EX-10.1 2 a12-22630_1ex10d1.htm EX-10.1

Exhibit 10.1

 

Execution Version

 

SEPTEMBER 2012 JOINDER AGREEMENT

 

SEPTEMBER 2012 JOINDER AGREEMENT, dated as of September 27, 2012 (this “Agreement”), by and among CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH (“Credit Suisse”), as the initial 2018B Term Lender (as defined below), FIRST DATA CORPORATION, a Delaware corporation (the “Company”), each Guarantor and Credit Suisse, as Administrative Agent and as Collateral Agent.

 

RECITALS:

 

WHEREAS, reference is hereby made to the Credit Agreement, dated as of September 24, 2007, as amended and restated as of September 28, 2007, as further amended as of August 10, 2010, March 24, 2011, March 13, 2012 and August 16, 2012 (as may be further amended, restated, supplemented or otherwise modified, refinanced or replaced from time to time, the “Credit Agreement”), among the Company, the Lenders party thereto, Credit Suisse AG, Cayman Islands Branch (formerly known as Credit Suisse, Cayman Islands Branch), as Administrative Agent and Collateral Agent and the other parties named therein (capitalized terms used but not defined herein having the meaning provided in the Credit Agreement); and

 

WHEREAS, subject to the terms and conditions of the Credit Agreement, pursuant to Section 2.14 (a) through (e) of the Credit Agreement, the Borrower may establish New Term Loan Commitments by, among other things, entering into one or more Joinder Agreements with one or more New Term Loan Lenders (each New Term Loan Lender holding a New Term Loan made pursuant hereto, a “2018B Term Lender”, and the New Term Loans made pursuant hereto, the “2018B Term Loans”), as applicable;

 

WHEREAS, the Company has requested that the initial 2018B Term Lender make 2018B Term Loans to the Company in an aggregate principal amount of $750,000,000;

 

NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:

 

The initial 2018B Term Lender party hereto hereby agrees to make a 2018B Term Loan to the Borrower in the aggregate principal amount of its New Term Loan Commitment set forth on Schedule A annexed hereto, on the terms set forth below, subject to satisfaction of the conditions set forth in Exhibit A hereto (the date such conditions are satisfied and the 2018B Term Loans are made, the “2012 September Joinder Effective Date”) on the 2012 September Joinder Effective Date.

 

The initial 2018B Term Lender (i) confirms that it has received a copy of the Credit Agreement and the other Credit Documents and the exhibits thereto, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any

 



 

other 2018B Term Lender or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a 2018B Term Lender.

 

The 2018B Term Loans shall have the following terms:

 

1.             Applicable Margin.  The Applicable ABR Margin or Applicable LIBOR Margin, as applicable, for each 2018B Term Loan shall be the following:

 

2018B Term Loans

 

LIBOR Loans

 

ABR Loans

 

5.00

%

4.00

%

 

2.             Closing Fee.  The Company agrees to pay on the date hereof to the Administrative Agent, for the account of the 2018B Term Lender party to this Agreement, as fee compensation for the making of such 2018B Term Lender’s 2018B Term Loans, a closing fee (the “Closing Fees”) in an amount equal to 1.75% of the aggregate principal amount of such 2018B Term Lender’s 2018B Term Loans outstanding as of the 2012 September Joinder Effective Date.

 

3.             Principal Payments; Maturity.  The 2018B Term Loans shall not require amortization payments prior to final maturity.  The Borrower shall repay in Dollars the outstanding principal amount of the 2018B Term Loans on September 24, 2018, or if such date is not a Business Day, the next preceding Business Day.

 

4.             Mandatory Prepayments.  The 2018B Term Loans shall be subject to mandatory prepayments on the same basis as Term Loans as set forth in Section 5.2 of the Credit Agreement.

 

5.             Optional Prepayments. The 2018B Term Loans may be optionally prepaid as set forth in Section 5.1 of the Credit Agreement.

 

6.             Separate Class.  2018B Term Loans shall be deemed outstanding as a separate Class of Term Loans under the Credit Agreement.

 

7.             Availability.  The 2018B Term Loans shall be denominated in Dollars and made in a single drawing on the 2012 September Joinder Effective Date.  Repayments and prepayments of the 2018B Term Loans may not be reborrowed.

 

2



 

8.             Use of Proceeds.  The proceeds of the 2018B Term Loans will be used to repay a portion of the Borrower’s outstanding Dollar denominated 2014 Term Loans and to pay fees and expenses incurred in connection with the transactions set forth herein.

 

9.             Credit Agreement Governs.  Except as set forth in this Agreement, the 2018B Term Loans shall have the same terms, rights and benefits as other Term Loans as set forth in the Credit Agreement, shall rank pari passu in right of payment and security with such other Term Loans, and shall be deemed to be Term Loans for purposes of the Credit Agreement.

 

10.           Proposed Borrowing.  This Agreement represents Borrower’s request to borrow 2018B Term Loans from the 2018B Term Lenders as follows (the “Proposed Borrowing”):

 

(a)           Business Day of Proposed Borrowing:  September 27, 2012

 

(b)           Amount of Proposed Borrowing:  $750,000,000

 

(c)           Interest rate option:  LIBOR Loans with an initial Interest Period of 1 month.

 

11.           Initial 2018B Term Lender.  The initial 2018B Term Lender acknowledges and agrees that upon its execution of this Agreement and the making of its 2018B Term Loan, that the initial 2018B Term Lender (to the extent it is not already a Lender) shall become a “Lender” under, and for all purposes of, the Credit Agreement and the other Credit Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder.

 

12.           Borrower’s Certifications.  By its execution of this Agreement, the Borrower hereby certifies that:

 

(i)            The representations and warranties contained in the Credit Agreement and the other Credit Documents are true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date; and

 

(ii)           As of the 2012 September Joinder Effective Date and after giving effect to the making of the 2018B Term Loans, no event has occurred and is continuing or would result from the consummation of the proposed Borrowing contemplated hereby that would constitute a Default or an Event of Default.

 

13.           Borrower Covenants.  By its execution of this Agreement, the Borrower hereby covenants that:

 

(i)            within ninety (90) days after the 2012 September Joinder Effective Date, unless waived or extended by the Administrative Agent in its sole discretion, the applicable Credit Parties shall take all actions as may be reasonably requested by the Administrative Agent (and that in any event are not beyond the requirements set forth in

 

3



 

Section 9.14 to the Credit Agreement) in order to ensure that the 2018B Term Loans benefit from the Mortgages over the Mortgaged Properties.

 

14.           Notice.  For purposes of the Credit Agreement, the initial notice address of the initial 2018B Term Lender shall be as set forth below its signature below.

 

15.           Recordation of the 2018B Term Loans.  Upon execution and delivery hereof, the Administrative Agent will record the 2018B Term Loans made by the initial 2018B Term Lender in the Register.

 

16.           Amendment, Modification and Waiver.  This Agreement may not be amended, modified or waived except in accordance with Section 13.1 of the Credit Agreement.

 

17.           Entire Agreement.  This Agreement, the Credit Agreement and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.

 

18.           GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

19.           Severability.  Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.

 

20.           Conformed Credit Agreement.  For purposes of reference and convenience only, attached as Exhibit B hereto is an unofficial conformed copy of the Credit Agreement (with stricken text indicated textually in the same manner as the following example: stricken text and added text indicated textually in the same manner as the following example: double-underlined text) which contains the changes to the Credit Agreement resulting from the effectiveness of the 2018B Term Loans.  In the event of a conflict between the attached conformed Credit Agreement and this Agreement, this Agreement shall control.  Also, attached as Exhibit C hereto is the Form of Promissory Note (2018B Term Loans), which is Exhibit K-8 to the conformed Credit Agreement copy.

 

21.           Effect of Agreement.  Except as expressly set forth herein, (i) this Agreement 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, any other Agent or the Letter of Credit Issuing Bank, in each case under the Credit Agreement or any other Credit 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 provision of either such agreement or any other Credit Document.  Each and every term, condition,

 

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obligation, covenant and agreement contained in the Credit Agreement or any other Credit Document is hereby ratified and re-affirmed in all respects and shall continue in full force and effect.  Each Credit Party reaffirms its obligations under the Credit Documents to which it is party and the validity of the Liens granted by it pursuant to the Security Documents.  This Agreement shall constitute a Credit Document for purposes of the Credit Agreement and from and after the 2012 September Joinder Effective Date, all references to the Credit Agreement in any Credit 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 Credit Agreement as modified by this Agreement.  Each of the Credit Parties hereby consents to this Agreement and confirms that all obligations of such Credit Party under the Credit Documents to which such Credit Party is a party shall continue to apply to the Credit Agreement as modified hereby.

 

22.           Counterparts.  This Agreement may be executed in counterparts, including by facsimile or other electronic transmission, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.

 

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IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Joinder Agreement as of the date first above written.

 

 

 

FIRST DATA CORPORATION

 

 

 

 

 

By:

/s/ Michael A. Jacobs

 

 

Name: Michael A. Jacobs

 

 

Title:   Senior Vice President and Treasurer

 

[Signature Page to Incremental Joinder Agreement]

 



 

 

The following entities, each as Guarantor:

 

 

 

BANKCARD INVESTIGATIVE GROUP INC.

 

BUYPASS INCO CORPORATION

 

CALL INTERACTIVE HOLDINGS LLC

 

CARDSERVICE INTERNATIONAL, LLC

 

CESI HOLDINGS, INC.

 

CONCORD COMPUTING CORPORATION

 

CONCORD CORPORATE SERVICES, INC.

 

CONCORD EFS FINANCIAL SERVICES, INC.

 

CONCORD EFS, INC.

 

CONCORD EMERGING TECHNOLOGIES, INC.

 

CONCORD FINANCIAL TECHNOLOGIES, INC.

 

CONCORD ONE, LLC

 

CONCORD PAYMENT SERVICES, INC.

 

CONCORD PROCESSING, INC.

 

CONCORD TRANSACTION SERVICES, LLC

 

CTS HOLDINGS, LLC

 

CTS, INC.

 

FIRST DATA TRANSPORTATION SERVICES INC.

 

EPSF CORPORATION

 

FDFS HOLDINGS, LLC

 

FDGS GROUP, LLC

 

FDR IRELAND LIMITED

 

FDR LIMITED

 

FDR MISSOURI INC.

 

FDS HOLDINGS, INC.

 

FIRST DATA CAPITAL, INC.

 

FIRST DATA CARD SOLUTIONS, INC.

 

FIRST DATA COMMERCIAL SERVICES HOLDINGS, INC.

 

FIRST DATA COMMUNICATIONS CORPORATION

 

FIRST DATA EC, LLC

 

FIRST DATA GOVERNMENT SOLUTIONS, INC.

 

FIRST DATA GOVERNMENT SOLUTIONS, LP

 

FIRST DATA LATIN AMERICA INC.

 

FIRST DATA MERCHANT SERVICES CORPORATION

 

FIRST DATA MERCHANT SERVICES NORTHEAST, LLC

 

FIRST DATA MERCHANT SERVICES SOUTHEAST, L.L.C.

 

 

 

 

 

By:

/s/ Michael A. Jacobs

 

 

Name: Michael A. Jacobs

 

 

Title: Treasurer

 

[Signature Page to Incremental Joinder Agreement]

 



 

 

The following entities, each as Guarantor:

 

 

 

FIRST DATA MOBILE HOLDINGS, INC.

 

FIRST DATA PAYMENT SERVICES, LLC

 

FIRST DATA REAL ESTATE HOLDINGS L.L.C.

 

FIRST DATA RESOURCES, LLC

 

FIRST DATA RETAIL ATM SERVICES L.P.

 

FIRST DATA SECURE LLC

 

FIRST DATA SOLUTIONS INC.

 

FIRST DATA TECHNOLOGIES, INC.

 

FIRST DATA VOICE SERVICES

 

FSM SERVICES INC.

 

FUNDSXPRESS, INC.

 

FUNDSXPRESS FINANCIAL NETWORK, INC.

 

GIFT CARD SERVICES, INC.

 

GRATITUDE HOLDINGS LLC

 

INSTANT CASH SERVICES, LLC

 

LINKPOINT INTERNATIONAL, INC.

 

LOYALTYCO LLC

 

MAS INCO CORPORATION

 

MAS OHIO CORPORATION

 

MONEY NETWORK FINANCIAL, LLC

 

NATIONAL PAYMENT SYSTEMS INC.

 

NEW PAYMENT SERVICES, INC.

 

PAYPOINT ELECTRONIC PAYMENT SYSTEMS, LLC

 

PAYSYS INTERNATIONAL, INC.

 

REMITCO LLC

 

SAGEBRUSH HOLDINGS LLC

 

SIZE TECHNOLOGIES, INC.

 

STAR NETWORKS, INC.

 

STAR PROCESSING, INC.

 

STAR SYSTEMS ASSETS, INC.

 

STAR SYSTEMS, INC.

 

STAR SYSTEMS, LLC

 

STRATEGIC INVESTMENT ALTERNATIVES LLC

 

TASQ LLC

 

TASQ TECHNOLOGY, INC.

 

TELECHECK INTERNATIONAL, INC.

 

TELECHECK PITTSBURGH/WEST VIRGINIA, INC.

 

TRANSACTION SOLUTIONS, LLC

 

UNIFIED MERCHANT SERVICES

 

VALUELINK, LLC

 

 

 

 

 

By:

/s/ Michael A. Jacobs

 

 

Name: Michael A. Jacobs

 

 

Title: Treasurer

 

[Signature Page to Incremental Joinder Agreement]

 



 

 

TELECHECK SERVICES, INC., as Guarantor

 

 

 

 

 

By:

/s/ Stanley J. Andersen

 

 

Name: Stanley J. Andersen

 

 

Title: Assistant Secretary

 

[Signature Page to Incremental Joinder Agreement]

 



 

 

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH

 

 

 

 

 

By:

/s/ Bill O’Daly

 

 

Name: Bill O’Daly

 

 

Title:   Director

 

 

 

 

 

 

 

By:

/s/ Tyler R. Smith

 

 

Name: Tyler R. Smith

 

 

Title:   Associate

 

[Signature Page to Incremental Joinder Agreement]

 



 

 

Consented to by:

 

 

 

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent and Collateral Agent

 

 

 

 

 

By:

/s/ Bill O’Daly

 

 

Name: Bill O’Daly

 

 

Title:   Director

 

 

 

 

 

 

 

By:

/s/ Tyler R. Smith

 

 

Name: Tyler R. Smith

 

 

Title:   Associate

 

[Signature Page to Incremental Joinder Agreement]

 



 

SCHEDULE A
TO JOINDER AGREEMENT

 

Name of 2018B Term Lender

 

Type of Commitment

 

 

Amount

 

Credit Suisse AG, Cayman Islands Branch

 

New Term Loan Commitment

 

 

$

750,000,000

 

 

 

 

 

Total:

$

750,000,000

 

 



 

Exhibit A

 

Conditions

 

This Agreement shall become effective upon the satisfaction each of the following conditions:

 

a)              the Administrative Agent shall have received counterparts of this Agreement executed by the Administrative Agent, Borrower, the Guarantors and initial 2018B Term Lender;

 

b)             the Administrative Agent shall have received from Borrower a certificate of an Authorized Officer of the Borrower (i) confirming that the conditions set forth in clauses (i) and (ii) of the second proviso to Section 2.14(a) of the Credit Agreement are satisfied and (ii) containing calculations (in reasonable detail) demonstrating compliance with the financial test described in Section 10.10 of the Credit Agreement;

 

c)              the Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Credit Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Credit Party as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of an Authorized Officer of each Credit Party dated the 2012 September Joinder Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Credit Party as in effect on the 2012 September Joinder Effective Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents to which such Person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of such Credit Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Credit Document on behalf of such Credit Party and countersigned by another officer as to the incumbency and specimen signature of an Authorized Officer executing the certificate pursuant to clause (ii) above;

 

d)             the Engagement Parties (as defined in that certain Engagement Letter dated September 13, 2012 to which the Borrower is a party) shall have been paid such fees as such Engagement Parties and the Borrower have separately agreed to and Borrower shall have paid all reasonable out of pocket costs and expenses of such Engagement Parties and the Administrative Agent in connection with the preparation, negotiation and execution of this Agreement (including the reasonable fees and expenses of Cahill Gordon & Reindel LLP as counsel to the Administrative Agent);

 

e)              the Administrative Agent shall have received from each of (i) Simpson Thacher & Bartlett LLP, New York counsel to the Borrower, (ii) Holland & Hart LLP, Nevada counsel to the Borrower, (iii) Sidley Austin LLP, California counsel to the Borrower, (iv) Faegre Baker Daniels LLP, Colorado counsel to the Borrower, (v) Fox Rothschild

 



 

LLP, Florida and Pennsylvania counsel to the Borrower, (vi) Bass, Berry & Sims PLC, Tennessee counsel to the Borrower and (vii) Sutherland Asbill & Brennan LLP, Texas and Georgia counsel to the Borrower, or, in any such case, from such other counsel acceptable to the Administrative Agent, an executed legal opinion covering such matters as the Administrative Agent may reasonably request and otherwise reasonably satisfactory to the Administrative Agent;

 

f)                the Administrative Agent, for the account of each 2018B Term Lender, shall have received all Closing Fees payable by the Company on the aggregate principal amount of 2018B Term Loans made on the 2012 September Joinder Effective Date; and

 

g)             the Administrative Agent shall have received 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 Borrower and each Credit Party relating thereto) and if any such Mortgaged Property is located in a special flood hazard area, evidence of flood insurance as required under the Flood Insurance Laws.  For purposes of the foregoing, “Flood Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto and (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto.

 



 

Exhibit B

 

Conformed Credit Agreement

 



 

UNOFFICIAL MARKED VERSION

REFLECTING CHANGES

PURSUANT TO 2012 SEPTEMBER JOINDER AGREEMENT

ADDED TEXT SHOWN UNDERSCORED

DELETED TEXT SHOWN STRIKETHROUGH

 

 

$14,000,000,000

 

€709,219,858.16

 

CREDIT AGREEMENT(1)

 

Dated as of September 24, 2007

 

as Amended and Restated as of September 28, 2007

 

among

 

FIRST DATA CORPORATION,
as the Borrower,

 

The Several Lenders
from Time to Time Parties Hereto,

 

CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Administrative Agent, Swingline Lender
and Letter of Credit Issuer,

 

CITIBANK, N.A.,

 

as Syndication Agent,

 

and

 

CREDIT SUISSE SECURITIES (USA) LLC,
CITIGROUP GLOBAL MARKETS, INC.,
DEUTSCHE BANK SECURITIES INC.,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
HSBC SECURITIES (USA) INC.,
LEHMAN BROTHERS INC. and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as Joint Lead Arrangers and Bookrunners

 

 

 


(1)This marked version is marked against the amended and restated credit agreement, dated as of September 28, 2007 (the “2007 ARCA”) conformed to reflect the Amendment Agreement, dated as of August 10, 2010 (the “Amendment”), the 2011 Extension Amendment, dated as of March 24, 2011 (the “Extension Amendment”), the 2012 Extension Amendment, dated as of March 13, 2012 (the “2012 Extension Amendment”), and the 2012 September Joinder Agreement, dated as of September 27, 2012 (the “2012 September Joinder Agreement”).  The 2007 ARCA, conformed to reflect the Amendment, the Extension Amendment, the 2012 Extension Amendment and 2012 September Joinder Agreement, is herein referred to as the “Conformed Document.”  This Conformed Document is provided for convenience only.  In the event of any conflict between this Conformed Document and any of the 2007 ARCA, the Amendment, the Extension Amendment, the 2012 Extension Amendment or the 2012 September Joinder Agreement, the 2007 ARCA, the Amendment, the Extension Amendment, the 2012 Extension Amendment and the 2012 September Joinder Agreement shall control.

 



 

Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York  10005

 

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TABLE OF CONTENTS

 

 

 

 

Page

 

 

 

 

SECTION 1.

Definitions

 

3

1.1.

Defined Terms

 

3

1.2.

Other Interpretive Provisions

 

64

1.3.

Accounting Terms

 

65

1.4.

Rounding

 

65

1.5.

References to Agreements, Laws, Etc.

 

65

1.6.

Exchange Rates

 

65

 

 

 

 

SECTION 2.

Amount and Terms of Credit

 

6566

2.1.

Commitments

 

6566

2.2.

Minimum Amount of Each Borrowing; Maximum Number of Borrowings

 

72

2.3.

Notice of Borrowing

 

72

2.4.

Disbursement of Funds

 

74

2.5.

Repayment of Loans; Evidence of Debt

 

7475

2.6.

Conversions and Continuations

 

7980

2.7.

Pro Rata Borrowings

 

8081

2.8.

Interest

 

81

2.9.

Interest Periods

 

8182

2.10.

Increased Costs, Illegality, Etc.

 

82

2.11.

Compensation

 

84

2.12.

Change of Lending Office

 

8485

2.13.

Notice of Certain Costs

 

8485

2.14.

Incremental Facilities

 

85

2.15.

Permitted Debt Exchanges

 

89

 

 

 

 

SECTION 3.

Letters of Credit

 

91

3.1.

Letters of Credit

 

91

3.2.

Letter of Credit Requests

 

9293

3.3.

Letter of Credit Participations

 

94

3.4.

Agreement to Repay Letter of Credit Drawings

 

9697

3.5.

Increased Costs

 

9798

3.6.

New or Successor Letter of Credit Issuer

 

9899

3.7.

Role of Letter of Credit Issuer

 

99100

3.8.

Cash Collateral

 

100

3.9.

Applicability of ISP and UCP

 

100101

3.10.

Conflict with Issuer Documents

 

100101

3.11.

Letters of Credit Issued for Restricted Subsidiaries

 

100101

 

 

 

 

SECTION 4.

Fees; Commitments

 

101

4.1.

Fees

 

101

4.2.

Voluntary Reduction of Revolving Credit Commitments

 

102103

4.3.

Mandatory Termination of Commitments

 

103104

 

 

 

 

SECTION 5.

Payments

 

104

5.1.

Voluntary Prepayments

 

104

5.2.

Mandatory Prepayments

 

105

5.3.

Method and Place of Payment

 

108

 

i



 

 

 

 

Page

 

 

 

 

5.4.

Net Payments

 

109

5.5.

Computations of Interest and Fees

 

111112

5.6.

Limit on Rate of Interest

 

111112

 

 

 

 

SECTION 6.

Conditions Precedent to Initial Borrowing

 

112

6.1.

Credit Documents

 

112113

6.2.

Collateral

 

112113

6.3.

Legal Opinions

 

113

6.4.

[Reserved]

 

113

6.5.

Equity Investments

 

113

6.6.

Closing Certificates

 

113114

6.7.

Authorization of Proceedings of Each Credit Party

 

113114

6.8.

Fees

 

113114

6.9.

Representations and Warranties

 

114

6.10.

Solvency Certificate

 

114

6.11.

Merger

 

114

6.12.

Patriot Act

 

114

 

 

 

 

SECTION 7.

Conditions Precedent to All Credit Events

 

114

7.1.

No Default; Representations and Warranties

 

114115

7.2.

Notice of Borrowing; Letter of Credit Request

 

114115

 

 

 

 

SECTION 8.

Representations, Warranties and Agreements

 

115

8.1.

Corporate Status

 

115

8.2.

Corporate Power and Authority

 

115

8.3.

No Violation

 

115116

8.4.

Litigation

 

116

8.5.

Margin Regulations

 

116

8.6.

Governmental Approvals

 

116

8.7.

Investment Company Act

 

116

8.8.

True and Complete Disclosure

 

116

8.9.

Financial Condition; Financial Statements

 

116117

8.10.

Tax Matters

 

117

8.11.

Compliance with ERISA

 

117

8.12.

Subsidiaries

 

118

8.13.

Intellectual Property

 

118

8.14.

Environmental Laws

 

118

8.15.

Properties

 

118119

8.16.

Solvency

 

118119

 

 

 

 

SECTION 9.

Affirmative Covenants

 

119

9.1.

Information Covenants

 

119

9.2.

Books, Records and Inspections

 

121122

9.3.

Maintenance of Insurance

 

122

9.4.

Payment of Taxes

 

122123

9.5.

Consolidated Corporate Franchises

 

122123

9.6.

Compliance with Statutes, Regulations, Etc.

 

123

9.7.

ERISA

 

123

9.8.

Maintenance of Properties

 

123124

9.9.

Transactions with Affiliates

 

123124

 

ii



 

 

 

 

Page

 

 

 

 

9.10.

End of Fiscal Years; Fiscal Quarters

 

124

9.11.

Additional Guarantors and Grantors

 

124125

9.12.

Pledge of Additional Stock and Evidence of Indebtedness

 

124125

9.13.

Use of Proceeds

 

125

9.14.

Further Assurances

 

125126

 

 

 

 

SECTION 10.

Negative Covenants

 

126

10.1.

Limitation on Indebtedness

 

126127

10.2.

Limitation on Liens

 

132

10.3.

Limitation on Fundamental Changes

 

135

10.4.

Limitation on Sale of Assets

 

136137

10.5.

Limitation on Investments

 

138139

10.6.

Limitation on Dividends

 

141

10.7.

Limitations on Debt Payments and Amendments

 

143144

10.8.

Limitations on Sale Leasebacks

 

144145

10.9.

Changes in Business

 

144145

10.10.

Consolidated Senior Secured Debt to Consolidated EBITDA Ratio

 

144145

 

 

 

 

SECTION 11.

Events of Default

 

145

11.1.

Payments

 

145

11.2.

Representations, Etc.

 

145146

11.3.

Covenants

 

145146

11.4.

Default Under Other Agreements

 

145146

11.5.

Bankruptcy, Etc.

 

146

11.6.

ERISA

 

146147

11.7.

Guarantee

 

147

11.8.

Pledge Agreement

 

147

11.9.

Security Agreement

 

147

11.10.

Mortgages

 

147

11.11.

Judgments

 

147148

11.12.

Change of Control

 

147148

11.13.

Subordination

 

147148

11.14.

Application of Proceeds

 

148

11.15.

Right to Cure

 

149

 

 

 

 

SECTION 12.

The Agents

 

149150

12.1.

Appointment

 

149150

12.2.

Delegation of Duties

 

150

12.3.

Exculpatory Provisions

 

150

12.4.

Reliance by Agents

 

150151

12.5.

Notice of Default

 

151

12.6.

Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders

 

151152

12.7.

Indemnification

 

152

12.8.

Agents in Their Individual Capacities

 

152153

12.9.

Successor Agents

 

153

12.10.

Withholding Tax

 

153154

12.11.

[Reserved]

 

154

12.12.

Agents Under Security Documents and Guarantee

 

154

12.13.

Right to Realize on Collateral and Enforce Guarantee

 

154

 

iii



 

 

 

 

Page

 

 

 

 

SECTION 13.

Miscellaneous

 

154155

13.1.

Amendments, Waivers and Releases

 

154155

13.2.

Notices

 

158

13.3.

No Waiver; Cumulative Remedies

 

158159

13.4.

Survival of Representations and Warranties

 

158159

13.5.

Payment of Expenses; Indemnification

 

158159

13.6.

Successors and Assigns; Participations and Assignments

 

159160

13.7.

Replacements of Lenders Under Certain Circumstances

 

164

13.8.

Adjustments; Set-off

 

164165

13.9.

Counterparts

 

165

13.10.

Severability

 

165

13.11.

Integration

 

165

13.12.

GOVERNING LAW

 

165166

13.13.

Submission to Jurisdiction; Waivers

 

165166

13.14.

Acknowledgments

 

166

13.15.

WAIVERS OF JURY TRIAL

 

167

13.16.

Confidentiality

 

167

13.17.

Direct Website Communications

 

167168

13.18.

USA PATRIOT Act

 

169

13.19.

Judgment Currency

 

169

13.20.

Payments Set Aside

 

169170

13.21.

Acknowledgements Relating to the Amendment Effective Date

 

169170

 

SCHEDULES

 

Schedule 1.1(a)

Existing Secured Letters of Credit

Schedule 1.1(b)

Mortgaged Properties

Schedule 1.1(c)

Commitments and Addresses of Lenders

Schedule 1.1(d)(i)

Excluded Subsidiaries

Schedule 1.1(g)

Debt Repayment

Schedule 1.1(i)

Existing Hedge Banks

Schedule 6.3

Local Counsels

Schedule 8.3

Conflicts

Schedule 8.4

Litigation

Schedule 8.12

Subsidiaries

Schedule 9.9

Closing Date Affiliate Transactions

Schedule 9.14(d)

Post-Closing Actions

Schedule 10.1

Closing Date Indebtedness

Schedule 10.2

Closing Date Liens

Schedule 10.4

Scheduled Dispositions

Schedule 10.5

Closing Date Investments

Schedule 13.2

Notice Addresses

 

iv



 

EXHIBITS(2)

 

Exhibit A

Form of Joinder Agreement

Exhibit B

Form of Guarantee

Exhibit C

Form of Mortgage (Real Property)

Exhibit D

Form of Perfection Certificate

Exhibit E

Form of Pledge Agreement

Exhibit F

Form of Security Agreement

Exhibit G

Form of Letter of Credit Request

Exhibit H-1

Form of Legal Opinion of Simpson Thacher & Bartlett LLP

Exhibit H-2

Form of Legal Opinion of General Counsel

Exhibit I

Form of Credit Party Closing Certificate

Exhibit J

Form of Assignment and Acceptance

Exhibit K-1-A

Form of Promissory Note (Initial Tranche B-1 Term Loans)

Exhibit K-1-B

Form of Promissory Note (Initial Tranche B-2 Term Loans)

Exhibit K-1-C

Form of Promissory Note (Initial Tranche B-3 Term Loans)

Exhibit K-2

Form of Promissory Note (Delayed Draw Term Loans)

Exhibit K-3-A

Form of Promissory Note (2013 Revolving Credit Loans and 2013 Swingline Loans)

Exhibit K-3-B

Form of Promissory Note (2016 Revolving Credit Loans and 2016 Swingline Loans)

Exhibit K-4-A

Form of Promissory Note (Euro Tranche B-1 Term Loans)

Exhibit K-4-B

Form of Promissory Note (Euro Tranche B-2 Term Loans)

Exhibit K-5-A

Form of Promissory Note (2018 Dollar Term Loans)

Exhibit K-5-B

Form of Promissory Note (2018 Euro Term Loans)

Exhibit K-6-A

Form of Promissory Note (2017 Dollar Term Loans)

Exhibit K-6-B

Form of Promissory Note (2017 Euro Term Loans)

Exhibit K-7-A

Form of Promissory Note (2017B Dollar Term Loans)

Exhibit K-7-B

Form of Promissory Note (2017B Euro Term Loans)

Exhibit K-8

Form of Promissory Note (2018B Term Loans)

Exhibit L

Form of First Lien Intercreditor Agreement

Exhibit M

Form of Second Lien Intercreditor Agreement

 


(2)                                  Schedules (other than Schedule 1.1(c)) and Exhibits (other than Exhibit K-6 are not being amended or restated.

 

v


 


 

CREDIT AGREEMENT, dated as of September 24, 2007, as amended and restated as of September 28, 2007, as amended, restated, supplemented or otherwise modified from time to time, among FIRST DATA CORPORATION, a Delaware corporation (the “Company” or the “Borrower”), the lending institutions from time to time parties hereto (each a “Lender” and, collectively, the “Lenders”), CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Administrative Agent, Swingline Lender and Letter of Credit Issuer (such terms and each other capitalized term used but not defined in this preamble having the meaning provided in Section 1), CITIBANK, N.A., as Syndication Agent, and CREDIT SUISSE SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS, INC., DEUTSCHE BANK SECURITIES INC., GOLDMAN SACHS CREDIT PARTNERS L.P., HSBC SECURITIES (USA) INC., LEHMAN BROTHERS INC. and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as Joint Lead Arrangers and Bookrunners.

 

WHEREAS, Borrower, the Lenders party thereto (the “Original Lenders”), Credit Suisse, Cayman Islands Branch, as administrative agent, swingline lender and letter of credit issuer, Citibank N.A., as syndication agent and Credit Suisse Securities (USA) LLC, Citigroup Global Markets, Inc., Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P., HSBC Securities (USA) Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers and bookrunners, originally entered into this Agreement on September 24, 2007 (the “Original Credit Agreement”) and the parties hereto desire to amend and restate this Agreement on and subject to the terms and conditions set forth herein;

 

WHEREAS, pursuant to the Agreement and Plan of Merger (as amended from time to time in accordance therewith, the “Acquisition Agreement”), dated as of April 1, 2007, by and among the Company, Holdings and Merger Sub, Merger Sub merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly-owned Subsidiary of Holdings;

 

WHEREAS, to fund, in part, the Merger, the Sponsor and the other Initial Investors contributed an amount in cash to Holdings and/or a direct or indirect parent thereof in exchange for Stock and Stock Equivalents (which cash was contributed to the Borrower in exchange for common Stock of the Borrower) (such contribution, the “Equity Investments”), which was no less than 22.5% of the aggregate pro forma capitalization of the Borrower on the Original Closing Date (the “Minimum Equity Amount”);

 

WHEREAS, to consummate the transactions contemplated by the Acquisition Agreement, the Borrower entered into (a) a senior unsecured interim loan agreement, dated as of the Original Closing Date, by and among the Borrower, the lenders from time to time parties thereto, Citibank, N.A., as administrative agent, Credit Suisse, Cayman Islands Branch, as syndication agent, and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P., HSBC Securities (USA) Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers and bookrunners (as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith, the “Senior Interim Loan Agreement”), pursuant to which the Borrower borrowed senior unsecured loans in an aggregate principal amount of $6,500,000,000, which consisted of (a) $3,750,000,000 of senior interim cash pay loans (the “Senior Interim Cash Pay Loans”) and (b) $2,750,000,000 of senior interim PIK loans (the “Senior Interim PIK Loans” and, together with the Senior Interim Cash Pay Loans, the “Senior Interim Loans”); and (b) a senior subordinated interim loan agreement, dated as of the Original Closing Date, by and among the Borrower, the lenders from time to time parties thereto, Citibank, N.A., as administrative agent, Credit Suisse, Cayman Islands Branch, as syndication agent, and Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P., HSBC Securities (USA) Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers and bookrunners (as the same may be amended,

 



 

supplemented or otherwise modified from time to time in accordance therewith, the “Senior Subordinated Interim Loan Agreement”), pursuant to which the Borrower borrowed term loans in an aggregate principal amount of $2,500,000,000 (the “Senior Subordinated Interim Loans”);

 

WHEREAS, in connection with the foregoing, (I) the Original Lenders extended credit in the form of (a) Initial Term Loans to the Borrower on the Original Closing Date in Dollars, in an aggregate principal amount of $11,775,000,000, (b) Euro Tranche Term Loans to the Borrower on the Original Closing Date in Euro, in an aggregate principal amount of €709,219,858.16, (c) Delayed Draw Term Loans made available to the Borrower at any time and from time to time prior to the Delayed Draw Term Loan Commitment Termination Date in Dollars an aggregate principal amount at any time outstanding not in excess of $225,000,000 and (d) Revolving Credit Loans made available to the Borrower at any time and from time to time prior to the Revolving Credit Maturity Date in Dollars and Alternative Currencies, in an aggregate Dollar Equivalent principal amount at any time outstanding not in excess of $2,000,000,000 less the sum of (i) the aggregate Letters of Credit Outstanding at such time and (ii) the aggregate principal amount of all Swingline Loans outstanding at such time, and (II) the Letter of Credit Issuer shall issue Letters of Credit at any time and from time to time prior to the L/C Maturity Date, in Dollars and Alternative Currencies in an aggregate Stated Amount at any time outstanding not in excess of $500,000,000 and (III)  the Swingline Lender shall extend credit in the form of Swingline Loans at any time and from time to time prior to the Swingline Maturity Date, in Dollars, in an aggregate principal amount at any time outstanding not in excess of $250,000,000;

 

WHEREAS, the proceeds of the Initial Term Loans, Euro Tranche Term Loans and up to $200,000,000 of Revolving Credit Loans were used by the Borrower, together with (a) the net proceeds of the Senior Interim Loans and Senior Subordinated Interim Loans, (b) the net proceeds of the Equity Investments on the Original Closing Date (or, in the case of the Debt Repayment, such later date as may be necessary to effect the Debt Repayments in accordance with the tender offers therefor) solely to effect the Merger, to effect the Debt Repayments and to pay Transaction Expenses.  Proceeds of Revolving Credit Loans and Swingline Loans will be used by the Borrower on or after the Original Closing Date for working capital general corporate purposes (including Permitted Acquisitions).  Letters of Credit will be used by the Borrower for general corporate purposes.  Proceeds of the Delayed Draw Term Loans will be used by the Borrower and its Subsidiaries to refinance certain existing indebtedness not tendered on or before the Original Closing Date; and

 

WHEREAS, the parties hereto desire to amend and restate the Original Credit Agreement in its entirety on the Amendment Effective Date to, inter alia, (i) effect a reallocation of the Initial Tranche B-1 Term Loan Commitments and Initial Tranche B-2 Term Loan Commitments as reflected on Schedule 1.1(c) hereto and (ii) subdivide the Euro Tranche Term Loan Commitments into Euro Tranche B-1 Term Loan Commitments and Euro Tranche B-2 Term Loan Commitments in the aggregate principal amounts set forth in Schedule 1.1(c);

 

WHEREAS, the parties hereto have agreed to amend and restate the Original Credit Agreement in its entirety to read as set forth in this Agreement, and it has been agreed by the parties to the Original Credit Agreement that the Loans and any Letters of Credit outstanding as of the Amendment Effective Date and other “Obligations” under (and as defined herein) the Original Credit Agreement (including indemnities) shall be governed by and deemed to be outstanding under this Agreement with the intent that the terms of this Agreement shall supersede the terms of the Original Credit Agreement (which shall hereafter have no further effect upon the parties thereto other than with respect to any action, event, representation, warranty or covenant occurring, made or applying prior to the Amendment Effective Date), and all references to the Original Credit Agreement in any Credit Document or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof; provided that (1) the grants of security interests, Mortgages and Liens under and

 

2



 

pursuant to the Credit Documents shall continue unaltered to secure, guarantee, support and otherwise benefit the Obligations under the Original Credit Agreement of the Borrower and the other Credit Parties under this Agreement and each other Credit Document shall continue in full force and effect in accordance with its terms except as expressly amended thereby or hereby, and the parties hereto hereby ratify and confirm the terms thereof as being in full force and effect and unaltered by this Agreement and (2) it is agreed and understood that this Agreement does not constitute a novation, satisfaction, payment or reborrowing of any Obligation under the Original Credit Agreement or any other Credit Document except as expressly modified by this Agreement, nor does it operate as a waiver of any right, power or remedy of any Lender under any Credit Document (other than the Original Credit Agreement);

 

NOW, THEREFORE, the parties hereto hereby agree to amend and restate the Original Credit Agreement, and the Original Credit Agreement is hereby amended and restated in its entirety as follows:

 

SECTION 1.                                          Definitions

 

1.1.                              Defined Terms.

 

(a)                                  As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the context otherwise requires (it being understood that defined terms in this Agreement shall include in the singular number the plural and in the plural the singular):

 

2011 Extension Amendment” shall mean the Extension Amendment dated March 24, 2011 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the Extending Lenders party thereto.

 

2011 Extension Effective Date” shall have the meaning provided in Section 5 of the Extension Amendment.

 

2011 Revolving Credit Extension” shall have the meaning provided in Section 2(a) of the 2011 Extension Amendment.

 

2011 Term Loan Extension” shall have the meaning provided in Section 1(a) of the Extension Amendment.

 

2012 August Extension Amendment” shall mean the Extension Amendment dated August 16, 2012 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the Extending Lenders party thereto.

 

2012 August Extension Effective Date” shall have the meaning provided in Section 4(b) of the 2012 August Extension Amendment.

 

2012 August Term Loan Extension” shall have the meaning provided in Section 1(a) of the 2012 August Extension Amendment.

 

2012 Extension Amendment” shall mean the Extension Amendment dated March 13, 2012 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Extending Lenders party thereto and the Required Lenders.

 

2012 Extension Effective Date” shall have the meaning provided in Section 5(b) of the 2012 Extension Amendment.

 

3



 

2012 September Joinder Agreement” shall mean the Joinder Agreement dated September 27, 2012 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the New Loan Lenders party thereto.

 

2012 September Joinder Effective Date” shall have the meaning provided in the 2012 September Joinder Agreement.

 

2012 Term Loan Extension” shall have the meaning provided in Section 1(a) of the 2012 Extension Amendment.

 

2013 Available Commitment” shall mean an amount equal to the excess, if any, of (a) the amount of the Total 2013 Revolving Credit Commitment over (b) the sum of (i) the aggregate Dollar Equivalent principal amount of all 2013 Revolving Credit Loans (but not Swingline Loans) then outstanding and (ii) the aggregate Letters of Credit Outstanding under the 2013 Revolving Credit Commitment.

 

2013 Letter of Credit Fee” shall have the meaning provided in Section 4.1(c)(i).

 

2013 Multicurrency Sublimit” shall mean, at any date, the lesser of (x) $500,000,000 less any amounts outstanding under the 2016 Multicurrency Sublimit and (y) the aggregate 2013 Revolving Credit Commitments at such date.

 

2013 Revolving Credit Commitment” shall mean, (a) with respect to each 2013 Revolving Credit Lender on the 2011 Extension Effective Date that does not execute the 2011 Extension Amendment as an Extending Lender, the amount of the Revolving Credit Commitment of such 2013 Revolving Credit Lender which shall terminate on the 2013 Revolving Credit Maturity Date, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof, (b) in the case of any Lender that receives an assignment of any portion of a 2013 Revolving Credit Commitment that was held by a 2013 Revolving Credit Lender, the amount specified as such Lender’s “Revolving Credit Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total 2013 Revolving Credit Commitment, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof and (c) in the case of any 2013 Revolving Credit Lender that increases its 2013 Revolving Credit Commitment or becomes a New Revolving Loan Lender with respect to its 2013 Revolving Credit Commitment, in each case pursuant to Section 2.14, the amount specified in the applicable Joinder Agreement, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof.  As of the 2011 Extension Effective Date, the aggregate 2013 Revolving Credit Commitments are $744,712,328.77.

 

2013 Revolving Credit Commitment Percentage” shall mean at any time, for each 2013 Revolving Credit Lender, the percentage obtained by dividing (a) such Lender’s 2013 Revolving Credit Commitment at such time by (b) the aggregate amount of the 2013 Revolving Credit Commitments at such time; provided that at any time when the 2013 Revolving Credit Commitment shall have been terminated, each Lender’s 2013 Revolving Credit Commitment Percentage shall be the percentage obtained by dividing (a) such Lender’s 2013 Revolving Credit Exposure at such time by (b) the 2013 Revolving Credit Exposure of all Lenders at such time.

 

2013 Revolving Credit Exposure” shall mean, with respect to any 2013 Revolving Credit Lender at any time, the sum of (a) the aggregate Dollar Equivalent amount of the principal amount of 2013 Revolving Credit Loans of such Lender then outstanding, (b) such Lender’s Letter of Credit Exposure at such time in respect of such Lender’s 2013 Revolving Credit Commitments and (c) such

 

4



 

Lender’s Revolving Credit Commitment Percentage of the aggregate principal amount of all outstanding Swingline Loans at such time in respect of such Lender’s 2013 Revolving Credit Commitments.

 

2013 Revolving Credit Facility” shall mean the revolving credit facility represented by the 2013 Revolving Credit Commitments.

 

2013 Revolving Credit Lender” shall mean (a) as of the 2011 Extension Effective Date, each Revolving Credit Lender with respect to any Revolving Credit Commitment of such Lender (or a portion thereof) that has not been extended pursuant to the 2011 Extension Amendment and whose name and the aggregate principal amount of its Revolving Credit Commitment not so extended are set forth on Schedule 1.1(c) to the 2011 Extension Amendment under the heading “2013 Revolving Credit Commitment” and (b) after the 2011 Extension Effective Date, each Lender that holds a 2013 Revolving Credit Commitment.

 

2013 Revolving Credit Loan” shall have the meaning provided in Section 2.1(b).

 

2013 Revolving Credit Maturity Date” shall mean September 23, 2013 or, if such date is not a Business Day, the next preceding Business Day.

 

2013 Revolving Final Date” shall mean, with respect to 2013 Revolving Credit Commitments and Letters of Credit, the date on which the 2013 Revolving Credit Commitments shall have terminated, no 2013 Revolving Credit Loans shall be outstanding and the 2013 Revolving Credit Lenders shall have no more Letter of Credit Exposure.

 

2013 Swingline Loan” shall mean any Swingline Loan made pursuant to the 2013 Revolving Credit Commitments.

 

2014 Term Lender” shall mean, (a) as of the 2012 August Extension Effective Date, each Term Lender with respect to any Term Loans of such Lender (or a portion thereof) that has not been extended pursuant to the 2011 Extension Amendment, the 2012 Extension Amendment or the 2012 August Extension Amendment and whose name and the aggregate principal amount of its Term Loans not so extended are set forth on Schedule 1.1(c) of the 2012 August Extension Amendment under the heading “2014 Term Loan Amount” (for each such Lender, the “2014 Term Loan Amount”) and (b) after the 2012 August Extension Effective Date, each Lender that holds a 2014 Term Loan.

 

2014 Term Loan” shall mean a Term Loan the maturity of which is the 2014 Term Loan Maturity Date.  The aggregate amount of the Dollar Equivalent of the 2014 Term Loans as of the 2012 August Extension Effective Date is $3,087,298,419.62.

 

2014 Term Loan Amount” shall have the meaning provided in the definition of “2014 Term Lender”.

 

2014 Term Loan Facility” shall mean the 2014 Term Loans.

 

2014 Term Loan Maturity Date” shall mean the Initial Term Loan Maturity Date.

 

2016 Available Commitment” shall mean an amount equal to the excess, if any, of (a) the amount of the Total 2016 Revolving Credit Commitment over (b) the sum of (i) the aggregate Dollar Equivalent principal amount of all 2016 Revolving Credit Loans (but not Swingline Loans) then outstanding and (ii) the aggregate Letters of Credit Outstanding under the 2016 Revolving Credit Commitment.

 

5



 

2016 Letter of Credit Fee” shall have the meaning provided in Section 4.1(c)(ii).

 

2016 Multicurrency Sublimit” shall mean, at any date, the lesser of (x) $500,000,000 less any amounts outstanding under the 2013 Multicurrency Sublimit and (y) the aggregate 2016 Revolving Credit Commitments at such date.

 

2016 Revolving Credit Commitment” shall mean, (a) with respect to each 2016 Revolving Credit Lender on the 2011 Extension Effective Date, the amount set forth on Schedule 1.1(c) to the 2011 Extension Amendment under the heading “2016 Revolving Credit Commitment”, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof, (b) in the case of any Lender that receives an assignment of any portion of a 2016 Revolving Credit Commitment that was held by a 2016 Revolving Credit Lender, the amount specified as such Lender’s “Revolving Credit Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total 2016 Revolving Credit Commitment, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof and (c) in the case of any 2016 Revolving Credit Lender that increases its 2016 Revolving Credit Commitment or becomes a New Revolving Loan Lender with respect to its 2016 Revolving Credit Commitment, in each case pursuant to Section 2.14, the amount specified in the applicable Joinder Agreement, as such Revolving Credit Commitment may be reduced from time to time pursuant to the terms hereof.  As of the 2011 Extension Effective Date, the aggregate 2016 Revolving Credit Commitments are $1,004,230,136.98.

 

2016 Revolving Credit Commitment Percentage” shall mean at any time, for each 2016 Revolving Credit Lender, the percentage obtained by dividing (a) such Lender’s 2016 Revolving Credit Commitment at such time by (b) the aggregate amount of the 2016 Revolving Credit Commitments at such time; provided that at any time when the 2016 Revolving Credit Commitment shall have been terminated, each Lender’s 2016 Revolving Credit Commitment Percentage shall be the percentage obtained by dividing (a) such Lender’s 2016 Revolving Credit Exposure at such time by (b) the 2016 Revolving Credit Exposure of all Lenders at such time.

 

2016 Revolving Credit Exposure” shall mean, with respect to any 2016 Revolving Credit Lender at any time, the sum of (a) the aggregate Dollar Equivalent amount of the principal amount of 2016 Revolving Credit Loans of such Lender then outstanding, (b) such Lender’s Letter of Credit Exposure at such time in respect of such Lender’s 2016 Revolving Credit Commitments and (c) such Lender’s Revolving Credit Commitment Percentage of the aggregate principal amount of all outstanding Swingline Loans at such time in respect of such Lender’s 2016 Revolving Credit Commitments.

 

2016 Revolving Credit Facility” shall mean the revolving credit facility represented by the 2016 Revolving Credit Commitments.

 

2016 Revolving Credit Lender” shall mean (a) as of the 2011 Extension Effective Date, each Revolving Credit Lender with respect to any Revolving Credit Commitment of such Lender (or a portion thereof) that have not been extended pursuant to the 2011 Extension Amendment and whose name and the aggregate principal amount of its Revolving Credit Commitment not so extended are set forth on Schedule 1.1(c) to the 2011 Extension Amendment under the heading “2016 Revolving Credit Commitment” and (b) after the 2011 Extension Effective Date, each Lender that holds a 2016 Revolving Credit Commitment.

 

2016 Revolving Credit Loan” shall have the meaning provided in Section 2.1(b).

 

6



 

2016 Revolving Credit Maturity Date” shall mean the earliest of (i) June 24, 2015 (or, if such date is not a Business Day, the next preceding Business Day), if on such date the aggregate outstanding principal amount of the Borrower’s 9.875% Senior Notes due 2015 and 10.55% Senior Notes due 2015 exceeds $750.0 million, (ii) December 31, 2015 (or, if such date is not a Business Day, the next preceding Business Day), if on such date the aggregate outstanding principal amount of the Borrower’s 11.25% Senior Subordinated Notes due 2016 exceeds $750.0 million and (iii) September 24, 2016 (or, if such date is not a Business Day, the next preceding Business Day).

 

2016 Revolving Final Date” shall mean, with respect to 2016 Revolving Credit Commitments and Letters of Credit, the date on which the 2016 Revolving Credit Commitments shall have terminated, no 2016 Revolving Credit Loans shall be outstanding and the 2016 Revolving Credit Lenders shall have no more Letter of Credit Exposure.

 

2016 Swingline Loan” shall mean any Swingline Loan made pursuant to the 2016 Revolving Credit Commitments.

 

2017 Dollar Term Loan” shall mean an Initial Tranche B-1 Term Loan, Initial Tranche B-2 Term Loan, Initial Tranche B-3 Term Loan or Delayed Draw Term Loan the maturity of which has been extended to the 2017 Term Loan Maturity Date pursuant to the 2012 Extension Amendment.  The aggregate amount of the 2017 Dollar Term Loans as of the 2012 Extension Effective Date is $2,153,655,492.24.

 

2017 Dollar Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(z).

 

2017 Dollar Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

2017 Euro Term Loan” shall mean a Euro Tranche B-1 Term Loan or Euro Tranche B-2 Term Loan the maturity of which has been extended to the 2017 Term Loan Maturity Date pursuant to the 2012 Extension Amendment.  The aggregate amount of the 2017 Euro Term Loans as of the 2012 Extension Effective Date is €167,450,751.70.

 

2017 Euro Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(z).

 

2017 Euro Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

2017 Term Lender” shall mean, (a) as of the 2012 Extension Effective Date, each Term Lender with respect to any 2014 Term Loans of such Lender (or a portion thereof) that has been extended pursuant to the 2012 Extension Amendment and whose name and the aggregate principal amount of its Term Loans so extended are set forth on Schedule 1.1(c) to the 2012 Extension Amendment under the heading “2017 Term Loan Amount” (for each such Lender, the “2017 Term Loan Amount”) and (b) after the 2012 Extension Effective Date, each Lender that holds a 2017 Term Loan.

 

2017 Term Loan” shall mean a 2017 Dollar Term Loan or a 2017 Euro Term Loan, as the case may be.

 

7



 

2017 Term Loan Amount” shall have the meaning provided in the definition of “2017 Term Lender”.

 

2017 Term Loan Facility” shall mean the 2017 Term Loans.

 

2017 Term Loan Maturity Date” shall mean March 24, 2017 or, if such date is not a Business Day, the next preceding Business Day.

 

2017B Dollar Term Loan” shall mean an Initial Tranche B-1 Term Loan, Initial Tranche B-2 Term Loan, Initial Tranche B-3 Term Loan or Delayed Draw Term Loan the maturity of which has been extended to the 2017B Term Loan Maturity Date pursuant to the 2012 August Extension Amendment.  The aggregate amount of the 2017B Dollar Term Loans as of the 2012 August Extension Effective Date is $282,164,014.99.

 

2017B Dollar Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(aa).

 

2017B Dollar Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

2017B Euro Term Loan” shall mean a Euro Tranche B-1 Term Loan or Euro Tranche B-2 Term Loan the maturity of which has been extended to the 2017B Term Loan Maturity Date pursuant to the 2012 August Extension Amendment.  The aggregate amount of the 2017B Euro Term Loans as of the 2012 August Extension Effective Date is €10,986,307.40.

 

2017B Euro Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(aa).

 

2017B Euro Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

2017B Term Lender” shall mean, (a) as of the 2012 August Extension Effective Date, each Term Lender with respect to any 2014 Term Loans of such Lender (or a portion thereof) that has been extended pursuant to the 2012 August Extension Amendment and whose name and the aggregate principal amount of its Term Loans so extended are set forth on Schedule 1.1(c) to the 2012 August Extension Amendment under the heading “2017B Term Loan Amount” (for each such Lender, the “2017B Term Loan Amount”) and (b) after the 2012 August Extension Effective Date, each Lender that holds a 2017B Term Loan.

 

2017B Term Loan” shall mean a 2017B Dollar Term Loan or a 2017B Euro Term Loan, as the case may be.

 

2017B Term Loan Amount” shall have the meaning provided in the definition of “2017B Term Lender”.

 

2017B Term Loan Facility” shall mean the 2017B Term Loans.

 

2017B Term Loan Maturity Date” shall mean March 24, 2017 or, if such date is not a Business Day, the next preceding Business Day.

 

8



 

2018 Dollar Term Loan” shall mean an Initial Tranche B-1 Term Loan, Initial Tranche B-2 Term Loan, Initial Tranche B-3 Term Loan or Delayed Draw Term Loan the maturity of which has been extended to the 2018 Term Loan Maturity Date pursuant to the 2011 Extension Amendment.  The aggregate amount of the 2018 Dollar Term Loans as of the 2011 Extension Effective Date is $4,250,017,089.16.

 

2018 Dollar Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(y).

 

2018 Dollar Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

2018 Euro Term Loan” shall mean a Euro Tranche B-1 Term Loan or Euro Tranche B-2 Term Loan the maturity of which has been extended to the 2018 Term Loan Maturity Date pursuant to the 2011 Extension Amendment.  The aggregate amount of the 2018 Euro Term Loans as of the 2011 Extension Effective Date is €311,197,526.32.

 

2018 Euro Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(y).

 

2018 Euro Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

2018 Term Lender” shall mean, (a) as of the 2011 Extension Effective Date, each Term Lender with respect to any 2014 Term Loans of such Lender (or a portion thereof) that has been extended pursuant to the 2011 Extension Amendment and whose name and the aggregate principal amount of its Term Loans so extended are set forth on Schedule 1.1(c) to the 2011 Extension Amendment under the heading “2018 Term Loan Amount” (for each such Lender, the “2018 Term Loan Amount”) and (b) after the 2011 Extension Effective Date, each Lender that holds a 2018 Term Loan.

 

2018 Term Loan” shall mean a 2018 Dollar Term Loan or a 2018 Euro Term Loan, as the case may be.

 

2018 Term Loan Amount” shall have the meaning provided in the definition of “2018 Term Lender”.

 

2018 Term Loan Facility” shall mean the 2018 Term Loans.

 

2018 Term Loan Maturity Date” shall mean March 24, 2018 or, if such date is not a Business Day, the next preceding Business Day.

 

2018B Term Lender” shall mean, (a) as of the 2012 September Joinder Effective Date, each Term Lender that has made a 2018B Term Loan and whose name and the aggregate principal amount of its 2018B Term Loans so made are set forth on Schedule A to the 2012 September Joinder Amendment under the heading “Amount” and (b) after the 2012 September Joinder Effective Date, each Lender that holds a 2018B Term Loan.

 

2018B Term Loan” shall mean a term loan made pursuant to the 2012 September Joinder Agreement.  The aggregate amount of the 2018B Term Loans as of the 2012 September Joinder Effective Date is $750,000,000.00.

 

9



 

2018B Term Loan Facility” shall mean the 2018B Term Loans.

 

2018B Term Loan Maturity Date” shall mean September 24, 2018 or, if such date is not a Business Day, the next preceding Business Day.

 

ABR” shall mean for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Effective Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as announced from time to time by the Administrative Agent as its “prime rate”.  The “prime rate” is a rate set by the Administrative Agent based upon various factors including the Administrative Agent’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in the ABR due to a change in such rate announced by the Administrative Agent or in the Federal Funds Effective Rate shall take effect at the opening of business on the day specified in the announcement of such change.

 

ABR Loan” shall mean each Loan bearing interest based on the ABR and, in any event, shall (i) include all Swingline Loans and (ii) exclude all Loans denominated in Alternative Currencies.

 

Acquired EBITDA shall mean, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary (any of the foregoing, a “Pro Forma Entity”) for any period, the amount for such period of Consolidated EBITDA of such Pro Forma Entity (determined using such definitions as if references to the Borrower and its Restricted Subsidiaries therein were to such Pro Forma Entity and its Restricted Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity.

 

Acquired Entity or Business shall have the meaning provided in the definition of the term “Consolidated EBITDA.”

 

Acquisition Agreement” shall have the meaning provided in the preamble to this Agreement.

 

Additional Swingline Lender” shall mean any lender of Additional Swingline Loans hereunder.

 

Additional Swingline Loan” shall have the meaning provided in Section 2.1(c).

 

Additional Swingline Maximum Amount” shall mean an aggregate principal amount equal to $200,000,000.

 

Adjusted Total Delayed Draw Term Loan Commitment shall mean at any time the Total Delayed Draw Term Loan Commitment less the Delayed Draw Term Loan Commitments of all Defaulting Lenders.

 

Adjusted Total Euro Tranche Term Loan Commitment shall mean at any time the Total Euro Tranche Term Loan Commitment less the Euro Tranche Term Loan Commitments of all Defaulting Lenders.

 

Adjusted Total Initial Term Loan Commitment shall mean at any time the Total Initial Term Loan Commitment less the Initial Term Loan Commitments of all Defaulting Lenders.

 

10


 


 

Adjusted Total Revolving Credit Commitment” shall mean at any time the Total Revolving Credit Commitment less the aggregate Revolving Credit Commitments of all Defaulting Lenders.

 

Adjusted Total Term Loan Commitment shall mean at any time the Total Term Loan Commitment less the Term Loan Commitments of all Defaulting Lenders.

 

Administrative Agent” shall mean Credit Suisse, as the administrative agent for the Lenders under this Agreement and the other Credit Documents, or any successor administrative agent pursuant to Section 12.9.

 

Administrative Agent’s Office shall mean the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 13.2 to the Original Credit Agreement or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

 

Administrative Questionnaire shall have the meaning provided in Section 13.6(b).

 

Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person.  A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise.

 

Agent Parties shall have the meaning provided in Section 13.17(c).

 

Agents” shall mean the Administrative Agent, the Collateral Agent, the Syndication Agent and each Joint Lead Arranger and Bookrunner.

 

Aggregate Multicurrency Exposures” shall have the meaning provided in Section 5.2(b).

 

Aggregate Revolving Credit Outstandings” shall have the meaning provided in Section 5.2(b).

 

Agreement” shall mean, on any date, the Original Credit Agreement as amended and restated hereby and as the same may thereafter from time to time be further amended, supplemented, amended and restated or otherwise modified and in effect on such date in accordance with the terms hereof.

 

Agreement Currency” shall have the meaning provided in Section 13.19.

 

Alternative Currency” shall mean Euro, British Pounds Sterling and any other currency acceptable to the Administrative Agent that is freely convertible into Dollars and readily available in the London interbank market.

 

Amendment Agreement” shall mean that certain Amendment Agreement to the Amended and Restated Credit Agreement, which amends this Agreement, dated as of August 10, 2010, among the Borrower, the Guarantors, the Administrative Agent and the Required Lenders.

 

Amendment Effective Date” shall mean September 28, 2007.

 

11



 

Amendment No. 1 Effective Date” shall mean the date on or before November 8, 2010 on which all conditions to effectiveness set forth in Sections 4(a) and 4(b) of the Amendment Agreement have been satisfied.

 

Applicable ABR Margin shall mean, at any date:

 

(a) with respect to each ABR Loan that is an Initial Term Loan, Delayed Draw Term Loan, a 2013 Revolving Credit Loan or a 2013 Swingline Loan, the applicable percentage per annum set forth below based upon the Status in effect on such date:

 

 

 

Applicable ABR Margin for Initial Term Loans, Delayed Draw Term Loans,
2013 Revolving Credit Loans or 2013 Swingline Loans:

 

Status

 

Initial
Term Loans

 

Delayed Draw
Term Loans

 

2013 Revolving Credit
and
2013 Swingline Loans

 

Level I Status

 

1.75

%

1.75

%

1.75

%

Level II Status

 

1.50

%

1.50

%

1.50

%

Level III Status

 

1.25

%

1.25

%

1.25

%

 

(b) with respect to each ABR Loan that is either a 2016 Revolving Credit Loan, 2016 Swingline Loan or a 2018 Dollar Term Loan 3.00% per annum; and

 

(c) with respect to each ABR Loan that is a 2017 Dollar Term Loan or, a 2017B Dollar Term Loan or a 2018B Term Loan 4.00% per annum.

 

Notwithstanding the foregoing, Level I Status shall apply during the period from and including the Original Closing Date to but excluding the Trigger Date.

 

Applicable Amount shall mean, at any time (the “Applicable Amount Reference Time”), an amount equal to (a) the sum, without duplication, of:

 

(i)                                     an amount (which shall not be less than zero) equal to the greater of (x) 50% of Cumulative Consolidated Net Income of the Borrower and the Restricted Subsidiaries for the period from the first day of the first full fiscal quarter commencing after the Original Closing Date until the last day of the then most recent fiscal quarter or fiscal year, as applicable, for which Section 9.1 Financials have been delivered and (y) (A) the cumulative amount of Excess Cash Flow of the Borrower and the Restricted Subsidiaries for all fiscal years (or, in the case of the fiscal year ending on or about December 31, 2007, the portion of the fiscal year) completed after the Original Closing Date (commencing with and including the portion of the fiscal year ending on or about December 31, 2007 following the Original Closing Date) and prior to the Applicable Amount Reference Time, minus (B) the portion of such Excess Cash Flow that has been (or is required to be) applied after the Original Closing Date and prior to the Applicable Amount Reference Time to the prepayment of Loans in accordance with Section 5.2(a)(ii);

 

(ii)                                  to the extent not (A) already included in the calculation of Consolidated Net Income of the Borrower and the Restricted Subsidiaries or (B) already reflected as a return of capital or deemed reduction in the amount of such Investment, the aggregate JV Distribution Amount received by the Borrower or any Restricted Subsidiary during the period from and including the Business Day immediately following the Original Closing Date through and including the Applicable Amount Reference Time;

 

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(iii)                               to the extent not (A) already included in the calculation of Consolidated Net Income of the Borrower and the Restricted Subsidiaries, (B) already reflected as a return of capital or deemed reduction in the amount of such Investment and (C) required to be applied to prepay Term Loans in accordance with Section 5.2(a), the aggregate amount of all Net Cash Proceeds received by the Borrower or any Restricted Subsidiary in connection with the sale, transfer or other disposition of its ownership interest in any joint venture that is not a Subsidiary or in any Unrestricted Subsidiary, in each case, to the extent of the Investment in such joint venture or Unrestricted Subsidiary following the Original Closing Date, during the period from and including the Business Day immediately following the Original Closing Date through and including the Applicable Amount Reference Time;

 

(iv)                              other than for purposes of Section 10.6(c), the aggregate amount of Retained Declined Proceeds retained by the Borrower during the period from and including the Business Day immediately following the Original Closing Date through and including the Applicable Amount Reference Time; and

 

(v)                                 the amount of any capital contributions (other than (A) the Equity Investments, (B) the Cure Amount, (C) any amount added back in the definition of Consolidated EBITDA pursuant to clause (a)(viii) thereof, (D) any contributions in respect of Disqualified Equity Interests and (E) any amount applied to redeem Stock or Stock Equivalents of the Borrower pursuant to Section 10.6(a)) made in cash to, or any proceeds of an equity issuance received by, the Borrower from and including the Business Day immediately following the Original Closing Date through and including the Applicable Amount Reference Time, including proceeds from the issuance of Stock or Stock Equivalents of any direct or indirect parent of the Borrower;

 

minus (b) the sum, without duplication, of:

 

(i)                                     the aggregate amount of Investments made pursuant to Section 10.5(g)(ii)(y), 10.5(i)(y) or 10.5(v)(y) following the Original Closing Date and prior to the Applicable Amount Reference Time (with regard to Investments made pursuant to Section 10.5(g)(ii)(y), net of any return of capital in respect of such Investment or deemed reduction in the amount of such Investment including, without limitation, upon the re-designation of any Unrestricted Subsidiary as a Restricted Subsidiary or the Disposition of any such Investment);

 

(ii)                                  the aggregate amount of dividends pursuant to Section 10.6(c)(y) (or amounts loaned or advanced pursuant to Section 10.5(m) in lieu of such dividends) following the Original Closing Date and prior to the Applicable Amount Reference Time; and

 

(iii)                               the aggregate amount of prepayments, repurchases and redemptions of Senior Notes, Senior Interim Loans, Senior Subordinated Notes, Senior Subordinated Interim Loans and Permitted Additional Debt pursuant to subclause (2) of Section 10.7(a)(y)(i) following the Original Closing Date and prior to the Applicable Amount Reference Time.

 

Applicable LIBOR Margin” shall mean, at any date:

 

(a) with respect to each LIBOR Loan that is an Initial Term Loan, Delayed Draw Term Loan, Euro Tranche Term Loan or 2013 Revolving Credit Loan, the applicable percentage per annum set forth below based upon the Status in effect on such date:

 

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Applicable LIBOR Margin for:

 

Status

 

Initial
Term Loans

 

Delayed Draw
Term Loans

 

Euro Tranche
Term Loans

 

2013 Revolving
Credit Loans

 

Level I Status

 

2.75

%

2.75

%

2.75

%

2.75

%

Level II Status

 

2.50

%

2.50

%

2.50

%

2.50

%

Level III Status

 

2.25

%

2.25

%

2.25

%

2.25

%

 

(b) with respect to each LIBOR Loan that is either a 2016 Revolving Credit Loan or a 2018 Term Loan 4.00% per annum; and

 

(c) with respect to each LIBOR Loan that is a 2017 Term Loan or, a 2017B Term Loan or a 2018B Term Loan 5.00% per annum.

 

Notwithstanding the foregoing, Level I Status shall apply during the period from and including the Original Closing Date to but excluding the Trigger Date.

 

Applicable Premium” shall mean, as of any date upon which a prepayment is payable pursuant to Section 5.1(b), the present value at such date, computed using a discount rate equal to the Treasury Rate plus 50 basis points, of all interest that would accrue on the applicable Repaid Tranche B-3 Loans from such date to the date which is 3.25 years following the Original Closing Date, computed using the LIBOR Rate for an Interest Period of three months plus the Applicable LIBOR Margin in effect on such date.

 

Approved Fund shall mean any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

Asset Sale Prepayment Event shall mean any Disposition of any business units, assets or other property of the Credit Parties or any of their Restricted Subsidiaries not in the ordinary course of business (including any Disposition of any Stock or Stock Equivalents of any Subsidiary of the Borrower owned by the Borrower or a Restricted Subsidiary).  Notwithstanding the foregoing, the term “Asset Sale Prepayment Event” shall not include any transaction permitted by Section 10.4 (other than transactions permitted by Section 10.4(b) and Section 10.4(o), which shall constitute Asset Sale Prepayment Events).

 

Assignment and Acceptance shall mean (a) an assignment and acceptance substantially in the form of Exhibit J to the Original Credit Agreement, or such other form as may be approved by the Administrative Agent and (b) in the case of any assignment of Term Loans in connection with a Permitted Debt Exchange conducted in accordance with Section 2.15, such form of assignment (if any) as may have been requested by the Administrative Agent in accordance with Section 2.15(a).

 

Authorized Officer shall mean the Chief Executive Officer, President, the Chief Financial Officer, the Treasurer, the Vice President-Finance or any other senior officer of the Borrower designated as such in writing to the Administrative Agent by the Borrower.

 

Auto-Extension Letter of Credit” shall have the meaning provided in Section 3.2(d).

 

Available Delayed Draw Commitment shall mean an amount equal to the excess, if any, of (a) the amount of the Total Delayed Draw Term Loan Commitment over (b) the aggregate principal amount of all Delayed Draw Term Loans.

 

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Bankruptcy Code shall have the meaning provided in Section 11.5.

 

BBA LIBOR” shall have the meaning provided in the definition of “LIBOR Rate.”

 

benefited Lender” shall have the meaning provided in Section 13.8.

 

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

 

Borrower” shall have the meaning provided in the preamble to this Agreement.

 

Borrowing” shall mean and include (a) the incurrence of Swingline Loans from the Swingline Lender on a given date and (b) the incurrence of one Class and Type of Loan on a given date (or resulting from conversions on a given date) having a single Maturity Date and in the case of LIBOR Loans, the same Interest Period (provided that ABR Loans incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of LIBOR Loans).

 

British Pounds Sterling” shall mean the lawful currency of Great Britain.

 

Business Day shall mean any day excluding Saturday, Sunday and any other day on which banking institutions in New York City are authorized by law or other governmental actions to close, and,

 

(a)                                  if such day relates to any interest rate settings as to a LIBOR Loan denominated in Dollars or any Alternative Currency (other than Euro), any fundings, disbursements, settlements and payments in Dollars or any Alternative Currency (other than Euro) in respect of any such LIBOR Loan, or any other dealings in Dollars or any Alternative Currency (other than Euro) to be carried out pursuant to this Agreement in respect of any such LIBOR Loan, such day shall be a day on which dealings in deposits in Dollars or such Alternative Currency are conducted by and between banks in the London interbank eurodollar market; provided, however,

 

(b)                                 if such day relates to any interest rate settings as to a LIBOR Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such LIBOR Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such LIBOR Loan, such day shall be a TARGET Day.

 

Capital Expenditures shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases) by the Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures on a consolidated statement of cash flows of the Borrower and its Subsidiaries (including capitalized software expenditures, customer acquisition costs and incentive payments, conversion costs and contract acquisition costs).

 

Capital Lease” shall mean, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to be, accounted for as a capital lease on the balance sheet of that Person.

 

Capitalized Lease Obligations shall mean, as applied to any Person, all obligations under Capital Leases of such Person or any of its Subsidiaries, in each case taken at the amount thereof accounted for as liabilities in accordance with GAAP.

 

15



 

Cash Collateralize” shall have the meaning provided in Section 3.8(d).

 

Cash Management Agreement shall mean any agreement or arrangement to provide cash management services, including treasury, depository, overdraft, credit or debit card, purchase card, electronic funds transfer and other cash management arrangements.

 

Cash Management Bank” shall mean any Person that, either (x) at the time it enters into a Cash Management Agreement or (y) on the Original Closing Date, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.

 

Casualty Event shall mean, with respect to any property of any Person, any loss of or damage to, or any condemnation or other taking by a Governmental Authority of, such property for which such Person or any of its Restricted Subsidiaries receives insurance proceeds, or proceeds of a condemnation award or other compensation.

 

Change in Law” shall mean (a) the adoption of any law, treaty, order, policy, rule or regulation after the Original Closing Date, (b) any change in any law, treaty, order, policy, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Original Closing Date or (c) compliance by any Lender with any guideline, request, directive or order issued or made after the Original Closing Date by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law).

 

Change of Control” shall mean and be deemed to have occurred if (a) either (i) the Permitted Holders shall at any time not own, in the aggregate, directly or indirectly, beneficially and of record, at least 35% of the voting power of the outstanding Voting Stock of the Borrower or (ii) the Sponsor shall at any time not own, in the aggregate, directly or indirectly, beneficially and of record, at least 12% of the voting power of the outstanding Voting Stock of the Borrower; or (b) any person, entity or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended), other than the Permitted Holders, shall at any time have acquired direct or indirect beneficial ownership of a percentage of the voting power of the outstanding Voting Stock of the Borrower that exceeds 35% thereof, unless, in the case of either clause (a) or (b) above, the Permitted Holders have, at such time, 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 the Borrower; or (c) Continuing Directors shall not constitute at least a majority of the board of directors of the Borrower; or (d) at any time, a Change of Control (as defined in the Senior Interim Loan Agreement, the Senior Notes Indenture, the Senior Subordinated Interim Loan Agreement or the Senior Subordinated Notes Indenture) shall have occurred.

 

Class”, when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are 2013 Revolving Credit Loans, 2016 Revolving Credit Loans, 2018 Dollar Term Loans, 2018 Euro Term Loans, 2018B Term Loans, 2017 Dollar Term Loans, 2017 Euro Term Loans, 2017B Dollar Term Loans, 2017B Euro Term Loans, New Revolving Loans, Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Initial Tranche B-3 Term Loans, Delayed Draw Term Loans, Euro Tranche B-1 Term Loans, Euro Tranche B-2 Term Loans, New Term Loans (of each Series), Extended Term Loans (of the same Extension Series), Extended Revolving Credit Loans (of the same Extension Series) or 2013 Swingline Loans, 2016 Swingline Loans and, when used in reference to any Commitment, refers to whether such Commitment is a 2013 Revolving Credit Commitment, a 2016 Revolving Credit Commitment, a New Revolving Credit Commitment, an Extended Revolving Credit Commitment (of the same Extension Series), an Initial Tranche B-1 Term Loan Commitment, an Initial Tranche B-2 Term Loan Commitment, an Initial Tranche B-3 Term Loan Commitment, a Delayed Draw Term Loan Commitment, a Euro Tranche B-1 Term Loan Commitment, a Euro Tranche B-2 Term Loan Commitment or a New Term Loan Commitment.  For the avoidance of

 

16



 

doubt, each Extended Revolving Credit Loan is of a different Class than the Revolving Credit Loan from which it was converted, each Extended Revolving Credit Commitment is of a different Class than the Revolving Credit Commitment from which it was converted, and each Extended Term Loan is of a different Class than the Class or Classes of Term Loan from which it was converted.

 

Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.  Section references to the Code are to the Code, as in effect at the Original Closing Date, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.

 

Collateral” shall mean all property pledged or purported to be pledged pursuant to the Security Documents.

 

Collateral Agent” shall mean Credit Suisse, as collateral agent under the Security Documents, or any successor collateral agent pursuant to Section 12.9.

 

Commitment Fee” shall have the meaning provided in Section 4.1(a).

 

Commitment Fee Rate” shall mean:

 

(a) with respect to the 2013 Available Commitment on any day, the rate per annum set forth below opposite the Status in effect on such day:

 

Status

 

Commitment Fee Rate

 

 

 

 

 

Level I Status

 

0.50

%

Level II Status

 

0.50

%

Level III Status

 

0.25

%

 

(b) with respect to the 2016 Available Commitment on any day 0.75% per annum.

 

Notwithstanding the foregoing, the term “Commitment Fee Rate” shall mean 0.50% during the period from and including the Original Closing Date to but excluding the Trigger Date.

 

Commitments” shall mean, with respect to each Lender (to the extent applicable), such Lender’s 2013 Revolving Credit Commitment, 2016 Revolving Credit Commitment, a New Revolving Credit Commitment, an Extended Revolving Credit Commitment, an Initial Tranche B-1 Term Loan Commitment, an Initial Tranche B-2 Term Loan Commitment, an Initial Tranche B-3 Term Loan Commitment, a Delayed Draw Term Loan Commitment, a Euro Tranche B-1 Term Loan Commitment, a Euro Tranche B-2 Term Loan Commitment or a New Term Loan Commitment.

 

Communications shall have the meaning provided in Section 13.17(a).

 

Company” shall have the meaning provided in the preamble to this Agreement.

 

Confidential Information” shall have the meaning provided in Section 13.16.

 

Confidential Information Memorandum shall mean the Confidential Information Memorandum of the Borrower dated September 2007.

 

17



 

Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period, plus:

 

(a)                                  without duplication and to the extent already deducted (and not added back) in arriving at such Consolidated Net Income, the sum of the following amounts for the Borrower and the Restricted Subsidiaries for such period:

 

(i)                                     total interest expense and to the extent not reflected in such total interest expense, any losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such hedging obligations, bank fees and costs of surety bonds in connection with financing activities, and commissions, discounts, yield and other fees and charges (including any interest expense) related to any Permitted Receivables Financing,

 

(ii)                                  provision for taxes based on income, profits or capital, including federal, foreign state, franchise, excise and similar taxes and foreign withholding taxes paid or accrued during such period, including any penalties and interest relating to any tax examinations,

 

(iii)                               depreciation and amortization, including the amortization of deferred financing fees or costs, capitalized software expenditures, customer acquisition costs and incentive payments, conversion costs, contract acquisition costs, and amortization of unrecognized prior service costs and actuarial gains and losses related to pension and other post-employment benefits,

 

(iv)                              Non-Cash Charges,

 

(v)                                 business optimization expenses (including data center consolidation initiatives, severance costs and other costs relating to initiatives aimed at profitability improvement) and restructuring charges or reserves (including restructuring costs related to acquisitions after the Original Closing Date and to closure and/or consolidation of facilities),

 

(vi)                              the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly-owned Subsidiary deducted (and not added back) in such period in arriving at Consolidated Net Income,

 

(vii)                           the amount of management, monitoring, consulting and advisory fees (including termination fees) and related indemnities and expenses paid or accrued in such period to the Sponsor,

 

(viii)                        any costs or expenses incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Borrower or net cash proceeds of an issuance of Stock or Stock Equivalents (other than Disqualified Equity Interests) of the Borrower (provided such capital contributions have not been applied to increase the “Applicable Amount” pursuant to clause (v) of the definition thereof),

 

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(ix)                                the amount of net cost savings and net cash flow effect of revenue enhancements related to new agreements or amendments to existing agreements with customers or joint ventures projected by the Borrower in good faith to be realized as a result of specified actions taken or to be taken prior to or during such period (which cost savings or revenue enhancements shall be subject only to certification by management of the Borrower and shall be calculated on a Pro Forma Basis as though such cost savings or revenue enhancements had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings or revenue enhancements are reasonably identifiable and factually supportable, (B) such actions have been taken or are to be taken within 12 months after the date of determination to take such action and (C) no cost savings or revenue enhancements shall be added pursuant to this clause (ix) to the extent duplicative of any expenses or charges relating to such cost savings or revenue enhancements that are included in clause (v) above with respect to such period,

 

(x)                                   to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (A) not denied by the applicable carrier in writing within 180 days and (B) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within such 365 days), expenses with respect to liability or casualty events or business interruption,

 

(xi)                                the amount of losses on Dispositions of receivables and related assets in connection with any Permitted Receivables Financing,

 

(xii)                             extraordinary losses and unusual or non-recurring charges (including litigation and regulatory settlements, and spin-off costs relating to divestitures of subsidiaries, including without limitation from the spin-off of The Western Union Company),

 

(xiii)                          to the extent included in Consolidated Net Income, the negative EBITDA of IPS and IPS Canada, and

 

(xiv)                         with respect to any Joint Venture, an amount equal to the proportion of those items described in clauses (ii) and (iii) above relating to such Joint Venture corresponding to the Borrower’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),

 

less

 

(b)                                 without duplication and to the extent included in arriving at such Consolidated Net Income, the sum of the following amounts for such period:

 

(i)                                     extraordinary gains and unusual or non-recurring gains,

 

(ii)                                  non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated Net Income or Consolidated EBITDA in any prior period),

 

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(iii)                               gains on asset sales (other than asset sales in the ordinary course of business),

 

(iv)                              any net after-tax income from the early extinguishment of Indebtedness or hedging obligations or other derivative instruments, and

 

(v)                                 cash expenditures (or any netting arrangements resulting in increased cash expenditures) not deducted in arriving at Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash losses relating to such income were added in the calculation of Consolidated EBITDA pursuant to paragraph (a) above for any previous period and not deducted,

 

in each case, as determined on a consolidated basis for the Borrower and the Restricted Subsidiaries in accordance with GAAP; provided that

 

(i)                                     to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA currency translation gains and losses related to currency remeasurements of Indebtedness or intercompany balances (including the net loss or gain resulting from Hedge Agreements for currency exchange risk),

 

(ii)                                  to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period any adjustments resulting from the application of Statement of Financial Accounting Standards No. 133 and its related pronouncements and interpretations,

 

(iii)                               there shall be included in determining Consolidated EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person or business, or attributable to any property or asset acquired by the Borrower or any Restricted Subsidiary during such period (but not the Acquired EBITDA of any related Person or business or any Acquired EBITDA attributable to any assets or property, in each case to the extent not so acquired) to the extent not subsequently sold, transferred, abandoned or otherwise disposed by the Borrower or such Restricted Subsidiary (each such Person, business, property or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”) and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such acquisition or conversion) and (B) other than for purposes of determining the Applicable Amount, the Applicable ABR Margin, the Applicable LIBOR Margin, Commitment Fee Rate and the Delayed Draw Commitment Fee Rate, an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) as specified in a Pro Forma Adjustment Certificate and delivered to the Lenders and the Administrative Agent, and

 

(iv)                              to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset sold, transferred, abandoned or otherwise disposed of, closed or classified as discontinued operations by the Borrower or any Restricted Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”)

 

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based on the actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer or disposition or conversion).

 

Consolidated Net Income shall mean, for any period, the net income (loss) of the Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, excluding, without duplication,

 

(a)                                  extraordinary items for such period,

 

(b)                                 the cumulative effect of a change in accounting principles during such period to the extent included in Consolidated Net Income,

 

(c)                                  Transaction Expenses incurred during such period,

 

(d)                                 any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, investment, recapitalization, asset disposition, issuance or repayment of debt, issuance of equity securities, refinancing transaction or amendment or other modification of any debt instrument (in each case, including any such transaction consummated prior to the Original 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,

 

(e)                                  any effect of income or loss for such period attributable to the early extinguishment of Indebtedness,

 

(f)                                    accruals and reserves established or adjusted within twelve months after the Original Closing Date that are so required to be established as a result of the Transactions in accordance with GAAP or changes as a result of adoption of or modification of accounting policies during such period,

 

(g)                                 the mark-to-market effects on net income during the period of any derivatives or similar financial instruments, including the ineffective portion of hedging arrangements, but including such effects settled in cash in the period,

 

(h)                                 Net Income of IPS and IPS Canada,

 

(i)                                     solely for purposes of determining the Applicable Amount, the net income for such period of any Restricted Subsidiary (other than any Guarantor) to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its net income is not at the date of determination wholly permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided that Consolidated Net Income of the Borrower will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) to the Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein, and

 

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(j)                                     the amount of any net income (or loss) for such period from disposed or discontinued operations.

 

There shall be excluded from Consolidated Net Income for any period the purchase accounting effects of adjustments in component amounts required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the Borrower and the Restricted Subsidiaries), as a result of the Transactions, any consummated acquisition whether consummated before or after the Original Closing Date, or the amortization or write-off of any amounts thereof.

 

Consolidated Senior Secured Debt shall mean Consolidated Total Debt secured by a Lien on any Collateral (excluding any Permitted Other Indebtedness incurred pursuant to Section 10.1(aa), Section 10.1(bb)(i)(a) (but solely to the extent the Net Cash Proceeds thereof are applied not later than five (5) Business Days after the receipt thereof to repurchase, repay, redeem or otherwise defease Senior Notes and/or Senior Subordinated Notes pursuant to and in accordance with Section 10.7(a)(y)(i)), Section 10.1(bb)(i)(b) or Section 10.1(cc) and, in each case, secured by a Lien on Collateral ranking junior to the Lien securing the Obligations).

 

Consolidated Senior Secured Debt to Consolidated EBITDA Ratio shall mean, as of any date of determination, the ratio of (a) Consolidated Senior Secured Debt as of such date to (b) Consolidated EBITDA for the Test Period then last ended.

 

Consolidated Total Assets shall mean, as of any date of determination, the amount that would, in conformity with GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries at such date (excluding any settlement assets).

 

Consolidated Total Debt shall mean, as of any date of determination, (a) all Indebtedness of the types described in clause (a) and clause (d) of the definition thereof (but, (i) in the case of clause (d), only to the extent of any unreimbursed drawings under any letter of credit and (ii) in any event, excluding any Settlement Indebtedness) of the definition thereof, in each case actually owing by the Borrower and the Restricted Subsidiaries on such date and to the extent appearing on the balance sheet of the Borrower determined on a consolidated basis in accordance with GAAP minus (b) the aggregate cash and cash equivalents (in each case, free and clear of all Liens, other than Liens permitted by Section 10.2 other than clause (u) thereof) included in the cash and cash equivalents accounts (other than settlement assets) (x) listed on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries as at such date and (y) listed on the balance sheet of any Joint Venture (excluding settlement assets) in an amount corresponding to the Borrower’s or Restricted Subsidiaries’, as applicable, proportionate share thereof, based on its ownership of such Joint Venture’s Voting Stock.

 

Consolidated Total Debt to Consolidated EBITDA Ratio shall mean, as of any date of determination, the ratio of (a) Consolidated Total Debt as of such date to (b) Consolidated EBITDA for the Test Period then last ended.

 

Consolidated Working Capital” shall mean, at any date, the excess of (a) the sum of all amounts (other than cash and Permitted Investments) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries at such date excluding the current portion of current and deferred income taxes over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries on such date, including deferred revenue but excluding, without

 

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duplication, (i) the current portion of any Funded Debt, (ii) all Indebtedness consisting of Loans and Letter of Credit Exposure to the extent otherwise included therein, (iii) the current portion of interest and (iv) the current portion of current and deferred income taxes.

 

Continuing Director shall mean, at any date, an individual (a) who is a member of the board of directors of the Borrower on the Original Closing Date, (b) who, as of the date of determination, has been a member of such board of directors for at least the twelve preceding months, (c) who has been nominated to be a member of such board of directors, directly or indirectly, by a Sponsor or Persons nominated by a Sponsor or (d) who has been nominated to be a member of such board of directors by a majority of the other Continuing Directors then in office.

 

Contract Consideration” shall have the meaning provided in the definition of “Excess Cash Flow.”

 

Contractual Requirement shall have the meaning provided in Section 8.3.

 

Converted Restricted Subsidiary shall have the meaning provided in the definition of the term “Consolidated EBITDA.”

 

Converted Unrestricted Subsidiary shall have the meaning provided in the definition of the term “Consolidated EBITDA.”

 

Credit Documents shall mean this Agreement (including the Original Credit Agreement), the Guarantees, the Security Documents, each Letter of Credit and any promissory notes issued by the Borrower hereunder.

 

Credit Event shall mean and include the making (but not the conversion or continuation) of a Loan and the issuance of a Letter of Credit.

 

Credit Facility” shall mean a category of Commitments and extensions of credit thereunder.

 

Credit Party shall mean the Borrower, the Guarantors and each other Subsidiary of the Borrower that is a party to a Credit Document.

 

Credit Suisse shall mean Credit Suisse, Cayman Islands Branch and its successors.

 

Cumulative Consolidated Net Income shall mean, for any period, Consolidated Net Income for such period, taken as a single accounting period.  Cumulative Consolidated Net Income may be a positive or negative amount.

 

Cure Amount” shall have the meaning provided in Section 11.15(a).

 

Cure Right” shall have the meaning provided in Section 11.15(a).

 

Debt Incurrence Prepayment Event” shall mean any issuance or incurrence by the Borrower or any of the Restricted Subsidiaries of any Indebtedness (excluding any Indebtedness permitted to be issued or incurred under Section 10.1 other than Section 10.1(o) or, except to the extent accompanied by a corresponding reduction of the Revolving Credit Commitments Section 10.1(y)).

 

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Debt Repayment” shall mean the repayment, prepayment, repurchase or defeasance of the Indebtedness of the Borrower under the Indebtedness that is identified on Schedule 1.1(g) to the Original Credit Agreement and that is repaid, prepaid, repurchased or defeased on the Original Closing Date (or such later date as may be necessary to effect the Debt Repayment in accordance with the tender offers therefor).

 

Declined Proceeds shall have the meaning provided in Section 5.2(h).

 

Default” shall mean any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.

 

Default Rate” shall have the meaning provided in Section 2.8(c).

 

Defaulting Lender shall mean any Lender with respect to which a Lender Default is in effect.

 

Deferred Net Cash Proceeds shall have the meaning provided such term in the definition of “Net Cash Proceeds”.

 

Deferred Net Cash Proceeds Payment Date shall have the meaning provided such term in the definition of “Net Cash Proceeds”.

 

Delayed Draw Commitment Fee shall have the meaning provided in Section 4.1(b).

 

Delayed Draw Commitment Fee Rate shall mean, with respect to the Available Delayed Draw Commitment on any day, 0.75% per annum.

 

Delayed Draw Repayment Amount shall have the meaning provided in Section 2.5(b)(x).

 

Delayed Draw Repayment Date shall have the meaning provided in Section 2.5(b).

 

Delayed Draw Term Loan” shall have the meaning provided in Section 2.1(a).  For the avoidance of doubt, all Delayed Draw Term Loans are 2014 Term Loans.

 

Delayed Draw Term Loan Commitment” shall mean, (a) in the case of each Lender that is a Lender as of the date hereof, the amount set forth opposite such Lender’s name on Schedule 1.1(c)-1 as such Lender’s “Delayed Draw Term Loan Commitment” and (b) in the case of any Lender that becomes a Lender as of the date hereof, the amount specified as such Lender’s “Delayed Draw Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Delayed Draw Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Delayed Draw Term Loan Commitments as of the Original Closing Date was $225,000,000.

 

Delayed Draw Term Loan Commitment Percentage shall mean at any time, for each Lender, the percentage obtained by dividing (a) such Lender’s Delayed Draw Term Loan Commitment at such time by (b) the amount of the Total Delayed Draw Term Loan Commitment at such time, provided that at any time when the Total Delayed Draw Term Loan Commitment shall have been terminated, each Lender’s Delayed Draw Term Loan Commitment Percentage shall be the percentage obtained by dividing (a) such Lender’s Delayed Draw Term Loan Exposure at such time by (b) the Delayed Draw Term Loan Exposure of all Lenders at such time.

 

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Delayed Draw Term Loan Commitment Termination Date” shall mean the earliest to occur of (i) December 31, 2008, (ii) the date the Delayed Draw Term Loan Commitments are permanently reduced to zero pursuant to Section 2.1, and (iii) the date of the termination of the Delayed Draw Term Loan Commitments pursuant to Section 11.1.

 

Delayed Draw Term Loan Exposure” shall mean, with respect to any Lender as of any date of determination, (a) prior to the termination of the Delayed Draw Term Loan Commitments, that Lender’s Delayed Draw Term Loan Commitment; and (b) after the termination of the Delayed Draw Term Loan Commitments, the aggregate outstanding principal amount of the Delayed Draw Term Loans of that Lender and any Extended Term Loans in respect of Delayed Draw Term Loans.

 

Delayed Draw Term Loan Lender shall mean a Lender with a Delayed Draw Term Loan Commitment or an outstanding Delayed Draw Term Loan.

 

Delayed Draw Term Loan Maturity Date” shall mean the earlier of (a) September 24, 2014, or, if such date is not a Business Day, the next preceding Business Day, and (b) the date that all Delayed Draw Term Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.

 

Designated Non-Cash Consideration shall mean the fair market value of non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to Section 10.4(b) or Section 10.4(c) that is designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Borrower, setting forth the basis of such valuation (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within 180 days following the consummation of the applicable Disposition).

 

Designated Obligations” shall mean all obligations of the Borrower with respect to (a) principal of and interest on the Loans, (b) Unpaid Drawings and interest thereon and (c) accrued and unpaid fees under the Credit Documents.

 

Disposed EBITDA shall mean, with respect to any Sold Entity or Business or any Converted Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to the Borrower and the Restricted Subsidiaries in the definition of Consolidated EBITDA were references to such Sold Entity or Business or Converted Unrestricted Subsidiary and its respective Subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business or Converted Unrestricted Subsidiary, as the case may be.

 

Disposition shall have the meaning provided in Section 10.4(b).

 

Disqualified Equity Interests” shall mean, with respect to any Person, any Stock or Stock Equivalents of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely for Stock or Stock Equivalent that is not Disqualified Equity Interests), other than as a result of a change of control or asset sale, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than as a result of a change of control or asset sale to the extent the terms of such Stock or Stock Equivalents provide that such Stock or Stock Equivalents shall not be required to be repurchased or redeemed until the Final Maturity Date has occurred or such repurchase or redemption is otherwise permitted by this Agreement (including as a result of a waiver hereunder)), in whole or in part, in each case prior to the date that is ninety-one (91) days after the Final Maturity Date hereunder; provided that if such Stock or Stock Equivalents are issued to any plan

 

25



 

for the benefit of employees of the Borrower or its Subsidiaries or by any such plan to such employees, such Stock or Stock Equivalents shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations; provided, further, that any Stock or Stock Equivalents held by any future, present or former employee, director, manager or consultant, of the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies or any other entity in which the Borrower or a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate” by the Board of Directors of the Borrower, in each case pursuant to any stockholders’ agreement, management equity plan or stock incentive plan or any other management or employee benefit plan or agreement shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Borrower or its Subsidiaries.

 

Dividends or “dividends shall have the meaning provided in Section 10.6.

 

Dollar Equivalent” shall mean, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any currency other than Dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the Letter of Credit Issuer, as the case may be, on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or other relevant date of determination) for the purchase of Dollars with such currency.

 

Dollars and “$” shall mean dollars in lawful currency of the United States of America.

 

Domestic Subsidiary” shall mean each Subsidiary of the Borrower that is organized under the laws of the United States, any state thereof, or the District of Columbia.

 

Drawing” shall have the meaning provided in Section 3.4(b).

 

EMU” shall mean the economic and monetary union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.

 

EMU Legislation shall mean the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

 

Environmental Claims” shall mean any and all actions, suits, orders, decrees, demands, demand letters, claims, liens, notices of noncompliance, violation or potential responsibility or investigation (other than internal reports prepared by the Borrower or any of the Subsidiaries (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing transaction or an acquisition or disposition of real estate) or proceedings relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereinafter, “Claims”), including, without limitation, (i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief relating to the presence, release or threatened release of Hazardous Materials or arising from alleged injury or threat of injury to health or safety (to the extent relating to human exposure to Hazardous Materials), or the environment including, without limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands.

 

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Environmental Law” shall mean any applicable Federal, state, foreign or local statute, law, rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree or judgment, relating to the protection of environment, including, without limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands, or human health or safety (to the extent relating to human exposure to Hazardous Materials), or Hazardous Materials.

 

Equity Investments shall have the meaning provided in the preamble to this Agreement.

 

Equity Offering” shall mean any public or private sale of common stock or Preferred Stock of the Borrower or any of its direct or indirect parent companies (excluding Disqualified Stock), other than: (a) public offerings with respect to the Borrower’s or any direct or indirect parent company’s common stock registered on Form S-8, (b) issuances to any Subsidiary of the Borrower and (c) any Cure Amount.

 

ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.  Section references to ERISA are to ERISA as in effect at the Original Closing Date and any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.

 

ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) that together with the Borrower would be deemed to be a “single employer” within the meaning of Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

 

Euro and “” shall mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

 

Euro Tranche Repayment Amount shall have the meaning provided in Section 2.5(b)(x).

 

Euro Tranche Repayment Date shall have the meaning provided in Section 2.5(b).

 

Euro Tranche Term Loan” shall mean any Euro Tranche B-1 Term Loan or Euro Tranche B-2 Term Loan.  For the avoidance of doubt, all Euro Tranche Term Loans are 2014 Term Loans.

 

Euro Tranche Term Loan Commitment shall mean, (i) as of the Original Closing Date (prior to giving effect to this amendment and restatement) with respect to each Lender, the amount set forth opposite such Lender’s name on Schedule 1.1(c) to the Original Credit Agreement and (ii) as of the Original Closing (after giving effect to this amendment and restatement) with respect to each Lender, such Lender’s Euro Tranche B-1 Term Loan Commitment and Euro Tranche B-2 Term Loan Commitment.

 

Euro Tranche Term Loan Lender shall mean a Lender with a Euro Tranche Term Loan Commitment or an outstanding Euro Tranche Term Loan.

 

Euro Tranche Term B-1 Loan Lender shall mean a Lender with a Euro Tranche B-1 Term Loan Commitment or an outstanding Euro Tranche B-1 Term Loan.

 

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Euro Tranche B-1 Term Loan” shall have the meaning provided in Section 2.1(a).

 

Euro Tranche B-1 Term Loan Commitment shall mean (a) in the case of each Lender that was a Lender on the Original Closing Date (after giving effect to this amendment and restatement), the amount set forth opposite such Lender’s name on Schedule 1.1(c) as such Lender’s “Euro Tranche B-1 Term Loan Commitment” and (b) in the case of any Lender that became a Lender after the Original Closing Date, the amount specified as such Lender’s “Euro Tranche B-1 Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Euro Tranche B-1 Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Euro Tranche B-1 Term Loan Commitments as of the Original Closing Date (after giving effect to this amendment and restatement) was €238,849,487.79.

 

Euro Tranche Term B-1 Loan Lender shall mean a Lender with a Euro Tranche B-1 Term Loan Commitment or an outstanding Euro Tranche B-1 Term Loan.

 

Euro Tranche B-2 Term Loan” shall have the meaning provided in Section 2.1(a).

 

Euro Tranche B-2 Term Loan Commitment shall mean (a) in the case of each Lender that was a Lender on the Original Closing Date (after giving effect to this amendment and restatement), the amount set forth opposite such Lender’s name on Schedule 1.1(c) as such Lender’s “Euro Tranche B-2 Term Loan Commitment” and (b) in the case of any Lender that became a Lender after the Original Closing Date, the amount specified as such Lender’s “Euro Tranche B-2 Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Euro Tranche B-2 Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Euro Tranche B-2 Term Loan Commitments as of the Original Closing Date (after giving effect to this amendment and restatement) was €470,370,370.37.

 

Euro Tranche B-2 Term Loan Lender shall mean a Lender with a Euro Tranche B-2 Term Loan Commitment or an outstanding Euro Tranche B-2 Term Loan.

 

Euro Tranche Term Loan Maturity Date shall mean September 24, 2014 or, if such date is not a Business Day, the first Business Day thereafter.

 

Event of Default shall have the meaning provided in Section 11.

 

Excess Cash Flow shall mean, for any period, an amount equal to the excess of

 

(a)                                  the sum, without duplication, of

 

(i)                                     Consolidated Net Income for such period,

 

(ii)                                  an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income and cash receipts included in clauses (a) through (f) of the definition of “Consolidated Net Income” and excluded 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 the Borrower and the Restricted Subsidiaries completed during such period or the application of purchase accounting),

 

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(iv)                              an amount equal to the aggregate net non-cash loss on Dispositions by the Borrower and the Restricted Subsidiaries during such period (other than 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 Hedge Agreements during such fiscal year 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 included in clauses (a) through (f) of the definition of Consolidated Net Income and included in arriving at such Consolidated Net Income,

 

(ii)                                  without duplication of amounts deducted pursuant to clause (xi) below in prior years, the amount of Capital Expenditures or acquisitions of intellectual property accrued or made in cash during such period, except to the extent that such Capital Expenditures or acquisitions were financed with the proceeds of Indebtedness of the Borrower or the Restricted Subsidiaries (unless such Indebtedness has been repaid),

 

(iii)                               the aggregate amount of all principal payments of Indebtedness of the Borrower and the Restricted Subsidiaries (including (A) the principal component of payments in respect of Capitalized Lease Obligations, (B) the amount of any repayment of Term Loans pursuant to Section 2.5 and (C) the amount of a mandatory prepayment of Term Loans pursuant to Section 5.2(a) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase but excluding (x) all other prepayments of Term Loans and (y) all prepayments of Revolving Credit Loans and Swingline Loans) made during such period (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder), except to the extent financed with the proceeds of other Indebtedness of the Borrower or the Restricted Subsidiaries,

 

(iv)                              an amount equal to the aggregate net non-cash gain on Dispositions by the Borrower and the Restricted Subsidiaries during such period (other than 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 the Borrower and the Restricted Subsidiaries completed during such period or the application of purchase accounting),

 

(vi)                              payments by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, to the extent not already deducted from Consolidated Net Income,

 

(vii)                           without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the aggregate amount of cash consideration paid by the Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments

 

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(including acquisitions) made during such period pursuant to Section 10.5 to the extent that such Investments were financed with internally generated cash flow of the Borrower and the Restricted Subsidiaries,

 

(viii)                        the amount of dividends paid during such period (on a consolidated basis) by the Borrower and the Restricted Subsidiaries pursuant to Section 10.6(a), (b) or (d), to the extent such dividends were financed with internally generated cash flow of the Borrower and the Restricted Subsidiaries,

 

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

 

(x)                                   the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and the Restricted Subsidiaries during such period that are made in connection with any prepayment of Indebtedness to the extent that such payments are not deducted in calculating Consolidated Net Income,

 

(xi)                                without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period (including Permitted Acquisitions), Capital Expenditures or acquisitions of intellectual property to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period, provided that to the extent the aggregate amount of internally generated cash actually utilized to finance such Permitted Acquisitions, Capital Expenditures or acquisitions of intellectual property during such period of four consecutive fiscal quarters 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,

 

(xii)                             the amount of taxes (including penalties and interest) paid in cash 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

 

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

 

Excluded Stock and Stock Equivalents shall mean (i) any Stock or Stock Equivalents with respect to which, in the reasonable judgment of the Collateral Agent (confirmed in writing by notice to the Borrower), the cost or other consequences (including any adverse tax consequences) of pledging such Stock or Stock Equivalents in favor of the Secured Parties under the Security Documents shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (ii) solely in the case of any pledge of Stock and Stock Equivalents of any Foreign Subsidiary or any Domestic Subsidiary substantially all of the assets of which consist of Stock or Stock Equivalents of Foreign Subsidiaries to secure the Obligations, any Stock or Stock Equivalents of any class of such Foreign Subsidiary or such Domestic Subsidiary in excess of 65% of the outstanding Stock or Stock Equivalents of such class (such percentage to be adjusted upon any Change in Law as may be required to avoid adverse U.S. federal income tax consequences to the Borrower or any Subsidiary), (iii) any Stock or Stock Equivalents to the

 

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extent the pledge thereof would violate any applicable Requirement of Law, (iv) in the case of (A) any Stock or Stock Equivalents of any Subsidiary to the extent such Stock or Stock Equivalents are subject to a Lien permitted by Section 10.2(h) or (B) any Stock or Stock Equivalents of any Subsidiary that is not wholly-owned by the Borrower and its Subsidiaries at the time such Subsidiary becomes a Subsidiary, any Stock or Stock Equivalents of each such Subsidiary described in clause (A) or (B) to the extent (1) that a pledge thereof to secure the Obligations is prohibited by any applicable Contractual Requirement (other than customary non-assignment provisions which are ineffective under the Uniform Commercial Code or other applicable law), (2) any Contractual Requirement prohibits such a pledge without the consent of any other party; provided that this clause (2) shall not apply if (x) such other party is a Credit Party or wholly-owned Subsidiary or (y) consent has been obtained to consummate such pledge (it being understood that the foregoing shall not be deemed to obligate the Borrower or any Subsidiary to obtain any such consent) and for so long as such Contractual Requirement or replacement or renewal thereof is in effect, or (3) a pledge thereof to secure the Obligations would give any other party (other than a Credit Party or wholly-owned Subsidiary) to any contract, agreement, instrument or indenture governing such Stock or Stock Equivalents the right to terminate its obligations thereunder (other than customary non-assignment provisions which are ineffective under the Uniform Commercial Code or other applicable law) and (v) any Stock or Stock Equivalents of any Subsidiary to the extent that (A) the pledge of such Stock or Stock Equivalents would result in adverse tax consequences to the Borrower or any Subsidiary as reasonably determined by the Borrower and (B) such Stock or Stock Equivalents have been identified in writing to the Collateral Agent by an Authorized Officer of the Borrower.

 

Excluded Subsidiary shall mean (a) each Domestic Subsidiary listed on Schedule 1.1(d)(i) to the Original Credit Agreement hereto and each future Domestic Subsidiary, in each case, for so long as any such Subsidiary does not (on a consolidated basis with its Restricted Subsidiaries), have property, plant and equipment with a book value in excess of $10,000,000 or a contribution to Consolidated EBITDA for any four fiscal quarter period that includes any date on or after the Original Closing Date in excess of $10,000,000, (b) each Domestic Subsidiary that is not a wholly-owned Subsidiary on any date such Subsidiary would otherwise be required to become a Guarantor pursuant to the requirements of Section 9.11 (for so long as such Subsidiary remains a non-wholly-owned Restricted Subsidiary), (c) any Domestic Subsidiary substantially all the assets of which consist of (x) Stock and Stock Equivalents of Foreign Subsidiaries and/or (y) of other Domestic Subsidiaries so long as substantially all the assets of any such other Domestic Subsidiary consist of Stock and Stock Equivalents of Foreign Subsidiaries, (d) each Domestic Subsidiary that is prohibited by any applicable Contractual Requirement or Requirement of Law from guaranteeing or granting Liens to secure the Obligations at the time such Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction or any replacement or renewal thereof is in effect), (e) each Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary, (f) each Domestic Subsidiary with respect to which, as reasonably determined by the Borrower, the consequence of providing a Guarantee of the Obligations would adversely affect the ability of the Borrower and its Subsidiaries to satisfy applicable Requirements of Law, (g) any other Domestic Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent (confirmed in writing by notice to the Borrower), the cost or other consequences (including any adverse tax consequences) of providing a Guarantee of the Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (h) each Unrestricted Subsidiary, (i) any Receivables Subsidiary and (j) IPS.

 

Excluded Taxes” shall mean, with respect to any Agent or any Lender, (a)(i) income taxes imposed on or measured by net income and franchise and excise taxes (imposed in lieu of net income taxes) imposed on such Agent or Lender, and (ii) any Taxes imposed on any Agent or any Lender as a result of any current or former connection between such Agent or Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising from such Agent or Lender having executed, delivered or

 

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performed its obligations or received a payment under, or having been a party to or having enforced, this Agreement or any other Credit Document), (b) in the case of a Non-U.S. Lender any U.S. federal withholding tax that is imposed on amounts payable to such Non-U.S. Lender under the law in effect at the time such Non-U.S. Lender becomes a party to this Agreement (or, in the case of a Non- U.S. Participant, on the date such Non-U.S. Participant became a Participant hereunder); provided that this subclause (b) shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to receive (without regard to this subclause (b)) do not exceed the indemnity payment or additional amounts that the person making the assignment, participation or transfer to such Lender (or Participant) would have been entitled to receive in the absence of such assignment, participation or transfer or (y) any Tax is imposed on a Lender in connection with an interest or participation in any Loan or other obligation that such Lender was required to acquire pursuant to Section 13.8(a) or that such Lender acquired pursuant to Section 13.7 (it being understood and agreed, for the avoidance of doubt, that any U.S. federal withholding tax imposed on a Non-U.S. Lender as a result of a Change in Law occurring after the time such Non-U.S. Lender became a party to this Agreement (or designates a new lending office) shall not be an Excluded Tax) and (c) any Tax to the extent attributable to such Lender’s failure to comply with Section 5.4(d) (in the case of any Non-U.S. Lender) or Section 5.4(i) (in the case of a U.S. Lender).

 

Existing Class” shall mean any Existing Term Loan Class and any Existing Revolving Credit Class.

 

Existing Revolving Credit Class” shall have the meaning provided in Section 2.14(f)(ii).

 

Existing Revolving Credit Commitment” shall have the meaning provided in Section 2.14(f)(ii).

 

Existing Revolving Credit Loans” shall have the meaning provided in Section 2.14(f)(ii).

 

Existing Secured Letters of Credit” shall mean each letter of credit existing on the Original Closing Date and identified on Schedule 1.1(a) to the Original Credit Agreement; provided, however, no letter of credit on Schedule 1.1(a) to the Original Credit Agreement shall continue to constitute an Existing Secured Letter of Credit after the expiration date set forth opposite such letter of credit on Schedule 1.1(a) to the Original Credit Agreement except to the extent of unreimbursed drawings thereunder.

 

Existing Term Loan Class” shall have the meaning provided in Section 2.14(f)(i).

 

Existing Secured Letter of Credit Issuer” shall mean each issuer of any Existing Secured Letter of Credit identified on Schedule 1.1(a) to the Original Credit Agreement.

 

Extended Repayment Date” shall have the meaning provided in Section 2.5(c).

 

Extended Revolving Credit Commitments” shall have the meaning provided in Section 2.14(f)(ii).  The 2016 Revolving Credit Commitments shall be deemed Extended Revolving Credit Commitments for all purposes of this Agreement.

 

Extended Revolving Credit Facility” shall mean each tranche of Extended Revolving Credit Commitments established pursuant to Section 2.14(f).  The 2016 Revolving Credit Facility shall be deemed an Extended Revolving Credit Facility for all purposes of this Agreement.

 

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Extended Revolving Credit Loans” shall have the meaning provided in Section 2.14(f)(ii).  The 2016 Revolving Credit Loans shall be deemed Extended Revolving Credit Loans for all purposes of this Agreement..

 

Extended Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).

 

Extended Term Loans” shall have the meaning provided in Section 2.14(f)(i).  The 2018 Term Loans, the 2017 Term Loans and the 2017B Term Loans shall be deemed Extended Term Loans for all purposes of this Agreement.

 

Extending Lender” shall have the meaning provided in Section 2.14(f)(iii).  The 2016 Revolving Credit Lenders, the 2018 Term Lenders, the 2017 Term Lenders and the 2017B Term Lenders shall be deemed Extending Lenders for all purposes of this Agreement.

 

Extension Amendment” shall have the meaning provided in Section 2.14(f)(iv).  The 2011 Extension Amendment shall be deemed an Extension Amendment with respect to the 2016 Revolving Credit Loans and with respect to the 2018 Term Loans, the 2012 Extension Amendment shall be deemed an Extension Amendment with respect to the 2017 Term Loans and the 2012 August Extension Amendment shall be deemed an Extension Amendment with respect to the 2017B Term Loans, in each case for all purposes of this Agreement.

 

Extension Date” shall have the meaning provided in Section 2.14(f)(v).

 

Extension Election” shall have the meaning provided in Section 2.14(f)(iii).

 

Extension Request” shall mean a Revolving Credit Extension Request or a Term Loan Extension Request.

 

Extension Series” shall mean all Extended Term Loans and Extended Revolving Credit Commitments that are established pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans or Extended Revolving Credit Commitments, as applicable, provided for therein are intended to be a part of any previously established Extension Series) and that provide for the same interest margins, extension fees and amortization schedule.

 

Federal Funds Effective Rate” shall mean, for any day, the weighted average of the per annum rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published on the next succeeding Business Day by the Federal Reserve Bank of New York; provided that (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.

 

Fees” shall mean all amounts payable pursuant to, or referred to in, Section 4.1.

 

Final Maturity Date shall mean September 24, 2018 or, if the 2018 Term Loans and 2018B Term Loans shall have been repaid in full, March 24, 2017, or if the 2017 Term Loans and 2017B Term Loans shall have been repaid in full, September 24, 2016.

 

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First Delayed Draw Repayment Date” shall mean March 31, 2009.

 

First Lien Intercreditor Agreement” shall mean an Intercreditor Agreement substantially in the form of Exhibit L among the Administrative Agent, the Collateral Agent and the representatives for purposes thereof for any other First Lien Secured Parties, with such changes thereto as may be reasonably acceptable to the Administrative Agent; provided that such changes are not materially adverse to the Lenders.

 

First Lien Obligations” shall mean the Obligations and the Permitted Other Indebtedness Obligations (other than any Permitted Other Indebtedness Obligations that are unsecured or secured by a Lien ranking junior to the Lien securing the Obligations), collectively.

 

First Lien Secured Parties” shall mean the Secured Parties and the Permitted Other Indebtedness Secured Parties and any representative on their behalf for such purposes (other than in the case of Permitted Other Indebtedness Secured Parties whose Permitted Other Indebtedness Obligations are secured by a Lien ranking junior to the Lien securing the Obligations, such Permitted Other Indebtedness Secured Parties, the Collateral Agent and any other representative on their behalf), collectively.

 

Foreign Asset Sale” shall have the meaning provided in Section 5.2(i).

 

Foreign Plan shall mean any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by the Borrower or any of its Subsidiaries with respect to employees employed outside the United States.

 

Foreign Subsidiary” shall mean each Subsidiary of the Borrower that is not a Domestic Subsidiary.

 

Fronting Fee” shall have the meaning provided in Section 4.1(d).

 

Fund” shall mean any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

 

Funded Debt shall mean all indebtedness of the Borrower 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 the Borrower or any Restricted Subsidiary, 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 all amounts of Funded Debt required to be paid or prepaid within one year from the date of its creation and, in the case of the Borrower, Indebtedness in respect of the Loans.

 

GAAP” shall mean generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that if there occurs after the Original Closing Date any change in GAAP that affects in any respect the calculation of any covenant contained in Section 10, the Lenders and the Borrower shall negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant with the intent of having the respective positions of the Lenders and the Borrower after such change in GAAP conform as nearly as possible to their respective positions as of the Original Closing Date and, until any such amendments have been agreed upon, the covenants in Section 10 shall be calculated as if no such change in GAAP has occurred.

 

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Governmental Authority shall mean any nation, sovereign or government, any state, province, territory or other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including a central bank or stock exchange.

 

Granting Lender” shall have the meaning provided in Section 13.6(g).

 

Guarantee” shall mean (a) the Guarantee made by the Borrower and each Guarantor in favor of the Administrative Agent for the benefit of the Secured Parties, substantially in the form of Exhibit B to the Original Credit Agreement, and (b) any other guarantee of the Obligations made by a Restricted Subsidiary that is a Domestic Subsidiary in form and substance reasonably acceptable to the Administrative Agent, in each case as the same may be amended, supplemented or otherwise modified from time to time.

 

Guarantee Obligations shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided, however, that the term “Guarantee Obligations” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Original Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness).  The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

 

Guarantors” shall mean (a) each Domestic Subsidiary that is party to the Guarantee on the Original Closing Date, (b) each Domestic Subsidiary that becomes a party to the Guarantee after the Original Closing Date pursuant to Section 9.11 or otherwise and (c) each other Subsidiary that the Borrower may from time to time, in its discretion, cause to become a party to the Guarantee pursuant to Section 9.11 or otherwise.

 

Hazardous Materials shall mean (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing regulated levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous waste”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or “pollutants”, or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, which is prohibited, limited or regulated by any Environmental Law.

 

Hedge Agreements shall mean interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, cross-currency rate swap agreements, currency future or option contracts, commodity price protection agreements or other commodity price hedging

 

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agreements, and other similar agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business (and not for speculative purposes) for the principal purpose of protecting the Borrower or any of the Restricted Subsidiaries against fluctuations in interest rates, currency exchange rates or commodity prices.

 

Hedge Bank” shall mean (a) any Person that, at the time it enters into a Hedge Agreement, is a Lender or an Affiliate of a Lender, (b) solely with respect to any currency Hedge Agreement in effect on the Original Closing Date, the counterparties listed on Schedule 1.1(i) to the Original Credit Agreement or (c) with respect to any Hedge Agreement entered into prior to the Original Closing Date, any person that is a Lender or an Affiliate of a Lender on the Original Closing Date.

 

Historical Financial Statements shall mean the audited consolidated balance sheets of the Borrower as of December 31, 2006 and December 31, 2005 and the audited consolidated statements of income, stockholders’ equity and cash flows of the Borrower for each of the fiscal years in the three year period ending on December 31, 2006.

 

Holdings shall mean New Omaha Holdings Corporation, a Delaware corporation, and its successors.

 

Increased Amount Date shall have the meaning provided in Section 2.14(a).

 

Indebtedness of any Person shall mean (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (c) the deferred purchase price of assets or services that in accordance with GAAP would be included as a liability on the balance sheet of such Person, (d) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder, (e) all Indebtedness of any other Person secured by any Lien on any property owned by such Person, whether or not such Indebtedness has been assumed by such Person, (f) the principal component of all Capitalized Lease Obligations of such Person, (g) all obligations of such Person under interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts, commodity price protection agreements or other commodity price hedging agreements and other similar agreements, (h) all obligations of such Person in respect of Disqualified Equity Interests and (i) without duplication, all Guarantee Obligations of such Person, provided that Indebtedness shall not include (i) trade and other ordinary course payables and accrued expenses arising in the ordinary course of business, (ii) deferred or prepaid revenue, (iii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller and (iv) all intercompany indebtedness having a term not exceeding 364 days and incurred in the ordinary course of business.  The amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.

 

indemnified liabilities shall have the meaning provided in Section 13.5.

 

Indemnified Taxes shall mean all Taxes (including Other Taxes) other than (i) Excluded Taxes and (ii) any interest, penalties or expenses caused by an Agent’s or Lender’s gross negligence or willful misconduct.

 

Initial Investors” shall have Kohlberg Kravis Roberts & Co. L.P., KKR 2006 Fund L.P., Citigroup Global Markets Inc., Credit Suisse Management LLC, Deutsche Bank Investment Partners, Inc., HSBC Bank plc, LBI Group Inc., GMI Investments, Inc., Citigroup Capital Partners II

 

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2007 Citigroup Investment L.P., Citigroup Capital Partners II Employee Master Fund, L.P., Citigroup Capital Partners II Onshore, L.P., Citigroup Capital Partners II Cayman Holdings, L.P., CGI CPE LLC, GS Capital Partners VI Parallel, L.P., GS Capital Partners VI GmbH & Co. KG, GS Capital Partners VI Fund, L.P., GS Capital Partners VI Offshore Fund, L.P., GS Mezzanine Partners 2006 Fund, L.P. and Goldman Sachs Investments Ltd. and each of their respective Affiliates but not including, however, any portfolio companies of any of the foregoing.

 

Initial Term Loan” shall mean any Initial Tranche B-1 Term Loan, Initial Tranche B-2 Term Loan or Initial Tranche B-3 Term Loan.  For the avoidance of doubt, all Initial Term Loans are 2014 Term Loans.

 

Initial Term Loan Commitment” shall mean, with respect to each Lender, such Lender’s Initial Tranche B-1 Term Loan Commitment, Initial Tranche B-2 Term Loan Commitment and Initial Tranche B-3 Term Loan Commitment.

 

Initial Term Loan Lender shall mean a Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan.

 

Initial Term Loan Maturity Date” shall mean September 24, 2014 or, if such date is not a Business Day, the first Business Day thereafter.

 

Initial Term Loan Repayment Amount shall have the meaning provided in Section 2.5(b)(x).

 

Initial Term Loan Repayment Date shall have the meaning provided in Section 2.5(b).

 

Initial Tranche B-1 Term Loan” shall have the meaning provided in Section 2.1(a)(i).

 

Initial Tranche B-1 Term Loan Commitment” shall mean, (a) in the case of each Lender that was a Lender on the Original Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(c) as such Lender’s “Initial Tranche B-1 Term Loan Commitment” and (b) in the case of any Lender that became a Lender after the Original Closing Date, the amount specified as such Lender’s “Initial Tranche B-1 Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Initial Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Initial B-1 Term Loan Commitments as of the Original Closing Date (after giving effect to this amendment and restatement) was $4,438,222,222.22.

 

Initial Tranche B-1 Term Loan Lender shall mean a Lender with an Initial Tranche B-1 Term Loan Commitment or an outstanding Initial Tranche B-1 Term Loan.

 

Initial Tranche B-2 Term Loan” shall have the meaning provided in Section 2.1(a)(ii).

 

Initial Tranche B-2 Term Loan Commitment” shall mean, (a) in the case of each Lender that was a Lender on the Original Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(c)-1 as such Lender’s “Initial Tranche B-2 Term Loan Commitment” and (b) in the case of any Lender that became a Lender after the Original Closing Date, the amount specified as such Lender’s “Initial Tranche B-2 Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Initial Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Initial

 

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B-2 Term Loan Commitments as of the Original Closing Date (after giving effect to this amendment and restatement) was $4,336,777,777.78.

 

Initial Tranche B-2 Term Loan Lender shall mean a Lender with an Initial Tranche B-2 Term Loan Commitment or an outstanding Initial Tranche B-2 Term Loan.

 

Initial Tranche B-3 Term Loan” shall have the meaning provided in Section 2.1(a)(iii).

 

Initial Tranche B-3 Term Loan Commitment” shall mean, (a) in the case of each Lender that was a Lender on the Original Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(c)-1 as such Lender’s “Initial Tranche B-3 Term Loan Commitment” and (b) in the case of any Lender that became a Lender after the Original Closing Date, the amount specified as such Lender’s “Initial Tranche B-3 Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Initial Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Initial B-3 Term Loan Commitments as of the Original Closing Date was $3,000,000,000.

 

Initial Tranche B-3 Term Loan Lender shall mean a Lender with an Initial Tranche B-3 Term Loan Commitment or an outstanding Initial Tranche B-3 Term Loan.

 

Interest Period shall mean, with respect to any Term Loan, Extended Revolving Credit Loan or Revolving Credit Loan, the interest period applicable thereto, as determined pursuant to Section 2.9.

 

Investment” shall mean, for any Person:  (a) the acquisition (whether for cash, property, services or securities or otherwise) of Stock, Stock Equivalents, bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person (including any “short sale” or any sale of any securities at a time when such securities are not owned by the Person entering into such sale); (b) the making of any deposit with, or advance, loan or other extension of credit to, any other Person (including the purchase of property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such property to such Person) (including any partnership or joint venture); (c) the entering into of any guarantee of, or other contingent obligation with respect to, Indebtedness; or (d) the purchase or other acquisition (in one transaction or a series of transactions) 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, in the event that any Investment is made by the Borrower or any Restricted Subsidiary in any Person through substantially concurrent interim transfers of any amount through one or more other Restricted Subsidiaries, then such other substantially concurrent interim transfers shall be disregarded for purposes of Section 10.5.

 

IPS” shall mean Integrated Payment Systems Inc., a Delaware corporation and its successors.

 

IPS Canada” shall mean Integrated Payment Systems Canada Inc., a Canadian corporation and its successors.

 

ISP” shall mean, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).

 

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Issuer Documents” shall mean with respect to any Letter of Credit, the Letter of Credit Request, and any other document, agreement and instrument entered into by the Letter of Credit Issuer and the Borrower (or any Restricted Subsidiary) or in favor of the Letter of Credit Issuer and relating to such Letter of Credit.

 

Joinder Agreement shall mean an agreement substantially in the form of Exhibit A to the Original Credit Agreement.

 

Joint Lead Arrangers and Bookrunners shall mean Credit Suisse Securities (USA) LLC, Citigroup Global Markets, Inc., Deutsche Bank Securities Inc., Goldman Sachs Credit Partners L.P., HSBC Securities (USA) Inc., Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated.

 

Joint Venture shall mean, at any date of determination, each joint venture accounted for as an equity method investee of the Borrower and its Subsidiaries, determined in accordance with GAAP.

 

Judgment Currency” shall have the meaning provided in Section 13.19.

 

JV Distribution Amount shall mean, at any time, the lesser of (x) the aggregate amount of cash distributed to the Borrower or any Restricted Subsidiary by any joint venture that is not a Subsidiary (regardless of the form of legal entity) since the Original Closing Date and prior to such time (without duplication of any amount treated as a reduction in the outstanding amount of Investments by the Borrower or any Restricted Subsidiary pursuant to clause (d), (i) or (v) of Section 10.5) and only to the extent that neither the Borrower nor any Restricted Subsidiary is under any obligation to repay such amount to such joint venture and (y) the amount of Investments by the Borrower or such Restricted Subsidiary in such joint venture.

 

KKR” shall mean each of Kohlberg Kravis Roberts & Co., L.P. and KKR Associates, L.P.

 

L/C Borrowing shall mean an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.  All L/C Borrowings shall be denominated in Dollars or any Alternative Currency.

 

L/C Maturity Date shall mean the date that is three Business Days prior to the 2016 Revolving Credit Maturity Date; provided that the L/C Maturity Date may be extended beyond such date with the consent of the Letter of Credit Issuer.

 

L/C Obligations shall mean, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unpaid Drawings, including all L/C Borrowings.  For all purposes of 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, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

L/C Participant shall have the meaning provided in Section 3.3(a).

 

L/C Participation” shall have the meaning provided in Section 3.3(a).

 

Lender” shall have the meaning provided in the preamble to this Agreement.

 

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Lender Default” shall mean (a) the failure (which has not been cured) of a Lender to make available its portion of any Borrowing or to fund its portion of any unreimbursed payment under Section 3.3 or (b) a Lender having notified the Administrative Agent and/or the Borrower that it does not intend to comply with the obligations under Section 2.1(a), 2.1(b), 2.1(d) or 3.3, or (c) a Lender becoming the subject of a bankruptcy or insolvency proceeding.

 

Letter of Credit shall mean each letter of credit issued pursuant to Section 3.1.

 

Letter of Credit Commitment shall mean $500,000,000, as the same may be reduced from time to time pursuant to Section 3.1.

 

Letter of Credit Exposure shall mean, with respect to any Lender, at any time, the sum of (a) the Dollar Equivalent amount of the principal amount of any Unpaid Drawings in respect of which such Lender has made (or is required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a) at such time and (b) such Lender’s Revolving Credit Commitment Percentage of the Letters of Credit Outstanding at such time (excluding the portion thereof consisting of Unpaid Drawings in respect of which the Lenders have made (or are required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a)).

 

Letter of Credit Fee shall mean the 2013 Letter of Credit Fee and the 2016 Letter of Credit Fee.

 

Letter of Credit Issuer shall mean Credit Suisse, Cayman Islands Branch, any of its Affiliates or any replacement or successor pursuant to Section 3.6.  The Letter of Credit Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Letter of Credit Issuer, and in each such case the term “Letter of Credit Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.  In the event that there is more than one Letter of Credit Issuer at any time, references herein and in the other Credit Documents to the Letter of Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in respect of the applicable Letter of Credit or to all Letter of Credit Issuers, as the context requires.

 

Letters of Credit Outstanding shall mean, at any time, the sum of, without duplication, (a) the aggregate Stated Amount of all outstanding Letters of Credit and (b) the aggregate Dollar Equivalent amount of the principal amount of all Unpaid Drawings.

 

Letter of Credit Request shall have the meaning provided in Section 3.2(a).

 

Level I Status” shall mean, on any date, the circumstance that neither Level II Status or Level III Status exists and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than 6.00 to 1.00 as of such date.

 

Level II Status” shall mean, on any date, the circumstance that Level III Status does not exist and the Consolidated Total Debt to Consolidated EBITDA Ratio is less than or equal to 6.00 to 1.00 as of such date.

 

Level III Status” shall mean, on any date, the circumstance that the Consolidated Total Debt to Consolidated EBITDA Ratio is less than or equal to 5.00 to 1.00 as of such date.

 

LIBOR Delayed Draw Term Loan” shall mean any Delayed Draw Term Loan bearing interest at a rate determined by reference to the LIBOR Rate.

 

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LIBOR Loan shall mean any LIBOR Term Loan or LIBOR Revolving Credit Loan.

 

LIBOR Rate shall mean, for any Interest Period with respect to a LIBOR Loan of any currency, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Bloomberg (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in such currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time for any reason, then the “LIBOR Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in such currency for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBOR Loan being made, continued or converted by the Administrative Agent and with a term equivalent to such Interest Period would be offered by the Administrative Agent’s London Branch to major banks in the applicable London interbank eurocurrency market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period (or on the first day of such Interest Period in the case of any LIBOR Loan denominated in Sterling).

 

LIBOR Revolving Credit Loan shall mean any Revolving Credit Loan bearing interest at a rate determined by reference to the LIBOR Rate.

 

LIBOR Term Loan” shall mean any Term Loan bearing interest at a rate determined by reference to the LIBOR Rate.

 

Lien” shall mean any mortgage, pledge, security interest, hypothecation, assignment, lien (statutory or other) or similar encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof).

 

Loan” shall mean any 2013 Revolving Credit Loan, 2016 Revolving Credit Loan, Extended Revolving Credit Loan, Swingline Loan, Term Loan, Extended Term Loan, New Revolving Loan or New Term Loan made by any Lender hereunder.

 

Management Investors shall mean the directors, management officers and employees of the Borrower and its Subsidiaries on the Original Closing Date.

 

Mandatory Borrowing” shall have the meaning provided in Section 2.1(d).

 

Material Adverse Effect” shall mean a circumstance or condition affecting the business, assets, operations, properties or financial condition of the Borrower and the Subsidiaries, taken as a whole, that would, individually or in the aggregate, materially adversely affect (a) the ability of the Borrower and the other Credit Parties, taken as a whole, to perform their payment obligations under this Agreement or any of the other Credit Documents or (b) the rights and remedies of the Administrative Agent and the Lenders under this Agreement or any of the other Credit Documents.

 

Material Subsidiary shall mean, at any date of determination, (i) each Restricted Subsidiary of the Borrower (a) whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal period for which Section 9.1 Financials have been delivered were equal to or greater than 5% of the Consolidated Total Assets of the Borrower and the Restricted Subsidiaries at such date or (b) whose revenues during such Test Period were equal to or greater than 5% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Original Closing Date, Restricted Subsidiaries that are not Material Subsidiaries have, in the aggregate, (x) total assets at

 

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the last day of such Test Period equal to or greater than 10% of the Consolidated Total Assets of the Borrower and the Restricted Subsidiaries at such date or (y) revenues during such Test Period equal to or greater than 10% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP, then the Borrower shall, on the date on which financial statements for such quarter are delivered pursuant to this Agreement, designate in writing to the Administrative Agent one or more of such Restricted Subsidiaries as “Material Subsidiaries”.

 

Maturity Date shall mean the Initial Term Loan Maturity Date, the Delayed Draw Term Loan Maturity Date, the Euro Tranche Term Loan Maturity Date, the 2013 Revolving Credit Maturity Date, the 2016 Revolving Credit Maturity Date, the 2018 Term Loan Maturity Date, the 2018B Term Loan Maturity Date, the 2017 Term Loan Maturity Date or the 2017B Term Loan Maturity Date, as applicable.

 

Maximum Incremental Facilities Amount” shall mean, at any date of determination, (a) the sum of (i) $1,000,000,000, plus (ii) from and after the 2012 Extension Effective Date, the aggregate principal amount of 2014 Term Loans outstanding as of such date of determination, provided that such additional amounts pursuant to this clause (ii) are only available to the extent such amounts are used to incur Indebtedness the Net Cash Proceeds of which are substantially concurrently used to prepay 2014 Term Loans in accordance with Section 5.1 of this Agreement (such prepaid 2014 Term Loans, “Incremental Facility Prepaid 2014 Term Loans”), plus (iii) the Dollar Equivalent principal amount of Term Loans (other than New Term Loans and Incremental Facility Prepaid 2014 Term Loans) voluntarily prepaid pursuant to Section 5.1 prior to such date, plus (iv) the amount of all Revolving Credit Commitments that have either been permanently reduced pursuant to Section 4.2 or have otherwise terminated in accordance with the terms of this Agreement after the 2012 Extension Effective Date minus (b) the sum of (i) the aggregate principal amount of New Loan Commitments incurred pursuant to Section 2.14(a) prior to such date and (ii) the aggregate principal amount of Permitted Other Indebtedness issued or incurred pursuant to Section 10.1(bb)(i)(a) prior to such date.

 

Merchant Acquisition and Processing Alliance” shall mean any joint venture or other strategic alliance entered into with any financial institution or other third party primarily entered into to offer Merchant Services.

 

Merchant Agreement” shall mean any contract entered into with a merchant relating to the provision of Merchant Services.

 

Merchant Services” shall mean services provided to merchants relating to the authorization, transaction capture, settlement, chargeback handling and internet-based transaction processing of credit, debit, stored-value and loyalty card and other payment transactions (including provision of point of service devices and other equipment necessary to capture merchant transactions and other ancillary services).

 

Merger” shall have the meaning provided in the preamble to this Agreement.

 

Merger Sub” shall mean Omaha Acquisition Corporation, a Delaware corporation.

 

Minimum Borrowing Amount shall mean (a) with respect to a Borrowing of LIBOR Loans, $5,000,000 or the Dollar Equivalent thereof (or, if less, the entire remaining Commitments under the applicable Credit Facility at the time of such Borrowing) and (b) with respect to a Borrowing of ABR Loans (other than Swingline Loans), $1,000,000 (or, if less, the entire remaining Commitments under the applicable Credit Facility at the time of such Borrowing).

 

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Minimum Equity Amount shall have the meaning provided in the preamble to this Agreement.

 

Minimum Tender Condition” shall have the meaning provided in Section 2.15(b).

 

Moody’s” shall mean Moody’s Investors Service, Inc. or any successor by merger or consolidation to its business.

 

Mortgage” shall mean a Mortgage, Assignment of Leases and Rents, Security Agreement and Financing Statement or other security document entered into by the owner of a Mortgaged Property and the Collateral Agent for the benefit of the Secured Parties in respect of that Mortgaged Property to secure the Obligations, substantially in the form of Exhibit C to the Original Credit Agreement, as the same may be amended, supplemented or otherwise modified from time to time.

 

Mortgaged Property” shall mean, initially, each parcel of real estate and the improvements thereto owned by a Credit Party and identified on Schedule 1.1(b) to the Original Credit Agreement, and includes each other parcel of real property and improvements thereto with respect to which a Mortgage is granted pursuant to Section 9.14.

 

Multicurrency Exposure” shall mean, for any Revolving Credit Lender at any date, the sum of (a) the aggregate Dollar Equivalent amount of the principal amount of Revolving Credit Loans denominated in Alternative Currencies of such Lender then outstanding, and (b) such Lender’s Letter of Credit Exposure in respect of Letters of Credit denominated in Alternative Currencies at such time.

 

Multicurrency Sublimit” shall mean the 2013 Multicurrency Sublimit and/or the 2016 Multicurrency Sublimit, as the case may be.

 

Multiemployer Plan” shall mean a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

 

Net Cash Proceeds shall mean, with respect to any Prepayment Event and any incurrence of Permitted Other Indebtedness, (a) the gross cash proceeds (including payments from time to time in respect of installment obligations, if applicable) received by or on behalf of the Borrower or any of the Restricted Subsidiaries in respect of such Prepayment Event or incurrence of Permitted Other Indebtedness, as the case may be, less (b) the sum of:

 

(i)                                 the amount, if any, of all taxes paid or estimated to be payable by the Borrower or any of the Restricted Subsidiaries in connection with such Prepayment Event or incurrence of Permitted Other Indebtedness,

 

(ii)                                   the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant to clause (i) above) (x) associated with the assets that are the subject of such Prepayment Event and (y) retained by the Borrower or any of the Restricted Subsidiaries, provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event occurring on the date of such reduction,

 

(iii)                                    the amount of any Indebtedness secured by a Lien on the assets that are the subject of such Prepayment Event to the extent that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consummation of such Prepayment Event,

 

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(iv)                                  in the case of any Asset Sale Prepayment Event or Casualty Event or Permitted Sale Leaseback, the amount of any proceeds of such Prepayment Event that the Borrower or any Restricted Subsidiary has reinvested (or intends to reinvest within the Reinvestment Period or has entered into a binding commitment prior to the last day of the Reinvestment Period to reinvest) in the business of the Borrower or any of the Restricted Subsidiaries (subject to Section 10.9), provided that any portion of such proceeds that has not been so reinvested within such Reinvestment Period (with respect to such Prepayment Event, the “Deferred Net Cash Proceeds”) shall, unless the Borrower or a Restricted Subsidiary has entered into a binding commitment prior to the last day of such Reinvestment Period to reinvest such proceeds, (x) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback occurring on the last day of such Reinvestment Period or, if later, 180 days after the date the Borrower or such Restricted Subsidiary has entered into such binding commitment, as applicable (such last day or 180th day, as applicable, the “Deferred Net Cash Proceeds Payment Date”), and (y) be applied to the repayment of Term Loans in accordance with Section 5.2(a)(i),

 

(v)                                 in the case of any Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback by a non-wholly-owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (v)) attributable to minority interests and not available for distribution to or for the account of the Borrower or a wholly-owned Restricted Subsidiary as a result thereof,

 

(vi)                                  reasonable and customary fees paid by the Borrower or a Restricted Subsidiary in connection with any of the foregoing, and

 

(vii)                                    in the case of any Debt Incurrence Prepayment Event or the incurrence of any Permitted Other Indebtedness, any fees or expenses paid in connection with an Extension Amendment or other debt offering or exchange with a similar purpose to the extent related to a substantially contemporaneous sale, offering or similar incurrence of Indebtedness which constitutes a Debt Incurrence Prepayment Event or the incurrence of Permitted Other Indebtedness,

 

in each case only to the extent not already deducted in arriving at the amount referred to in clause (a) above.

 

New Loan Commitments shall have the meaning provided in Section 2.14(a).

 

New Revolving Credit Commitments shall have the meaning provided in Section 2.14(a).

 

New Revolving Loan Lender” shall have the meaning provided in Section 2.14(b).

 

New Revolving Loans” shall have the meaning provided in Section 2.14(b).

 

New Term Loan Commitments” shall have the meaning provided in Section 2.14(a).

 

New Term Loan Lender shall have the meaning provided in Section 2.14(c).

 

New Term Loan Maturity Date shall mean the date on which a New Term Loan matures.

 

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New Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).

 

New Term Loan Repayment Date” shall have the meaning provided in Section 2.5(c).

 

New Term Loans shall have the meaning provided in Section 2.14(c).

 

Non-Cash Charges” shall mean, without duplication, (a) losses on non-ordinary course asset sales, disposals or abandonments, (b) any impairment charge or asset write-off related to intangible assets (including goodwill), long-lived assets, and investments in debt and equity securities pursuant to GAAP, (c) all losses from investments recorded using the equity method, (d) stock-based awards compensation expense, including any such charges arising from stock options, restricted stock grants or other equity incentive grants, and any cash compensation charges associated with the rollover or acceleration of stock-based awards or payment of stock options in connection with the Transactions, and (e) other non-cash charges (provided that (x) if any non-cash charges referred to in this clause (e) represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent and (y) the amortization of a prepaid current asset item that was paid in a prior period shall not be included in Non-Cash Charges).

 

Non-Consenting Lender” shall have the meaning provided in Section 13.7(b).

 

Non-Defaulting Lender shall mean and include each Lender other than a Defaulting Lender.

 

Non-Extension Notice Date” shall have the meaning provided in Section 3.2(d).

 

Non-U.S. Lender” shall mean any Agent or Lender that is not, for United States federal income tax purposes, (a) an individual who is a citizen or resident of the United States, (b) a corporation, partnership or entity treated as a corporation or partnership created or organized in or under the laws of the United States, or any political subdivision thereof, (c) an estate whose income is subject to U.S. federal income taxation regardless of its source or (d) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more United States persons have the authority to control all substantial decisions of such trust or a trust that has a valid election in effect under applicable U.S. Treasury regulations to be treated as a United States person.

 

Non-U.S. Participant shall mean any Participant that if it were a Lender would qualify as a Non-U.S. Lender.

 

Notes” shall mean, collectively, the Senior Notes and the Senior Subordinated Notes.

 

Notice of Borrowing” shall have the meaning provided in Section 2.3(a).

 

Notice of Conversion or Continuation shall have the meaning provided in Section 2.6(a).

 

Obligations shall mean all advances to, and debts, liabilities, obligations, covenants and duties of, any Credit Party arising under any Credit Document or otherwise with respect to any Revolving Credit Commitment, Loan or Letter of Credit or under any Secured Cash Management Agreement, Secured Hedge Agreement or Existing Secured Letter of Credit, in each case, entered into with the Borrower or any of its Domestic Subsidiaries, or certain Foreign Subsidiaries to the extent agreed

 

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to from time to time by the Borrower or such Foreign Subsidiaries with one or more Lenders or an Affiliate of a Lender, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.  Without limiting the generality of the foregoing, the Obligations of the Credit Parties under the Credit Documents (and any of their Subsidiaries to the extent they have obligations under the Credit Documents) include the obligation (including guarantee obligations) to pay principal, interest, charges, expenses, fees, attorney costs, indemnities and other amounts payable by any Credit Party under any Credit Document.

 

Old Revolving Credit Commitments” shall mean all Revolving Credit Commitments, Existing Revolving Credit Commitments and Extended Revolving Credit Commitments, other than any New Revolving Credit Commitments (and any Extended Revolving Credit Commitments related thereto).

 

Old Revolving Credit Loans” shall mean all Loans made pursuant to Old Revolving Credit Commitments.

 

Original Closing Date” shall mean September 24, 2007, the date of the initial extension of credit under the Original Credit Agreement.

 

Original Closing Date Term Loans” shall mean any Tranche B-1 Term Loan, Tranche B-2 Term Loan or Initial Tranche B-3 Term Loan.

 

Original Credit Agreement” shall have the meaning assigned to such term in the recitals hereto.

 

Original Lenders” shall have the meaning assigned to such term in the recitals hereto.

 

Other Taxes shall mean any and all present or future stamp, registration, documentary or any other excise, property or similar taxes (including interest, fines, penalties, additions to tax and related expenses with regard thereto) arising from any payment made or required to be made under this Agreement or any other Credit Document or from the execution or delivery of, registration or enforcement of, consummation or administration of, or otherwise with respect to, this Agreement or any other Credit Document.

 

Overnight Rate shall mean, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Effective Rate and (ii) an overnight rate determined by the Administrative Agent, the Letter of Credit Issuer or the Swingline Lender, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in any Alternative Currency, the rate of interest per annum at which overnight deposits in such Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of the Administrative Agent in the applicable offshore interbank market for such Alternative Currency to major banks in such interbank market.

 

Participant” shall have the meaning provided in Section 13.6(c).

 

Participating Member State shall mean each state so described in any EMU Legislation.

 

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Patriot Act” shall have the meaning provided in Section 13.18.

 

PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.

 

Pension Act” shall mean the Pension Protection Act of 2006, as it presently exists or as it may be amended from time to time.

 

Perfection Certificate shall mean a certificate of the Borrower in the form of Exhibit D to the Original Credit Agreement or any other form approved by the Administrative Agent.

 

Permitted Acquisition” shall mean the acquisition, by merger or otherwise, by the Borrower or any of the Restricted Subsidiaries of assets or Stock or Stock Equivalents, so long as (a) such acquisition and all transactions related thereto shall be consummated in accordance with applicable law; (b) such acquisition shall result in the issuer of such Stock or Stock Equivalents becoming a Restricted Subsidiary and a Subsidiary Guarantor, to the extent required by Section 9.11; (c) such acquisition shall result in the Administrative Agent, for the benefit of the applicable Lenders, being granted a security interest in any Stock, Stock Equivalent or any assets so acquired, to the extent required by Sections 9.11, 9.12 and/or 9.14; (d) each Person (or, as applicable, the assets) so acquired shall be in (or with respect to assets, useful for engaging in) the same or generally related line of business as conducted by the Borrower and its Subsidiaries on the Original Closing Date; (e) both immediately before and after giving effect to such acquisition, no Default or Event of Default shall have occurred and be continuing; (f) the aggregate fair market value (as determined in good faith by the Borrower) of all Investments funded or financed in any Persons that do not become Guarantors in connection with all such acquisitions following the Original Closing Date in reliance on Section 10.5(h) shall not exceed $2,500,000,000 (it being understood that additional Investments in Persons that are not Credit Parties may be made in connection with Permitted Acquisitions in reliance on any exception in Section 10.5 other than clause (h) thereof); and (g) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such acquisition (including without limitation any Indebtedness assumed or permitted to exist or incurred pursuant to Sections 10.1(j) and 10.1(k), respectively, and any related Pro Forma Adjustment), with the covenant set forth in Section 10.10, or the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio shall be no higher after giving effect to such acquisition on a Pro Forma Basis after giving effect to such acquisition (including without limitation any Indebtedness assumed or permitted to exist or incurred pursuant to Sections 10.1(j) and 10.1(k), respectively, and any related Pro Forma Adjustment).

 

Permitted Additional Debt shall mean unsecured Indebtedness, issued by the Borrower or a Guarantor, (a) the terms of which (i) do not provide for any scheduled repayment, mandatory redemption or sinking fund obligation prior to the Final Maturity Date (other than customary offers to purchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default) and (ii) to the extent the same are subordinated, provide for customary subordination to the Obligations under the Credit Documents, (b) the covenants, events of default, guarantees and other terms of which (other than interest rate and redemption premiums), taken as a whole, are not more restrictive to the Borrower and the Restricted Subsidiaries than those herein (or to the extent such Permitted Additional Debt constitutes refinancing Indebtedness of the (x) Senior Subordinated Notes, those applicable to the Senior Subordinated Notes being so refinanced or (y) the Senior Notes, those applicable to the Senior Notes being refinanced); provided that a certificate of an Authorized Officer of the Borrower is delivered to the Administrative Agent at least five Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence

 

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that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees) and (c) of which no Subsidiary of the Borrower (other than a Guarantor or any guarantor of the Indebtedness being refinanced by such Permitted Additional Debt, if applicable) is an obligor.

 

Permitted Debt Exchange” shall have the meaning provided in Section 2.15(a).

 

Permitted Debt Exchange Notes” shall have the meaning provided in Section 2.15(a).

 

Permitted Debt Exchange Offer” shall have the meaning provided in Section 2.15(a).

 

Permitted Holders shall mean the Sponsor, the Management Investors, the Initial Investors and each Person to whom any Initial Investor transfers Stock or Stock Equivalents of Holdings or any direct or indirect parent thereof in connection with the primary equity syndication following the Original Closing Date.

 

Permitted Investments” shall mean:

 

(a)                                  securities issued or unconditionally guaranteed by the United States government or any agency or instrumentality thereof, in each case having maturities of not more than 24 months from the date of acquisition thereof;

 

(b)                                 securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than 24 months from the date of acquisition thereof and, at the time of acquisition, having an investment grade rating generally obtainable from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then from another nationally recognized rating service);

 

(c)                                  commercial paper maturing no more than 12 months after the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service);

 

(d)                                 domestic and LIBOR certificates of deposit or bankers’ acceptances maturing no more than two years after the date of acquisition thereof issued by any Lender or any other bank having combined capital and surplus of not less than $500,000,000 in the case of domestic banks and $100,000,000 (or the Dollar Equivalent thereof) in the case of foreign banks;

 

(e)                                  repurchase agreements with a term of not more than 90 days for underlying securities of the type described in clauses (a), (b) and (d) above entered into with any bank meeting the qualifications specified in clause (d) above or securities dealers of recognized national standing;

 

(f)                                    marketable short-term money market and similar funds (x) either having assets in excess of $500,000,000 or (y) having a rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service);

 

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(g)                                 shares of investment companies that are registered under the Investment Company Act of 1940 and substantially all the investments of which are one or more of the types of securities described in clauses (a) through (f) above;

 

(h)                                 in the case of Investments by any Restricted Foreign Subsidiary or Investments made in a country outside the United States of America, other customarily utilized high-quality Investments in the country where such Restricted Foreign Subsidiary is located or in which such Investment is made; and

 

(i)                                     Investments of assets made pursuant to any non-qualified deferred compensation plan sponsored by the Borrower or its Restricted Subsidiaries.

 

Permitted Liens” shall mean:

 

(a)                                  Liens for taxes, assessments or governmental charges or claims not yet due and payable or that are being contested in good faith and by appropriate proceedings for which appropriate reserves have been established to the extent required by and in accordance with GAAP;

 

(b)                                 Liens in respect of property or assets of the Borrower or any of the Subsidiaries imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business, in each case so long as such Liens arise in the ordinary course of business and do not individually or in the aggregate have a Material Adverse Effect;

 

(c)                                  Liens arising from judgments or decrees in circumstances not constituting an Event of Default under Section 11.11;

 

(d)                                 Liens incurred or deposits made in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business or otherwise constituting Investments permitted by Section 10.5;

 

(e)                                  ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its Subsidiaries are located;

 

(f)                                    easements, rights-of-way, restrictions, minor defects or irregularities in title and other similar charges or encumbrances not interfering in any material respect with the business of the Borrower and its Subsidiaries, taken as a whole;

 

(g)                                 any interest or title of a lessor or secured by a lessor’s interest under any lease permitted by this Agreement;

 

(h)                                 Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

 

(i)                                     Liens on goods the purchase price of which is financed by a documentary letter of credit issued for the account of the Borrower or any of its Subsidiaries, provided that such Lien secures only the obligations of the Borrower or such Subsidiaries in respect of such letter of credit to the extent permitted under Section 10.1;

 

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(j)                                     leases, licenses, subleases or sublicenses granted to others not interfering in any material respect with the business of the Borrower and its Subsidiaries, taken as a whole;

 

(k)                                  Liens arising from precautionary Uniform Commercial Code financing statement or similar filings made in respect of operating leases entered into by the Borrower or any of its Subsidiaries;

 

(l)                                     Liens created in the ordinary course of business in favor of banks and other financial institutions over credit balances of any bank accounts of the Borrower and the Restricted Subsidiaries held at such banks or financial institutions, as the case may be, to facilitate the operation of cash pooling and/or interest set-off arrangements in respect of such bank accounts in the ordinary course of business;

 

(m)                               Settlement Liens;

 

(n)                                 Liens on accounts receivable and related assets incurred in connection with a Permitted Receivables Financing; and

 

(o)                                 any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries, taken as a whole.

 

Permitted Other Indebtedness” shall mean subordinated or senior Indebtedness (which Indebtedness may (x) be unsecured, (y) have the same lien priority as the Obligations or (z) be secured by a Lien ranking junior to the Lien securing the Obligations), in each case issued or incurred by the Borrower or a Guarantor, (a) the terms of which do not provide for any scheduled repayment, mandatory repayment or redemption or sinking fund obligations prior to, at the time of incurrence, the Final Maturity Date (other than, in each case, customary offers to repurchase upon a change of control, asset sale or casualty or condemnation event and customary acceleration rights after an event of default), (b) the covenants, events of default, guarantees, collateral and other terms of which (other than interest rate and redemption or prepayment premiums), taken as a whole, are not more restrictive to the Borrower and the Restricted Subsidiaries than those herein; provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at least five Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within two Business Days after receipt of such certificate that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees), (c) of which no Subsidiary of the Borrower (other than a Guarantor) is an obligor and (d) that, if secured, are not secured by any assets other than the Collateral.

 

Permitted Other Indebtedness Documents” shall mean any document or instrument (including any guarantee, security agreement or mortgage and which may include any or all of the Credit Documents) issued or executed and delivered with respect to any Permitted Other Indebtedness by any Credit Party.

 

Permitted Other Indebtedness Obligations” shall mean, if any Permitted Other Indebtedness is issued or incurred, all advances to, and debts, liabilities, obligations, covenants and duties of, any Credit Party arising under any Permitted Other Indebtedness Document, whether direct or indirect

 

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(including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.  Without limiting the generality of the foregoing, the Permitted Other Indebtedness Obligations of the applicable Credit Parties under the Permitted Other Indebtedness Documents (and any of their Restricted Subsidiaries to the extent they have obligations under the Permitted Other Indebtedness Documents) include the obligation (including guarantee obligations) to pay principal, interest, charges, expenses, fees, attorney costs, indemnities and other amounts payable by any such Credit Party under any Permitted Other Indebtedness Document.

 

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

 

Permitted Receivables Financing” shall mean any customary accounts receivable financing facility (including customary back-to-back intercompany arrangements in respect thereof) to the extent that (a) the maturity date is no earlier than the Revolving Credit Maturity Date; (b) any collateral securing the obligations of the obligors thereunder shall be pledged to the Secured Parties on a second priority basis to secure the Obligations pursuant to intercreditor arrangement reasonably acceptable to the Administrative Agent; (c) the remaining terms applicable to such financing facility must be customary for financings of such type and (d) (i) the proceeds of all Indebtedness incurred under such facility must be applied to the prepayment of Term Loans pursuant to Section 5.2 or (ii) the Revolving Credit Commitments are reduced by an amount equal to such facility.

 

Permitted Sale Leaseback” shall mean any Sale Leaseback consummated by the Borrower or any of the Restricted Subsidiaries after the Original Closing Date, provided that any such Sale Leaseback not between (a) a Credit Party and another Credit Party or (b) a Restricted Subsidiary that is not a Credit Party to another Restricted Subsidiary that is not a Credit Party is consummated for fair value as determined at the time of consummation in good faith by (i) the Borrower or such Restricted Subsidiary and, in the case of any Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds of which exceed $100,000,000, (ii) the board of directors of the Borrower or such Restricted Subsidiary (which such determination may take into account any retained interest or other Investment of the Borrower or such Restricted Subsidiary in connection with, and any other material economic terms of, such Sale Leaseback).

 

Person” shall mean any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise or any Governmental Authority.

 

PIK Interest Amount shall (i) mean the aggregate principal amount of all increases in outstanding principal amount of PIK Notes and issuances of additional “PIK Notes” (as defined in the Senior Notes Indenture) in connection with an election by the Borrower to pay interest on the PIK Notes in kind and (ii) the aggregate principal amount of all increases in outstanding principal amount of Senior Interim PIK Loans in connection with an election by the Borrower to pay interest on the Senior Interim PIK Loans in kind.

 

Plan shall mean any multiemployer or single-employer plan, as defined in Section 4001 of ERISA and subject to Title IV of ERISA, that is or was within any of the preceding six plan years maintained or contributed to by (or to which there is or was an obligation to contribute or to make payments to) the Borrower or an ERISA Affiliate.

 

Platform shall have the meaning provided in Section 13.17(b).

 

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Pledge Agreement” shall mean (a) the Pledge Agreement, entered into by the Credit Parties party thereto and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit E to the Original Credit Agreement, on the Original Closing Date, and (b) any other pledge agreement with respect to all of the Obligations delivered pursuant to Section 9.12, in each case, as the same may be amended, supplemented or otherwise modified from time to time.

 

Post-Acquisition Period shall mean, with respect to any Permitted Acquisition, the period beginning on the date such Permitted Acquisition is consummated and ending on the last day of the sixth full consecutive fiscal quarter immediately following the date on which such Permitted Acquisition is consummated.

 

Prepayment Event” shall mean any Asset Sale Prepayment Event, Debt Incurrence Prepayment Event, Casualty Event or any Permitted Sale Leaseback.

 

Prime Rate shall mean the “prime rate” referred to in the definition of “ABR”.

 

Pro Forma Adjustment shall mean, for any Test Period that includes all or any part of a fiscal quarter included in any Post-Acquisition Period, with respect to the Acquired EBITDA of the applicable Acquired Entity or Business or Converted Restricted Subsidiary or the Consolidated EBITDA of the Borrower, the pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected by the Borrower in good faith as a result of (a) actions taken during such Post-Acquisition Period for the purposes of realizing reasonably identifiable and factually supportable cost savings or (b) any additional costs incurred during such Post-Acquisition Period, in each case in connection with the combination of the operations of such Acquired Entity or Business or Converted Restricted Subsidiary with the operations of the Borrower and the Restricted Subsidiaries; provided that (i) at the election of the Borrower, such Pro Forma Adjustment shall not be required to be determined for any Acquired Entity or Business or Converted Restricted Subsidiary to the extent the aggregate consideration paid in connection with such acquisition was less than $5,000,000 and (ii) so long as such actions are taken during such Post-Acquisition Period or such costs are incurred during such Post-Acquisition Period, as applicable, it may be assumed, for purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, that the applicable amount of such cost savings will be realizable during the entirety of such Test Period, or the applicable amount of such additional costs, as applicable, will be incurred during the entirety of such Test Period; provided further that any such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be without duplication for cost savings or additional costs already included in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, for such Test Period.

 

Pro Forma Adjustment Certificate” shall mean any certificate of an Authorized Officer of the Borrower delivered pursuant to Section 9.1(h) or Section 9.1(d).

 

Pro Forma Basis”, Pro Forma Compliance and “Pro Forma Effect shall mean, with respect to compliance with any test or covenant hereunder, that (A) to the extent applicable, the Pro Forma Adjustment shall have been made and (B) all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test or covenant:  (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (i) in the case of a sale, transfer or other disposition of all or substantially all Stock in any Subsidiary of the Borrower or any division, product line, or facility used for operations of the Borrower or any of its Subsidiaries, shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction”, shall be included, (b) any retirement of Indebtedness and (c) any incurrence or

 

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assumption of Indebtedness by the Borrower or any of the Restricted Subsidiaries in connection therewith (it being agreed that if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness as at the relevant date of determination); provided that, without limiting the application of the Pro Forma Adjustment pursuant to (A) above (but without duplication thereof), the foregoing pro forma adjustments may be applied to any such test or covenant solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and give effect to events (including operating expense reductions) that are (i) (x) directly attributable to such transaction, (y) expected to have a continuing impact on the Borrower and the Restricted Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of Pro Forma Adjustment.

 

Pro Forma Entity” shall have the meaning provided in the definition of the term “Acquired EBITDA.”

 

Qualified Equity Interest” shall mean any Stock or Stock Equivalent that does not constitute a Disqualified Equity Interest.

 

Real Estate shall have the meaning provided in Section 9.1(f).

 

Receivables Subsidiary” shall mean any Subsidiary established in connection with a Permitted Receivables Financing that is not permitted by the terms of such Permitted Receivables Financing to guarantee the Obligations.

 

Refinanced Term Loans” shall have the meaning provided in Section 13.1.

 

Refinancing Permitted Other Indebtedness” shall have the meaning provided in Section 10.1(bb)(ii).

 

Register” shall have the meaning provided in Section 13.6(b)(iv).

 

Regulation T shall mean Regulation T of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

 

Regulation U” shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

 

Regulation X shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

 

Reimbursement Date shall have the meaning provided in Section 3.4(a).

 

Reinvestment Period shall mean 15 months following the date of receipt of Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback.

 

Rejection Notice” shall have the meaning provided in Section 5.2(h).

 

Related Parties shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees, agents, trustees and advisors of such Person and any Person that possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.

 

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Repaid Tranche B-2 Loans” shall have the meaning provided in Section 5.2(a)(i)(B).

 

Repaid Tranche B-3 Loans” shall have the meaning provided in Section 5.1(b).

 

Repayment Amount shall mean the Initial Term Loan Repayment Amount, the Delayed Draw Repayment Amount, the Euro Tranche Repayment Amount, the 2018 Dollar Term Loan Repayment Amount, the 2018 Euro Term Loan Repayment Amount, the 2017 Dollar Term Loan Repayment Amount, the 2017 Euro Term Loan Repayment Amount, the 2017B Dollar Term Loan Repayment Amount, the 2017B Euro Term Loan Repayment Amount, a New Term Loan Repayment Amount with respect to any Series or an Extended Term Loan Repayment Amount with respect to any Extension Series, as applicable.

 

Repayment Date” shall mean the Initial Term Loan Repayment Date, a 2018 Dollar Term Loan Repayment Date, a 2018 Euro Term Loan Repayment Date, a 2017 Dollar Term Loan Repayment Date, a 2017 Euro Term Loan Repayment Date, a 2017B Dollar Term Loan Repayment Date, a 2017B Euro Term Loan Repayment Date, an Extended Repayment Date with respect to any Extension Series of Extended Term Loans other than the 2018 Term Loans, the 2017 Term Loans and the 2017B Term Loans and a New Term Loan Repayment Date.

 

Replacement Term Loans shall have the meaning provided in Section 13.1.

 

Reportable Event” shall mean an event described in Section 4043 of ERISA and the regulations thereunder, other than any event as to which the thirty day notice period has been waived.

 

Required 2018 Dollar Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2018 Dollar Term Loans (excluding 2018 Dollar Term Loans held by Defaulting Lenders) at such date.

 

Required 2018 Euro Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2018 Euro Term Loans (excluding 2018 Euro Term Loans held by Defaulting Lenders) at such date.

 

Required 2017 Dollar Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2017 Dollar Term Loans (excluding 2017 Dollar Term Loans held by Defaulting Lenders) at such date.

 

Required 2017 Euro Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2017 Euro Term Loans (excluding 2017 Euro Term Loans held by Defaulting Lenders) at such date.

 

Required 2017B Dollar Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2017B Dollar Term Loans (excluding 2017B Dollar Term Loans held by Defaulting Lenders) at such date.

 

Required 2017B Euro Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2017B Euro Term Loans (excluding 2017B Euro Term Loans held by Defaulting Lenders) at such date.

 

Required 2018B Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate outstanding principal amount of the 2018B Term Loans (excluding 2018B Term Loans held by Defaulting Lenders) at such date.

 

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Required Delayed Draw Term Loan Lenders shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Adjusted Total Delayed Draw Term Loan Commitment at such date and (b) the aggregate outstanding principal amount of the Delayed Draw Term Loans (excluding Delayed Draw Term Loans held by Defaulting Lenders) at such date.

 

Required Euro Tranche B-1 Term Loan Lenders shall mean, at any date, Non-Defaulting Lenders having or holding a Dollar Equivalent of a majority of the sum of (a) the Euro Tranche B-1 Term Loan Commitments at such date (excluding Euro Tranche B-1 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate outstanding principal amount of the Euro Tranche B-1 Term Loans (excluding Euro Tranche B-1 Term Loans held by Defaulting Lenders) at such date.

 

Required Euro Tranche B-2 Term Loan Lenders shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Euro Tranche B-2 Term Loan Commitments at such date (excluding Euro Tranche B-2 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate outstanding principal amount of the Euro Tranche B-2 Term Loans (excluding Euro Tranche B-2 Term Loans held by Defaulting Lenders) at such date.

 

Required Initial Term Loan Lenders shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Adjusted Total Initial Term Loan Commitment at such date and (b) the aggregate outstanding principal amount of the Initial Term Loans (excluding Initial Term Loans held by Defaulting Lenders) at such date.

 

Required Initial Tranche B-1 Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Initial Tranche B-1 Term Loan Commitments at such date (excluding Initial Tranche B-1 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate outstanding principal amount of the Initial Tranche B-1 Term Loans (excluding Initial Tranche B-1 Term Loans held by Defaulting Lenders) at such date.

 

Required Initial Tranche B-2 Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Initial Tranche B-2 Term Loan Commitments at such date (excluding Initial Tranche B-2 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate outstanding principal amount of the Initial Tranche B-2 Term Loans (excluding Initial Tranche B-2 Term Loans held by Defaulting Lenders) at such date.

 

Required Initial Tranche B-3 Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Initial Tranche B-3 Term Loan Commitments at such date (excluding Initial Tranche B-3 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate outstanding principal amount of the Initial Tranche B-3 Term Loans (excluding Initial Tranche B-3 Term Loans held by Defaulting Lenders) at such date.

 

Required Tranche B-1 Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Tranche B-1 Term Loan Commitments at such date (excluding Tranche B-1 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate outstanding principal amount of the Tranche B-1 Term Loans (excluding Tranche B-1 Term Loans held by Defaulting Lenders) at such date.

 

Required Tranche B-2 Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) the Tranche B-2 Term Loan Commitments at such date (excluding Tranche B-2 Term Loan Commitments held by Defaulting Lenders) and (b) the aggregate

 

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outstanding principal amount of the Tranche B-2 Term Loans (excluding Tranche B-2 Term Loans held by Defaulting Lenders) at such date.

 

Required Lenders shall mean, at any date, (a) Non-Defaulting Lenders having or holding a majority of the Dollar Equivalent of the sum of (i) the Adjusted Total Revolving Credit Commitment at such date, (ii) the Adjusted Total Term Loan Commitment at such date and (iii) the outstanding principal amount of the Term Loans (excluding Term Loans held by Defaulting Lenders) at such date or (b) if the Total Revolving Credit Commitment and the Total Term Loan Commitment have been terminated or for the purposes of acceleration pursuant to Section 11, Non-Defaulting Lenders having or holding a majority of the Dollar Equivalent of the outstanding principal amount of the Loans and Letter of Credit Exposure (excluding the Loans and Letter of Credit Exposure of Defaulting Lenders) in the aggregate at such date.

 

Required Revolving Credit Lenders shall mean, at any date, Non-Defaulting Lenders holding a majority of the Adjusted Total Revolving Credit Commitment at such date (or, if the Total Revolving Credit Commitment has been terminated at such time, a majority of the Revolving Credit Exposure (excluding Revolving Credit Exposure of Defaulting Lenders) at such time).

 

Requirement of Law” shall mean, as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or assets or to which such Person or any of its property or assets is subject.

 

Restricted Foreign Subsidiary shall mean a Foreign Subsidiary that is a Restricted Subsidiary.

 

Restricted Subsidiary” shall mean any Subsidiary of the Borrower other than an Unrestricted Subsidiary.

 

Retained Declined Proceeds shall have the meaning provided in Section 5.2(h).

 

Revaluation Date” shall mean (a) with respect to any Revolving Credit Loan or Swingline Loan, each of the following: (i) each date of a Borrowing of a Revolving Credit Loan or Swingline Loan, (ii) each date of a continuation of a Revolving Credit Loan pursuant to Section 2.6, and (iii) such additional dates as the Administrative Agent shall determine or the Required Revolving Credit Lenders or Swingline Lender shall require; and (b) with respect to any Letter of Credit, each of the following:  (i) each date of issuance of any such Letter of Credit, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by the applicable Letter of Credit Issuer under any Letter of Credit, and (iv) such additional dates as the Administrative Agent or the Letter of Credit Issuer shall determine or the Required Revolving Credit Lenders shall require.

 

Revolving Credit Commitment shall mean, (a) with respect to each Lender that is a Lender prior to the 2011 Extension Effective Date, the “Revolving Credit Commitment” as defined in the Credit Agreement as in effect at any time prior to such date, (b) with respect to each Lender that is a Lender on and after the 2011 Extension Effective Date, the sum of such Lender’s 2013 Revolving Credit Commitments and 2016 Revolving Credit Commitments and (c) in the case of any Lender that becomes a Lender after the 2011 Extension Effective Date, the amount specified as such Lender’s “Revolving Credit Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Revolving Credit Commitment, in each case of the same may be changed from time to time

 

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pursuant to terms hereof.  The aggregate amount of the Revolving Credit Commitments as of the 2011 Extension Effective Date is $1,748,942,465.75.

 

Revolving Credit Commitment Percentage shall mean the 2013 Revolving Credit Commitment Percentage and/or the 2016 Revolving Credit Commitment Percentage, as the case may be.

 

Revolving Credit Exposure shall mean the 2013 Revolving Credit Exposure and/or the 2016 Revolving Credit Exposure, as the case may be.

 

Revolving Credit Extension Request” shall have the meaning provided in Section 2.14(f)(ii).

 

Revolving Credit Facility shall mean the 2013 Revolving Credit Facility and/or the 2016 Revolving Credit Facility, as the case may be.

 

Revolving Final Date” shall mean, with respect to the 2013 Revolving Credit Commitments, the 2013 Revolving Final Date and with respect to the 2016 Revolving Credit Commitments, the 2016 Revolving Final Date.

 

Revolving Credit Lender shall mean, at any time, any Lender that has a Revolving Credit Commitment or Extended Revolving Credit Commitment at such time.

 

Revolving Credit Loans shall have the meaning provided in Section 2.1(b).

 

Revolving Credit Termination Date shall mean the date on which the Revolving Credit Commitments shall have terminated, no Revolving Credit Loans shall be outstanding and the Letters of Credit Outstanding shall have been reduced to zero or Cash Collateralized.

 

S&P” shall mean Standard & Poor’s Ratings Services or any successor by merger or consolidation to its business.

 

Sale Leaseback” shall mean any transaction or series of related transactions pursuant to which the Borrower or any of the Restricted Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.

 

Scheduled Dispositions” shall have the meaning provided in Section 10.4(k).

 

SEC” shall mean the Securities and Exchange Commission or any successor thereto.

 

Second Lien Intercreditor Agreement” shall mean an Intercreditor Agreement substantially in the form of Exhibit M among the Administrative Agent, the Collateral Agent and the representatives for purposes thereof for any other Permitted Other Indebtedness Secured Parties that are holders of Permitted Other Indebtedness Obligations having a Lien on the Collateral ranking junior to the Lien securing the Obligations, with such changes thereto as may be reasonably acceptable to the Administrative Agent; provided that such changes are not materially adverse to the Lenders.

 

Section 2.14 Additional Amendment” shall have the meaning provided in Section 2.14(f)(iv).

 

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Section 9.1 Financials shall mean the financial statements delivered, or required to be delivered, pursuant to Section 9.1(a) or (b) together with the accompanying officer’s certificate delivered, or required to be delivered, pursuant to Section 9.1(d).

 

Secured Cash Management Agreement” shall mean any Cash Management Agreement that is entered into by and between the Borrower or any of its Subsidiaries and any Cash Management Bank.

 

Secured Hedge Agreement” shall mean any Hedge Agreement that is entered into by and between the Borrower or any Restricted Subsidiary and any Hedge Bank; provided that in the case of a Hedge Bank that is considered a Hedge Bank solely as a result of the operation of clause (b) of the definition thereof, the only Hedge Agreements with such Hedge Bank that shall be considered Secured Hedge Agreements are those set forth on Schedule 1.1(i) to the Original Credit Agreement except as such Hedge Bank may otherwise be considered a Hedge Bank after the Original Closing Date in accordance with clause (a) of the definition thereof.

 

Secured Parties shall mean the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer and each Lender, in each case with respect to the Credit Facilities, each Existing Secured Letter of Credit Issuer that is an issuer of any Existing Secured Letter of Credit, each Hedge Bank that is party to any Secured Hedge Agreement with the Borrower or any Domestic Subsidiary, each Cash Management Bank that is party to a Secured Cash Management Agreement with the Borrower or any Domestic Subsidiary or certain Foreign Subsidiaries to the extent agreed to from time to time by the Borrower or such Foreign Subsidiaries with one or more Lenders or an Affiliate of a Lender and each sub-agent pursuant to Section 12 appointed by the Administrative Agent with respect to matters relating to the Credit Facilities or the Collateral Agent with respect to matters relating to any Security Document.

 

Securitization” shall mean a public or private offering by a Lender or any of its Affiliates or their respective successors and assigns of securities or notes which represent an interest in, or which are collateralized, in whole or in part, by the Loans and the Lender’s rights under the Credit Documents.

 

Security Agreement shall mean the Security Agreement entered into by the Borrower, the other grantors party thereto and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit F to the Original Credit Agreement, as the same may be amended, supplemented or otherwise modified from time to time.

 

Security Documents shall mean, collectively, (a) the Guarantee, (b) the Pledge Agreement, (c) the Security Agreement, (d) the Mortgages, (e) the First Lien Intercreditor Agreement, (f) if executed, the Second Lien Intercreditor Agreement and (g) each other security agreement or other instrument or document executed and delivered pursuant to Section 9.11, 9.12 or 9.14 or pursuant to any other such Security Documents to secure all of the Obligations.

 

Senior Interim Loan Agreement” shall have the meaning provided in the recitals to this Agreement.

 

Senior Interim Loans” shall have the meaning provided in the recitals to this Agreement and shall include term loans outstanding under the Senior Interim Loan Agreement after conversion thereof.

 

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Senior Interim PIK Loans” shall have the meaning provided in the recitals to this Agreement and shall include term loans outstanding under the Senior Interim Loan Agreement after conversion thereof.

 

Senior Notes” shall mean (a) senior notes and/or senior PIK notes (the “PIK Notes”) with a stated maturity no earlier than seven and one-half years after the Original Closing Date to be issued in connection with the refinancing or exchange of the Senior Interim Loans in sales pursuant to Rule 144A and Regulation S under the Securities Act of 1933, as amended, under the Senior Notes Indenture or Senior Interim Loan Agreement, as applicable, in each case together with interest, fees and all other amounts payable in connection therewith, generating aggregate gross proceeds of up to $6,500,000,000 plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing (less the amount of any Senior Interim Loans and Senior Interim PIK Loans that remain outstanding after the issuance of the Senior Notes), and (b) any modification, replacement, refinancing, refunding, renewal or extension thereof that constitutes Permitted Additional Debt.

 

Senior Notes Indenture” shall mean the Indenture to be entered into in connection with the refinancing or exchange of the Senior Interim Loans, among the Borrower, the guarantors party thereto and a trustee, pursuant to which the Senior Notes shall be issued, as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith.

 

Senior Secured Leverage Test” shall mean, as of any date of determination, with respect to the last day of the most recently ended Test Period, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio shall be no greater than 5.5 to 1.0.

 

Senior Subordinated Interim Loan Agreement” shall have the meaning provided in the recitals to this Agreement.

 

Senior Subordinated Interim Loans” shall have the meaning provided in the recitals to this Agreement and shall include term loans outstanding under the Senior Subordinated Interim Loan Agreement after conversion thereof.

 

Senior Subordinated Notes” shall mean (a) senior subordinated notes with a stated maturity no earlier than seven and one-half years after the Original Closing Date to be issued in connection with the refinancing or exchange of the Senior Subordinated Interim Loans in a sale pursuant to Rule 144A and Regulation S under the Securities Act of 1933, as amended, under the Senior Subordinated Notes Indenture or Senior Subordinated Interim Loan Agreement, as applicable, together with interest, fees and all other amounts payable in connection therewith, generating aggregate gross proceeds of up to $2,500,000,000 plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing (less the amount of any Senior Subordinated Interim Loans that remain outstanding after the issuance of the Senior Subordinated Notes), and (b) any modification, replacement, refinancing, refunding, renewal or extension thereof that constitutes Permitted Additional Debt.

 

Senior Subordinated Notes Indenture” shall mean the Indenture to be entered into in connection with the refinancing or exchange of the Senior Subordinated Interim Loans, among the Borrower, the guarantors party thereto and a trustee, pursuant to which the Senior Subordinated Notes shall be issued, as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith.

 

Series” shall have the meaning provided in Section 2.14(a).

 

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Settlement” shall mean the transfer of cash or other property with respect to any credit or debit card charge, check or other instrument, electronic funds transfer, or other type of paper-based or electronic payment, transfer, or charge transaction for which a Person acts as a processor, remitter, funds recipient or funds transmitter in the ordinary course of its business.

 

Settlement Asset” shall mean any cash, receivable or other property, including a Settlement Receivable, due or conveyed to a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person or an Affiliate of such Person.

 

Settlement Indebtedness” shall mean any payment or reimbursement obligation in respect of a Settlement Payment.

 

Settlement Lien” shall mean any Lien relating to any Settlement or Settlement Indebtedness (and may include, for the avoidance of doubt, the grant of a Lien in or other assignment of a Settlement Asset in consideration of a Settlement Payment, Liens securing intraday and overnight overdraft and automated clearing house exposure, and similar Liens).

 

Settlement Payment” shall mean the transfer, or contractual undertaking (including by automated clearing house transaction) to effect a transfer, of cash or other property to effect a Settlement.

 

Settlement Receivable” shall mean any general intangible, payment intangible, or instrument representing or reflecting an obligation to make payments to or for the benefit of a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person.

 

Sold Entity or Business shall have the meaning provided in the definition of the term “Consolidated EBITDA.”

 

Solvent” shall mean, with respect to any Person, that as of the Original Closing Date, (a) (i) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (ii) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Original Closing Date; and (iii) such Person has not incurred and does not intend to incur, or believe that it will incur, debts including current obligations beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (b) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).

 

Specified Existing Revolving Credit Commitment” shall have the meaning provided in Section 2.14(f)(ii).

 

Specified Subsidiary” shall mean, at any date of determination (a) any Material Subsidiary or (b) any Unrestricted Subsidiary (i) whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal period for which Section 9.1 Financials have been delivered were equal to or greater than 10% of the Consolidated Total Assets of the Borrower and the Subsidiaries at such date, or (ii) whose revenues during such Test Period were equal to or greater than 10% of the consolidated revenues of the Borrower and the Subsidiaries for such period, in each case determined in accordance with GAAP, and (c) each other Unrestricted Subsidiary that is the subject of an Event of Default under Section 11.5 and that, when such Subsidiary’s total assets or revenues are

 

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aggregated with the total assets or revenues, as applicable, of each other Subsidiary that is the subject of an Event of Default under Section 11.5 would constitute a Specified Subsidiary under clause (b) above.

 

Specified Transaction shall mean, with respect to any period, any Investment, any Disposition of assets, incurrence or repayment of Indebtedness, Dividend, Subsidiary designation, New Term Loan, New Revolving Credit Commitment or other event that by the terms of this Agreement requires “Pro Forma Compliance” with a test or covenant hereunder or requires such test or covenant to be calculated on a “Pro Forma Basis”.

 

Sponsor” shall mean any of KKR and its Affiliates but excluding portfolio companies of any of the foregoing.

 

Spot Rate for a currency shall mean the rate determined by the Administrative Agent to be the rate quoted by the Administrative Agent as the spot rate for the purchase by the Administrative Agent of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if it does not have as of the date of determination a spot buying rate for any such currency.

 

SPV” shall have the meaning provided in Section 13.6(g).

 

Stated Amount of any Letter of Credit shall mean the Dollar Equivalent of the maximum amount from time to time available to be drawn thereunder, determined without regard to whether any conditions to drawing could then be met; provided, however, that with respect to any Letter of Credit that by its terms or the terms of any Issuer Document provides for one or more automatic increases in the stated amount thereof, the Stated Amount shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

Status” shall mean, as to the Borrower as of any date, the existence of Level I Status, Level II Status or Level III Status, as the case may be, on such date.  Changes in Status resulting from changes in the Consolidated Total Debt to Consolidated EBITDA Ratio shall become effective as of the first day following each date that (a) Section 9.1 Financials for the first full fiscal quarter ended after the Original Closing Date are delivered to the Administrative Agent under Section 9.1 and (b) an officer’s certificate is delivered by the Borrower to the Administrative Agent setting forth, with respect to such Section 9.1 Financials, the then-applicable Status, and shall remain in effect until the next change to be effected pursuant to this definition, provided that each determination of the Consolidated Total Debt to Consolidated EBITDA Ratio pursuant to this definition shall be made as of the end of the Test Period ending at the end of the fiscal period covered by the relevant Section 9.1 Financials.

 

Stock” shall mean shares of capital stock or shares in the capital, as the case may be (whether denominated as common stock or preferred stock or ordinary shares or preferred shares, as the case may be), beneficial, partnership or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity, whether voting or non-voting.

 

Stock Equivalents” shall mean all securities convertible into or exchangeable for Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable.

 

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Subordinated Indebtedness” shall mean Indebtedness of the Borrower or any Guarantor that is by its terms subordinated in right of payment to the obligations of the Borrower and such Guarantor, as applicable, under this Agreement.

 

Subsidiary of any Person shall mean and include (a) any corporation more than 50% of whose Stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time Stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries, (b) any limited liability company, partnership, association, joint venture or other entity of which such Person directly or indirectly through Subsidiaries has more than a 50% equity interest at the time.  Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.

 

Successor Borrower” shall have the meaning provided in Section 10.3(a).

 

Swingline Commitment” shall mean $250,000,000.

 

Swingline Lender” shall mean Credit Suisse, in its capacity as lender of Swingline Loans hereunder, or any replacement or successor thereto.

 

Swingline Loans” shall have the meaning provided in Section 2.1(c).

 

Swingline Maturity Date shall mean, with respect to any Swingline Loan, the date that is five Business Days prior to the 2016 Revolving Credit Maturity Date.

 

Syndication Agent” shall mean Citibank, N.A., together with its Affiliates, as syndication agent for the Lenders under this Agreement and the other Credit Documents.

 

TARGET Day shall mean any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.

 

Taxes” shall mean any and all present or future taxes, duties, levies, imposts, assessments, deductions, withholdings or other similar charges imposed by any Governmental Authority whether computed on a separate, consolidated, unitary, combined or other basis and any interest, fines, penalties or additions to tax with respect to the foregoing.

 

Term Loan Commitment shall mean, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Delayed Draw Term Loan Commitment, Euro Tranche Term Loan Commitment and, if applicable, New Term Loan Commitment with respect to any Series.

 

Term Loan Extension Request” shall have the meaning provided in Section 2.14 (f)(i).

 

Term Loans shall mean the Initial Term Loans, the Delayed Draw Term Loans, the Euro Tranche Term Loans, any New Term Loans and any Extended Term Loans (including, without limitation, the 2018 Term Loans, the 2018B Term Loans, the 2017 Term Loans and the 2017B Term Loans), collectively.

 

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Test Period shall mean, for any determination under this Agreement, the four consecutive fiscal quarters of the Borrower then last ended.

 

Total 2013 Revolving Credit Commitment” shall mean, on any date, the sum of the 2013 Revolving Credit Commitments on such date of all 2013 Revolving Credit Lenders.

 

Total 2016 Revolving Credit Commitment” shall mean, on any date, the sum of the 2016 Revolving Credit Commitments on such date of all 2016 Revolving Credit Lenders.

 

Total Credit Exposure” shall mean, at any date, the sum, without duplication, of (a) the Total Revolving Credit Commitment at such date (or, if the Total Revolving Credit Commitment shall have terminated on such date, the aggregate Revolving Credit Exposure of all Lenders at such date), (b) the Total Term Loan Commitment at such date and (c) without duplication of clause (b), the Dollar Equivalent of the aggregate outstanding principal amount of all Term Loans at such date.

 

Total Delayed Draw Term Loan Commitment shall mean the sum of the Delayed Draw Term Loan Commitments of all Lenders.

 

Total Euro Tranche B-1 Term Loan Commitment shall mean the sum of the Euro Tranche Term Loan Commitments of all Lenders.

 

Total Euro Tranche B-2 Term Loan Commitment shall mean the sum of the Euro Tranche Term Loan Commitments of all Lenders.

 

Total Initial Term Loan Commitment shall mean the sum of the Initial Term Loan Commitments of all Lenders.

 

Total Revolving Credit Commitment shall mean the sum of the Revolving Credit Commitments of all the Lenders.

 

Total Term Loan Commitment shall mean the sum of the Initial Term Loan Commitments, the Delayed Draw Term Loan Commitments, the Euro Tranche Term Loan Commitments and the New Term Loan Commitments, if applicable, of all the Lenders.

 

Tranche B-1 Term Loan Commitment” shall mean the sum of the Initial Tranche B-1 Term Loan Commitments and the Euro Tranche B-1 Term Loan Commitments of all the Lenders.

 

Tranche B-1 Term Loan Lender shall mean a Lender with a Tranche B-1 Term Loan Commitment or an outstanding Tranche B-1 Term Loan.

 

Tranche B-1 Term Loans” shall mean any Initial Tranche B-1 Term Loan or Euro Tranche B-1 Term Loan.

 

Tranche B-2 Term Loan Commitment” shall mean the sum of the Initial Tranche B-2 Term Loan Commitments and the Euro Tranche B-2 Term Loan Commitments of all the Lenders.

 

Tranche B-2 Term Loan Lender shall mean a Lender with a Tranche B-2 Term Loan Commitment or an outstanding Tranche B-2 Term Loan.

 

Tranche B-2 Term Loans” shall mean any Initial Tranche B-2 Term Loan or Euro Tranche B-2 Term Loan.

 

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Transaction Expenses shall mean any fees or expenses incurred or paid by the Borrower or any of its Subsidiaries in connection with the Transactions, this Agreement and the other Credit Documents and the transactions contemplated hereby and thereby.

 

Transactions shall mean, collectively, the transactions contemplated by this Agreement, the Senior Interim Loan Agreement, the Senior Subordinated Interim Loan Agreement, the Merger and the Equity Investments and any repayment, repurchase, prepayment or defeasance of Indebtedness of the Borrower or any of its Subsidiaries in connection therewith.

 

Transferee” shall have the meaning provided in Section 13.6(e).

 

Treasury Rate” shall mean at any date, the yield to maturity as of such date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to such date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such date to the date which is 3.25 years following the Original Closing Date; provided, however, that if the period from such date to the date which is 3.25 years following the Original Closing Date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.

 

Trigger Date shall mean the day following the date on which Section 9.1 Financials are delivered to the Administrative Agent for the fiscal year ending on December 31, 2007.

 

Type” shall mean (a) as to any Term Loan, its nature as an ABR Loan or a LIBOR Term Loan and (b) as to any Revolving Credit Loan, its nature as an ABR Loan or a LIBOR Revolving Credit Loan.

 

Unfunded Current Liability of any Plan shall mean the amount, if any, by which the Accumulated Benefit Obligation (as defined under Statement of Financial Accounting Standards No. 87 (“SFAS 87”) under the Plan as of the close of its most recent plan year, determined in accordance with SFAS 87 as in effect on the Original Closing Date, exceeds the fair market value of the assets allocable thereto.

 

Unpaid Drawing” shall have the meaning provided in Section 3.4(a).

 

Unrestricted Subsidiary shall mean (a) any Subsidiary of the Borrower that is formed or acquired after the Original Closing Date, provided that at such time (or promptly thereafter) the Borrower designates such Subsidiary an Unrestricted Subsidiary in a written notice to the Administrative Agent, (b) any Restricted Subsidiary subsequently designated as an Unrestricted Subsidiary by the Borrower in a written notice to the Administrative Agent; provided that in the case of (a) and (b), (x) such designation shall be deemed to be an Investment (or reduction in an outstanding Investment, in the case of a designation of an Unrestricted Subsidiary as a Restricted Subsidiary), on the date of such designation in an amount equal to the sum of (i) the Borrower’s direct or indirect equity ownership percentage of the net worth of such designated Restricted Subsidiary immediately prior to such designation (such net worth to be calculated without regard to any guarantee provided by such designated Restricted Subsidiary) and (ii) without duplication, the aggregate principal amount of any Indebtedness owed by such designated Restricted Subsidiary to the Borrower or any other Restricted Subsidiary immediately prior to such designation, all calculated, except as set forth in the parenthetical to clause (i), on a consolidated basis in accordance with GAAP and (y) no Default or Event of Default would result from such designation after giving Pro Forma Effect thereto and the Borrower shall be in compliance with the covenant set forth in Section 10.10 determined on a Pro Forma Basis both before and after giving effect to such designation

 

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and (c) each Subsidiary of an Unrestricted Subsidiary.  The Borrower may, by written notice to the Administrative Agent, redesignate any Unrestricted Subsidiary as a Restricted Subsidiary, and thereafter, such Subsidiary shall no longer constitute an Unrestricted Subsidiary, but only if no Default or Event of Default would result from such re-designation.  On or promptly after the date of its formation, acquisition, designation or re-designation, as applicable, each Unrestricted Subsidiary (other than an Unrestricted Subsidiary that is a Foreign Subsidiary) shall have entered into a tax sharing agreement containing terms that, in the reasonable judgment of the Administrative Agent, provide for an appropriate allocation of tax liabilities and benefits.

 

U.S.” and “United States” shall mean the United States of America.

 

U.S. Lender” shall have the meaning provided in Section 5.4(j).

 

Voting Stock shall mean, with respect to any Person, such Person’s Stock or Stock Equivalents having the right to vote for the election of directors of such Person under ordinary circumstances.

 

1.2.                              Other Interpretive Provisions.  With reference to this Agreement and each other Credit Document, unless otherwise specified herein or in such other Credit Document:

 

(a)                                  The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)                                 The words “herein”, “hereto”, “hereof’ and “hereunder” and words of similar import when used in any Credit Document shall refer to such Credit Document as a whole and not to any particular provision thereof.

 

(c)                                  Article, Section, Exhibit and Schedule references are to the Credit Document in which such reference appears.

 

(d)                                 The term “including” is by way of example and not limitation.

 

(e)                                  The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

 

(f)                                    In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including”.

 

(g)                                 Section headings herein and in the other Credit Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Credit Document.

 

1.3.                              Accounting Terms.

 

(a)                                  All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP.

 

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(b)                                 Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this Agreement with respect to any period during which any Specified Transaction occurs, the Consolidated Total Debt to Consolidated EBITDA Ratio, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio and the Senior Secured Leverage Test shall each be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis.

 

1.4.                              Rounding.  Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

1.5.                              References to Agreements, Laws, Etc.  Unless otherwise expressly provided herein, (a) references to organizational documents, agreements (including the Credit Documents) and other Contractual Requirements shall be deemed to include all subsequent amendments, restatements, amendment and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, amendment and restatements, extensions, supplements and other modifications are permitted by any Credit Document; and (b) references to any Requirement of Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Requirement of Law.

 

1.6.                              Exchange Rates.  For purposes of determining compliance under Sections 10.4, 10.5 and 10.6 with respect to any amount in a currency other than Dollars (other than with respect to (a) any amount derived from the financial statements of Holdings, the Borrower or its Subsidiaries or (b) any Indebtedness denominated in a currency other than Dollars), such amount shall be deemed to equal the Dollar Equivalent thereof based on the average Spot Rate for such currency for the most recent twelve-month period immediately prior to the date of determination determined in a manner consistent with that used in calculating Consolidated EBITDA for the related period.  For purposes of determining compliance with Sections 10.1, 10.2 and 10.5, with respect to any amount of Indebtedness denominated in a currency other than Dollars, compliance will be determined at the time of incurrence or advancing thereof using the Dollar Equivalent thereof at the Spot Rate in effect at the time of such incurrence or advancement.

 

SECTION 2.                                          Amount and Terms of Credit

 

2.1.                              Commitments.

 

(a)                                  Subject to and upon the terms and conditions herein set forth,

 

(i)                  each Lender having an Initial Tranche B-1 Term Loan Commitment made a loan or loans (each an “Initial Tranche B-1 Term Loan”) on the Original Closing Date to the Borrower in Dollars, which Initial Tranche B-1 Term Loans did not exceed for any such Lender the Initial Tranche B-1 Term Loan Commitment of such Lender and in the aggregate equaled (after giving effect to this amendment and restatement) $4,438,222,222.22;

 

(ii)               each Lender having an Initial Tranche B-2 Term Loan Commitment made a loan or loans (each an “Initial Tranche B-2 Term Loan”) on the Original Closing Date to the Borrower in Dollars, which Initial Tranche B-2 Term Loans did not exceed for any such Lender the Initial Tranche B-2 Term Loan Commitment of such Lender and in the aggregate equaled (after giving effect to this amendment and restatement) $4,336,777,777.78;

 

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(iii)            each Lender having an Initial Tranche B-3 Term Loan Commitment made a loan or loans (each an “Initial Tranche B-3 Term Loan”) on the Original Closing Date to the Borrower in Dollars, which Initial Tranche B-3 Term Loans did not exceed for any such Lender the Initial Tranche B-3 Term Loan Commitment of such Lender and in the aggregate equaled $3,000,000,000;

 

(iv)           each Lender having a Delayed Draw Term Loan Commitment severally agrees to make a loan or loans (each a “Delayed Draw Term Loan”) at any time and from time to time prior to the Delayed Draw Term Loan Commitment Termination Date to Borrower in Dollars, which Delayed Draw Term Loans shall not exceed for any such Lender the Delayed Draw Term Loan Commitment of such Lender and in the aggregate did not exceed $225,000,000; and

 

(v)              each Lender having an Euro Tranche Term Loan Commitment made a loan or loans (each a “Euro Tranche Term Loan”) on the Original Closing Date to the Borrower in Euro, which Euro Tranche Term Loan did not exceed for any such Lender the Euro Tranche Term Loan Commitment of such Lender and in the aggregate did not exceed €709,219,858.16.

 

On the Amendment Effective Date and effective as of the Original Closing Date:

 

(A)                              the Borrower and the Lenders effected a reallocation of Initial Tranche B-1 Term Loan Commitments and Initial Tranche B-2 Term Loan Commitments such that

 

(I) the Initial Tranche B-1 Term Loan Commitments shall be amended to be the respective amounts set forth opposite each Lender’s name on Schedule 1.1(c) hereto; and

 

(II) the Initial Tranche B-2 Term Loan Commitments shall be amended to be the respective amounts set forth opposite each Lender’s name on Schedule 1.1(c) hereto; and

 

(B)                                the Euro Tranche Term Loan Commitments were amended to be subdivided into Euro Tranche B-1 Term Loan Commitments (which loans thereunder are herein referred to as the “Euro Tranche B-1 Term Loans”) and Euro Tranche B-2 Term Loan Commitments (which loans thereunder are herein referred to as the “Euro Tranche B-2 Term Loans”), in each case, in the respective amounts set forth opposite each Lender’s name on Schedule 1.1(c) hereto.

 

On the 2011 Extension Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2011 Extension Amendment, (a) the 2014 Term Loans of each 2018 Term Lender outstanding on such date were continued hereunder and reclassified as 2018 Dollar Term Loans (in the case of 2014 Term Loans that were Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Initial Tranche B-3 Term Loans or Delayed Draw Term Loans) or as 2018 Euro Term Loans (in the case of 2014 Term Loans that were Euro Tranche B-1 Term Loans or Euro Tranche B-2 Term Loans) in the principal amount set forth on Schedule 1.1(c) to the 2011 Extension Amendment and (b) the 2014 Term Loans of each 2014 Term Lender outstanding on such date that was not a 2018 Term Lender (and the 2014 Term Loans (if any) of each 2018 Term Lender not reclassified as 2018 Term Loans pursuant to clause (a) above) were continued hereunder and were classified as 2014 Term Loans.  On and after the 2011 Extension Effective Date, all 2018 Term Loans rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the 2014 Term Loans outstanding immediately prior to the 2011 Extension Effective Date under the Credit Documents.

 

On the 2012 Extension Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2012 Extension Amendment, (a) the 2014 Term Loans of each 2017 Term Lender outstanding on such date were continued hereunder and reclassified as 2017 Dollar Term Loans (in the case of 2014 Term

 

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Loans that were Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Initial Tranche B-3 Term Loans or Delayed Draw Term Loans) or as 2017 Euro Term Loans (in the case of 2014 Term Loans that were Euro Tranche B-1 Term Loans or Euro Tranche B-2 Term Loans) in the principal amount set forth on Schedule 1.1(c) to the 2012 Extension Amendment and (b) the 2014 Term Loans of each 2014 Term Lender outstanding on such date that was not a 2017 Term Lender (and the 2014 Term Loans (if any) of each 2017 Term Lender not reclassified as 2017 Term Loans pursuant to clause (a) above) were continued hereunder and were classified as 2014 Term Loans.  On and after the 2012 Extension Effective Date, all 2017 Term Loans rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the 2014 Term Loans outstanding immediately prior to the 2012 Extension Effective Date under the Credit Documents.

 

On the 2012 August Extension Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2012 August Extension Amendment, (a) the 2014 Term Loans of each 2017B Term Lender outstanding on such date shall bewere continued hereunder and reclassified as 2017B Dollar Term Loans (in the case of 2014 Term Loans that arewere Initial Tranche B-1 Term Loans, Initial Tranche B-2 Term Loans, Initial Tranche B-3 Term Loans or Delayed Draw Term Loans) or as 2017B Euro Term Loans (in the case of 2014 Term Loans that arewere Euro Tranche B-1 Term Loans or Euro Tranche B-2 Term Loans) in the principal amount set forth on Schedule 1.1(c) to the 2012 August Extension Amendment and (b) the 2014 Term Loans of each 2014 Term Lender outstanding on such date that iswas not a 2017B Term Lender (and the 2014 Term Loans (if any) of each 2017B Term Lender not reclassified as 2017B Term Loans pursuant to clause (a) above) shall bewere continued hereunder and shall bewere classified as 2014 Term Loans.  On and after the 2012 August Extension Effective Date, all 2017B Term Loans shall rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the 2014 Term Loans outstanding immediately prior to the 2012 August Extension Effective Date under the Credit Documents.

 

On the 2012 September Joinder Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2012 September Joinder Agreement, the 2018B Term Loans shall be made.  On and after the 2012 September Joinder Effective Date, all 2018B Term Loans shall rank pari passu in right of payment and security with, and, except as provided herein, have the same rights and benefits as, the Term Loans outstanding on the 2012 September Joinder Effective Date under the Credit Documents.

 

Such Term Loans (i) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans (except in the case of Euro Tranche Term Loans, 2018 Euro Term Loans, 2017 Euro Term Loans or 2017B Euro Term Loans) or LIBOR Term Loans, provided that all Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Term Loans of the same Type, (ii) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid, may not be reborrowed, (iii) shall not exceed for any such Lender the Initial Term Loan Commitment, Delayed Draw Term Loan Commitment or Euro Tranche Term Loan Commitment, as applicable, of such Lender, and (iv) shall not exceed in the aggregate the Total Initial Term Loan Commitments, Total Delayed Draw Term Loan Commitments or Total Euro Tranche Term Loan Commitments, as applicable.  On the 2014 Term Loan Maturity Date: (x) all then unpaid Initial Term Loans shall be repaid in full in Dollars, (y) all then unpaid Delayed Draw Term Loans shall be repaid in full in Dollars and (z) all then unpaid Euro Tranche Term Loans shall be repaid in full in Euro.  On the 2018 Term Loan Maturity Date: (x) all then unpaid 2018 Dollar Term Loans shall be repaid in full in Dollars and (y) all then unpaid 2018 Euro Term Loans shall be repaid in full in Euro.  On the 2017 Term Loan Maturity Date: (x) all then unpaid 2017 Dollar Term Loans shall be repaid in full in Dollars and (y) all then unpaid 2017 Euro Term Loans shall be repaid in full in Euro.  On the 2017B Term Loan Maturity Date: (x) all then unpaid 2017B Dollar Term Loans shall be repaid in full in Dollars and (y) all then unpaid 2017B Euro Term Loans shall be repaid in full in Euro.  On the 2018B Term Loan Maturity Date all then unpaid 2018B Term Loans shall be repaid in full in Dollars.

 

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(b)                                 On the 2011 Extension Effective Date, in accordance with, and upon the terms and conditions set forth in, the 2011 Extension Amendment, (x) the Existing Revolving Credit Commitment of each 2013 Revolving Credit Lender were continued hereunder on such date in an amount as set forth on Schedule 1.1(c) of the 2011 Extension Amendment and (y) the Existing Revolving Credit Commitment of each 2016 Revolving Credit Lender outstanding on such date were continued hereunder and reclassified as a 2016 Revolving Credit Commitment on such date in an amount as set forth on Schedule 1.1(c) of the 2011 Extension Amendment.  (i) Subject to and upon the terms and conditions herein set forth, each Lender having a 2013 Revolving Credit Commitment severally agrees to make a loan or loans denominated in Dollars or any Alternative Currency (each a “2013 Revolving Credit Loan and, collectively, the “2013 Revolving Credit Loans”) and each Lender having a 2016 Revolving Credit Commitment severally agrees to make a loan or loans denominated in Dollars or any Alternative Currency (each a “2016 Revolving Credit Loan” and collectively the “2016 Revolving Credit Loans”, the 2016 Revolving Credit Loans together with the 2013 Revolving Credit Loans, the “Revolving Credit Loans”) to the Borrower, which Revolving Credit Loans (A) shall be made at any time and from time to time on and after the Original Closing Date and prior to (x) in the case of 2013 Revolving Credit Loans, the 2013 Revolving Credit Maturity Date and (y) in the case of 2016 Revolving Credit Loans, the 2016 Revolving Credit Maturity Date, (B) may, at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans (in the case of Revolving Credit Loans denominated in Dollars only) or LIBOR Revolving Credit Loans, provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type, (C) may be repaid and reborrowed in accordance with the provisions hereof, (D) shall not, for any Lender at any time with respect to any Class of Revolving Credit Loan, after giving effect thereto and to the application of the proceeds thereof, result in such Lender’s Revolving Credit Exposure with respect to such Class at such time exceeding such Lender’s Revolving Credit Commitment with respect to such Class at such time, (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of the Lenders’ Revolving Credit Exposures with respect to any Class of Revolving Credit Loans at such time exceeding the Total Revolving Credit Commitment with respect to such Class then in effect and (F) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the Aggregate Multicurrency Exposure at such time exceeding the Multicurrency Sublimit then in effect.  With respect to 2013 Revolving Credit Lenders, on the 2013 Revolving Credit Maturity Date, all outstanding 2013 Revolving Credit Loans shall be repaid in full.  With respect to 2016 Revolving Credit Lenders, on the 2016 Revolving Credit Maturity Date, all outstanding 2016 Revolving Credit Loans shall be repaid in full.  For the avoidance of doubt, prior to the 2013 Revolving Credit Maturity Date, all borrowings of Revolving Credit Loans under this Section 2.1(b) shall be made pro rata between the 2013 Revolving Credit Facility and the 2016 Revolving Credit Facility in proportion to the respective Revolving Credit Commitments under each such Revolving Credit Facility.  Any Existing Revolving Credit Loans outstanding on the 2011 Extension Effective Date shall be continued as Revolving Credit Loans hereunder; provided that (x) the Existing Revolving Credit Loans of each 2013 Revolving Credit Lender will be reclassified as 2013 Revolving Credit Loans and (y) the Existing Revolving Credit Loans of each 2016 Revolving Credit Lender will be reclassified as 2016 Revolving Credit Loans hereunder.  The Existing Revolving Credit Loans of any Revolving Credit Lender having both a 2013 Revolving Credit Commitment and a 2016 Revolving Credit Commitment shall be so reclassified as 2013 Revolving Credit Loans and 2016 Revolving Credit Loans, respectively, in proportion to the relative amounts of such Revolving Credit Lender’s 2013 Revolving Credit Commitment and 2016 Revolving Credit Commitment, respectively.

 

(ii)                                  Each Lender may at its option make any LIBOR Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan, provided that (A) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan and (B) in exercising such option, such Lender shall use its reasonable efforts to minimize any increased costs to the Borrower

 

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resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.10 shall apply).

 

(c)                                  Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Original Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each a “Swingline Loan” and, collectively the “Swingline Loans”) to the Borrower in Dollars, which Swingline Loans (i) shall be ABR Loans, (ii) shall have the benefit of the provisions of Section 2.1(d), (iii) shall not exceed at any time outstanding the Swingline Commitment, (iv) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of the Lenders’ Revolving Credit Exposures at such time exceeding the Total Revolving Credit Commitment then in effect and (v) may be repaid and reborrowed in accordance with the provisions hereof.  On the Swingline Maturity Date, all Swingline Loans shall be repaid in full.  Any Additional Swingline Lender may, in its individual capacity and in its sole discretion, agree, at any time and from time to time on and after the Original Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each an “Additional Swingline Loan” and, collectively, the “Additional Swingline Loans”) to the Borrower in Dollars, which Additional Swingline Loans (i) shall bear interest at rates, and have interest periods and maturities (not to be later than the 2016 Revolving Credit Maturity Date), mutually agreed by the Borrower and the applicable Additional Swingline Lender, (ii) shall not have the benefit of the provisions of Section 2.1(d), (iii) shall not exceed at any time outstanding the Additional Swingline Maximum Amount, (iv) shall have notice, borrowing, conversion and repayment provisions as mutually agreed by the Borrower, the applicable Additional Swingline Lender and the Administrative Agent, acting reasonably, (v) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of the Lenders’ Revolving Credit Exposures at such time exceeding the Total Revolving Credit Commitment then in effect, and (vi) shall constitute a Revolving Credit Loan for purposes of Section 5.2 and Section 13.1 and shall constitute a Loan for all other purposes hereunder.  Neither the Swingline Lender nor any Additional Swingline Lender shall make any Swingline Loan after receiving a written notice from the Borrower, Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default exists and is continuing until such time as the Swingline Lender or such Additional Swingline Lender shall have received written notice of (i) rescission of all such notices from the party or parties originally delivering such notice or (ii) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.

 

(d)                                 On any Business Day, the Swingline Lender may, in its sole discretion, give notice to each Revolving Credit Lender that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans denominated in Dollars, in which case Revolving Credit Loans denominated in Dollars constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by each Revolving Credit Lender pro rata based on each Lender’s Revolving Credit Commitment Percentage ( determined after giving effect to the reallocation described in the last two sentences of this clause (d)), and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans.  Each Revolving Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any such Swingline Loans were made.  In the event that, in the sole judgment of the Swingline Lender, any

 

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Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause the Lenders to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages, provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to such Lender purchasing same from and after such date of purchase.  From the 2011 Extension Effective Date until the 2013 Revolving Credit Maturity Date, participations in Swingline Loans shall be allocated in accordance with the aggregate Revolving Credit Commitment (including both 2013 Revolving Credit Commitments and 2016 Revolving Credit Commitments); provided that notwithstanding the foregoing, participations in any Swingline Loans that are made on or after the fifth Business Day before the 2013 Revolving Credit Maturity Date shall be allocated to the 2016 Revolving Credit Lenders ratably in accordance with their 2016 Revolving Credit Commitments.  On the 2013 Revolving Credit Maturity Date, the obligations of the 2013 Revolving Credit Lenders in respect of Swingline Loans for which a Mandatory Borrowing or participation has not occurred shall be terminated and reallocated to the 2016 Revolving Credit Lenders ratably in accordance with their respective 2016 Revolving Credit Commitments; provided that after giving effect to such reallocation the aggregate 2016 Revolving Credit Exposures at such time shall not exceed the aggregate 2016 Revolving Credit Commitments.  If the reallocation described in the preceding sentence cannot, or can only partially, be effected as a result of the limitations set forth herein, the Borrower shall within one Business Day of notice thereof from the Swingline Lender or the Administrative Agent repay Swingline Loans the participation interests in which cannot be reallocated to 2016 Revolving Credit Lenders pursuant to the prior sentence.  To the extent that any Swingline Loans shall have been funded pursuant to a Mandatory Borrowing comprised of 2013 Revolving Credit Loans, such Mandatory Borrowings shall be subject to repayment in accordance with the terms of the 2013 Revolving Credit Loans and, to the extent any participation shall have been purchased by a 2013 Revolving Credit Lender, then on the 2013 Revolving Credit Final Date, the 2016 Revolving Credit Lenders shall purchase from such 2013 Revolving Credit Lenders such participation (without recourse or warranty) as shall be necessary to cause the 2016 Revolving Credit Lenders to share in such Swingline Loans ratably based on their respective 2016 Revolving Credit Commitment Percentages; provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to such Lender purchasing same from and after such date of purchase.

 

(e)                                  Special Provisions Relating to Reclassifications of Term Loans.  Notwithstanding anything to the contrary in this Agreement:

 

(i)                  on the 2011 Extension Effective Date, (x) 2014 Term Loans and 2018 Term Loans were deemed made as LIBOR Loans in an amount equal to the principal amount of the 2014 Term Loans outstanding as LIBOR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a), (y) Interest Periods for the Term Loans described in the preceding clause (x) ended on the same dates as the Interest Periods applicable to the 2014 Term Loans outstanding immediately prior to the time of reclassification pursuant to Section 2.1(a) and (z) 2014 Term Loans and 2018 Term Loans were deemed made as ABR Loans in an amount equal to the principal amount of the 2014 Term Loans outstanding as ABR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a);

 

(ii)               each 2018 Term Loan that was reclassified from any 2014 Term Loan shall continue to be entitled to all accrued and unpaid amounts (including interest) owing by the Borrower

 

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hereunder with respect to any 2014 Term Loan from which such 2018 Term Loan was reclassified, up to but excluding the 2011 Extension Effective Date; and

 

(iii)            on the 2012 Extension Effective Date, (x) 2014 Term Loans and 2017 Term Loans were deemed made as LIBOR Loans in an amount equal to the principal amount of the 2014 Term Loans outstanding as LIBOR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a), (y) Interest Periods for the Term Loans described in the preceding clause (x) ended on the same dates as the Interest Periods applicable to the 2014 Term Loans outstanding immediately prior to the time of reclassification pursuant to Section 2.1(a) and (z) 2014 Term Loans and 2017 Term Loans were deemed made as ABR Loans in an amount equal to the principal amount of the 2014 Term Loans outstanding as ABR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a);

 

(iv)           each 2017 Term Loan that was reclassified from any 2014 Term Loan shall continue to be entitled to all accrued and unpaid amounts (including interest) owing by the Borrower hereunder with respect to any 2014 Term Loan from which such 2017 Term Loan was reclassified, up to but excluding the 2012 Extension Effective Date;

 

(v)              on the 2012 August Extension Effective Date, (x) 2014 Term Loans and 2017B Term Loans shall bewere deemed made as LIBOR Loans in an amount equal to the principal amount of the 2014 Term Loans outstanding as LIBOR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a), (y) Interest Periods for the Term Loans described in the preceding clause (x) shall endended on the same dates as the Interest Periods applicable to the 2014 Term Loans outstanding immediately prior to the time of reclassification pursuant to Section 2.1(a) and (z) 2014 Term Loans and 2017B Term Loans shall bewere deemed made as ABR Loans in an amount equal to the principal amount of the 2014 Term Loans outstanding as ABR Loans immediately prior to the time of reclassification pursuant to Section 2.1(a);

 

(vi)           each 2017B Term Loan that was reclassified from any 2014 Term Loan shall continue to be entitled to all accrued and unpaid amounts (including interest) owing by the Borrower hereunder with respect to any 2014 Term Loan from which such 2017B Term Loan was reclassified, up to but excluding the 2012 August Extension Effective Date; and

 

(vii)        no reclassification of outstanding Term Loans pursuant to Section 2.1(a) shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement. that would result in the application or operation of the provisions of Section 2.11.

 

(f)                                    Special Provisions Relating to Reclassifications of Revolving Credit Loans on the 2011 Extension Effective Date.  Notwithstanding anything to the contrary in this Agreement:

 

(i)                  on the 2011 Extension Effective Date, (x) 2013 Revolving Credit Loans and 2016 Revolving Credit Loans shall be deemed made as LIBOR Loans in an amount equal to the principal amount of the Existing Revolving Loans outstanding as LIBOR Loans immediately prior to the time of reclassification pursuant to Section 2.1(b), (y) Interest Periods for the Revolving Credit Loans described in the preceding clause (x) shall end on the same dates as the Interest Periods applicable to the Revolving Credit Loans outstanding immediately prior to the time of reclassification pursuant to Section 2.1(b) and (z) 2013 Revolving Credit Loans and 2016 Revolving Credit Loans shall be deemed made as ABR Loans in an amount equal to the principal amount of the Revolving Credit Loans outstanding as ABR Loans immediately prior to the time of reclassification pursuant to Section 2.1(b);

 

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(ii)     each 2016 Revolving Credit Loan that was reclassified from any 2013 Revolving Credit Loan shall continue to be entitled to all accrued and unpaid amounts (including interest) owing by the Borrower hereunder with respect to any 2013 Revolving Credit Loan from which such 2016 Revolving Credit Loan was reclassified, up to but excluding the 2011 Extension Effective Date; and

 

(iii)    no reclassification of outstanding Revolving Credit Loans pursuant to Section 2.1(b) shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement, that would result in the application or operation of the provisions of Section 2.11.

 

2.2.          Minimum Amount of Each Borrowing; Maximum Number of Borrowings.  The aggregate principal amount of each Borrowing of Term Loans or Revolving Credit Loans shall be in a minimum amount of at least the Minimum Borrowing Amount for such Type of Loans and in a multiple of $100,000 (or the Dollar Equivalent thereof) in excess thereof and Swingline Loans shall be in a minimum amount of $500,000 and in a multiple of $100,000 in excess thereof (except that Mandatory Borrowings shall be made in the amounts required by Section 2.1(d) and Revolving Credit Loans to reimburse the Letter of Credit Issuer with respect to any Unpaid Drawing shall be made in the amounts required by Section 3.3 or Section 3.4, as applicable).  More than one Borrowing may be incurred on any date, provided that at no time shall there be outstanding more than 30 Borrowings of LIBOR Loans under this Agreement.

 

2.3.          Notice of Borrowing.

 

(a)           The Borrower gave the Administrative Agent at the Administrative Agent’s Office (i) prior to 9:00 a.m. (New York City time) at least two Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) in the case of a Borrowing of Initial Term Loans made on the Original Closing Date initially as LIBOR Loans, (ii) prior to 9:00 a.m. (New York City time) at least two Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of the Borrowing of Original Euro Tranche Term Loans made on the Original Closing Date and (iii) prior to 10:00 a.m. (New York City time) written notice (or telephonic notice promptly confirmed in writing) on the date of the Borrowing of Initial Term Loans if such Initial Term Loans are to be ABR Loans.  Such notice (together with each notice of a Borrowing of Delayed Draw Term Loans pursuant to Section 2.3(b), each notice of a Borrowing of Revolving Credit Loans pursuant to Section 2.3(c) and each notice of a Borrowing of Swingline Loans pursuant to Section 2.3(d), a “Notice of Borrowing”) shall specify (i) the identity of the Borrower, (ii) the aggregate principal amount of the Term Loans to be made under each Term Loan Facility, (iii) the date of the Borrowing (which shall be the Original Closing Date) and (iv) whether the Term Loans shall consist of ABR Term Loans (in the case of Loans denominated in Dollars) and/or LIBOR Term Loans and, if the Term Loans are to include LIBOR Term Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall promptly give each Lender written notice (or telephonic notice promptly confirmed in writing) of the proposed Borrowing of Term Loans, of such Lender’s proportionate share thereof and of the other matters covered by the related Notice of Borrowing.

 

(b)           Whenever the Borrower desires to incur Delayed Draw Term Loans, it shall give the Administrative Agent at the Administrative Agent’s Office, (i) prior to 1:00 p.m. (New York City Time) at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of LIBOR Delayed Draw Term Loans denominated in Dollars (or prior to 9:00 a.m. (New York City time)) and (ii) prior to 10:00 a.m. (New York City time) on the date of such Borrowing prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of Delayed Draw Term Loans that are ABR Loans.  Each such Notice of Borrowing, except as otherwise expressly provided in Section 2.10, shall specify (i) the aggregate principal amount of the Delayed Draw Term

 

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Loans to be made pursuant to such Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the respective Borrowing shall consist of ABR Loans or LIBOR Term Loans and, if LIBOR Term Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall promptly give each Delayed Draw Term Loan Lender written notice (or telephonic notice promptly confirmed in writing) of each proposed Borrowing of Delayed Draw Term Loans, of such Lender’s Delayed Draw Term Loan Commitment Percentage thereof and of the other matters covered by the related Notice of Borrowing.

 

(c)           Whenever the Borrower desires to incur Revolving Credit Loans (other than Mandatory Borrowings or borrowings to repay Unpaid Drawings), it shall give the Administrative Agent at the Administrative Agent’s Office, (i) prior to 1:00 p.m. (New York City Time) at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of LIBOR Revolving Credit Loans denominated in Dollars (or prior to 9:00 a.m. (New York City time) two Business Days’ prior written notice in the case of a Borrowing of Revolving Credit Loans to be made on the Original Closing Date initially as LIBOR Loans denominated in Dollars), (ii) prior to 1:00 p.m. (New York City Time) at least four Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of Revolving Credit Loans denominated in Alternative Currencies and (iii) prior to 10:00 a.m. (New York City time) on the date of such Borrowing prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of Revolving Credit Loans that are ABR Loans.  Each such Notice of Borrowing, except as otherwise expressly provided in Section 2.10, shall specify (i) the aggregate principal amount of the Revolving Credit Loans to be made pursuant to such Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the respective Borrowing shall consist of ABR Loans (in the case of Revolving Credit Loans denominated in Dollars) or LIBOR Revolving Credit Loans and, if LIBOR Revolving Credit Loans, (A) the Interest Period to be initially applicable thereto and (B) whether such LIBOR Revolving Credit Loans are to be made in Dollars or an Alternative Currency.  The Administrative Agent shall promptly give each Revolving Credit Lender written notice (or telephonic notice promptly confirmed in writing) of each proposed Borrowing of Revolving Credit Loans, of such Lender’s Revolving Credit Commitment Percentage thereof and of the other matters covered by the related Notice of Borrowing.

 

(d)           Whenever the Borrower desires to incur Swingline Loans hereunder, it shall give the Swingline Lender written notice (or telephonic notice promptly confirmed in writing) with a copy to the Administrative Agent of each Borrowing of Swingline Loans prior to 2:30 p.m. (New York City time) on the date of such Borrowing.  Each such notice shall specify (i) the aggregate principal amount of the Swingline Loans to be made pursuant to such Borrowing and (ii) the date of Borrowing (which shall be a Business Day).

 

(e)           Mandatory Borrowings shall be made upon the notice specified in Section 2.1(d), with the Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of Mandatory Borrowings as set forth in such Section.

 

(f)            Borrowings to reimburse Unpaid Drawings shall be made upon the notice specified in Section 3.4(a).

 

(g)           Without in any way limiting the obligation of the Borrower to confirm in writing any notice it may give hereunder by telephone, the Administrative Agent may act prior to receipt of written confirmation without liability upon the basis of such telephonic notice believed by the Administrative Agent in good faith to be from an Authorized Officer of the Borrower.

 

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2.4.          Disbursement of Funds.

 

(a)           No later than 2:00 p.m. (New York City time) on the date specified in each Notice of Borrowing (including Mandatory Borrowings), each Lender made available its pro rata portion, if any, of each Borrowing requested to be made on such date in the manner provided below; provided that on the Original Closing Date, such funds were made available at such earlier time as may be agreed among the Lenders, the Borrower and the Administrative Agent for the purpose of consummating the Transactions; provided further that all Swingline Loans shall be made available to the Borrower in the full amount thereof by the Swingline Lender no later than 4:00 p.m. (New York City time) on the date requested.

 

(b)           Each Lender shall make available all amounts it is to fund to the Borrower under any Borrowing for its applicable Commitments, and in immediately available funds to the Administrative Agent at the Administrative Agent’s Office and the Administrative Agent will (except in the case of Mandatory Borrowings and Borrowings to repay Unpaid Drawings) make available to the Borrower, by depositing to an account designated by the Borrower to the Administrative Agent the aggregate of the amounts so made available in the applicable currency.  Unless the Administrative Agent shall have been notified by any Lender prior to the date of any such Borrowing that such Lender does not intend to make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make available to the Borrower a corresponding amount.  If such corresponding amount is not in fact made available to the Administrative Agent by such Lender and the Administrative Agent has made available such amount to the Borrower, the Administrative Agent shall be entitled to recover such corresponding amount from such Lender.  If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent in the applicable currency.  The Administrative Agent shall also be entitled to recover from such Lender or the Borrower interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if paid by such Lender, the Overnight Rate or (ii) if paid by the Borrower, the then-applicable rate of interest or fees, calculated in accordance with Section 2.8, for the respective Loans.

 

(c)           Nothing in this Section 2.4 shall be deemed to relieve any Lender from its obligation to, fulfill its commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to fulfill its commitments hereunder).

 

2.5.          Repayment of Loans; Evidence of Debt.

 

(a)           The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, (i) on the Initial Term Loan Maturity Date, the then-outstanding Initial Term Loans, in Dollars, and (ii) on the Delayed Draw Term Loan Maturity Date, the then-outstanding Delayed Draw Term Loans, in Dollars.  The Borrower shall repay to the Administrative Agent, for the benefit of the Euro Tranche Term Lenders, on the Euro Tranche Term Loan Maturity Date, the then-outstanding Euro Tranche Term Loans, in Euro.  The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, on the 2018 Term Loan Maturity Date, (i) the then-outstanding 2018 Dollar Term Loans, in Dollars and (ii) the then-outstanding 2018 Euro Term Loans, in Euro.  The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, on the 2018B Term Loan Maturity Date the then-outstanding 2018B Term Loans, in Dollars.  The Borrower shall repay to the Administrative

 

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Agent, for the benefit of the applicable Lenders, on the 2017 Term Loan Maturity Date, (i) the then-outstanding 2017 Dollar Term Loans, in Dollars and (ii) the then-outstanding 2017 Euro Term Loans, in Euro.  The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, on the 2017B Term Loan Maturity Date, (i) the then-outstanding 2017B Dollar Term Loans, in Dollars and (ii) the then-outstanding 2017B Euro Term Loans, in Euro.  The Borrower shall repay to the Administrative Agent for the benefit of the Revolving Credit Lenders, (i) on the 2013 Revolving Credit Maturity Date, the then outstanding 2013 Revolving Credit Loans made to the Borrower in currency in which such 2013 Revolving Credit Loans are denominated and (ii) on the 2016 Revolving Credit Maturity Date, the then outstanding 2016 Revolving Credit Loans made to the Borrower in currency in which such 2016 Revolving Credit Loans are denominated.  The Borrower shall repay to the Swingline Lender, in Dollars, on the Swingline Maturity Date, the then-outstanding Swingline Loans.

 

(b)           The Borrower shall repay to the Administrative Agent on the last Business Day of each March 31, June 30, September 30 and December 31 (or, if not a Business Day, the immediately preceding Business Day) (each such date being referred to herein as an “Initial Term Loan Repayment Date,” a “Euro Tranche Repayment Date,” a “Delayed Draw Repayment Date,” a “2018 Dollar Term Loan Repayment Date,” a “2018 Euro Term Loan Repayment Date,” a “2017 Dollar Term Loan Repayment Date,” a “2017 Euro Term Loan Repayment Date,” a “2017B Dollar Term Loan Repayment Date” and a “2017B Euro Term Loan Repayment Date”):

 

(x)            commencing on December 31, 2007 and on each applicable Repayment Date until and including the December 31, 2010 Repayment Date, an aggregate amount equal to 0.25% of the amount of Term Loans of the applicable Class outstanding on the Amendment Effective Date (or, in the case of Delayed Draw Term Loans, an amount equal to 0.25% of the sum of (I) the outstanding principal amount of Delayed Draw Term Loans immediately before the First Delayed Draw Repayment Date and (II) the aggregate principal amount of Delayed Draw Term Loans funded from and after the First Delayed Draw Repayment Date and prior to such applicable Delayed Draw Repayment Date) (such amount, with respect to each Class of Term Loan, the “Quarterly Amortization Amount”) (i) in Dollars, for the benefit of the Initial Term Loan Lenders, a principal amount in respect of the Initial Term Loans equal to the Quarterly Amortization Amount (each, an “Initial Term Loan Repayment Amount”); (ii) in Euro, for the benefit of the Euro Tranche Term Loan Lenders a principal amount equal to the Quarterly Amortization Amount (each, a “Euro Tranche Repayment Amount”); (iii) in Dollars, for the benefit of the Delayed Draw Term Loan Lenders, a principal amount in respect of the Delayed Draw Term Loans equal to the Quarterly Amortization Amount (each, a “Delayed Draw Repayment Amount”); and

 

(y)           commencing on the March 31, 2011 Repayment Date (and after giving effect to the 2011 Extension Effective Date) and on each applicable Repayment Date until and including the December 31, 2011 Repayment Date, (i) in Dollars, for the benefit of the Initial Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Initial Term Loans outstanding on the 2011 Extension Effective Date and the denominator of which is the sum of the aggregate amount of Initial Term Loans outstanding on the 2011 Extension Effective Date and the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that represent extended Initial Term Loans; (ii) in Euro, for the benefit of the Euro Tranche Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Euro Tranche Term Loans outstanding on the 2011 Extension Effective Date and the denominator of which is the sum of the aggregate amount of Euro Tranche Term Loans outstanding on the 2011 Extension Effective Date and the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that

 

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represent extended Euro Tranche Term Loans; (iii) in Dollars, for the benefit of the Delayed Draw Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Delayed Draw Term Loans outstanding on the 2011 Extension Effective Date and the denominator of which is the sum of the aggregate amount of Delayed Draw Term Loans outstanding on the 2011 Extension Effective Date and the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that represent extended Delayed Draw Term Loans; (iv) in Dollars, for the benefit of the 2018 Dollar Term Loan Lenders, a principal amount (the “2018 Dollar Term Loan Repayment Amount”) equal to (X) the sum of the Quarterly Amortization Amounts in respect of the Initial Term Loans and Delayed Draw Term Loans multiplied by (Y) a fraction the numerator of which is the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and the denominator of which is the sum of (A) the aggregate amount of Initial Term Loans and Delayed Draw Term Loans outstanding on the 2011 Extension Effective Date and (B) the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and (v) in Euro, for the benefit of the 2018 Euro Term Loan Lenders, a principal amount (the “2018 Euro Term Loan Repayment Amount”) equal to the Quarterly Amortization Amount in respect of the Euro Tranche Term Loans multiplied by a fraction the numerator of which is the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that represent extended Euro Tranche Term Loans and the denominator of which is the sum of the aggregate amount Euro Tranche Term Loans outstanding on the 2011 Extension Effective Date and the aggregate amount of 2018 Term Loans outstanding on the 2011 Extension Effective Date that represent extended Euro Tranche Term Loans.;

 

(z)            commencing on the March 31, 2012 Repayment Date (and after giving effect to the 2012 Extension Effective Date) and on each Repayment Date until and including the June 30, 2012 Repayment Date, (i) in Dollars, for the benefit of the Initial Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Initial Term Loans outstanding on the 2012 Extension Effective Date and the denominator of which is the sum of the aggregate amount of Initial Term Loans outstanding on the 2012 Extension Effective Date and the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Initial Term Loans; (ii) in Euro, for the benefit of the Euro Tranche Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Euro Tranche Term Loans outstanding on the 2012 Extension Effective Date and the denominator of which is the sum of the aggregate amount of Euro Tranche Term Loans outstanding on the 2012 Extension Effective Date and the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Euro Tranche Term Loans; (iii) in Dollars, for the benefit of the Delayed Draw Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Delayed Draw Term Loans outstanding on the 2012 Extension Effective Date and the denominator of which is the sum of the aggregate amount of Delayed Draw Term Loans outstanding on the 2012 Extension Effective Date and the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Delayed Draw Term Loans; (iv) in Dollars, for the benefit of the 2018 Dollar Term Loan Lenders, a principal amount equal to (X) the sum of the Quarterly Amortization Amounts in respect of the Initial Term Loans and Delayed Draw Term Loans multiplied by (Y) a fraction the numerator of which is the aggregate amount of 2018 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw

 

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Term Loans and the denominator of which is the sum of (A) the aggregate amount of Initial Term Loans and Delayed Draw Term Loans outstanding on the 2012 Extension Effective Date, and (B) the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans; (v) in Euro, for the benefit of the 2018 Euro Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount in respect of the Euro Tranche Term Loans multiplied by a fraction the numerator of which is the aggregate amount of 2018 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Euro Tranche Term Loans and the denominator of which is the sum of the aggregate amount Euro Tranche Term Loans outstanding on the 2012 Extension Effective Date and the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Euro Tranche Term Loans; (vi) in Dollars, for the benefit of the 2017 Dollar Term Loan Lenders, a principal amount (the “2017 Dollar Term Loan Repayment Amount”) equal to (X) the sum of the Quarterly Amortization Amounts in respect of the Initial Term Loans and Delayed Draw Term Loans multiplied by (Y) a fraction the numerator of which is the aggregate amount of 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and the denominator of which is the sum of (A) the aggregate amount of Initial Term Loans and Delayed Draw Term Loans outstanding on the 2012 Extension Effective Date and (B) the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and (vii) in Euro, for the benefit of the 2017 Euro Term Loan Lenders, a principal amount (the “2017 Euro Term Loan Repayment Amount”) equal to the Quarterly Amortization Amount in respect of the Euro Tranche Term Loans multiplied by a fraction the numerator of which is the aggregate amount of 2017 Term Loans outstanding on the 2012 Extension Effective Date that represent extended Euro Tranche Term Loans and the denominator of which is the sum of the aggregate amount Euro Tranche Term Loans outstanding on the 2012 Extension Effective Date and the aggregate amount of 2018 Term Loans and 2017 Term Loans outstanding on the 2012  Extension Effective Date that represent extended Euro Tranche Term Loans.; and

 

(aa)         commencing on the September 30, 2012 Repayment Date (and after giving effect to the 2012 August Extension Effective Date) and on each Repayment Date thereafter, (i) in Dollars, for the benefit of the Initial Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Initial Term Loans outstanding on the 2012 August Extension Effective Date and the denominator of which is the sum of the aggregate amount of Initial Term Loans outstanding on the 2012 August Extension Effective Date and the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans; (ii) in Euro, for the benefit of the Euro Tranche Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Euro Tranche Term Loans outstanding on the 2012 August Extension Effective Date and the denominator of which is the sum of the aggregate amount of Euro Tranche Term Loans outstanding on the 2012 August Extension Effective Date and the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans; (iii) in Dollars, for the benefit of the Delayed Draw Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount multiplied by a fraction the numerator of which is the aggregate amount of Delayed Draw Term Loans outstanding on the 2012 August Extension Effective Date and the denominator of which is the sum of the aggregate amount of Delayed Draw Term Loans outstanding on the 2012 August Extension Effective Date and the aggregate amount of 2018 Term Loans, 2017 Term Loans and

 

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2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Delayed Draw Term Loans; (iv) in Dollars, for the benefit of the 2018 Dollar Term Loan Lenders, a principal amount equal to (X) the sum of the Quarterly Amortization Amounts in respect of the Initial Term Loans and Delayed Draw Term Loans multiplied by (Y) a fraction the numerator of which is the aggregate amount of 2018 Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and the denominator of which is the sum of (A) the aggregate amount of Initial Term Loans and Delayed Draw Term Loans outstanding on the 2012 August Extension Effective Date, and (B) the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans; (v) in Euro, for the benefit of the 2018 Euro Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount in respect of the Euro Tranche Term Loans multiplied by a fraction the numerator of which is the aggregate amount of 2018 Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans and the denominator of which is the sum of the aggregate amount Euro Tranche Term Loans outstanding on the 2012 August Extension Effective Date and the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans; (vi) in Dollars, for the benefit of the 2017 Dollar Term Loan Lenders, a principal amount equal to (X) the sum of the Quarterly Amortization Amounts in respect of the Initial Term Loans and Delayed Draw Term Loans multiplied by (Y) a fraction the numerator of which is the aggregate amount of 2017 Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and the denominator of which is the sum of (A) the aggregate amount of Initial Term Loans and Delayed Draw Term Loans outstanding on the 2012 August Extension Effective Date and (B) the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans; (vii) in Euro, for the benefit of the 2017 Euro Term Loan Lenders, a principal amount equal to the Quarterly Amortization Amount in respect of the Euro Tranche Term Loans multiplied by a fraction the numerator of which is the aggregate amount of 2017 Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans and the denominator of which is the sum of the aggregate amount Euro Tranche Term Loans outstanding on the 2012 August Extension Effective Date and the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans.  (viii) in Dollars, for the benefit of the 2017B Dollar Term Loan Lenders, a principal amount (the “2017B Dollar Term Loan Repayment Amount”) equal to (X) the sum of the Quarterly Amortization Amounts in respect of the Initial Term Loans and Delayed Draw Term Loans multiplied by (Y) a fraction the numerator of which is the aggregate amount of 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and the denominator of which is the sum of (A) the aggregate amount of Initial Term Loans and Delayed Draw Term Loans outstanding on the 2012 August Extension Effective Date and (B) the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Initial Term Loans and extended Delayed Draw Term Loans and (ix) in Euro, for the benefit of the 2017B Euro Term Loan Lenders, a principal amount (the “2017B Euro Term Loan Repayment Amount”) equal to the Quarterly Amortization Amount in respect of the Euro Tranche Term Loans multiplied by a fraction the numerator of which is the aggregate amount of 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans and the denominator of which is the sum of the aggregate amount Euro Tranche Term Loans

 

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outstanding on the 2012 August Extension Effective Date and the aggregate amount of 2018 Term Loans, 2017 Term Loans and 2017B Term Loans outstanding on the 2012 August Extension Effective Date that represent extended Euro Tranche Term Loans.

 

Payments described in this Section 2.5(b) shall be reduced with respect to each Class of Term Loan as a result of the application of prepayments, whether prior to or after the 2012 August Extension Effective Date, in accordance with Section 5 or in connection with any Extension as provided in Section 2.14.  For the avoidance of doubt, the amounts determined above are deemed to be reduced or eliminated to reflect prepayments of Term Loans made on or prior to the 2012 August Extension Effective Date, which were applied in direct order of maturity to the respective Repayment Amounts of the Term Loans.

 

(c)           In the event that any New Term Loans are made, such New Term Loans shall, subject to Section 2.14(d), be repaid by the Borrower in the amounts (each, a “New Term Loan Repayment Amount”) and on the dates (each a “New Term Loan Repayment Date”) set forth in the applicable Joinder Agreement.  In the event that any Extended Term Loans are established, such Extended Term Loans shall, subject to Section 2.14(f), be repaid by the Borrower in the amounts (each such amount with respect to any Extended Repayment Date, an “Extended Term Loan Repayment Amount”) and on the dates (each, an “Extended Repayment Date”) set forth in the applicable Extension Amendment.

 

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

 

(e)           The Administrative Agent shall maintain the Register pursuant to Section 13.6(b), and a subaccount for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Loan made hereunder, whether such Loan is an Initial Term Loan, Delayed Draw Term Loan, Euro Tranche Term Loan, 2018 Dollar Term Loan, 2018 Euro Term Loan, 2018B Term Loan, 2017 Dollar Term Loan, 2017 Euro Term Loan, 2017B Dollar Term Loan, 2017B Euro Term Loan, 2013 Revolving Credit Loan, 2016 Revolving Credit Loan or Swingline Loan, as applicable, the Type of each Loan made, the currency in which made and the Interest Period, if any, applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.

 

(f)            The entries made in the Register and accounts and subaccounts maintained pursuant to clauses (d) and (e) of this Section 2.5 shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the failure of any Lender, the Administrative Agent or the Swingline Lender to maintain such account, such Register or subaccount, as applicable, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.

 

2.6.          Conversions and Continuations.

 

(a)           Subject to the penultimate sentence of this clause (a), (x) the Borrower shall have the option on any Business Day to convert all or a portion equal to at least $5,000,000 (or the Dollar Equivalent thereof) of the outstanding principal amount of Term Loans or Revolving Credit Loans denominated in Dollars of one Type into a Borrowing or Borrowings of another Type and (y) the

 

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Borrower shall have the option on any Business Day to continue the outstanding principal amount of any LIBOR Loans as LIBOR Loans for an additional Interest Period, provided that (i) no partial conversion of LIBOR Loans shall reduce the outstanding principal amount of LIBOR Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount, (ii) ABR Loans may not be converted into LIBOR Loans if a Default or Event of Default is in existence on the date of the conversion and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such conversion, (iii) LIBOR Loans may not be continued as LIBOR Loans for an additional Interest Period if a Default or Event of Default is in existence on the date of the proposed continuation and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuation, (iv) Borrowings resulting from conversions pursuant to this Section 2.6 shall be limited in number as provided in Section 2.2 and (v) Euro Tranche Term Loans and Revolving Credit Loans denominated in any Alternative Currency may not be converted to ABR Loans.  Each such conversion or continuation shall be effected by the Borrower by giving the Administrative Agent at the Administrative Agent’s Office prior to 1:00 p.m. (New York City time) at least (i) three Business Days’ notice, in the case of a continuation of or conversion to LIBOR Loans (other than in the case of a notice delivered on the Original Closing Date pursuant to clause (d), which shall be deemed to be effective on the Original Closing Date) or (ii) one Business Day’s notice in the case of a conversion into ABR Loans prior written notice (or telephonic notice promptly confirmed in writing) (each, a “Notice of Conversion or Continuation”) specifying the Loans to be so converted or continued, the Type of Loans to be converted or continued into and, if such Loans are to be converted into or continued as LIBOR Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall give each applicable Lender notice as promptly as practicable of any such proposed conversion or continuation affecting any of its Loans.

 

(b)           If any Default or Event of Default is in existence at the time of any proposed continuation of any LIBOR Loans denominated in Dollars and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuation, such LIBOR Loans shall be automatically converted on the last day of the current Interest Period into ABR Loans.  If upon the expiration of any Interest Period in respect of LIBOR Loans (other than Borrowings of LIBOR Loans denominated in Alternative Currencies), the Borrower has failed to elect a new Interest Period to be applicable thereto as provided in clause (a), the Borrower shall be deemed to have elected to convert such Borrowing of LIBOR Loans into a Borrowing of ABR Loans, effective as of the expiration date of such current Interest Period. Notwithstanding the foregoing, with respect to the Borrowings of LIBOR Loans denominated in Alternative Currencies, in connection with the occurrence of any of the events described in the preceding two sentences, at the expiration of the then current Interest Period each such Borrowing shall be automatically continued as a Borrowing of LIBOR Loans with an Interest Period of one month.

 

(c)           No Loan may be converted into or continued as a Loan denominated in a different currency.

 

(d)           Notwithstanding anything to the contrary herein, the Borrower may deliver a Notice of Conversion or Continuation pursuant to which the Borrower elects to irrevocably continue the outstanding principal amount of any Initial Term Loans subject to an interest rate Hedge Agreement as LIBOR Loans for each Interest Period until the expiration of the term of such applicable Hedge Agreement.

 

2.7.          Pro Rata Borrowings.  Each Borrowing of (i) Initial Term Loans, (ii) Delayed Draw Term Loans and (iii) Euro Tranche Term Loans under this Agreement shall be made by the Lenders pro rata on the basis of their then-applicable Initial Term Loan Commitments, Delayed Draw Term Loan Commitments and Euro Tranche Term Loan Commitments, respectively.  Subject to Section 2.1(b), each Borrowing of Revolving Credit Loans under this Agreement shall be made by the Revolving Credit

 

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Lenders pro rata on the basis of their then-applicable Revolving Credit Commitment Percentages.  Each Borrowing of New Term Loans under this Agreement shall be made by the Lenders pro rata on the basis of their then-applicable New Term Loan Commitments.  It is understood that (a) no Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder and that each Lender severally but not jointly shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its commitments hereunder and (b) other than as expressly provided herein with respect to a Defaulting Lender, failure by a Lender to perform any of its obligations under any of the Credit Documents shall not release any Person from performance of its obligation under any Credit Document.

 

2.8.          Interest.

 

(a)           The unpaid principal amount of each ABR Loan shall bear interest from the date of the Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable ABR Margin plus the ABR, in each case, in effect from time to time.

 

(b)           The unpaid principal amount of each LIBOR Loan shall bear interest from the date of the Borrowing thereof until maturity thereof (whether by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable LIBOR Margin plus the relevant LIBOR Rate.

 

(c)           If all or a portion of (i) the principal amount of any Loan or (ii) any interest payable thereon shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum that is (the “Default Rate”) (x) in the case of overdue principal, the rate that would otherwise be applicable thereto plus 2% or (y) in the case of any overdue interest, to the extent permitted by applicable law, the rate described in Section 2.8(a) plus 2% from the date of such non-payment to the date on which such amount is paid in full (after as well as before judgment).

 

(d)           Interest on each Loan shall accrue from and including the date of any Borrowing to but excluding the date of any repayment thereof and shall be payable in the same currency in which the Loan is denominated; provided that any Loan that is repaid on the same date on which it is made shall bear interest for one day.  Except as provided below, interest shall be payable (i) in respect of each ABR Loan, quarterly in arrears on the last Business Day of each March, June, September and December (provided that the first such payment shall be on December 31, 2007), (ii) in respect of each LIBOR Loan, on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring at three-month intervals after the first day of such Interest Period, (iii) in respect of each Loan, (A) on any prepayment in respect of LIBOR Loans, (B) at maturity (whether by acceleration or otherwise) and (C) after such maturity, on demand.

 

(e)           All computations of interest hereunder shall be made in accordance with Section 5.5.

 

(f)            The Administrative Agent, upon determining the interest rate for any Borrowing of LIBOR Loans, shall promptly notify the Borrower and the relevant Lenders thereof.  Each such determination shall, absent clearly demonstrable error, be final and conclusive and binding on all parties hereto.

 

2.9.          Interest Periods.  At the time the Borrower gives a Notice of Borrowing or Notice of Conversion or Continuation in respect of the making of, or conversion into or continuation as, a Borrowing of LIBOR Loans in accordance with Section 2.6(a), the Borrower shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of the Interest Period applicable to such Borrowing, which Interest Period shall, at the option of the Borrower be a one,

 

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two, three or six or (if available to all the Lenders making such LIBOR Loans as determined by such Lenders in good faith based on prevailing market conditions) a nine or twelve month period.

 

Notwithstanding anything to the contrary contained above:

 

(a)           the initial Interest Period for any Borrowing of LIBOR Loans shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of ABR Loans) and each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period expires;

 

(b)           if any Interest Period relating to a Borrowing of LIBOR Loans begins on the last Business Day of a calendar month or begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period;

 

(c)           if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day, provided that if any Interest Period in respect of a LIBOR Loan would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day;

 

(d)           the Borrower shall not be entitled to elect any Interest Period in respect of any LIBOR Loan if such Interest Period would extend beyond the Maturity Date of such Loan; and

 

(e)           interest periods for Additional Swingline Loans shall be as determined by the Borrower and the applicable Additional Swingline Lender pursuant to Section 2.1(c).

 

2.10.        Increased Costs, Illegality, Etc.

 

(a)           In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Lender shall have reasonably determined (which determination shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto):

 

(i)      on any date for determining the LIBOR Rate for any Interest Period that (x) deposits in the principal amounts and currencies of the Loans comprising such LIBOR Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Original Closing Date affecting the interbank LIBOR market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of LIBOR Rate; or

 

(ii)     at any time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any LIBOR Loans (other than any increase or reduction attributable to Taxes, described in paragraph (d) of this Section 2.10) because of (x) any change since the Original Closing Date in any applicable law, governmental rule, regulation, guideline or order (or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, guideline or order), such as, for example, without limitation, a change in official reserve requirements, and/or (y) other circumstances affecting the interbank LIBOR market or the position of such Lender in such market; or

 

(iii)    at any time, that the making or continuance of any LIBOR Loan has become unlawful by compliance by such Lender in good faith with any law, governmental rule, regulation,

 

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guideline or order (or would conflict with any such governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Original Closing Date that materially and adversely affects the interbank LIBOR market;

 

then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i) above) shall within a reasonable time thereafter give notice (if by telephone, confirmed in writing) to the Borrower and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders).  Thereafter (x) in the case of clause (i) above, LIBOR Term Loans and LIBOR Revolving Credit Loans (other than the Euro Tranche Term Loans, which shall automatically continue as LIBOR Loans with Interest Periods of one month duration) shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion given by the Borrower with respect to LIBOR Term Loans or LIBOR Revolving Credit Loans that have not yet been incurred shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to such Lender, promptly after receipt of written demand therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its reasonable discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of subclause (iii) above, the Borrower shall take one of the actions specified in subclause (x) or (y), as applicable, of Section 2.10(b) as promptly as possible and, in any event, within the time period required by law.

 

(b)           At any time that (A) any LIBOR Loan denominated in Dollars is affected by the circumstances described in Section 2.10(a)(ii) or (iii), the Borrower may (and in the case of a LIBOR Loan affected pursuant to Section 2.10(a)(iii) shall) either (x) if the affected LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender pursuant to Section 2.10(a)(ii) or (iii) or (y) if the affected LIBOR Loan is then outstanding, upon at least three Business Days’ notice to the Administrative Agent, require the affected Lender to convert each such LIBOR Loan into an ABR Loan, provided that if more than one Lender is affected at any time, then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b), or (B) any LIBOR Loan denominated in an Alternative Currency is affected by the circumstances described in Section 2.10(a)(ii) or (iii), the Borrower may (and in the case of a LIBOR Loan affected pursuant to Section 2.10(a)(iii) shall) either (x) prepay each such LIBOR Loan or (y) keep such LIBOR Loan outstanding, in which case the LIBOR Rate with respect to such Loan shall be deemed to be the rate reasonably determined by such Lender as the all-in cost of funds to fund such Loan with maturities comparable to the Interest Period applicable thereto.

 

(c)           If, after the Original Closing Date, any Change in Law relating to capital adequacy of any Lender or compliance by any Lender or its parent with any Change in Law relating to capital adequacy occurring after the Original Closing Date, has or would have the effect of reducing the rate of return on such Lender’s or its parent’s or its Affiliate’s capital or assets as a consequence of such Lender’s commitments or obligations hereunder to a level below that which such Lender or its parent or its Affiliate could have achieved but for such Change in Law (taking into consideration such Lender’s or its parent’s policies with respect to capital adequacy), then from time to time, promptly after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional

 

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amount or amounts as will compensate such Lender or its parent for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Original Closing Date.  Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth in reasonable detail the basis of the calculation of such additional amounts, although the failure to give any such notice shall not, subject to Section 2.13, release or diminish the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(c) upon receipt of such notice.

 

(d)           It is understood that this Section 2.10 shall not apply to (i) Taxes indemnifiable under Section 5.4, (ii) net income taxes and franchise and excise taxes (imposed in lieu of net income taxes) imposed on any Agent or Lender or (iii) Taxes described under clauses (b) and (c) of the definition of Excluded Taxes.

 

2.11.        Compensation.  If (a) any payment of principal of any LIBOR Loan is made by the Borrower to or for the account of a Lender other than on the last day of the Interest Period for such LIBOR Loan as a result of a payment or conversion pursuant to Section 2.5, 2.6, 2.10, 5.1, 5.2 or 13.7, as a result of acceleration of the maturity of the Loans pursuant to Section 11 or for any other reason, (b) any Borrowing of LIBOR Loans is not made as a result of a withdrawn Notice of Borrowing, (c) any ABR Loan is not converted into a LIBOR Loan as a result of a withdrawn Notice of Conversion or Continuation, (d) any LIBOR Loan is not continued as a LIBOR Loan, as the case may be, as a result of a withdrawn Notice of Conversion or Continuation or (e) any prepayment of principal of any LIBOR Loan is not made as a result of a withdrawn notice of prepayment pursuant to Section 5.1 or 5.2, the Borrower shall, after receipt of a written request by such Lender (which request shall set forth in reasonable detail the basis for requesting such amount), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that such Lender may reasonably incur as a result of such payment, failure to convert, failure to continue or failure to prepay, including any loss, cost or expense (excluding loss of anticipated profits) actually incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such LIBOR Loan.

 

2.12.        Change of Lending Office.  Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii), 2.10(a)(iii), 2.10(b), 3.5 or 5.4 with respect to such Lender, it will, if requested by the Borrower use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event, provided that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of any such Section.  Nothing in this Section 2.12 shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Section 2.10, 3.5 or 5.4.

 

2.13.        Notice of Certain Costs.  Notwithstanding anything in this Agreement to the contrary, to the extent any notice required by Section 2.10, 2.11, 3.5 or 5.4 is given by any Lender more than 120 days after such Lender has knowledge (or should have had knowledge) of the occurrence of the event giving rise to the additional cost, reduction in amounts, loss, tax or other additional amounts described in such Sections, such Lender shall not be entitled to compensation under Section 2.10, 2.11, 3.5 or 5.4, as the case may be, for any such amounts incurred or accruing prior to the 121st day prior to the giving of such notice to the Borrower.

 

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2.14.        Incremental Facilities.

 

(a)           The Borrower may by written notice to Administrative Agent elect to request the establishment of one or more (x) additional tranches of term loans (the commitments thereto, the “New Term Loan Commitments”) and/or (y) increases in Revolving Credit Commitments (the “New Revolving Credit Commitments and, together with the New Term Loan Commitments, the “New Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent.  The Borrower may approach any Lender or any Person (other than a natural person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment.  In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (v) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction.  Any New Term Loans made on an Increased Amount Date shall be designated, a separate series (a “Series”) of New Term Loans for all purposes of this Agreement.

 

(b)           On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in the applicable currency(ies), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto.

 

(c)           On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.

 

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(d)           The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to one or more Classes of the existing Initial Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date and mandatory prepayment and other payment rights (other than scheduled amortization) of the New Term Loans and the existing Initial Term Loans shall be identical, (ii) the rate of interest and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the Initial Term Loans and (iii) all other terms applicable to the New Term Loans of each Series that differ from the existing Initial Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its execution of the applicable Joinder Agreement).  The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments shall be identical to the 2016 Revolving Credit Loans and the 2016 Revolving Credit Commitments.

 

(e)           Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provision of this Section 2.14.

 

(f)            (i)            The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(f).  In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(f) below) and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment.  No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request.  Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.

 

(ii)          The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all

 

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or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”)  and to provide for other terms consistent with this Section 2.14(f).  In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (y) (A) the interest margins with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins for the Specified Existing Revolving Credit Commitments and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to the extent provided in the applicable Extension Amendment; provided that, notwithstanding anything to the contrary in this Section 2.14(f) or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to any Old Revolving Credit Commitments shall be made on a pro rata basis with all other Old Revolving Credit Commitments and (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.6.  No Lender shall have any obligation to agree to have any of its Revolving Credit Loans or Revolving Credit Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Extension Request.  Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date).

 

(iii)         The Borrower shall provide the applicable Extension Request at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond.  Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable.  In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as

 

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applicable, on a pro rata basis based on the amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election.  Notwithstanding the conversion of any Existing Revolving Credit Commitment (other than a New Revolving Credit Commitment) into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all other Old Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(c) and Letters of Credit under Article 3, except that the applicable Extension Amendment may provide that the Swingline Maturity Date and/or the Revolving Letter of Credit Maturity Date may be extended and the related obligations to make Swingline Loans and issue Revolving Letters of Credit may be continued so long as the Swingline Lender and/or the applicable Revolving Letter of Credit Issuer, as applicable, have consented to such extensions in their sole discretion (it being understood that no consent of any other Lender shall be required in connection with any such extension).

 

(iv)         Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.14(f)(iv) and notwithstanding anything to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Term Loans or Extended Revolving Credit Commitments, as applicable, established thereby) executed by the Loan Parties, the Administrative Agent and the Extending Lenders.  No Extension Amendment shall provide for any tranche of Extended Term Loans or Extended Revolving Credit Commitments in an aggregate principal amount that is less than $50,000,000.  In addition to any terms and changes required or permitted by Section 2.14(f)(i), each Extension Amendment (x) shall amend the scheduled amortization payments pursuant to Section 2.5 or the applicable Joinder Agreement with respect to the Existing Term Loan Class from which the Extended Term Loans were converted to reduce each scheduled Repayment Amount for the Existing Term Loan Class in the same proportion as the amount of Term Loans of the Existing Term Loan Class is to be converted pursuant to such Extension Amendment (it being understood that the amount of any Repayment Amount payable with respect to any individual Term Loan of such Existing Term Loan Class that is not an Extended Term Loan shall not be reduced as a result thereof) and (y) may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment.  Notwithstanding anything to the contrary in this Section 2.14(f) and without limiting the generality or applicability of Section 13.1 to any Section 2.14 Additional Amendments (as defined below), any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.14 Additional Amendment”) to this Agreement and the other Credit Documents; provided that such Section 2.14 Additional Amendments do not become effective prior to the time that such Section 2.14 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans and New Revolving Credit Commitments provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans or Extended Revolving Credit Commitments provided for in any Extension Amendment) by such of the Lenders, Credit Parties and other parties (if any) as may be required in order for such Section 2.14 Additional Amendments to become effective in accordance with Section 13.1.  It is understood and agreed that each Lender that has consented to the Amendment Agreement hereby has consented for all purposes requiring its consent, and shall at the effective time thereof be deemed to consent to each amendment to this Agreement and the other Credit Documents authorized by this Section 2.14(f) and the arrangements described above in connection therewith except that the foregoing shall not constitute a consent on behalf of any Lender to the terms of any Section 2.14 Additional Amendment.  In connection with any Extension Amendment, the Borrower shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent (i) as to the enforceability of such Extension Amendment, the Credit Agreement as amended thereby, and such

 

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of the other Credit Documents (if any) as may be amended thereby and (ii) to the effect that such Extension Amendment, including without limitation, the Extended Term Loans or Extended Revolving Credit Commitments provided for therein, does not conflict with or violate the terms and provisions of Section 13.1 of this Agreement.

 

(v)          Notwithstanding anything to the contrary contained in this Agreement, (A) on any date on which any Existing Class is converted to extend the related scheduled maturity date(s) in accordance with clauses (i) and/or (ii) above (an “Extension Date”), (I) in the case of the existing Term Loans of each Extending Lender, the aggregate principal amount of such existing Term Loans shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Term Loans so converted by such Lender on such date, and the Extended Term Loans shall be established as a separate Class of Term Loans (together with any other Extended Term Loans so established on such date), and (II) in the case of the Specified Existing Revolving Credit Commitments of each Extending Lender, the aggregate principal amount of such Specified Existing Revolving Credit Commitments shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Revolving Credit Commitments so converted by such Lender on such date, and such Extended Revolving Credit Commitments shall be established as a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date) and (B) if, on any Extension Date, any Loans of any Extending Lender are outstanding under the applicable Specified Revolving Credit Commitments, such Loans (and any related participations) shall be deemed to be allocated as Extended Revolving Credit Loans (and related participations) and Existing Revolving Credit Loans (and related participations) in the same proportion as such Extending Lender’s Specified Revolving Credit Commitments to Extended Revolving Credit Commitments.

 

2.15.        Permitted Debt Exchanges.

 

(a)           Notwithstanding anything to the contrary contained in this Agreement, pursuant to one or more offers (each, a “Permitted Debt Exchange Offer”) made from time to time by the Borrower to all Lenders (other than any Lender that, if requested by the Borrower, is unable to certify that it is either a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended) or an institutional “accredited investor” (as defined in Rule 501 under the Securities Act of 1933, as amended)) with outstanding Term Loans under one or more Classes of Term Loans (as determined by the Borrower) on the same terms, the Borrower may from time to time following the First Amendment Effective Date consummate one or more exchanges of Term Loans for Permitted Other Indebtedness in the form of notes (such notes, “Permitted Debt Exchange Notes,” and each such exchange a “Permitted Debt Exchange”), so long as the following conditions are satisfied:  (i) no Default or Event of Default shall have occurred and be continuing at the time the offering document in respect of a Permitted Debt Exchange Offer is delivered to the relevant Lenders, (ii) the aggregate principal amount (calculated on the face amount thereof) of Term Loans exchanged shall equal the aggregate principal amount (calculated on the face amount thereof) of Permitted Debt Exchange Notes issued in exchange for such Term Loans, (iii) the aggregate principal amount (calculated on the face amount thereof) of all Term Loans exchanged under each applicable Class by the Borrower pursuant to any Permitted Debt Exchange shall automatically be cancelled and retired by the Borrower on date of the settlement thereof (and, if requested by the Administrative Agent, any applicable exchanging Lender shall execute and deliver to the Administrative Agent an Assignment and Acceptance, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest in the Term Loans being exchanged pursuant to the Permitted Debt Exchange to the Borrower for immediate cancellation), (iv) if the aggregate principal amount of all Term Loans (calculated on the face amount thereof) of a given Class tendered by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds the

 

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

 

(b)           With respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this Section 2.15, (i) such Permitted Debt Exchanges (and the cancellation of the exchanged Term Loans in connection therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 5.1 or 5.2, and (ii) such Permitted Debt Exchange Offer shall be made for not less than $50,000,000 in aggregate principal amount of Term Loans, provided that subject to the foregoing clause (ii) the Borrower may at its election specify as a condition (a “Minimum Tender Condition”) to consummating any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the Borrower’s discretion) of Term Loans of any or all applicable Classes be tendered.

 

(c)           In connection with each Permitted Debt Exchange, the Borrower shall provide the Administrative Agent at least 10 Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and the Borrower and the Administrative Agent, acting reasonably, shall mutually agree to such procedures as may be necessary or advisable to accomplish the purposes of this Section 2.15 and without conflict with Section 2.15(d); provided that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant Lenders are required to indicate their election to participate in such Permitted Debt Exchange shall be not less than five (5) Business Days following the date on which the Permitted Debt Exchange Offer is made.

 

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

 

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SECTION 3.                                          Letters of Credit

 

3.1.          Letters of Credit.

 

(a)           Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Original Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 3, to issue from time to time from the Original Closing Date through the L/C Maturity Date upon the request of, and for the direct or indirect benefit of, the Borrower and the Restricted Subsidiaries, a letter of credit or letters of credit (the “Letters of Credit and each, a “Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that the Borrower shall be a co-applicant, and jointly and severally liable with respect to, each Letter of Credit issued for the account of a Restricted Subsidiary.

 

(b)           Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) subject to clause (f) below, no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, provided that in no event shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written notice from any Credit Party or the Administrative Agent or the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 13.1.

 

(c)           Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which the Administrative Agent shall promptly notify the applicable Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part, provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.

 

(d)           [Reserved].

 

(e)           The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:

 

(i)      any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit

 

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Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Original Closing Date and which the Letter of Credit Issuer in good faith deems material to it;

 

(ii)     the issuance of such Letter of Credit would violate one or more policies of the Letter of Credit Issuer applicable to letters of credit generally;

 

(iii)    except as otherwise agreed by the Administrative Agent and the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000 or the Dollar Equivalent thereof, in the case of a commercial Letter of Credit, or $10,000 or the Dollar Equivalent thereof, in the case of a standby Letter of Credit;

 

(iv)    such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;

 

(v)     the Letter of Credit Issuer does not as of the issuance date of such requested Letter of Credit issue letters of credit in the requested currency;

 

(vi)    such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or

 

(vii)   a default of any Revolving Credit Lender’s obligations to fund under Section 3.3 exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Borrower or such Revolving Credit Lender to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Credit Lender.

 

(f)            The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.

 

(g)           The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

 

(h)           The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.

 

3.2.          Letter of Credit Requests.

 

(a)           Whenever the Borrower desires that a Letter of Credit be issued for its account or amended, it shall give the Administrative Agent and the Letter of Credit Issuer a Letter of Credit Request

 

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by no later than 1:00 p.m. (New York City time) at least two (or such lesser number as may be agreed upon by the Administrative Agent and the Letter of Credit Issuer) Business Days prior to the proposed date of issuance or amendment.  Each notice shall be executed by the Borrower and shall be in the form of Exhibit G to the Original Credit Agreement (each a “Letter of Credit Request”).

 

(b)           In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Request shall specify in form and detail satisfactory to the Letter of Credit Issuer:  (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day)); (B) the Stated Amount thereof in the relevant currency; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder and (G) such other matters as the Letter of Credit Issuer may reasonably require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Request shall specify in form and detail satisfactory to the Letter of Credit Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the Letter of Credit Issuer may reasonably require.  Additionally, the Borrower shall furnish to the Letter of Credit Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the Letter of Credit Issuer or the Administrative Agent may require.

 

(c)           Promptly after receipt of any Letter of Credit Request, the Letter of Credit Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Request from the Borrower and, if not, the Letter of Credit Issuer will provide the Administrative Agent with a copy thereof.  Unless the Letter of Credit Issuer has received written notice from any Revolving Credit Lender, the Administrative Agent or any Credit Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Sections 6 and 7 shall not then be satisfied, then, subject to the terms and conditions hereof, the Letter of Credit Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the applicable Restricted Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the Letter of Credit Issuer’s usual and customary business practices.

 

(d)           If the Borrower so requests in any applicable Letter of Credit Request, the Letter of Credit Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Letter of Credit Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the Letter of Credit Issuer, the Borrower shall not be required to make a specific request to the Letter of Credit Issuer for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Letter of Credit Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the L/C Maturity Date; provided, however, that the Letter of Credit Issuer shall not permit any such extension if (A) the Letter of Credit Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (b) of Section 3.1 or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Revolving Credit Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender or the

 

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Borrower that one or more of the applicable conditions specified in Sections 6 and 7 are not then satisfied, and in each such case directing the Letter of Credit Issuer not to permit such extension.

 

(e)           Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit (including any Existing Secured Letter of Credit) to an advising bank with respect thereto or to the beneficiary thereof, the Letter of Credit Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.  On the last Business Day of each month, each Letter of Credit Issuer shall provide the Administrative Agent a list of all Letters of Credit (including any Existing Secured Letter of Credit) issued by it that are outstanding at such time.

 

(f)            The making of each Letter of Credit Request shall be deemed to be a representation and warranty by the Borrower that the Letter of Credit may be issued in accordance with, and will not violate the requirements of, Section 3.1(b).

 

3.3.          Letter of Credit Participations.

 

(a)           Immediately upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold and transferred to each Revolving Credit Lender (each such Revolving Credit Lender, in its capacity under this Section 3.3, an “L/C Participant”), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each an “L/C Participation”), to the extent of such L/C Participant’s Revolving Credit Commitment Percentage (determined after giving effect to clause (f) below) in each Letter of Credit, each substitute therefor, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto; provided that the Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the L/C Participants as provided in Section 4.1(b) and the L/C Participants shall have no right to receive any portion of any Fronting Fees.

 

(b)           In determining whether to pay under any Letter of Credit, the relevant Letter of Credit Issuer shall have no obligation relative to the L/C Participants other than to confirm that any documents required to be delivered under such Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit.  Any action taken or omitted to be taken by the relevant Letter of Credit Issuer under or in connection with any Letter of Credit issued by it, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for the Letter of Credit Issuer any resulting liability.

 

(c)           In the event that the Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower shall not have repaid such amount in full to the respective Letter of Credit Issuer pursuant to Section 3.4(a), the Letter of Credit Issuer shall promptly notify the Administrative Agent and each L/C Participant of such failure, and each L/C Participant shall promptly and unconditionally pay to the Administrative Agent for the account of the Letter of Credit Issuer, the amount of such L/C Participant’s Revolving Credit Commitment Percentage (determined after giving effect to clause (f) below) of the Dollar Equivalent of such unreimbursed payment in Dollars and in immediately available funds; provided, however, that no L/C Participant shall be obligated to pay to the Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of such unreimbursed amount arising from any wrongful payment made by the Letter of Credit Issuer under any such Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer.  If the Letter of Credit Issuer so notifies, prior to 11:00 a.m. (New York City time) on any Business Day, any L/C Participant required to fund a payment under a Letter of Credit, such L/C Participant shall make available to the Administrative Agent for the account of

 

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