any property, equipment or assets of the Company or any Restricted Subsidiary other than the property, equipment or assets so acquired, leased, expanded, constructed, installed, replaced, repaired or improved and any proceeds therefrom and other than assets and property affixed or appurtenant thereto and accessions, additions, improvements, proceeds, dividends or distributions thereof, including after-acquired property that is (i) affixed or incorporated into the property or assets covered by such Lien, (ii) after-acquired property or assets subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-
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acquired property or assets and (iii) the proceeds and products thereof, (x) in the case of Section 7.03(b)(xi), such Liens cover only the assets of such Non-Loan Party or assets that do not constitute Collateral and (y) in the case of Section 7.03(a) and 7.03(b)(xx), only to the extent permitted to be secured thereby; provided further that, in the event that the Liens granted pursuant to this clause (u) with respect to Indebtedness incurred pursuant to Section 7.03(xiv) are Liens on the Collateral, then the holders of the obligations secured by such Liens, or their duly appointed agent, shall become party to a Customary Intercreditor Agreement;
(v)    Liens on Excluded Property of the Company or any Guarantor securing Indebtedness or other Obligations of the Company and/or any Guarantor in an aggregate amount not in excess of the greater of $716.0 million and 10% of LTM EBITDA;
(w)    Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(x)    Liens deemed to exist in connection with Investments permitted under clause (4) of the definition of “Cash Equivalents”;
(y)    Liens on (i) goods the purchase price of which is financed by a documentary letter of credit issued for the account of the Company or any Restricted Subsidiary or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar instruments and (ii) specific items of inventory of other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(z)    Liens on vehicles or equipment of the Company or any Restricted Subsidiary in the ordinary course of business or consistent with past practice;
(aa)    Liens on assets or securities deemed to arise in connection with and solely as a result of the execution, delivery or performance of contracts to sell such assets or securities if such sale is otherwise permitted by this Agreement;
(bb)    (a) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto, and (b) Liens, pledges, deposits made or other security provided to secure liabilities to, or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefits of), insurance carriers in the ordinary course of business or consistent with past practice;
(cc)    Liens solely on any cash earnest money deposits made in connection with any letter of intent or purchase agreement permitted under this Agreement;
(dd)    Liens (i) on cash advances or escrow deposits in favor of the seller of any property to be acquired in an Investment permitted under this Agreement to be applied against the purchase price for such Investment or otherwise in connection with any escrow arrangements with respect to any such Investment (including any letter of intent or purchase agreement with respect to such Investment), and (ii) consisting of an agreement to sell, transfer, lease or otherwise dispose of any property in an asset sale, in each case, solely to the extent such Investment or sale, transfer, lease or other disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(ee)    Liens securing Indebtedness and other Obligations in an aggregate principal amount not to exceed the greater of (a) $2873.0 million and (b) 45.0% of LTM EBITDA at the time Incurred; provided further that, in the event that the Liens granted pursuant to this clause (ee) are Liens on the Collateral, then such Liens shall rank junior in priority to the Liens on the Collateral securing the Secured Obligations and the holders of the obligations secured by such Liens, or their duly appointed agent, shall become party to a Customary Intercreditor Agreement;
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(ff)    Liens then existing with respect to assets of an Unrestricted Subsidiary on the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary as described under Section 6.13 hereof;
(gg)    Liens Incurred to secure Junior Priority Indebtedness permitted to be Incurred pursuant to Section 7.03 hereof; provided that at the time of Incurrence and after giving pro forma effect thereto, if such Indebtedness is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Term LoansRevolving Credit Facility, the Consolidated Total Senior Secured Leverage Ratio for the most recently ended Test Period does not exceed the greater of (x) 3.30:1.00 (or, to the extent such Indebtedness is incurred in connection with any Permitted Investment, the Consolidated Total Senior Secured Leverage Ratio for the most recently ended Test Period does not exceed the greater of 3.30:1.00 and the Consolidated Total Senior Secured Leverage Ratio immediately prior to such Permitted Investment); provided further that the holders of the obligations secured by such Liens, or their duly appointed agent, shall become party to a Customary Intercreditor Agreement;
(hh)    Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 7.03 hereof; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
(ii)    Liens arising in connection with a Qualified Securitization Financing or a Receivables Facility;
(jj)    Settlement Liens;
(kk)    rights of recapture of unused real property in favor of the seller of such property set forth in customary purchase agreements and related arrangements with any government, statutory or regulatory authority;
(ll)    the rights reserved to or vested in any Person or government, statutory or regulatory authority by the terms of any lease, license, grant or permit held by the Company or any Restricted Subsidiary or by a statutory provision, to terminate any such lease, license, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(mm)    restrictive covenants affecting the use to which real property may be put and Liens or covenants restricting or prohibiting access to or from lands abutting on controlled access highways or covenants affecting the use to which lands may be put; provided that such Liens or covenants do not interfere with the ordinary conduct of the business of the Company or any Restricted Subsidiary;
(nn)    Liens on property, assets or Permitted Investments used to defease or to satisfy or discharge Indebtedness; provided that such defeasance, satisfaction or discharge is not prohibited by this Agreement;
(oo)    Liens relating to escrow arrangements securing Indebtedness, including (i) Liens on escrowed proceeds from the issuance of Indebtedness for the benefit of the related holders of debt securities or other Indebtedness (or the underwriters, arrangers, trustee or collateral agent thereof) and (ii) Liens on cash or Cash Equivalents set aside at the time of the incurrence of any Indebtedness, in either case to the extent such cash or Cash Equivalents prefund the payment of interest or premium or discount on such Indebtedness (or any costs related to the issuance of such Indebtedness) and are held in an escrow account or similar arrangement to be applied for such purpose;
(pp)    Liens arising in connection with any Permitted Intercompany Activities;
(qq)    Liens incurred to cash collateralize letters of credit incurred in the ordinary course of business or consistent with past practice;
(rr)    [reserved];
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