EX-4.1 2 a18-38275_1ex4d1.htm EX-4.1

Exhibit 4.1

 

Execution Version

 

2018 OCTOBER AMENDMENT AND JOINDER AGREEMENT, dated as of October 26, 2018 (this “Amendment”), 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 modified by that certain September 2012 Joinder Agreement, dated September 27, 2012, as modified by that certain February 2013 Joinder Agreement, dated February 13, 2013, as amended by that certain 2013 April Repricing Amendment, dated April 10, 2013, as amended by that certain 2013 Second April Repricing Amendment, dated April 15, 2013, as amended by that certain 2014 January Extension and Repricing Amendment, dated January 30, 2014, as amended by that certain 2014 July Repricing Amendment, dated July 18, 2014, as amended by the 2015 May Amendment, dated June 2, 2015, as modified by that certain 2015 June Joinder Agreement, dated July 10, 2015, as modified by that certain 2015 November Joinder Agreement, dated November 24, 2015, as modified by that certain 2016 March Extension Amendment and Joinder, dated April 13, 2016, as modified by that certain 2016 May Extension Amendment and Joinder, dated June 2, 2016, as modified by that certain 2016 October Joinder Agreement, dated October 14, 2016, as modified by that certain 2016 November Joinder Agreement, dated December 5, 2016, as modified by that certain 2017 January Joinder Agreement, dated January 23, 2017, as modified by that certain 2017 April Joinder Agreement, dated April 26, 2017, as modified by that certain 2017 June Joinder Agreement, dated June 14, 2017, as modified by that certain 2017 November Joinder Agreement, dated November 15, 2017 and as modified by that certain 2017 November Second Joinder Agreement, dated November 29, 2017 (as may be further amended, restated, supplemented or otherwise modified, refinanced or replaced from time to time, the “Credit Agreement”), among the First Data Corporation, a Delaware corporation, the Lenders party thereto (each a “Lender” and, collectively, the “Lenders”), Credit Suisse AG, Cayman Islands Branch (formerly known as Credit Suisse, Cayman Islands Branch), as Administrative Agent (the “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).

 

WHEREAS, the Borrower desires to amend the Credit Agreement to (a) establish New Revolving Credit Commitments in an aggregate principal amount equal to the aggregate outstanding principal amount of 2020 Revolving Credit Commitments, which will be used to refinance and replace all of the outstanding 2020 Revolving Credit Commitments (such commitments, the “2023 Revolving Credit Commitments”), (b) establish New Term Loan Commitments in an aggregate principal amount equal to $975,000,000, which will be used to refinance and replace all of the outstanding 2020 Term A Loans and pay fees and expenses in connection therewith, with any excess for general corporate purposes (the loans thereunder, “2023 Initial Term A Loans”), (c) establish New Term Loan Commitments in an aggregate principal amount equal to $3,775,000,000, which will be used to prepay all or a portion of certain existing indebtedness of the Borrower and pay fees and expenses in connection therewith, with any excess for general corporate purposes (such commitments, the “2023 Delayed Draw Term A Loan Commitments”) (the loans thereunder, “2023 Delayed Draw Term A Loans” and, together with the 2023 Initial Term A Loans, the “2023 Term A Loans”) and (d) make certain other changes thereto;

 

WHEREAS, Section 4.2 of the Credit Agreement provides that the Borrower shall have the right, without premium or penalty, to permanently terminate the Revolving Credit Commitments of any Class;

 


 

WHEREAS, Section 2.14(a) through (e) of the Credit Agreement provides that the Borrower may establish New Loan Commitments which may be used to refinance or replace Revolving Credit Commitments and/or Term Loans outstanding under the Credit Agreement;

 

WHEREAS, upon the 2018 October Amendment Effective Date (as defined below), the Borrower intends to (x) terminate the 2020 Revolving Credit Commitments outstanding immediately prior to the 2018 October Amendment Effective Date of each 2020 Revolving Credit Lender and pay to each such 2020 Revolving Credit Lender (i) all accrued and unpaid fees related to such 2020 Revolving Credit Lender’s 2020 Revolving Credit Commitments to, but not including, the 2018 October Amendment Effective Date, (ii) all accrued and unpaid interest on such 2020 Revolving Credit Lender’s 2020 Revolving Credit Loans to, but not including, the 2018 October Amendment Effective Date and (iii) the aggregate principal amount of 2020 Revolving Credit Loans held by such 2020 Revolving Credit Lender immediately prior to the 2018 October Amendment Effective Date and (y) enter into new 2023 Revolving Credit Commitments to refinance and replace such terminated 2020 Revolving Credit Commitments (any Lender providing such 2023 Revolving Credit Commitments, a “2023 Revolving Credit Lender”);

 

WHEREAS, Section 2.14(e) of the Credit Agreement provides that the relevant Credit Parties, the Administrative Agent and the Lenders providing applicable New Loan Commitments may amend the Credit Agreement and the other Credit Documents as may be necessary or appropriate to effect the provisions of Section 2.14 of the Credit Agreement;

 

WHEREAS, the Borrower has requested that the 2023 Term A Lenders (as defined in the Amended Credit Agreement) hereunder make (i) 2023 Initial Term A Loans to the Borrower in an aggregate principal amount of $975,000,000 on the 2018 October Amendment Effective Date and (ii) 2023 Delayed Draw Term A Loans to the Borrower in an aggregate principal amount of $3,775,000,000 on or prior to the 2023 Delayed Draw Term A Loan Commitment Termination Date (as defined in the Amended Credit Agreement);

 

WHEREAS, each 2023 Revolving Credit Lender and each 2023 Term A Lender that executes and delivers a signature page to this Amendment shall have consented to the amendments to the Credit Agreement set forth in this Amendment (including the Required Lender Amendments (as defined below));

 

WHEREAS, the Borrower has engaged Merrill Lynch, Pierce, Fenner & Smith Incorporated, PNC Capital Markets LLC, Citigroup Global Markets, Inc. and KKR Capital Markets LLC to act as joint lead arrangers and bookrunners in respect of the 2023 Revolving Credit Commitments and 2023 Term A Loans (collectively, the “2018 October Joint Lead Arrangers and Bookrunners”);

 

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

 

Section 1.                                           Termination of 2020 Revolving Credit Commitments.  Subject to the terms and conditions set forth herein and effective immediately upon the refinancing or

 

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replacement thereof on the 2018 October Amendment Effective Date, the Borrower hereby terminates the 2020 Revolving Credit Commitments outstanding immediately prior to the 2018 October Amendment Effective Date, pursuant to Section 4.2 of the Credit Agreement. Such terminated 2020 Revolving Credit Commitments will be refinanced and replaced with 2023 Revolving Credit Commitments on the 2018 October Amendment Effective Date.

 

Section 2.                                           2023 Revolving Credit Commitments.  Subject to the terms and conditions set forth herein and in the Credit Agreement as amended by this Amendment (the “Amended Credit Agreement”), the Revolving Credit Lenders that execute and deliver a signature page to this Amendment agree to become 2023 Revolving Credit Lenders and provide 2023 Revolving Credit Commitments in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B hereto.  The 2023 Revolving Credit Commitments will refinance and replace the existing 2020 Revolving Credit Commitments on the 2018 October Amendment Effective Date. The 2023 Revolving Credit Commitments shall have the terms set forth in the Amended Credit Agreement.

 

The letters of credit identified on Exhibit D (the “Existing Letters of Credit”) shall be deemed to be “Letters of Credit” issued on the 2018 October Amendment Effective Date for all purposes of the Credit Documents. The Letter of Credit Issuer shall be deemed to have sold and transferred to each 2023 Revolving Credit Lender, and each such 2023 Revolving Credit Lender shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an undivided L/C Participation, to the extent of such 2023 Revolving Credit Lender’s 2023 Revolving Credit Commitment Percentage (as defined in Exhibit A hereto) in each Existing Letter of Credit, each substitute therefor, each drawing made thereunder and the obligations of the Borrower under the Amended Credit Agreement with respect thereto, and any security therefor or guaranty pertaining thereto.

 

Section 3.                                           2023 Term A Loans.  Subject to the terms and conditions set forth herein and in the Amended Credit Agreement, the 2023 Term A Lenders that execute and deliver a signature page to this Amendment agree to become 2023 Term A Lenders and provide 2023 Initial Term A Loans and 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and 2023 Delayed Draw Term A Loan Commitments set forth in Schedule 1.1(c) attached as Exhibit B hereto.  The 2023 Initial Term A Loans will refinance and replace the existing 2020 Term A Loans on the 2018 October Amendment Effective Date, with any excess for general corporate purposes.  The 2023 Delayed Draw Term A Loans will refinance certain existing indebtedness of the Borrower on December 3, 2018, with any excess for general corporate purposes. The 2023 Initial Term A Loans and 2023 Delayed Draw Term A Loans shall have the terms set forth in the Amended Credit Agreement. After the 2023 Delayed Draw Term A Loan Funding Date, the 2023 Initial Term A Loans and the 2023 Delayed Draw Term A Loans that have been funded under the Amended Credit Agreement shall have the same terms and shall be treated as a single Class under the Amended Credit Agreement for all purposes, except that interest on the 2023 Delayed Draw Term A Loans shall commence to accrue from the date of the funding thereof.

 

Section 4.                                           Amendment.  Effective as of the 2018 October Amendment Effective Date,

 

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(a)                                 the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example:  stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example:  double-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto;

 

(b)                                 Schedule 1.1(c) attached as Exhibit B to this Amendment hereby replaces existing Schedule 1.1(c) to the Credit Agreement with respect to the 2020 Revolving Credit Commitments and the 2020 Term A Loans previously set forth therein; and

 

(c)                                  Exhibits K-3-D and K-14 attached as Exhibits C-1 and C-2 to this Amendment, respectively, are hereby added to the Credit Agreement.

 

The 2023 Revolving Credit Lenders, 2023 Term A Lenders and the other parties hereto hereby approve such amendments.

 

For purposes of FATCA, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Borrower and the Administrative Agent to treat) all of the 2023 Initial Term A Loans, 2023 Delayed Draw Term A Loans and any Loans under the 2023 Revolving Credit Commitments as not qualifying as “grandfathered obligations” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

 

Section 5.                                           Required Lender Changes.

 

Effective as of the date upon which the Required Lenders consent to such amendments (it being understood that each Lender party hereto consents to such amendments in its capacity as a 2023 Revolving Credit Lender and/or a 2023 Term A Lender, as applicable (after giving effect to this Amendment and the incurrence of the 2023 Revolving Credit Commitments, 2023 Delayed Draw Term A Loan Commitments and the 2023 Term A Loans), and all of such Lender’s 2023 Revolving Credit Commitments, 2023 Delayed Draw Term A Loan Commitments, 2023 Revolving Credit Loans, 2023 Initial Term A Loans and/or 2023 Delayed Draw Term A Loans (without duplication) that are outstanding at the time of any calculation of Required Lenders for purposes of such amendment shall be deemed to be held by Lenders that have consented to such amendments and shall be included in any such Required Lender calculation and each Lender party hereto agrees that it shall not be entitled to receive any consent fee or other compensation with respect to such amendments in its capacity as a 2023 Revolving Credit Lender and/or a 2023 Term A Lender, as applicable), the Amended Credit Agreement shall be amended as follows (collectively, the “Required Lender Amendments”); provided that at its election, and in its sole discretion, the Borrower may (A) elect not to have a particular Required Lender Amendment become effective (prior to such effectiveness); provided that, if any of the Borrower Favorable Amendments (as defined below) are to become effective, then all of the Lender Favorable Amendments (as defined below) shall become effective and the Borrower may not elect not to have any of the Lender Favorable Amendments not become effective (for purposes of the foregoing, Lender Favorable Amendments” means the Required Lender Amendments set forth in Sections 5(a)(i), (c), (j), (k), (l) and (t) and “Borrower Favorable Amendments” means the Required Lender Amendments set forth in Section 5(a)(ii), (b), (d), (e), (f), (g), (h), (i), (m), (n), (o), (p), (q), (r) and (s)), or (B) modify a particular Required Lender Amendment prior to it becoming

 

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effective, but only if such modification is not adverse to the Lenders; provided that such modifications are provided to the 2023 Term A Lenders and the 2023 Revolving Credit Lenders for review for a period of not less than three Business Days and the Required 2023 Term A Lenders, Required 2023 Delayed Draw Term A Loan Lenders (if applicable) or the Required 2023 Revolving Credit Lenders do not notify the Administrative Agent in writing prior to 5:00 p.m. New York time prior to the end of such three Business Day period that such Lenders have reasonably determined that any such additional modifications to the Required Lender Amendments are adverse to the Lenders:

 

(a)                                 (i) The following defined terms shall be added to Section 1.1 of the Credit Agreement in alphabetical order:

 

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

 

Beneficial Ownership Regulation” shall mean 31 C.F.R. § 1010.230.

 

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

 

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

 

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

 

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

 

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

 

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Lender-Related Distress Event” shall mean, with respect to any Lender or any other Person that directly or indirectly controls such Lender (each, a “Distressed Person”), other than via an Undisclosed Administration, a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian, conservator, receiver, or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s assets, or such Distressed Person, or any Person that directly or indirectly controls such Distressed Person or is subject to a forced liquidation or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any governmental authority having regulatory authority over such Distressed Person to be, insolvent or bankrupt; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interests in any Lender or any Person that directly or indirectly controls such Lender by a governmental authority or an instrumentality thereof; provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such governmental authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person or its parent entity.

 

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

Required 2023 Revolving Credit Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the aggregate 2023 Revolving Credit Commitments (excluding 2023 Revolving Credit Commitments held by Defaulting Lenders) at such date (or, if the 2023 Revolving Credit Commitments have been terminated at such time, a majority of the 2023 Revolving Credit Exposure (excluding 2023 Revolving Credit Exposure of Defaulting Lenders) at such time).

 

Required Lender Amendments” shall have the meaning provided in the 2018 October Amendment.

 

Required Lenders Amendments Effective Date” shall mean the date on which the Required Lender Amendments become effective.

 

Undisclosed Administration” shall mean in relation to a Lender or its parent company the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed.

 

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

 

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(ii) The following defined terms shall be added to Section 1.1 of the Credit Agreement in alphabetical order:

 

Fixed Basketshall mean any category of exceptions, thresholds, baskets, or other provisions in this Agreement based on a fixed Dollar amount and/or percentage of Consolidated EBITDA or Consolidated Total Assets as of any date of determination (including in clause (i) of the definition of Maximum Incremental Facilities Amount).

 

Incurrence-Based Basketshall mean any category of exceptions, thresholds, baskets, or other provisions in this Agreement based on complying (including on a Pro Forma Basis) with any financial ratio (including, without limitation, Section 10.10, any Consolidated Senior Secured Debt to Consolidated EBITDA Ratio, any Consolidated Total Debt to Consolidated EBITDA Ratio and/or clause (ii) of the definition of Maximum Incremental Facilities Amount).

 

LCT Election shall have the meaning provided in Section 1.7.

 

LCT Election Test Date shall have the meaning provided in Section 1.7.

 

Limited Condition Transaction” shall mean any transaction by the Borrower or its Restricted Subsidiaries the consummation of which is not conditioned on the availability of, or on obtaining, third party financing.

 

(b)                                 The definition of “Change of Control” under Section 1.1 of the Credit Agreement shall be replaced in its entirety with the following:

 

““Change of Control” shall mean and be deemed to have occurred if: (a) any Person, entity, or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act, 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 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 (b) at any time, a Change of Control (as defined in (i) the Indenture, dated as of August 11, 2015, governing the 5.375% senior secured notes due 2023, (ii) the Indenture, dated as of November 18, 2015, governing the 7.000% senior notes due 2023, (iii) the Indenture, dated as of November 25, 2015, governing the 5.000% senior secured notes due 2024, (iv) the Indenture, dated as of November 25, 2015, governing the 5.750% senior secured second lien notes due 2024, in each case, by and among the Borrower, the guarantors named therein and Wells Fargo Bank, National Association, as trustee or (v) any indenture or similar instrument representing a modification, replacement, refinancing, refunding, renewal or extension thereof that governs any Indebtedness for borrowed money in an outstanding principal amount in excess of $100,000,000) shall have occurred. For purposes of this definition, (i) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under the Securities Exchange Act, (ii) the phrase Person or “group” is within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act, but excluding any employee benefit plan of such Person or “group” and its subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, (iii) if any Person or “group” includes one or more Permitted Holders, the issued and outstanding Equity Interests of the Borrower, directly or

 

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indirectly owned by the Permitted Holders that are part of such Person or “group” shall not be treated as being owned by such Person or “group” for purposes of determining whether clause (a) of this definition is triggered, and (iv) a Person or group shall not be deemed to beneficially own Voting Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of such Voting Stock in connection with the transactions contemplated by such agreement.”

 

(c)                                  The definition of “Lender Default” under Section 1.1 of the Credit Agreement shall be replaced in its entirety with the following:

 

““Lender Defaultshall mean (a) the refusal or failure of any Lender to make available its portion of any incurrence of Loans, which refusal or failure is not cured within one business day after the date of such refusal or failure, unless such Lender notifies the Administrative Agent in writing that such refusal or failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in writing) has not been satisfied, (b) the failure of any Lender to pay over to the Administrative Agent, any Swingline Lender, any Letter of Credit Issuer or any other Lender any other amount required to be paid by it hereunder within one business day of the date when due, unless the subject of a good faith dispute, (c) a Lender has notified, in writing, the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations under this Agreement or has made a public statement to that effect with respect to its funding obligations under this Agreement, or a Lender has publicly announced that it does not intend to comply with its funding obligations under other loan agreements, credit agreements or similar facilities generally, (d) a Lender has failed to confirm in a manner reasonably satisfactory to the Administrative Agent that it will comply with its funding obligations under this Agreement, (e) a Distressed Person has admitted in writing that it is insolvent or such Distressed Person becomes subject to a Lender-Related Distress Event or (f) a Lender or any direct or indirect parent thereof has become the subject of a Bail-in Action.

 

(d)                                 The definition of “Maximum Incremental Facilities Amount” under Section 1.1 of the Credit Agreement shall be amended to (i) add the phrase “, with respect to each of the foregoing clauses, to the extent incurred in reliance on such clause,” following the word “minus” and (ii) replace clause (iii) thereof with the following:

 

“(iii) amounts used to incur Indebtedness the Net Cash Proceeds of which are substantially concurrently used to refinance or replace Revolving Credit Commitments, Term Loans and/or any Notes or Permitted Other Indebtedness and any modification, replacement, refinancing, refunding, renewal or extension thereof that is secured on a pari passu basis with the Term Loans and the Revolving Credit Commitments (including any fees, accrued interest or other amounts owing in respect thereof),”

 

(e)                                  The definition of “Mortgaged Property” under Section 1.1 of the Credit Agreement shall be amended to add the following proviso at the end thereof:

 

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“; provided that, unless the Borrower otherwise determines in its sole discretion, Mortgaged Property shall not include, and there shall be no Mortgages granted in connection with any real property containing improvements located in an area designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency) and the Administrative Agent and the Collateral Agent are authorized to take any actions to, and execute and deliver releases to, facilitate the terms of this proviso.”

 

(f)                                   Section 1 of the Credit Agreement shall be amended to add the following new Sections 1.7 and 1.8:

 

“1.7                         Limited Condition Transactions. In connection with any action being taken solely in connection with a Limited Condition Transaction, for purposes of:

 

(i)                                     determining compliance with any provision of the Credit Documents which requires the calculation of the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio or Consolidated Total Debt to Consolidated EBITDA Ratio;

 

(ii)                                  determining the accuracy of representations and warranties in Section 8 or any other Credit Document and/or whether a Default or Event of Default shall have occurred and be continuing under Section 11; or

 

(iii)                               testing availability under baskets set forth in the Credit Documents (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets);

 

in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”) (it being understood and agreed that the Borrower may elect to revoke any LCT Election in its sole discretion), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date, the Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations.  If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to the incurrence of Indebtedness or Liens, or the making of Restricted Payments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is

 

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consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated until such time as the Limited Condition Transaction has been consummated or the definitive agreement with respect thereto has been terminated or expires.

 

1.8                               Certain Calculations.

 

(a)         The Borrower may elect from time to time, to reclassify any utilization of Fixed Baskets as having been incurred under any available Incurrence-Based Baskets (including reclassifying amounts under clause (i) to clause (ii) of the definition of Maximum Incremental  Facilities Amount) and upon delivery of financial statements following the initial taking of such action or consummation of such transaction, if any applicable ratios or financial tests for such available Incurrence-Based Baskets would then be satisfied, reclassification of amounts under Fixed Baskets to Incurrence-Based Baskets shall be deemed to have automatically occurred if not previously elected by the Borrower.  The relevant action or transaction will be deemed to have been incurred, issued, made or taken first, to the extent available, pursuant to any available Incurrence-Based Baskets as set forth above prior to any Fixed Basket.

 

(b)                                 Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on any Fixed Baskets and/or the incurrence (including by assumption or guarantee) of any 2023 Revolving Credit Loans (and/or any New Revolving Credit Commitments, New Revolving Loans and any other revolving facilities included in such calculation) (collectively, “Revolving Credit Incurrences”)  substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on any Incurrence-Based Baskets, for purposes of determining any Incurrence-Based Baskets, it is understood and agreed that the amounts incurred in reliance on such Fixed Baskets and/or any Revolving Credit Incurrences shall be disregarded in the calculation of the financial ratio or test applicable to the any amounts incurred in reliance on such Incurrence-Based Baskets in connection with such substantially concurrent incurrence (i.e., Fixed Baskets and Revolving Credit Incurrences shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Baskets, but full Pro Forma Effect shall be given to all other applicable and related transactions (and, in the case of Indebtedness, use of the aggregate proceeds of Indebtedness being incurred in reliance on a combination of Fixed Baskets and Incurrence-Based Baskets and any related repayments of Indebtedness); provided that, with respect to any New Revolving Commitments being established under clause (ii) of the definition of Maximum Incremental Facilities Amount, such clause (ii) shall be calculated assuming, solely at the time of establishment of such New Revolving Credit Commitments, a borrowing of the maximum amount of New Revolving Loans thereunder.

 

(g)                                  Clause (i) under the second proviso of Section 2.14(a) of the Credit Agreement shall be amended by adding the following immediately after “Default or Event of Default”:

 

(except in connection with a Limited Condition Transaction, in which case the standard shall be no Event of Default under Section 11.1 or Section 11.5)

 

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(h)                                 Section 5.2(a) of the Credit Agreement shall be amended by (1) adding the following new proviso immediately prior to the proviso thereunder and (2) adding “further” after “provided” in the proviso thereunder:

 

provided that, with respect to an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback, the percentage in this Section 5.2(a)(i) shall be reduced to (1) 50% if the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of Borrower) is less than or equal to 3.75 to 1.00 but greater than 3.50 to 1.00 and (2) 0% if the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio on the date of prepayment (prior to giving effect thereto but giving effect to any prepayment described in Section 5.2(a)(ii)(y) below and as certified by an Authorized Officer of Holdings) is less than or equal to 3.50 to 1.00;

 

(i)                                     Section 7.1 of the Credit Agreement shall be amended by adding the following immediately after the words “as of such earlier date)” at the end thereof:

 

“each subject to limitations set forth under Section 1.7 to the extent the proceeds of any extension of credit is being used to finance a Limited Condition Transaction”

 

(j)                                    Section 8 of the Credit Agreement shall be amended by adding the following new Sections 8.17 and 8.18 at the end thereof:

 

“8.17                  Patriot Act. On the Required Lenders Amendments Effective Date, the use of proceeds of the Loans will not violate the Patriot Act in any material respect.

 

8.18                        OFAC and FCPA. Each Credit Party is in compliance with all applicable laws administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the Foreign Corrupt Practices Act of 1977 as amended, and the rules and regulations promulgated thereunder, except where the failure to be so in compliance would not reasonably be expected to result in a Material Adverse Effect.

 

(k)                                 Section 9.1 of the Credit Agreement shall be amended by adding the following new clause (i) immediately after clause (h):

 

“(i) Beneficial Ownership Regulation. To the extent that the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation or otherwise becomes subject to the Beneficial Ownership Regulation, in each case, at any time after the Required Lenders Amendments Effective Date, (x) promptly following any reasonable request therefor, provide such information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with the Beneficial Ownership Regulation and (y) promptly after request therefor, provide a representation and warranty to such requesting

 

11


 

Administrative Agent or any Lender that the information included in any Beneficial Ownership Certifications delivered pursuant to clause (x) above is true and correct in all material respects as of the date of its delivery.”

 

(l)                                     Section 9.6 of the Credit Agreement shall be amended by adding the following immediately after “property, including”:

 

, without limitation, applicable laws administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations promulgated thereunder, and

 

(m)                             Section 9.14(b) of the Credit Agreement shall be amended by adding the following proviso at the end thereof:

 

provided, however, no such Lien shall be required to be granted as contemplated by this Section 9.14(b) on any real property containing improvements located in an area designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency).”

 

(n)                                 Section 10.5(g)(ii) of the Credit Agreement shall be amended by replacing “2014 July Repricing Effective Date” with “2018 October Amendment Effective Date”;

 

(o)                                 Section 10.5(i) of the Credit Agreement shall be amended by replacing “in an aggregate amount pursuant to this clause (i) that” with “to the extent that the aggregate amount of all Investments made on or after the 2018 October Amendment Effective Date pursuant to this clause (i)”;

 

(p)                                 Section 10.5 of the Credit Agreement shall be amended by (1) removing “and” at the end of clause (y), (2) replacing the period at the end of clause (z) with “; and” and (3) adding the following new clause (aa) immediately after clause (z):

 

other Investments; provided that (a) after giving Pro Forma Effect to such Investments the Consolidated Total Debt to Consolidated EBITDA Ratio is equal to or less than 4.60:1.00 and (b) no Event of Default under Section 11.1 or 11.5 shall have occurred and be ongoing.”

 

(q)                                 Section 10.6 of the Credit Agreement shall be amended by replacing “[Reserved]” under clause (e) thereof with the following new clause (e):

 

other dividends; provided that (a) after giving Pro Forma Effect to such  dividends the Consolidated Total Debt to Consolidated EBITDA Ratio is equal to or less than 4.35:1.00 and (b) no Event of Default shall have occurred and be ongoing.

 

(r)                                    Section 10.7(a)(y)(i) of the Credit Agreement shall be amended by adding the following immediately after clause (3):

 

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plus (4) other prepayments, repurchases, redemptions or other defeasances of Restricted Indebtedness; provided that (a) after giving Pro Forma Effect to such prepayments, repurchases, redemptions or other defeasances the Consolidated Total Debt to Consolidated EBITDA Ratio is equal to or less than 4.35:1.00 and (b) no Event of Default shall have occurred and be ongoing;”

 

(s)                                   Section 11.2 of the Credit Agreement shall be amended by adding the following immediately prior to the semicolon thereunder:

 

“, and, to the extent capable of being cured, such incorrect representation or warranty shall remain incorrect for a period of 30 days after written notice thereof from the Administrative Agent to the Borrower

 

(t)                                    The Credit Agreement is amended to add the following new Sections 13.22 and 13.23:

 

13.22                 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.

 

Solely to the extent any Lender or Letter of Credit Issuer that is an EEA Financial Institution is a party to this Agreement and notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender or Letter of Credit Issuer that is an EEA Financial Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

(i)                                     the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender or Letter of Credit Issuer that is an EEA Financial Institution; and

 

(ii)                                  the effects of any Bail-In Action on any such liability, including, if applicable:

 

(A)                     a reduction in full or in part or cancellation of any such liability;

 

(B)                     a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Credit Document; or

 

(C)                               the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

 

13.23                 ERISA Representations.

 

(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to

 

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the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least one of the following is and will be true:

 

(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement,

 

(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,

 

(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or

 

(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

 

(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Credit Document or any documents related hereto or thereto).”

 

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Section 6.                                           (c)                                  Representations and Warranties, No Default.

 

(a)                                 The Borrower hereby represents and warrants that this Amendment has been duly authorized, executed and delivered by each Credit Party hereto and constitutes the legal, valid and binding obligations of each such Credit Party enforceable against it in accordance with its terms, except that the enforceability hereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and subject to general principles of equity.

 

(b)                                 By its execution of this Amendment, 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 2018 October Amendment Effective Date and after giving effect to the extension of the 2023 Revolving Credit Commitments, the 2023 Delayed Draw Term A Loan Commitments and the making of the 2023 Initial Term A 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.

 

Section 7.                                           Effectiveness The effectiveness of the amendments set forth in Sections 2, 3 and 4 hereof, the obligations of the 2023 Revolving Credit Lenders to extend the 2023 Revolving Credit Commitments, the 2023 Term A Lenders to extend the 2023 Delayed Draw Term A Loan Commitments and the 2023 Term A Lenders to make the 2023 Term A Loans, are subject to satisfaction of the following conditions precedent (the date of such satisfaction being the “2018 October Amendment Effective Date”):

 

(i)                  Counterparts to this Amendment.  The Administrative Agent shall have received counterparts of this Amendment executed by (A) the Administrative Agent, (B) the Collateral Agent, (C) the Swingline Lender, (D) the Letter of Credit Issuer, (E) the 2023 Revolving Credit Lenders, (F) the 2023 Term A Lenders and (G) each Credit Party that will be party to the Credit Documents immediately after the 2018 October Amendment Effective Date;

 

(ii)               Notes. Each 2023 Revolving Credit Lender and each 2023 Term A Lender that requests a Note at least two (2) Business Days prior to the 2018 October Amendment Effective Date, if any, shall receive a Note executed by an Authorized Officer of the Borrower in favor of each such 2023 Revolving Credit Lender and/or 2023 Term A Lender;

 

(iii)            Fees; Costs and Expenses. The 2018 October Joint Lead Arrangers and Bookrunners shall have been paid such fees as such 2018 October Joint Lead Arrangers and Bookrunners and the Borrower have separately agreed to, the Borrower shall have paid to the Administrative Agent, on behalf of the 2023 Term A Lenders and the 2023 Revolving

 

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Credit Lenders, all fees that the Borrower has agreed to pay to the 2023 Term A Lenders and/or the 2023 Revolving Credit Lenders on the 2018 October Amendment Effective Date (it being understood that such fees may be netted from the 2023 Initial Term A Loans and/or the 2023 Revolving Credit Loans funded on the 2018 October Amendment Effective Date) and, to the extent invoices in respect of such costs and expenses have been presented at least one (1) Business Day prior to the 2018 October Amendment Effective Date, the Borrower shall have paid  all reasonable out of pocket costs and expenses of the Administrative Agent in connection with the preparation, negotiation and execution of this Amendment (including the reasonable fees and expenses of Cahill Gordon & Reindel LLP as counsel to the Administrative Agent);

 

(iv)    Legal Opinion.  The Administrative Agent shall have received the legal opinion of Simpson Thacher & Bartlett LLP, New York counsel to the Borrower, covering such matters as the Administrative Agent may reasonably request and otherwise reasonably satisfactory to the Administrative Agent;

 

(v)     Closing CertificatesThe 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 (or a certification from an Authorized Officer of each applicable Credit Party that attached is a true and complete copy of such certificate or articles of incorporation or organization, including all amendments thereto, as in effect on the 2018 October Amendment Effective Date) and (ii) a certificate of an Authorized Officer of each Credit Party dated the 2018 October Amendment 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 2018 October Amendment 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 in the case of the Borrower, the borrowings hereunder), 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;

 

(vi)    Real Estate Matters.  The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each improved Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Credit Party relating thereto) and, with respect to any Mortgaged Property on which any “building” (as defined in the Flood Insurance Laws) is located in a special flood

 

16


 

hazard area, evidence of flood insurance as and to the extent required under Section 9.3 of the Credit Agreement;

 

(vii)   Voluntary Prepayment. Substantially contemporaneously herewith, the Borrower shall have prepaid in full (x) the 2020 Revolving Credit Loans outstanding immediately prior to the 2018 October Amendment Effective Date, after giving effect to this Amendment, together with all accrued and unpaid interest thereon to, but not including, the 2018 October Amendment Effective Date, pursuant to Section 5.1 of the Credit Agreement and (y) the 2020 Term A Loans outstanding immediately prior to the 2018 October Amendment Effective Date that were not cashlessly rolled into 2023 Initial Term A Loans, after giving effect to this Amendment, together with all accrued and unpaid interest thereon to, but not including, the 2018 October Amendment Effective Date, pursuant to Section 5.1 of the Credit Agreement;

 

(viii)  Payment of Accrued Interest. Borrower shall pay to each Lender of (x) 2020 Revolving Credit Loans, all accrued and unpaid interest on the 2020 Revolving Credit Loans held by such Lender immediately prior to the 2018 October Amendment Effective Date, to, but not including, the 2018 October Amendment Effective Date and (y) 2020 Term A Loans, all accrued and unpaid interest on the 2020 Term A Loans held by such Lender immediately prior to the 2018 October Amendment Effective Date, to, but not including, the 2018 October Amendment Effective Date;

 

(ix)    Payment of Accrued Fees. Borrower shall pay to each Lender holding 2020 Revolving Credit Commitments immediately prior to the 2018 October Amendment Effective Date, all accrued and unpaid fees on the 2020 Revolving Credit Commitments held by such Lender to, but not including, the 2018 October Amendment Effective Date;

 

(x)     Termination of 2020 Revolving Credit Commitments. The Borrower shall have provided prior written notice to the Administrative Agent of its intent to terminate the 2020 Revolving Credit Commitments in accordance with Section 4.2 of the Credit Agreement.

 

(xi)    Patriot Act. To the extent reasonably requested by the 2023 Revolving Credit Lenders and/or the 2023 Term A Lenders in writing not less than five (5) Business Days prior to the 2018 October Amendment Effective Date, the Administrative Agent shall have received, prior to the effectiveness of this Amendment, all documentation and other information with respect to the Credit Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.

 

(xii)   Notice of Borrowing. The Administrative Agent shall have received a Notice of Borrowing pursuant to Section 2.3(a) of the Credit Agreement for the 2023 Initial Term A Loans and any 2023 Revolving Credit Loans intended to be drawn by the Borrower on the 2018 October Amendment Effective Date.

 

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Section 8.              Post-Closing Covenant.  By its execution of this Amendment, the Borrower hereby covenants that within ninety (90) days after the 2018 October Amendment 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 Section 9.14 to the Credit Agreement) in order to ensure that the 2023 Revolving Credit Commitments, the 2023 Delayed Draw Term A Loan Commitments and the 2023 Term A Loans benefit from the Mortgages over the Mortgaged Properties.

 

Section 9.              Acknowledgements and Waivers.

 

(a)           By its execution of this Amendment, the 2023 Revolving Credit Lenders and 2023 Term A Lenders party hereto agree to waive any breakage costs pursuant to Section 2.11 of the Credit Agreement that may result from the repayment contemplated by clause (viii) of Section 7.

 

(b)           By its execution of this Amendment, each 2023 Revolving Credit Lender and 2023 Term A Lender party hereto (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 Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent or any other 2023 Revolving Credit Lender or 2023 Term A 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 and the Collateral 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 or the Collateral Agent, as 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 2023 Revolving Credit Lender and/or 2023 Term A Lender (as applicable).

 

(c)           Each 2023 Revolving Credit Lender and 2023 Term A Lender party hereto acknowledges and agrees that upon its execution of this Amendment, the extension of its 2023 Revolving Credit Commitments, its 2023 Delayed Draw Term A Loan Commitments and/or the making of its 2023 Initial Term A Loans (as applicable), that such 2023 Revolving Credit Lender and/or 2023 Term A 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.

 

Section 10.            Tax Forms.  For each relevant 2023 Revolving Credit Lender and 2023 Term A Lender, delivered herewith to the Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such 2023 Revolving Credit Lender and 2023 Term A Lender may be required to deliver to the Administrative Agent pursuant to Section 5.4(d) and/or Section 5.4(e) of the Credit Agreement.

 

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Section 11.            Recordation of the 2023 Revolving Credit Commitments, the 2023 Delated Draw Term A Loan Commitments and 2023 Initial Term A Loans.  Upon execution and delivery hereof, the Administrative Agent will record the 2023 Revolving Credit Commitments, the 2023 Delayed Draw Term A Loan Commitments and the 2023 Initial Term A Loans made by the 2023 Revolving Credit Lenders and 2023 Term A Lenders, respectively in the Register.

 

Section 12.            Counterparts.  This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument.  Delivery of an executed counterpart of a signature page of this Amendment by facsimile or any other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

 

Section 13.            Amendment, Modification and Waiver.  Except as otherwise set forth herein, this Amendment may not be amended, modified or waived except in accordance with Section 13.1 of the Credit Agreement.

 

Section 14.            Entire Agreement.  This Amendment, the Amended 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 oral, among the parties or any of them with respect to the subject matter hereof.

 

Section 15.            Severability.  Any term or provision of this Amendment 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 Amendment or affecting the validity or enforceability of any of the terms or provisions of this Amendment in any other jurisdiction. If any provision of this Amendment is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.

 

Section 16.            Governing Law.  THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

Section 17.            Headings.  Section headings in this Amendment are included for convenience of reference only  and shall not affect the interpretation of this Amendment.

 

Section 18.            Effect of Amendment.  Except as expressly set forth herein, (i) this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, the Collateral Agent or the Letter of Credit Issuer, 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

 

19


 

Credit Document.  Each and every term, condition, 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 grant of its Liens on the Collateral made by it pursuant to the Security Documents. This Amendment shall constitute a Credit Document for purposes of the Credit Agreement and from and after the 2018 October Amendment 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 amended by this Amendment.  Each of the Credit Parties hereby consents to this Amendment 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 amended hereby.

 

Section 19.            WAIVER OF JURY TRIALEACH OF THE PARTIES TO THIS AMENDMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS AMENDMENT OR THE PERFORMANCE OF SERVICES HEREUNDER.

 

Section 20.            Certain Tax Matters. The parties agree that, for United States federal income tax purposes, (1) an exchange of the 2020 Term A Loans for 2023 Initial Term A Loans will be treated as a significant modification of the 2020 Term A Loans and (2) all of the 2023 Initial Term A Loans, whether issued for cash or in exchange for 2020 Term A Loans, and all of the 2023 Delayed Draw Term A Loans will be treated as one fungible tranche.

 

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

 

 

 

FIRST DATA CORPORATION

 

 

 

 

 

 

 

 

 

By:

/s/ Himanshu A. Patel

 

 

Name:

Himanshu A. Patel

 

 

Title:

Executive Vice President and

 

 

 

Chief Financial Officer

 

[Signature Page to 2018 October Amendment]

 


 

 

The following entities, each as Guarantor:

 

 

 

BLUEPAY PROCESSING, LLC

 

BUYPASS INCO CORPORATION

 

IGNITE PAYMENTS, LLC

 

CARDCONNECT, LLC

 

CESI HOLDINGS, LLC

 

CLOVER NETWORK, INC.

 

CONCORD COMPUTING CORPORATION

 

CONCORD EFS, INC.

 

CONCORD PAYMENT SERVICES, INC.

 

CONCORD TRANSACTION SERVICES, LLC

 

FDGS GROUP, LLC

 

FDR MISSOURI INC.

 

FDS HOLDINGS, INC.

 

FIRST DATA CARD SOLUTIONS, INC.

 

FIRST DATA GOVERNMENT SOLUTIONS, INC.

 

FIRST DATA GOVERNMENT SOLUTIONS, LP

 

FIRST DATA HARDWARE SERVICES INC.

 

FIRST DATA MERCHANT SERVICES LLC

 

FIRST DATA PROCESSING, INC.

 

FIRST DATA REAL ESTATE HOLDINGS L.L.C.

 

FIRST DATA REPORTING SERVICES LLC

 

FIRST DATA RESOURCES, LLC

 

FIRST DATA SOLUTIONS INC.

 

FIRST DATA TECHNOLOGIES, INC.

 

FUNDSXPRESS FINANCIAL NETWORK, LLC

 

GIFT SOLUTIONS LLC

 

GYFT, INC.

 

LINKPOINT INTERNATIONAL, INC.

 

NEW PAYMENT SERVICES, INC.

 

PAYSYS INTERNATIONAL, INC.

 

STAR NETWORKS, INC.

 

STAR SYSTEMS ASSETS, INC.

 

STAR SYSTEMS, INC.

 

TELECHECK INTERNATIONAL, INC.

 

 

 

 

 

By:

/s/ Himanshu A. Patel

 

Name:

Himanshu A. Patel

 

Title:

Executive Vice President and

 

 

Chief Financial Officer

 

[Signature Page to 2018 October Amendment]

 


 

 

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

 

 

 

 

 

 

 

 

 

By:

/s/ William O’Daly

 

 

 

 

 

 

Name:

William O’Daly

 

 

Title:

Authorized Signatory

 

 

 

 

 

 

 

 

 

By:

/s/ D. Andrew Maletta

 

 

 

 

 

 

Name:

D. Andrew Maletta

 

 

Title:

Authorized Signatory

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

Bank of America, N.A.

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Michael Roane

 

 

Name:

Michael Roane

 

 

Title:

Vice President

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

BARCLAYS BANK PLC

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Craig Malloy

 

 

Name:

Craig Malloy

 

 

Title:

Director

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

BANK OF MONTREAL

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Christina Boyle

 

 

Name:

Christina Boyle

 

 

Title:

Managing Director

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

Capital One, National Association

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Jon Malden

 

 

Name:

Jon Malden

 

 

Title:

Sr. Director

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

o                                    The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

CATHAY BANK, as a Lender

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Nancy A. Moore

 

 

Name:

Nancy A. Moore

 

 

Title:

Senior Vice President

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

¨                                    The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

Chang Hwa Commercial Bank Ltd., New York Branch

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Joel Chou

 

 

Name:

Joel Chou

 

 

Title:

AVP & AGM

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

Citibank, N.A.,

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Marina Donskaya

 

 

Name:

Marina Donskaya

 

 

Title:

VP

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

Citizens Bank, N.A.,

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Andrew J. Meara

 

 

Name:

Andrew J. Meara

 

 

Title:

Senior Vice President

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

COMPASS BANK,

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Julia Barnhill

 

 

Name:

Julia Barnhill

 

 

Title:

Vice President

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,

 

(Name of Institution)

 

 

 

 

 

By:

/s/ William O’Daly

 

 

Name:

William O’Daly

 

 

 

 

 

 

 

 

 

By:

/s/ D. Andrew Maletta

 

 

Name:

D. Andrew Maletta

 

 

Title:

Authorized Signatory

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

Deutsche Bank AG, Cayman Islands Branch,

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Maria Guinchard

 

 

Name:

Maria Guinchard

 

 

Title:

Vice President

 

 

 

 

 

By:

/s/ Alicia Schug

 

 

Name:

Alicia Schug

 

 

Title:

Vice President

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

Fifth Third Bank, as a Lender,

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Dan Komitor

 

 

Name:

Dan Komitor

 

 

Title:

Senior Relationship Manager

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

o                                    The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

First National Bank of Pennsylvania,

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Michael Borowy

 

 

Name:

Michael Borowy

 

 

Title:

VP

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

GOLDMAN SACHS BANK USA,

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Ryan Durkin

 

 

Name:

Ryan Durkin

 

 

Title:

Authorized Signatory

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

HSBC BANK USA, NATIONAL ASSOCIATION, as a Bank

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Kiran Sultan

 

 

Name:

Kiran Sultan

 

 

Title:

Director, Financial Institutions Group

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

Industrial and Commercial Bank of China Limited, New York Branch

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Yuanyuan Peng

 

 

Name:

Yuanyuan Peng

 

 

Title:

Director

 

 

 

 

 

By:

/s/ Dayi Liu

 

 

Name:

Dayi Liu

 

 

Title:

Executive Director

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

KEYBANK NATIONAL ASSOCIATION

 

(Name of Institution)

 

 

 

 

 

By:

/s/ David A. Wild

 

 

Name:

David A. Wild

 

 

Title:

Senior Vice President

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

¨                                    The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

MB FINANCIAL BANK

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Travis Kensinger

 

 

Name:

Travis Kensinger

 

 

Title:

AVP Portfolio Specialist

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

Mizuho Bank, Ltd.,

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Raymond Ventura

 

 

Name:

Raymond Ventura

 

 

Title:

Managing Director

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

MUFG BANK, LTD. (formerly known as THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.)

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Lillian Kim

 

 

Name:

Lillian Kim

 

 

Title:

Director

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

National Westminster Bank Plc,

 

(Name of Institution)

 

 

 

 

 

By:

/s/ Oliver Kelly

 

 

Name:

Oliver Kelly

 

 

Title:

Associate Director

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

¨                                    The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

People’s United Bank, National Association

 

(Name of Institution)

 

 

 

 

 

By:

/s/ James Riley

 

 

Name:

James Riley

 

 

Title:

Senior Vice President

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

PNC BANK, NATIONAL ASSOCIATION

 

(Name of Institution)

 

 

 

 

By:

/s/ Philip K. Liebscher

 

 

Name:

Philip K. Liebscher

 

 

Title:

Senior Vice President

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

o                                    The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

Provident Bank

 

(Name of Institution)

 

 

 

 

By:

/s/ Steven DeLuise

 

 

Name:

Steven DeLuise

 

 

Title:

Senior Vice President

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

Royal Bank of Canada

 

(Name of Institution)

 

 

 

 

By:

/s/ Kamran Khan

 

 

Name:

Kamran Khan

 

 

Title:

Authorized Signatory

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

o                                    The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

Signature Bank,

 

(Name of Institution)

 

 

 

 

By:

/s/ Eric Rubin

 

 

Name:

Eric Rubin

 

 

Title:

Vice President

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

o                                    The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

State Bank of India, New York Branch,

 

(Name of Institution)

 

 

 

 

By:

/s/ Niraj Kumar Panda

 

 

Name:

Niraj Kumar Panda

 

 

Title:

VP & Head (Credit Management Cell)

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

SunTrust Bank

 

(Name of Institution)

 

 

 

 

By:

/s/ David Bennett

 

 

Name:

David Bennet

 

 

Title:

Director

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

o                                    The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

TD Bank, N.A.

 

(Name of Institution)

 

 

 

 

By:

/s/ Shreya Shah

 

 

Name:

Shreya Shah

 

 

Title:

Senior Vice President

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

o                                    The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

The Bank of East Asia, New York Branch,

 

(Name of Institution)

 

 

 

 

By:

/s/ James Hua

 

 

Name:

James Hua

 

 

Title:

SVP

 

 

 

 

 

By:

/s/ Kitty Sin

 

 

Name:

Kitty Sin

 

 

Title:

SVP

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

THE TORONTO-DOMINION BANK, NEW YORK BRANCH,

 

(Name of Institution)

 

 

 

 

By:

/s/ Annie Dorval

 

 

Name:

Annie Dorval

 

 

Title:

Authorized Signatory

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

o                                    The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

 

TriState Capital Bank

 

(Name of Institution)

 

 

 

 

By:

/s/ Ellen Frank

 

 

Name:

Ellen Frank

 

 

Title:

Senior Vice President

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

o                                    The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

Trustmark National Bank

 

(Name of Institution)

 

 

 

 

By:

/s/ Robert Whartenby

 

 

Name:

Robert Whartenby

 

 

Title:

FVP

 

[Signature Page to 2018 October Amendment]

 


 

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

 

2023 Term A Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide (i) 2023 Initial Term A Loans in the aggregate principal amount of its 2023 Initial Term A Loan Commitments and (ii) 2023 Delayed Draw Term A Loan Commitments in the aggregate principal amount of its 2023 Delayed Draw Term A Loan Commitments, in each case as set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

2023 Revolving Credit Lenders:

 

x                                  The undersigned hereby irrevocably and unconditionally consents to this Amendment (including the Required Lender Amendments) and agrees to provide the 2023 Revolving Credit Commitments, if any, in the aggregate principal amount set forth in Schedule 1.1(c) attached as Exhibit B to the Amendment opposite the undersigned’s name.

 

 

Wells Fargo Bank, N.A.

 

(Name of Institution)

 

 

 

 

By:

/s/ Brian Buck

 

 

Name:

Brian Buck

 

 

Title:

Managing Director

 

[Signature Page to 2018 October Amendment]

 


 

EXHIBIT A

 


 

MARKED VERSION REFLECTING CHANGES

PURSUANT TO 2018 OCTOBER AMENDMENT

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

 

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

 


(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”), the 2012 September Joinder Agreement, dated as of September 27, 2012 (the “2012 September Joinder Agreement”), the 2013 February Joinder Agreement, dated as of February 13, 2013 (the “2013 February Joinder Agreement”), the 2013 April Repricing Amendment, dated April 10, 2013 (the “2013 April Repricing Amendment”), the 2013 Second April Repricing Amendment, dated April 15, 2013 (the “2013 Second April Repricing Amendment”), the 2014 January Extension and Repricing Amendment, dated January 30, 2014 (the “2014 January Extension and Repricing Amendment”), the 2014 July Repricing Amendment, dated July 18, 2014 (the “2014 July Repricing Amendment”), the 2015 May Amendment, dated June 2, 2015 (the “2015 May Amendment”), the 2015 June Joinder Agreement, dated July 10, 2015 (the “2015 June Joinder Agreement”), the 2015 November Joinder Agreement, dated November 24, 2015 (the “2015 November Joinder Agreement”),  the 2016 March Extension Amendment and Joinder, dated April 13, 2016 (the “2016 March Extension Amendment and Joinder”), the 2016 May Extension Amendment and Joinder, dated June 2, 2016 (the “2016 May Extension Amendment and Joinder”), the 2016 October Joinder, dated October 14, 2016 (the “2016 October Joinder”), the 2016 November Joinder Agreement, dated December 5, 2016 (the “2016 November Joinder”), the 2017 January Joinder Agreement, dated January 23, 2017 (the “2017 January Joinder”), the 2017 April Joinder Agreement, dated April 26, 2017 (the “2017 April Joinder”), the 2017 June Joinder Agreement, dated June 14, 2017 (the “2017 June Joinder”), the 2017 November Joinder Agreement, dated November 15, 2017 (the “2017 November Joinder”), the 2017 November Second Joinder Agreement, dated November 29, 2017 (the “2017 November Second Joinder”) and the 2018 October Amendment, dated October 26, 2018 (the “2018 October Amendment”); such amendments and joinder agreements, collectively the “Amendment and Joinder Agreements”).  The 2007 ARCA, conformed to reflect the Amendment and Joinder Agreements, 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 or the Amendment and Joinder Agreements, the 2007 ARCA and the Amendment and Joinder Agreements shall control.

 


 

TABLE OF CONTENTS

 

 

 

 

Page

 

 

 

 

SECTION 1.

 

Definitions

3

1.1.

 

Defined Terms

3

1.2.

 

Other Interpretive Provisions

68

1.3.

 

Accounting Terms

68

1.4.

 

Rounding

68

1.5.

 

References to Agreements, Laws, Etc.

69

1.6.

 

Exchange Rates

69

 

 

 

 

SECTION 2.

 

Amount and Terms of Credit

69

2.1.

 

Commitments

69

2.2.

 

Minimum Amount of Each Borrowing; Maximum Number of Borrowings

76

2.3.

 

Notice of Borrowing

77

2.4.

 

Disbursement of Funds

78

2.5.

 

Repayment of Loans; Evidence of Debt

79

2.6.

 

Conversions and Continuations

84

2.7.

 

Pro Rata Borrowings

85

2.8.

 

Interest

85

2.9.

 

Interest Periods

86

2.10.

 

Increased Costs, Illegality, Etc.

87

2.11.

 

Compensation

88

2.12.

 

Change of Lending Office

89

2.13.

 

Notice of Certain Costs

89

2.14.

 

Incremental Facilities

89

2.15.

 

Permitted Debt Exchanges

94

 

 

 

 

SECTION 3.

 

Letters of Credit

95

3.1.

 

Letters of Credit

95

3.2.

 

Letter of Credit Requests

97

3.3.

 

Letter of Credit Participations

98

3.4.

 

Agreement to Repay Letter of Credit Drawings

101

3.5.

 

Increased Costs

102

3.6.

 

New or Successor Letter of Credit Issuer

103

3.7.

 

Role of Letter of Credit Issuer

104

3.8.

 

Cash Collateral

104

3.9.

 

Applicability of ISP and UCP

105

3.10.

 

Conflict with Issuer Documents

105

3.11.

 

Letters of Credit Issued for Restricted Subsidiaries

105

 

 

 

 

SECTION 4.

 

Fees; Commitments

105

4.1.

 

Fees

105

4.2.

 

Voluntary Reduction of Revolving Credit Commitments

107

4.3.

 

Mandatory Termination of Commitments

108

 

 

 

 

SECTION 5.

 

Payments

108

5.1.

 

Voluntary Prepayments

108

5.2.

 

Mandatory Prepayments

109

5.3.

 

Method and Place of Payment

113

 

i


 

 

 

 

Page

 

 

 

 

5.4.

 

Net Payments

113

5.5.

 

Computations of Interest and Fees

116

5.6.

 

Limit on Rate of Interest

116

 

 

 

 

SECTION 6.

 

Conditions Precedent to Initial Borrowing

116

6.1.

 

Credit Documents

117

6.2.

 

Collateral

117

6.3.

 

Legal Opinions

117

6.4.

 

[Reserved]

117

6.5.

 

Equity Investments

118

6.6.

 

Closing Certificates

118

6.7.

 

Authorization of Proceedings of Each Credit Party

118

6.8.

 

Fees

118

6.9.

 

Representations and Warranties

118

6.10.

 

Solvency Certificate

118

6.11.

 

Merger

118

6.12.

 

Patriot Act

118

 

 

 

 

SECTION 7.

 

Conditions Precedent to All Credit Events

119

7.1.

 

No Default; Representations and Warranties

119

7.2.

 

Notice of Borrowing; Letter of Credit Request

119

 

 

 

 

SECTION 8.

 

Representations, Warranties and Agreements

119

8.1.

 

Corporate Status

119

8.2.

 

Corporate Power and Authority

120

8.3.

 

No Violation

120

8.4.

 

Litigation

120

8.5.

 

Margin Regulations

120

8.6.

 

Governmental Approvals

120

8.7.

 

Investment Company Act

120

8.8.

 

True and Complete Disclosure

121

8.9.

 

Financial Condition; Financial Statements

121

8.10.

 

Tax Matters

121

8.11.

 

Compliance with ERISA

122

8.12.

 

Subsidiaries

122

8.13.

 

Intellectual Property

122

8.14.

 

Environmental Laws

123

8.15.

 

Properties

123

8.16.

 

Solvency

123

 

 

 

 

SECTION 9.

 

Affirmative Covenants

123

9.1.

 

Information Covenants

123

9.2.

 

Books, Records and Inspections

126

9.3.

 

Maintenance of Insurance

126

9.4.

 

Payment of Taxes

127

9.5.

 

Consolidated Corporate Franchises

127

9.6.

 

Compliance with Statutes, Regulations, Etc.

127

9.7.

 

ERISA

127

9.8.

 

Maintenance of Properties

128

9.9.

 

Transactions with Affiliates

128

 

ii


 

 

 

 

Page

 

 

 

 

9.10.

 

End of Fiscal Years; Fiscal Quarters

128

9.11.

 

Additional Guarantors and Grantors

129

9.12.

 

Pledge of Additional Stock and Evidence of Indebtedness

129

9.13.

 

Use of Proceeds

129

9.14.

 

Further Assurances

130

 

 

 

 

SECTION 10.

 

Negative Covenants

131

10.1.

 

Limitation on Indebtedness

131

10.2.

 

Limitation on Liens

137

10.3.

 

Limitation on Fundamental Changes

139

10.4.

 

Limitation on Sale of Assets

141

10.5.

 

Limitation on Investments

143

10.6.

 

Limitation on Dividends

146

10.7.

 

Limitations on Debt Payments and Amendments

148

10.8.

 

Limitations on Sale Leasebacks

149

10.9.

 

Changes in Business

149

10.10.

 

Consolidated Senior Secured Debt to Consolidated EBITDA Ratio

149

 

 

 

 

SECTION 11.

 

Events of Default

150

11.1.

 

Payments

150

11.2.

 

Representations, Etc.

150

11.3.

 

Covenants

150

11.4.

 

Default Under Other Agreements

150

11.5.

 

Bankruptcy, Etc.

151

11.6.

 

ERISA

151

11.7.

 

Guarantee

151

11.8.

 

Pledge Agreement

152

11.9.

 

Security Agreement

152

11.10.

 

Mortgages

152

11.11.

 

Judgments

152

11.12.

 

Change of Control

152

11.13.

 

Subordination

152

11.14.

 

Application of Proceeds

153

11.15.

 

Right to Cure

153

 

 

 

 

SECTION 12.

 

The Agents

154

12.1.

 

Appointment

154

12.2.

 

Delegation of Duties

155

12.3.

 

Exculpatory Provisions

155

12.4.

 

Reliance by Agents

155

12.5.

 

Notice of Default

156

12.6.

 

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

156

12.7.

 

Indemnification

156

12.8.

 

Agents in Their Individual Capacities

157

12.9.

 

Successor Agents

157

12.10.

 

Withholding Tax

158

12.11.

 

[Reserved]

158

12.12.

 

Agents Under Security Documents and Guarantee

158

12.13.

 

Right to Realize on Collateral and Enforce Guarantee

159

 

iii


 

 

 

 

Page

 

 

 

 

SECTION 13.

 

Miscellaneous

159

13.1.

 

Amendments, Waivers and Releases

159

13.2.

 

Notices

163

13.3.

 

No Waiver; Cumulative Remedies

163

13.4.

 

Survival of Representations and Warranties

164

13.5.

 

Payment of Expenses; Indemnification

164

13.6.

 

Successors and Assigns; Participations and Assignments

165

13.7.

 

Replacements of Lenders Under Certain Circumstances

169

13.8.

 

Adjustments; Set-off

170

13.9.

 

Counterparts

170

13.10.

 

Severability

170

13.11.

 

Integration

170

13.12.

 

GOVERNING LAW

170

13.13.

 

Submission to Jurisdiction; Waivers

171

13.14.

 

Acknowledgments

171

13.15.

 

WAIVERS OF JURY TRIAL

172

13.16.

 

Confidentiality

172

13.17.

 

Direct Website Communications

173

13.18.

 

USA PATRIOT Act

174

13.19.

 

Judgment Currency

174

13.20.

 

Payments Set Aside

174

13.21.

 

Acknowledgements Relating to the Amendment Effective Date

175

 

SCHEDULES(2)

 

 

 

 

 

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 9.14(d)

 

Post-Closing Actions

Schedule 10.4

 

Scheduled Dispositions

Schedule 13.2

 

Notice Addresses

 

 

 

EXHIBITS

 

 

 

 

 

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

 


(2) Schedules (other than Schedule 1.1(c)) and Exhibits are not being amended, other than as shown above and below.

 

iv


 

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-3-C

 

Form of Promissory Note (2020 Revolving Credit Loans and 2020 Swingline Loans)

Exhibit K-3-D

 

Form of Promissory Note (2023 Revolving Credit Loans and 2023 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 New Dollar Term Loans)

Exhibit K-5-B

 

Form of Promissory Note (2018 New Euro Term Loans)

Exhibit K-6-A

 

Form of Promissory Note (2017 Second New Dollar Term Loans)

Exhibit K-6-B

 

Form of Promissory Note (2017 Second New Euro Term Loans)

Exhibit K-7

 

Form of Promissory Note (2018B Second New Term Loans)

Exhibit K-8-A

 

Form of Promissory Note (2021C New Dollar Term Loans)

Exhibit K-8-B

 

Form of Promissory Note (2021 New Euro Term Loans)

Exhibit K-9-A

 

Form of Promissory Note (2022 Dollar Term Loans)

Exhibit K-9-B

 

Form of Promissory Note (2022 Euro Term Loans)

Exhibit K-10

 

Form of Promissory Note (2020 Term A Loans)

Exhibit K-11

 

Form of Promissory Note (2024 New Dollar Term Loans)

Exhibit K-12

 

Form of Promissory Note (2022D New Dollar Term Loans)

Exhibit K-13

 

Form of Promissory Note (2024A New Dollar Term Loans)

Exhibit K-14

 

Form of Promissory Note (2023 Term A Loans)

Exhibit L

 

Form of First Lien Intercreditor Agreement

Exhibit M

 

Form of Second Lien Intercreditor Agreement

 

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 pursuant to the Credit Documents shall continue unaltered to secure, guarantee, support and otherwise benefit the

 

2


 

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 April Repricing Amendment” shall mean the 2013 April Repricing Amendment dated April 10, 2013 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the 2017 New Term Lender party thereto.

 

2013 April Repricing Effective Date” shall mean the “Repricing Amendment Effective Date” as defined in the 2013 April Repricing Amendment.

 

2013 February Joinder Agreement” shall mean the Joinder Agreement dated February 13, 2013 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the lender of 2018B Term Loans party thereto.

 

2013 February Joinder Effective Date” shall have the meaning provided in the 2013 February Joinder Agreement.

 

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.

 

4


 

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 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 Second April Repricing Amendment” shall mean the 2013 Second April Repricing Amendment dated April 15, 2013 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the 2018B New Term Lender party thereto.

 

2013 Second April Repricing Effective Date” shall mean the “Repricing Amendment Effective Date” as defined in the 2013 Second April Repricing Amendment.

 

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

 

2014 January Arranging Term Lender” has the meaning provided in the 2014 January Extension and Repricing Amendment.

 

2014 January Extension and Repricing Amendment” shall mean the 2014 January Extension and Repricing Amendment dated January 30, 2014 among First Data Corporation, the other

 

5


 

Credit Parties party thereto, the Administrative Agent and the 2014 January Arranging Term Lender party thereto.

 

2014 January Amendment Effective Date” shall mean the “Amendment Effective Date” as defined in the 2014 January Extension and Repricing Amendment.

 

2014 July Repricing Amendment” shall mean the 2014 July Repricing Amendment dated July 18, 2014 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the 2018 New Term Lender party thereto and the 2018B Second New Term Lender party thereto.

 

2014 July Repricing Effective Date” shall mean the “Repricing Amendment Effective Date” as defined in the 2014 July Repricing Amendment.

 

2014 New Equity Holders” shall mean such Persons that are a party to stock purchase agreements or subscription agreements with respect to the purchase or subscription of class B common stock, par value $0.01 per share, (or other Equity Interests from the conversion thereof) of the parent of the Borrower on or about July 11, 2014, and each of their respective Affiliates but not including, however, any portfolio companies of any of the foregoing.

 

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.

 

2015 May Amendment” shall mean the 2015 May Amendment dated June 2, 2015 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer, the Swingline Lender, the 2020 Revolving Credit Lenders and the other Lenders party thereto.

 

2015 May Effective Date” shall mean the “Amendment Effective Date” as defined in the 2015 May Amendment.

 

2015 June Joinder Agreement” shall mean the Joinder Agreement dated July 10, 2015 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the lender of 2022 Term Loans party thereto.

 

6


 

2015 June Joinder Effective Date” shall have the meaning provided in the 2015 June Joinder Agreement.

 

2015 November Joinder Agreement” shall mean the Joinder Agreement dated November 24, 2015 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the lender of 2022 Term Loans party thereto.

 

2015 November Joinder Effective Date” shall have the meaning provided in the 2015 November Joinder Agreement.

 

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.

 

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

 

2016 March Extension Amendment and Joinder” shall mean the 2016 March Extension Amendment and Joinder dated April 13, 2016, among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent and the lender of 2021B New Dollar Term Loans party thereto.

 

2016 March Amendment Effective Date” shall mean the “Amendment Effective Date” as defined in the 2016 March Extension Amendment and Joinder.

 

2016 May Extension Amendment and Joinder” shall mean the 2016 May Extension Amendment and Joinder dated June 2, 2016, among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the lender of 2022B New Dollar Term Loans party thereto and the lender of 2022B New Euro Term Loans party thereto.

 

2016 May Amendment Effective Date” shall mean the “Amendment Effective Date” as defined in the 2016 May Extension Amendment and Joinder.

 

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 November Joinder Agreement” shall mean the 2016 November Joinder Agreement dated December 5, 2016 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the 2022 New Term Lender party thereto.

 

2016 November Joinder Effective Date” shall have the meaning provided in the 2016 November Joinder Agreement.

 

2016 October Joinder Agreement” shall mean the 2016 October Joinder Agreement dated October 14, 2016 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the 2021 New Term Lender party thereto.

 

2016 October Joinder Effective Date” shall have the meaning provided in the 2016 October Joinder Agreement.

 

7


 

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).

 

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).

 

8


 

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. For the avoidance of doubt, the 2015 May Effective Date shall be deemed to be the 2016 Revolving Final Date.

 

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

 

2017 April Joinder Agreement” shall mean the 2017 April Joinder Agreement dated April 26, 2017 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the 2024 New Dollar Term Lender party thereto.

 

2017 April Joinder Effective Date” shall have the meaning provided in the 2017 April Joinder Agreement.

 

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 January Joinder Agreement” shall mean the 2017 January Joinder Agreement dated January 23, 2017 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the 2020 Term A Lenders party thereto.

 

2017 January Joinder Effective Date” shall have the meaning provided in the 2017 January Joinder Agreement.

 

2017 June Joinder Agreement” shall mean the 2017 June Joinder Agreement dated June 14, 2017 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the 2022D New Dollar Term Lender party thereto.

 

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2017 June Joinder Effective Date” shall have the meaning provided in the 2017 June Joinder Agreement.

 

2017 New Dollar Term Loan” shall mean a Replacement Term Loan denominated in Dollars which replaced the 2017 Dollar Term Loans and 2017B Dollar Term Loans on the 2013 April Repricing Effective Date pursuant to the 2013 April Repricing Amendment. The aggregate amount of the 2017 New Dollar Term Loans as of the 2013 April Repricing Effective Date is $2,435,819,506.50.

 

2017 New Euro Term Loan” shall mean a Replacement Term Loan denominated in Euro which replaced the 2017 Euro Term Loans and 2017B Euro Term Loans on the 2013 April Repricing Effective Date pursuant to the 2013 April Repricing Amendment. The aggregate amount of the 2017 New Euro Term Loans as of the 2013 April Repricing Effective Date is €178,437,058.78.

 

2017 New Term Lender” shall mean, (a) as of the 2013 April Repricing Effective Date, the Term Lender that is party to the 2013 April Repricing Amendment and (b) after the 2013 Repricing Effective Date, each Lender that holds a 2017 New Term Loan.

 

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

 

2017 November Joinder Agreement” shall mean the 2017 November Joinder Agreement dated November 15, 2017 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the 2024A New Dollar Term Lender party thereto.

 

2017 November Joinder Effective Date” shall have the meaning provided in the 2017 November Joinder Agreement.

 

2017 November Second Joinder Agreement” shall mean the 2017 November Second Joinder Agreement dated November 29, 2017 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the Lenders party thereto.

 

2017 November Second Joinder Effective Date” shall have the meaning provided in the 2017 November Second Joinder Agreement.

 

2017 Second New Dollar Term Loan” shall mean a Replacement Term Loan denominated in Dollars which replaced 2017 New Dollar Term Loans on the 2014 January Amendment Effective Date pursuant to the 2014 January Extension and Repricing Amendment. The aggregate amount of the 2017 Second New Dollar Term Loans as of the 2014 January Amendment Effective Date is $1,431,473,598.63.

 

2017 Second New Euro Term Loan” shall mean a Replacement Term Loan denominated in Euro which replaced 2017 New Euro Term Loans on the 2014 January Amendment Effective Date pursuant to the 2014 January Extension and Repricing Amendment. The aggregate amount of the 2017 Second New Euro Term Loans as of the 2014 January Amendment Effective Date is €24,662,949.79.

 

2017 Second New Term Lender” shall mean, (a) as of the 2014 January Amendment Effective Date, the 2014 January Arranging Term Lender and (b) after the 2014 January Amendment Effective Date, each Lender that holds a 2017 Second New Term Loan.

 

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

 

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

 

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.

 

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

 

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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.

 

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 Existing Letters of Credit” shall have the meaning provided in Section 3.3(g).

 

2018 New Dollar Term Loan” shall mean the (i) Replacement Term Loan denominated in Dollars which replaced the 2018 Dollar Term Loans on the 2014 July Repricing Effective Date pursuant to the 2014 July Repricing Amendment and (ii) Additional 2018 New Dollar Term Loan made on the 2014 July Repricing Effective Date. The aggregate amount of the 2018 New Dollar Term Loans as of the 2014 July Repricing Effective Date is $4,600,017,089.16.

 

2018 New Euro Term Loan” shall mean a Replacement Term Loan denominated in Euro which replaced the 2018 Euro Term Loans on the 2014 July Repricing Effective Date pursuant to the 2014 July Repricing Amendment. The aggregate amount of the 2018 New Euro Term Loans as of the 2014 July Repricing Effective Date is €311,197,526.32.

 

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2018 New Term Lender” shall mean, (a) as of the 2014 July Repricing Effective Date, the Term Lender that is party to the 2014 July Repricing Amendment and (b) after the 2014 July Repricing Effective Date, each Lender that holds a 2018 New Term Loan.

 

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

 

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

 

2018 October Amendment” shall mean the 2018 October Amendment and Joinder Agreement dated October 26, 2018 among First Data Corporation, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer, the Swingline Lender, the 2023 Revolving Credit Lenders and the 2023 Term A Lenders.

 

2018 October Amendment Effective Date” shall mean the “2018 October Amendment Effective Date” as defined in the 2018 October Amendment.

 

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 New Term Loan” shall mean a Replacement Term Loan denominated in Dollars which replaced the 2018B Term Loans on the 2013 Second April Repricing Effective Date pursuant to the 2013 Second April Repricing Amendment. The aggregate amount of the 2018B New Term Loans as of the 2013 Second April Repricing Effective Date is $1,008,000,000.00.

 

2018B New Term Lender” shall mean, (a) as of the 2013 Second April Repricing Effective Date, the Term Lender that is party to the 2013 Second April Repricing Amendment and (b) after the 2013 Second April Repricing Effective Date, each Lender that holds a 2018B New Term Loan.

 

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

 

2018B Second New Term Loan” shall mean a Replacement Term Loan denominated in Dollars which replaced the 2018B New Term Loans on the 2014 July Repricing Effective Date pursuant to

 

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the 2014 July Repricing Amendment. The aggregate amount of the 2018B Second New Term Loans as of the 2014 July Repricing Effective Date is $1,008,000,000.00.

 

2018B Second New Term Lender” shall mean, (a) as of the 2014 July Repricing Effective Date, the Term Lender that is party to the 2014 July Repricing Amendment and (b) after the 2014 July Repricing Effective Date, each Lender that holds a 2018B Second New Term Loan.

 

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

 

2018B Term Lender” shall mean each Lender that holds a 2018B Term Loan.

 

2018B Term Loan” shall mean the term loans made pursuant to the 2012 September Joinder Agreement and the 2013 February Joinder Agreement.  The aggregate amount of the 2018B Term Loans as of the 2013 February Joinder Effective Date is $1,008,000,000.00.

 

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.

 

2020 Available Commitment” shall mean an amount equal to the excess, if any, of (a) the amount of the Total 2020 Revolving Credit Commitment over (b) the sum of (i) the aggregate Dollar Equivalent principal amount of all 2020 Revolving Credit Loans (but not Swingline Loans) then outstanding and (ii) the aggregate Letters of Credit Outstanding under the 2020 Revolving Credit Commitment.

 

2020 Letter of Credit Fee” shall have the meaning provided in Section 4.1(c)(iii).

 

2020 New Term A Loan” shall mean the Dollar denominated term loans made pursuant to the 2017 November Second Joinder Agreement.  The aggregate amount of the 2020 New Term A Loans as of the 2017 November Second Joinder Effective Date is $250,000,000.00.

 

2020 Revolving Credit Commitment” shall mean, (a) with respect to each 2020 Revolving Credit Lender on the 2015 May Effective Date, the amount set forth on Schedule 1.1(c) to the 2015 May Amendment under the heading “2020 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 2020 Revolving Credit Commitment that was held by a 2020 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 2020 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 2020 Revolving Credit Lender that increases its 2020 Revolving Credit Commitment or becomes a New Revolving Loan Lender with respect to its 2020 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 2015 May Effective Date, the aggregate 2020 Revolving Credit Commitments are $1,250,000,000.

 

2020 Revolving Credit Commitment Percentage” shall mean at any time, for each 2020 Revolving Credit Lender, the percentage obtained by dividing (a) such Lender’s 2020 Revolving Credit Commitment at such time by (b) the aggregate amount of the 2020 Revolving Credit Commitments

 

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at such time; provided that at any time when the 2020 Revolving Credit Commitment shall have been terminated, each Lender’s 2020 Revolving Credit Commitment Percentage shall be the percentage obtained by dividing (a) such Lender’s 2020 Revolving Credit Exposure at such time by (b) the 2020 Revolving Credit Exposure of all Lenders at such time.

 

2020 Revolving Credit Exposure” shall mean, with respect to any 2020 Revolving Credit Lender at any time, the sum of (a) the aggregate Dollar Equivalent amount of the principal amount of 2020 Revolving Credit Loans of such Lender then outstanding, (b) such Lender’s 2020 Letter of Credit Exposure at such time in respect of such Lender’s 2020 Revolving Credit Commitments and (c) such Lender’s 2020 Revolving Credit Commitment Percentage of the aggregate principal amount of all outstanding 2020 Swingline Loans at such time in respect of such Lender’s 2020 Revolving Credit Commitments.

 

2020 Revolving Credit Facility” shall mean the revolving credit facility represented by the 2020 Revolving Credit Commitments.

 

2020 Revolving Credit Lender” shall mean (a) as of the 2015 May Effective Date, each 2020 Revolving Credit Lender with respect to any 2020 Revolving Credit Commitment of such Lender (or a portion thereof) whose name and the aggregate principal amount of its 2020 Revolving Credit Commitment are set forth on Schedule 1.1(c) to the 2015 May Amendment under the heading “2020 Revolving Credit Commitment” and (b) after the 2015 May Effective Date, each Lender that holds a 2020 Revolving Credit Commitment.

 

2020 Revolving Credit Loan” shall have the meaning provided in Section 2.1(c).

 

2020 Revolving Credit Maturity Date” shall mean the earliest of (i) December 24, 2016 (or, if such date is not a Business Day, the next preceding Business Day), to the extent that on such date more than $750.0 million in aggregate principal amount of the Borrower’s 2017 Second New Term Loans are outstanding, (ii) December 24, 2017 (or, if such date is not a Business Day, the next preceding Business Day), to the extent that on such date more than $750.0 million in aggregate principal amount of the Borrower’s 2018 New Term Loans are outstanding, (iii) June 26, 2018 (or, if such date is not a Business Day, the next preceding Business Day), to the extent that on such date more than $750.0 million in aggregate principal amount of the Borrower’s 2018B Second New Term Loans are outstanding, (iv) March 17, 2019 (or, if such date is not a Business Day, the next preceding Business Day), to the extent that on such date more than $750.0 million in aggregate principal amount of the Borrower’s 7.375% senior secured notes due 2019 are outstanding and (v) June 2, 2020 (or, if such date is not a Business Day, the next preceding Business Day).

 

2020 Revolving Credit Multicurrency Sublimit” at any date, the lesser of (x) $500,000,000 and (y) the aggregate 2020 Revolving Credit Commitments at such date.

 

2020 Revolving Final Date” shall mean, with respect to 2020 Revolving Credit Commitments and Letters of Credit, the date on which the 2020 Revolving Credit Commitments shall have terminated, no 2020 Revolving Credit Loans shall be outstanding and the 2020 Revolving Credit Lenders shall have no more Letter of Credit Exposure. For the avoidance of doubt, the 2018 October Amendment Effective Date shall be deemed to be the 2020 Revolving Final Date.

 

2020 Term A Lender” shall mean, (a) as of the 2017 January Joinder Effective Date, the Term Lenders that are party to the 2017 January Joinder Agreement and (b) after the 2017 January Joinder Effective Date, each Lender that holds a 2020 Term A Loan.

 

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2020 Term A Loan” shall mean the Dollar denominated term loans made pursuant to the 2017 January Joinder Agreement and the 2017 November Second Joinder Agreement.  The aggregate amount of the 2020 Term A Loans as of the 2017 November Second Joinder Effective Date is $1,501,250,000.00, which is comprised of (i) $1,251,250,000.00 of 2020 Term A Loans outstanding immediately prior to the 2017 November Second Joinder Effective Date and (ii) $250,000,000.00 of 2020 New Term A Loans made on the 2017 November Second Joinder Effective Date. For the avoidance of doubt, after giving effect to the 2017 November Second Joinder Agreement, the 2020 New Term A Loans and the existing 2020 Term A Loans shall have identical terms and constitute one Class of Term Loans.

 

2020 Term A Loan Maturity Date” shall mean June 2, 2020.

 

2020 Term A Loan Repayment Amount” shall mean (a) prior to the 2017 November Second Joinder Effective Date, the amount resulting from the calculation contemplated in Section 2.5(b)(bb) and (b) thereafter, the amount resulting from the calculation contemplated in Section 2.5(b)(cc).

 

2020 Term A Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

 

2020 Swingline Loan” shall mean any Swingline Loan made pursuant to the 2020 Revolving Credit Commitments.

 

2021 Dollar Term Loan” shall mean a 2021 Extended Dollar Term Loan, a 2021 New Dollar Term Loan, a 2021B Extended Dollar Term Loan or a 2021B New Dollar Term Loan, as the case may be. The aggregate amount of the 2021 Dollar Term Loans as of the 2016 March Amendment Effective Date is $4,717,862,997.76, which is comprised of (i) $941,113,216.75 aggregate principal amount of 2021 Extended Dollar Term Loans, (ii) $63,232,691.85 aggregate principal amount of 2021 New Dollar Term Loans, (iii) $2,630,928,238.66 aggregate principal amount of 2021B Extended Dollar Term Loans, and (iv) $1,082,588,850.50 aggregate principal amount of 2021B New Dollar Term Loans.

 

2021 Euro Term Loan” shall mean a 2021 Extended Euro Term Loan. The aggregate amount of the 2021 Euro Term Loans as of the 2014 January Amendment Effective Date is €153,774,108.99.

 

2021 Extended Dollar Term Loan” shall have the meaning provided in the 2014 January Extension and Repricing Amendment.

 

2021 Extended Euro Term Loan” shall have the meaning provided in the 2014 January Extension and Repricing Amendment.

 

2021 New Dollar Term Loan” shall have the meaning provided in the 2014 January Extension and Repricing Amendment.

 

2021 New Euro Term Loan” shall mean the Euro denominated term loans made pursuant to the 2016 October Joinder Agreement.  The aggregate amount of the 2021 New Euro Term Loans as of the 2016 October Joinder Effective Date is €153,774,108.99.

 

2021 New Term Lender” shall mean, (a) as of the 2016 October Joinder Effective Date, the Term Lender that is party to the 2016 October Joinder Agreement and (b) after the 2016 October Joinder Effective Date, each Lender that holds a 2021 New Term Loan.

 

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2021 New Term Loan” shall mean a 2021C New Dollar Term Loan or a 2021 New Euro Term Loan, as the case may be.

 

2021 Term Lender” shall mean each Lender that holds a 2021 Term Loan.

 

2021 Term Loan” shall mean a 2021 Dollar Term Loan or a 2021 Euro Term Loan, as the case may be.

 

2021 Term Loan Facility” shall mean the 2021 Term Loans.

 

2021 Term Loan Maturity Date” shall mean March 24, 2021 or, if such date is not a Business Day, the next preceding Business Day.

 

2021B Extended Dollar Term Loan” shall have the meaning provided in the 2016 March Extension Amendment and Joinder.

 

2021B New Dollar Term Loan” shall have the meaning provided in the 2016 March Extension Amendment and Joinder.

 

2021C New Dollar Term Loan” shall mean the Dollar denominated term loans made pursuant to the 2016 October Joinder Agreement.  The aggregate amount of the 2021C New Dollar Term Loans as of the 2016 October Joinder Effective Date is $4,267,862,997.76.

 

2022 Dollar Term Loan” shall mean the Dollar denominated term loans made pursuant to the 2015 June Joinder Agreement, the 2015 November Joinder Agreement and the 2016 May Extension Amendment and Joinder.  The aggregate amount of the 2022 Dollar Term Loans as of the 2016 May Amendment Effective Date is $2,983,000,000.00, which is comprised of (i) $725,000,000 aggregate principal amount of 2022 Dollar Term Loans made pursuant to the 2015 June Joinder Agreement, (ii) $1,250,000,000 aggregate principal amount of 2022 Dollar Term Loans made pursuant to the 2015 November Joinder Agreement, (iii) $691,801,791.54 aggregate principal amount of 2022B Extended Dollar Term Loans made pursuant to the 2016 May Extension Amendment and Joinder, and (iv) $316,198,208.46 aggregate principal amount of 2022B New Dollar Term Loans made pursuant to the 2016 May Extension Amendment and Joinder.

 

2022 Euro Term Loan” shall mean the Euro denominated term loans made pursuant to the 2015 June Joinder Agreement, the 2015 November Joinder Agreement and the 2016 May Extension Amendment and Joinder.  The aggregate amount of the 2022 Euro Term Loans as of the 2016 May Amendment Effective Date is €761,197,526.32, which is comprised of (i) €250,000,000 aggregate principal amount of 2022 Euro Term Loans made pursuant to the 2015 June Joinder Agreement, (ii) €200,000,000 aggregate principal amount of 2022 Euro Term Loans made pursuant to the 2015 November Joinder Agreement, (iii) €226,244,127.71 aggregate principal amount of 2022B Extended Euro Term Loans made pursuant to the 2016 May Extension Amendment and Joinder, and (iv) €84,953,398.61 aggregate principal amount of 2022B New Euro Term Loans made pursuant to the 2016 May Extension Amendment and Joinder.

 

2022 New Term Lender” shall mean, (a) as of the 2016 November Joinder Effective Date, the Term Lender that is party to the 2016 November Joinder Agreement and (b) after the 2016 November Joinder Effective Date, each Lender that holds a 2022 New Term Loan.

 

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2022 New Term Loan” shall mean a 2022C New Dollar Term Loan or a 2022C New Euro Term Loan, as the case may be.

 

2022B Extended Dollar Term Loan” shall have the meaning provided in the 2016 May Extension Amendment and Joinder.

 

2022B Extended Euro Term Loan” shall have the meaning provided in the 2016 May Extension Amendment and Joinder.

 

2022B New Dollar Term Loan” shall have the meaning provided in the 2016 May Extension Amendment and Joinder.

 

2022B New Euro Term Loan” shall have the meaning provided in the 2016 May Extension Amendment and Joinder.

 

2022C New Dollar Term Loan” shall mean the Dollar denominated term loans made pursuant to the 2016 November Joinder Agreement.  The aggregate amount of the 2022C New Dollar Term Loans as of the 2016 November Joinder Effective Date is $2,783,000,000.00.

 

2022C New Euro Term Loan” shall mean the Euro denominated term loans made pursuant to the 2016 November Joinder Agreement.  The aggregate amount of the 2022C New Euro Term Loans as of the 2016 November Joinder Effective Date is €761,197,525.32.

 

2022D New Dollar Term Lender” shall mean, (a) as of the 2017 June Joinder Effective Date, the Term Lender that is party to the 2017 June Joinder Agreement and (b) after the 2017 June Joinder Effective Date, each Lender that holds a 2022D New Dollar Term Loan.

 

2022D New Dollar Term Loan” shall mean the Dollar denominated term loans made pursuant to the 2017 June Joinder Agreement.  The aggregate amount of the 2022D New Dollar Term Loans as of the 2017 June Joinder Effective Date is $3,758,000,000.00.

 

2022 Term Lender” shall mean each Lender that holds a 2022 Term Loan.

 

2022 Term Loan” shall mean a 2022 Dollar Term Loan or a 2022 Euro Term Loan, as the case may be.

 

2022 Term Loan Maturity Date” shall mean July 10, 2022 or, if such date is not a Business Day, the next preceding Business Day.

 

2023 Available Commitment” shall mean an amount equal to the excess, if any, of (a) the amount of the Total 2023 Revolving Credit Commitment over (b) the sum of (i) the aggregate Dollar Equivalent principal amount of all 2023 Revolving Credit Loans (but not Swingline Loans) then outstanding and (ii) the aggregate Letters of Credit Outstanding under the 2023 Revolving Credit Commitment.

 

2023 Delayed Draw Term A Lender” shall mean a 2023 Term A Lender with a 2023 Delayed Draw Term A Loan Commitment or an outstanding 2023 Delayed Draw Term A Loan.

 

2023 Delayed Draw Term A Loan” shall mean the Dollar denominated term loans to be made to Borrower by the 2023 Delayed Draw Term A Lenders under the 2023 Delayed Draw Term A Loan Commitments, pursuant to the 2018 October Amendment.

 

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2023 Delayed Draw Term A Loan Commitment” shall mean, (a) in the case of each 2023 Term A Lender that is a Lender as of the 2018 October Amendment Effective Date, the amount set forth opposite such Lender’s name on Schedule 1.1(c) attached as Exhibit B to the 2018 October Amendment as such Lender’s “2023 Delayed Draw Term A Loan Commitment” and (b) in the case of any 2023 Term A Lender that becomes a Lender after the 2018 October Amendment Effective Date, the amount specified as such Lender’s “2023 Delayed Draw Term A Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the 2023 Delayed Draw Term A Loan Commitment, in each case as may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the 2023 Delayed Draw Term A Loan Commitments as of the 2018 October Amendment Effective Date is $3,775,000,000.

 

2023 Delayed Draw Term A Loan Commitment Termination Date” shall mean December 10, 2018, or if the 2023 Delayed Draw Term A Loans are funded prior to such date, the date of such earlier funding.

 

2023 Delayed Draw Term A Loan Funding Date” means the date on which the 2023 Delayed Draw Term A Loans are funded hereunder, which (i) may be funded during the period commencing on the 2018 October Amendment Effective Date and ended on the 2023 Delayed Draw Term A Loan Commitment Termination Date and (ii) may only be funded on one occasion.

 

2023 Initial Term A Lender” shall mean, (a) as of the 2018 October Amendment Effective Date, the Term Loan Lenders that are party to the 2018 October Amendment which have 2023 Initial Term A Loan Commitments pursuant to Schedule 1.1(c) attached as Exhibit B to the 2018 October Amendment and (b) after the 2018 October Amendment Effective Date, each Lender that holds a 2023 Initial Term A Loan.

 

2023 Initial Term A Loan” shall mean the Dollar denominated term loans made pursuant to the 2018 October Amendment on the 2018 October Amendment Effective Date. The aggregate amount of the 2023 Initial Term A Loans as of the 2018 October Amendment Effective Date is $975,000,000. For the avoidance of doubt, all references in this Agreement to 2023 Initial Term A Loans shall include, at any time after the 2023 Delayed Draw Term A Loan Funding Date, the aggregate principal amount of 2023 Delayed Draw Term A Loans that have been funded hereunder.

 

2023 Initial Term A Loan Commitment” shall mean, in the case of each 2023 Term A Lender that is a Lender as of the 2018 October Amendment Effective Date, the amount set forth opposite such Lender’s name on Schedule 1.1(c) attached as Exhibit B to the 2018 October Amendment as such Lender’s “2023 Initial Term A Loan Commitment”.  The aggregate amount of the 2023 Initial Term A Loan Commitments as of the 2018 October Amendment Effective Date is $975,000,000.

 

2023 Letter of Credit Fee” shall have the meaning provided in Section 4.1(c)(iv).

 

2023 Revolving Credit Commitment” shall mean, (a) with respect to each 2023 Revolving Credit Lender on the 2018 October Amendment Effective Date, the amount set forth on Schedule 1.1(c) to the 2018 October Amendment under the heading “2023 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 2023 Revolving Credit Commitment that was held by a 2023 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 2023 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 2023 Revolving Credit Lender that increases its 2023 Revolving Credit Commitment or becomes a New

 

19


 

Revolving Loan Lender with respect to its 2023 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 2018 October Amendment Effective Date, the aggregate 2023 Revolving Credit Commitments are $1,250,000,000.

 

2023 Revolving Credit Commitment Percentage” shall mean at any time, for each 2023 Revolving Credit Lender, the percentage obtained by dividing (a) such Lender’s 2023 Revolving Credit Commitment at such time by (b) the aggregate amount of the 2023 Revolving Credit Commitments at such time; provided that at any time when the 2023 Revolving Credit Commitment shall have been terminated, each Lender’s 2023 Revolving Credit Commitment Percentage shall be the percentage obtained by dividing (a) such Lender’s 2023 Revolving Credit Exposure at such time by (b) the 2023 Revolving Credit Exposure of all Lenders at such time.

 

2023 Revolving Credit Exposure” shall mean, with respect to any 2023 Revolving Credit Lender at any time, the sum of (a) the aggregate Dollar Equivalent amount of the principal amount of 2023 Revolving Credit Loans of such Lender then outstanding, (b) such Lender’s 2023 Letter of Credit Exposure at such time in respect of such Lender’s 2023 Revolving Credit Commitments and (c) such Lender’s 2023 Revolving Credit Commitment Percentage of the aggregate principal amount of all outstanding 2023 Swingline Loans at such time in respect of such Lender’s 2023 Revolving Credit Commitments.

 

2023 Revolving Credit Facility” shall mean the revolving credit facility represented by the 2023 Revolving Credit Commitments.

 

2023 Revolving Credit Lender” shall mean (a) as of the 2018 October Amendment Effective Date, each 2023 Revolving Credit Lender with respect to any 2023 Revolving Credit Commitment of such Lender (or a portion thereof) whose name and the aggregate principal amount of its 2023 Revolving Credit Commitment are set forth on Schedule 1.1(c) to the 2018 October Amendment under the heading “2023 Revolving Credit Commitment” and (b) after the 2018 October Amendment Effective Date, each Lender that holds a 2023 Revolving Credit Commitment.

 

2023 Revolving Credit Loan” shall have the meaning provided in Section 2.1(d).

 

2023 Revolving Credit Maturity Date” shall mean the earlier of (i) April 11, 2022 (or, if such date is not a Business Day, the next preceding Business Day), to the extent that on such date more than $1,000,000,000 in aggregate principal amount of the Borrower’s 2022D New Dollar Term Loans are outstanding and (ii) October 26, 2023 (or, if such date is not a Business Day, the next preceding Business Day).

 

2023 Revolving Credit Multicurrency Sublimit” at any date, the lesser of (x) $500,000,000 and (y) the aggregate 2023 Revolving Credit Commitments at such date.

 

2023 Revolving Final Date” shall mean, with respect to 2023 Revolving Credit Commitments and Letters of Credit, the date on which the 2023 Revolving Credit Commitments shall have terminated, no 2023 Revolving Credit Loans shall be outstanding and the 2023 Revolving Credit Lenders shall have no more Letter of Credit Exposure.

 

2023 Swingline Loan” shall mean any Swingline Loan made pursuant to the 2023 Revolving Credit Commitments.

 

20


 

2023 Term A Lender” shall mean the 2023 Initial Term A Lenders and the 2023 Delayed Draw Term A Lenders.

 

2023 Term A Loans” shall mean the 2023 Initial Term A Loans and the 2023 Delayed Draw Term A Loans.

 

2023 Term A Loan Maturity Date” shall mean the earlier of (i) April 11, 2022 (or, if such date is not a Business Day, the next preceding Business Day), to the extent that on such date more than $1,000,000,000 in aggregate principal amount of the Borrower’s 2022D New Dollar Term Loans are outstanding and (ii) October 26, 2023 (or, if such date is not a Business Day, the next preceding Business Day).

 

2023 Term A Loan Repayment Amount” shall have the meaning provided in Section 2.5(b)(dd).

 

2023 Term A Loan Repayment Date” shall have the meaning provided in Section 2.5(b).”2024 New Dollar Term Lender” shall mean, (a) as of the 2017 April Joinder Effective Date, the Term Lender that is party to the 2017 April Joinder Agreement and (b) after the 2017 April Joinder Effective Date, each Lender that holds a 2024 New Dollar Term Loan.

 

2024 New Dollar Term Loan” shall mean the Dollar denominated term loans made pursuant to the 2017 April Joinder Agreement.  The aggregate amount of the 2024 New Dollar Term Loans as of the 2017 April Joinder Effective Date is $4,217,000,000.00.

 

2024 New Dollar Term Loan Maturity Date” shall mean April 26, 2024 or, if such date is not a Business Day, the next preceding Business Day.

 

2024A New Dollar Term Lender” shall mean, (a) as of the 2017 November Joinder Effective Date, the Term Lender that is party to the 2017 November Joinder Agreement and (b) after the 2017 November Joinder Effective Date, each Lender that holds a 2024A New Dollar Term Loan.

 

2024A New Dollar Term Loan” shall mean the Dollar denominated term loans made pursuant to the 2017 November Joinder Agreement.  The aggregate amount of the 2024A New Dollar Term Loans as of the 2017 November Joinder Effective Date is $3,892,000,000.

 

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

 

21


 

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 2018 New Dollar Term Loan” has the meaning provided to such term in the 2014 July Repricing Amendment.

 

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.

 

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

 

22


 

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.

 

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 either a 2020 Revolving Credit Loan or 2020 Swingline Loan, 2.50% per annum;

 

(b) with respect to each ABR Loan that is a 2021C New Dollar Term Loan, 2.00% per annum;

 

(c) with respect to each ABR Loan that is a 2017 Second New Term Loan, 2018 New Dollar Term Loan or 2018B Second New Term Loan, 2.50% per annum;

 

(d) with respect to each ABR Loan that is a 2022C New Dollar Term Loan, (i) from the 2016 November Joinder Effective Date until the delivery of Section 9.1 Financials and the related officer’s certificate for the fiscal year ending December 31, 2016, 2.00% per annum and (ii) thereafter, the rate per annum set forth below opposite the Status in effect on such day:

 

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2022C New Dollar Term Loans

 

Status

 

ABR Loans

 

Level I Status

 

2.00

%

Level II Status

 

1.75

%

 

(e) with respect to each ABR Loan that is a 2020 Term A Loan, (i) from the 2017 January Joinder Effective Date until the delivery of Section 9.1 Financials and the related officer’s certificate for the fiscal year ending December 31, 2016, 1.00% per annum and (ii) thereafter, the rate per annum set forth below opposite the Status in effect on such day:

 

2020 Term A Loans

 

Status

 

ABR Loans

 

Level I Status

 

1.00

%

Level II Status

 

0.75

%

 

(f) with respect to each ABR Loan that is a 2024A New Dollar Term Loan, 1.25% per annum;

 

(g)                                  with respect to each ABR Loan that is either a 2023 Revolving Credit Loan, 2023 Swingline Loan or a 2023 Term A Loan (including, for the avoidance of doubt, 2023 Initial Term A Loans and 2023 Delayed Draw Term A Loans), (i) from the 2018 October Amendment Effective Date until the delivery of Section 9.1 Financials and the related officer’s certificate for the fiscal quarter ending March 31, 2019, 0.50% per annum and (ii) thereafter, the rate per annum set forth below opposite the Status in effect on such day:

 

2023 Revolving Credit Loans, 2023 Swingline
Loans and 2023 Term A Loans

 

Status

 

ABR Loans

 

Level I Status

 

0.50

%

Level II Status

 

0.25

%

 

 

 

 

Level III Status

 

0.00

%

 

Notwithstanding the foregoing, during any period in which the Borrower’s corporate family rating is Ba3 (stable) or better from Moody’s (the “Target Rating”), the Applicable ABR Margin with respect to 2024 New Dollar Term Loans shall be reduced to 1.00% per annum for 2024 New Dollar Term Loans that are ABR Loans; provided that each change in the Applicable ABR Margin with respect to the 2024 New Dollar Term Loans resulting from a change in such rating shall be effective, in the case of an upgrade, commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change; provided, however, that at any time that the Target Rating is not in effect the Applicable ABR Margin for the 2024 New Dollar Term Loans shall be 1.25% per annum.

 

24


 

(gh)  with respect to each ABR Loan that is a 2022D New Dollar Term Loan, 1.25% per annum.

 

Notwithstanding the foregoing, during any period in which the Target Rating is in effect, the Applicable ABR Margin with respect to 2022D New Dollar Term Loans shall be reduced to 1.00% per annum for 2022D New Dollar Term Loans that are ABR Loans; provided that each change in the Applicable ABR Margin with respect to the 2022D New Dollar Term Loans resulting from a change in such rating shall be effective, in the case of an upgrade, commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change; provided, however, that at any time that the Target Rating is not in effect the Applicable ABR Margin for the 2022D New Dollar Term Loans shall be 1.25% per annum.

 

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 January 1, 2014 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 from January 1, 2014 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 January 1, 2014 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;

 

(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; and

 

(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

 

25


 

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 Restricted Indebtedness pursuant to subclause (2) of Section 10.7(a)(y)(i) following the 2014 July Repricing Effective Date and prior to the Applicable Amount Reference Time.

 

Applicable Equity Amount” shall mean, at any time (the “Applicable Equity Amount Reference Time”), an amount equal to:

 

(a) 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 Equity Amount Reference Time, including proceeds from the issuance of Stock or Stock Equivalents of any direct or indirect parent of the Borrower (for the avoidance of doubt the proceeds received by the Borrower from capital contributions or offerings of the Borrower’s Qualified Equity Interests arising from proceeds received by its direct or indirect parent company from the 2014 New Equity Holders shall be included in the calculation of this clause (a) regardless of any usage of any capital contribution or equity issuance component of the Applicable Amount (as defined prior to the 2014 July Repricing Effective Date) prior to the 2014 July Repricing Effective Date);

 

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

 

(i)                              the aggregate amount of Investments made pursuant to Section 10.5(g)(ii)(z), 10.5(i)(aa) or 10.5(v)(z) following the 2014 July Repricing Effective Date and prior to the Applicable Equity Amount Reference Time (with regard to Investments made pursuant to Section 10.5(g)(ii)(z), 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)(z) (or amounts loaned or advanced pursuant to Section 10.5(m) in lieu of such dividends) following the 2014 July Repricing Effective Date and prior to the Applicable Equity Amount Reference Time; and

 

(iii)                                the aggregate amount of prepayments, repurchases and redemptions of Restricted Indebtedness pursuant to subclause (3) of Section 10.7(a)(y)(i) following the 2014 July Repricing Effective Date and prior to the Applicable Equity Amount Reference Time.

 

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Applicable LIBOR Margin” shall mean, at any date:

 

(a) with respect to each LIBOR Loan that is a 2020 Revolving Credit Loan, 3.50% per annum;

 

(b) with respect to each LIBOR Loan that is a 2021 New Term Loan, 3.00% per annum;

 

(c) with respect to each LIBOR Loan that is a 2017 Second New Term Loan, 2018 New Term Loan or 2018B Second New Term Loan, 3.50% per annum; and

 

(d) with respect to each LIBOR Loan that is a 2022C New Dollar Term Loans or each 2022C New Euro Term Loan, as applicable, (i) from the 2016 November Joinder Effective Date until the delivery of Section 9.1 Financials and the related officer’s certificate for the fiscal year ending December 31, 2016, (x) with respect to 2022C New Dollar Term Loans, 3.00% per annum and (y) with respect to 2022C New Euro Term Loans, 3.25% per annum and (ii) thereafter, the rate per annum set forth below opposite the Status in effect on such day:

 

LIBOR Loans

 

Status

 

2022C New
Dollar Term
Loans

 

2022C New
Euro Term
Loans

 

Level I Status

 

3.00

%

3.25

%

Level II Status

 

2.75

%

3.00

%

 

(e) with respect to each LIBOR Loan that is a 2020 Term A Loan, (i) from the 2017 January Joinder Effective Date until the delivery of Section 9.1 Financials and the related officer’s certificate for the fiscal year ending December 31, 2016, 2.00% per annum and (ii) thereafter, the rate per annum set forth below opposite the Status in effect on such day:

 

2020 Term A Loans

 

Status

 

LIBOR Loans

 

Level I Status

 

2.00

%

Level II Status

 

1.75

%

 

(f) with respect to each LIBOR Loan that is a 2024A New Dollar Term Loan, 2.25% per annum;

 

(g)                                  with respect to each LIBOR Loan that is either a 2023 Revolving Credit Loan, 2023 Swingline Loan or a 2023 Term A Loan (including, for the avoidance of doubt, 2023 Initial Term A Loans and 2023 Delayed Draw Term A Loans), (i) from the 2018 October Amendment Effective Date until the delivery of Section 9.1 Financials and the related officer’s certificate for the fiscal quarter ending March 31, 2019, 1.50% per annum and (ii) thereafter, the rate per annum set forth below opposite the Status in effect on such day:

 

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2023 Revolving Credit Loans, 2023 Swingline
Loans and 2023 Term A Loans

 

Status

 

LIBOR Loans

 

Level I Status

 

1.50

%

Level II Status

 

1.25

%

Level III Status

 

1.00

%

 

Notwithstanding the foregoing, during any period in which the Target Rating is in effect, the Applicable LIBOR Margin with respect to 2024 New Dollar Term Loans shall be reduced to 2.00% per annum for 2024 New Dollar Term Loans that are LIBOR Loans; provided that each change in the Applicable LIBOR Margin with respect to the 2024 New Dollar Term Loans resulting from a change in such rating shall be effective, in the case of an upgrade, commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change; provided, however, that at any time that the Target Rating is not in effect the Applicable LIBOR Margin for the 2024 New Dollar Term Loans shall be 2.25% per annum.

 

(gh) with respect to each LIBOR Loan that is a 2022D New Dollar Term Loan, 2.25% per annum.

 

Notwithstanding the foregoing, during any period in which the Target Rating is in effect, the Applicable LIBOR Margin with respect to 2022D New Dollar Term Loans shall be reduced to 2.00% per annum for 2022D New Dollar Term Loans that are LIBOR Loans; provided that each change in the Applicable LIBOR Margin with respect to the 2022D New Dollar Term Loans resulting from a change in such rating shall be effective, in the case of an upgrade, commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change; provided, however, that at any time that the Target Rating is not in effect the Applicable LIBOR Margin for the 2022D New Dollar Term Loans shall be 2.25% per annum.

 

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).

 

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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.

 

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

 

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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.

 

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, 2020 Revolving Credit Loans, 2023 Revolving Credit Loans, 2018 Dollar Term Loans, 2018 Euro

 

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Term Loans, 2018 New Dollar Term Loans, 2018 New Euro Term Loans, 2018B Term Loans, 2017 Dollar Term Loans, 2017 Euro Term Loans, 2017B Dollar Term Loans, 2017B Euro Term Loans, 2017 New Dollar Term Loans, 2017 New Euro Term Loans, 2017 Second New Dollar Term Loans, 2017 Second New Euro Term Loans, 2018B New Term Loans, 2018B Second New Term Loans, 2020 Term A Loans, 2021C New Dollar Term Loans, 2021 New Euro Term Loans, 2022C New Dollar Term Loans, 2022C New Euro Term Loans, 2022D New Dollar Term Loans, 2023 Initial Term A Loans (together with the 2023 Delayed Draw Term A Loans), 2024 New Dollar Term Loans, 2024A New Dollar 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, 2020 Swingline Loans, 2023 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 2020 Revolving Credit Commitment, a 2023 Revolving Credit Commitment, a 2023 Delayed Draw Term A Loan 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 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. After the 2023 Delayed Draw Term A Loan Funding Date, the 2023 Initial Term A Loans and the 2023 Delayed Draw Term A Loans that have been funded hereunder shall be treated as a single Class under this Agreement for all purposes.

 

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 2014 July Repricing Effective 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, with respect to the 20202023 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

 

0.500.375

%

Level II Status

 

0.3750.25

%

 

Notwithstanding the foregoing, the term “Commitment Fee Rate” shall mean 0.500.375% during the period from and including the 2015 May2018 October Amendment Effective Date to but excluding the Trigger Date.

 

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Commitments” shall mean, with respect to each Lender (to the extent applicable), such Lender’s 2013 Revolving Credit Commitment, 2016 Revolving Credit Commitment, 2020 Revolving Credit Commitment, 2023 Revolving Credit Commitment, 2023 Delayed Draw Term A Loan 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.

 

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),

 

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(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 Equity Amount” pursuant to clause (a) of the definition thereof),

 

(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

 

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(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),

 

(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

 

34


 

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 Equity 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”) 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,

 

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(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

 

(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

 

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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 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.

 

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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)).

 

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

 

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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.

 

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.

 

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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 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).

 

Effective Yield” shall mean, as to any Indebtedness, the effective yield on such Indebtedness in the reasonable determination of the Administrative Agent in consultation with the Borrower and consistent with generally accepted financial practices, taking into account the applicable interest rate margins, any interest rate floors (the effect of which floors shall be determined in a manner set forth in the proviso below), or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (i) the remaining weighted average life to maturity of such Indebtedness and (ii) the four years following the date of incurrence thereof) payable generally to Lenders or other institutions providing such Indebtedness in connection with the initial primary syndication thereof, but excluding any arrangement, structuring, ticking, or other similar fees payable in connection therewith that are not generally shared with the relevant Lenders and, if applicable, consent fees for an amendment paid generally to consenting Lenders; provided that with respect to any Indebtedness that includes a “LIBOR floor” or “ABR floor,” (a) to the extent that the LIBOR Rate (with an Interest Period of three

 

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months) or ABR (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the purpose of calculating the Effective Yield and (b) to the extent that the LIBOR Rate (with an Interest Period of three months) or ABR (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield.

 

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.

 

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 

 

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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.

 

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

 

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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),

 

(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

 

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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 (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

 

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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 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

 

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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 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 thi