Exhibit 10.1

 

DEAL CUSIP NUMBER:  36250LAM6

REVOLVER CUSIP NUMBER:  36250LAN4

U.S. TERM LOAN CUSIP NUMBER:  36250LAP9

EMEA TERM LOAN CUSIP NUMBER:  36250LAQ7

 

CREDIT AGREEMENT

 

dated as of
May 31, 2018

 

among

 

GTT COMMUNICATIONS, INC.,
as the U.S. Borrower,

 

GTT COMMUNICATIONS B.V.,
as the EMEA Borrower,

 

THE LENDING INSTITUTIONS NAMED HEREIN,
as Lenders,

 

and

 

KEYBANK NATIONAL ASSOCIATION,
as LC Issuer and as Administrative Agent

 

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
KEYBANK NATIONAL ASSOCIATION,
SUNTRUST BANK,
GOLDMAN SACHS BANK USA and
MORGAN STANLEY SENIOR FUNDING, INC.,
as Syndication Agents,

 

and

 

CITIZENS BANK, NATIONAL ASSOCIATION and
ING CAPITAL LLC,
as Documentation Agents

 

CREDIT SUISSE SECURITIES (USA) LLC,
KEYBANC CAPITAL MARKETS INC.,
SUNTRUST ROBINSON HUMPHREY, INC.,
GOLDMAN SACHS BANK USA,
MORGAN STANLEY SENIOR FUNDING, INC.,
CITIZENS BANK, NATIONAL ASSOCIATION and
ING CAPITAL LLC,
as Joint Lead Arrangers and Joint Bookrunners

 

 

TABLE OF CONTENTS

 

		Page
ARTICLE I.
DEFINITION AND TERMS
Section 1.01	Certain Defined Terms	1
Section 1.02	Computation of Time Periods	58
Section 1.03	Accounting Terms	58
Section 1.04	Terms Generally	59
Section 1.05	Additional Approved Currencies	59
Section 1.06	Exchange Rates	60
Section 1.07	Swedish Terms	60
ARTICLE II.
THE TERMS OF THE CREDIT FACILITY
Section 2.01	Establishment of the Credit Facilities	61
Section 2.02	Revolving Facility	61
Section 2.03	Term Loans	61
Section 2.04	[Reserved.]	62
Section 2.05	Letters of Credit	62
Section 2.06	Notice of Borrowing	65
Section 2.07	Funding Obligations; Disbursement of Funds	66
Section 2.08	Evidence of Obligations	67
Section 2.09	Interest; Default Rate	67
Section 2.10	Conversion and Continuation of Loans	70
Section 2.11	Fees	71
Section 2.12	Termination and Reduction of Revolving Commitments	72
Section 2.13	Voluntary, Scheduled and Mandatory Prepayments of Loans	72
Section 2.14	Method and Place of Payment	77
Section 2.15	Defaulting Lenders	77
Section 2.16	Cash Collateral	79
Section 2.17	Increase in Commitments	80
Section 2.18	Revolving Loan Maturity Extension	82
Section 2.19	Term Loan Amend and Extend Transactions	83
Section 2.20	Refinancing Term Loans	85
Section 2.21	Replacement Revolving Commitments	86
Section 2.22	956 Savings	88
ARTICLE III.
INCREASED COSTS, ILLEGALITY AND TAXES
Section 3.01	Increased Costs, Illegality, etc.	88
Section 3.02	Breakage Compensation	90
Section 3.03	Net Payments	90
Section 3.04	Increased Costs to LC Issuers	94
Section 3.05	Change of Lending Office; Replacement of Lenders	94
Section 3.06	Exchange Indemnification and Increased Costs	95

 

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		Page
ARTICLE IV.
CONDITIONS PRECEDENT
Section 4.01	Conditions Precedent at Closing Date	95
Section 4.02	Conditions Precedent to All Credit Events After the Closing Date	98
Section 4.03	Conditions Satisfied	99
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.01	Corporate Status	99
Section 5.02	Corporate Power and Authority	99
Section 5.03	No Violation	99
Section 5.04	Governmental Approvals	100
Section 5.05	Litigation	100
Section 5.06	Use of Proceeds; Margin Regulations; Sanctions	100
Section 5.07	Financial Statements	101
Section 5.08	Solvency	101
Section 5.09	No Material Adverse Change	102
Section 5.10	Tax Returns and Payments	102
Section 5.11	Title to Properties, etc.	102
Section 5.12	Lawful Operations, etc.	102
Section 5.13	Environmental Matters	102
Section 5.14	Compliance with ERISA, etc.	103
Section 5.15	Intellectual Property, etc.	104
Section 5.16	Investment Company Act, etc.	104
Section 5.17	Insurance	104
Section 5.18	Centre of Main Interests and Establishments	104
Section 5.19	Security Interests, etc.	104
Section 5.20	True and Complete Disclosure	104
Section 5.21	[Reserved]	105
Section 5.22	Capitalization	105
Section 5.23	Target Acquisition Documentation	105
Section 5.24	Anti-Terrorism and Anti-Money Laundering Law Compliance	105
Section 5.25	Communications Matters	106
Section 5.26	Licenses, Approvals and Rights-of-Way	108
Section 5.27	No Immunity	108
ARTICLE VI.
AFFIRMATIVE COVENANTS
Section 6.01	Reporting Requirements	109
Section 6.02	Books, Records and Inspections	112
Section 6.03	Insurance	112
Section 6.04	Payment of Taxes and Claims	113
Section 6.05	Corporate Franchises	113
Section 6.06	Good Repair	113
Section 6.07	Compliance with Statutes; Non-U.S. Plans; Canadian Pension Plans	113
Section 6.08	Compliance with Environmental Laws	114
Section 6.09	Certain Subsidiaries to Join in Guaranty	114
Section 6.10	Additional Security; Further Assurances; Real Property Matters; Etc.	115
Section 6.11	Maintenance of Ratings	120

 

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		Page
Section 6.12	Use of Proceeds	120
Section 6.13	Unrestricted Subsidiaries	120
Section 6.14	United Kingdom People with Significant Control Regime	120
Section 6.15	Post-Closing Obligations	121
ARTICLE VII.
NEGATIVE COVENANTS
Section 7.01	Changes in Business	121
Section 7.02	Consolidation, Merger, Acquisitions, Asset Sales, etc.	121
Section 7.03	Liens	122
Section 7.04	Indebtedness	124
Section 7.05	Investments and Guaranty Obligations	126
Section 7.06	Restricted Payments	128
Section 7.07	Financial Covenant	129
Section 7.08	Limitation on Certain Restrictive Agreements	130
Section 7.09	Transactions with Affiliates	130
Section 7.10	Modification of Certain Agreements	131
Section 7.11	Anti-Terrorism Laws; Sanctions; Anti-Corruption Laws	131
Section 7.12	Fiscal Year	132
ARTICLE VIII.
EVENTS OF DEFAULT
Section 8.01	Events of Default	132
Section 8.02	Remedies	134
Section 8.03	Application of Certain Payments and Proceeds	134
ARTICLE IX.
THE ADMINISTRATIVE AGENT
Section 9.01	Appointment	136
Section 9.02	Delegation of Duties	139
Section 9.03	Exculpatory Provisions	139
Section 9.04	Reliance by Administrative Agent	140
Section 9.05	Notice of Default	140
Section 9.06	Non-Reliance	140
Section 9.07	No Reliance on Administrative Agent’s Customer Identification Program	140
Section 9.08	USA Patriot Act	141
Section 9.09	Indemnification	141
Section 9.10	The Administrative Agent in Individual Capacity	141
Section 9.11	Successor Administrative Agent	141
Section 9.12	Other Agents	142
Section 9.13	UK Security Documents, Irish Security Documents and Northern Irish Security Documents	142
Section 9.14	Agency for Perfection	143
Section 9.15	Proof of Claim	143
Section 9.16	Posting of Approved Electronic Communications.	144
Section 9.17	Credit Bidding	145
Section 9.18	Intercreditor Agreements	145
Section 9.19	Certain ERISA Matters	145
Section 9.20	Parallel Obligations	147

 

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			Page
ARTICLE X.
GUARANTY
Section 10.01	Guaranty by the U.S. Borrower		147
Section 10.02	Reserved		147
Section 10.03	Guaranty Unconditional		147
Section 10.04	Borrower Obligations to Remain in Effect; Restoration		148
Section 10.05	Waiver of Acceptance, etc.		148
Section 10.06	Subrogation		149
Section 10.07	Effect of Stay		149
Section 10.08	Keepwell		149
ARTICLE XI.
MISCELLANEOU.S.
Section 11.01	Payment of Expenses, etc.		149
Section 11.02	Indemnification		150
Section 11.03	Right of Setoff		151
Section 11.04	Equalization		151
Section 11.05	Notices		151
Section 11.06	Successors and Assigns		152
Section 11.07	No Waiver; Remedies Cumulative		155
Section 11.08	Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial; Service of Process		156
Section 11.09	Counterparts		157
Section 11.10	Integration		157
Section 11.11	Headings Descriptive		157
Section 11.12	Amendment or Waiver; Acceleration by Required Lenders		157
Section 11.13	Survival of Indemnities		161
Section 11.14	Domicile of Loans		161
Section 11.15	Confidentiality		161
Section 11.16	Limitations on Liability of the LC Issuers		161
Section 11.17	General Limitation of Liability		162
Section 11.18	No Duty		162
Section 11.19	Lenders and Agent Not Fiduciary to Borrowers, etc.		162
Section 11.20	Survival of Representations and Warranties		162
Section 11.21	Severability		162
Section 11.22	Directed Divestment		162
Section 11.23	Interest Rate Limitation		163
Section 11.24	USA Patriot Act		163
Section 11.25	Advertising and Publicity		163
Section 11.26	Release of Guarantees and Liens		163
Section 11.27	Payments Set Aside		163
Section 11.28	Swedish Security		164
Section 11.29	Hedging Liability		164
Section 11.30	Acknowledgement and Consent to Bail-In of EEA Financial Institutions		164
SCHEDULES
Schedule 1		Lenders and Commitments
Schedule 1.01(a)		Agreed Security Principles
Schedule 1.01(b)		Existing Letters of Credit
Schedule 1.01(c)		Mortgaged Real Property

 

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Schedule 1.01(d)	Restricted Subsidiaries and Immaterial Subsidiaries
Schedule 1.01(e)	Subsidiary Guarantors
Schedule 1.01(f)	Landing Site
Schedule 1.01(g)	Holding Company Merger
Schedule 5.11	Real Property
Schedule 5.15	Intellectual Property
Schedule 5.22	Capitalization / Equity Interests
Schedule 5.25(a)(i)	U.S. Communications Licenses
Schedule 5.25(a)(iii)	Material Compliance Exceptions
Schedule 5.25(a)(v)	Compliance with CALEA, CPNI, USF Requirements
Schedule 5.25(b)(i)	Non-U.S. Communications Licenses
Schedule 5.25(b)(iii)	Material Compliance with Non-U.S. Communications Laws
Schedule 5.25(b)(iv)	Material Compliance with Non-U.S. Equivalents of CALEA, CPNI, USF, Etc.
Schedule 6.15	Post-Closing Obligations
Schedule 7.03	Permitted Liens / Liens in Existence
Schedule 7.03(h)	Key Customers
Schedule 7.04	Permitted Indebtedness
Schedule 7.04(q)	Reimbursement Obligations
Schedule 7.05	Permitted Investments
Schedule 7.08	Limitations on Restrictive Agreements
EXHIBITS
Exhibit A-1	Form of Revolving Facility Note
Exhibit A-2	Form of U.S. Term Note
Exhibit A-3	Form of EMEA Term Note
Exhibit B-1	Form of Notice of Borrowing
Exhibit B-2	Form of Notice of Continuation or Conversion
Exhibit B-3	Form of LC Request
Exhibit C	[Intentionally Omitted]
Exhibit D	Form of Solvency Certificate
Exhibit E	Form of Compliance Certificate
Exhibit F	[Intentionally Omitted]
Exhibit G	Form of Assignment Agreement
Exhibit H	[Intentionally Omitted]
Exhibit I	Form of Intercompany Subordination Agreement
Exhibit J-1	Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit J-2	Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit J-3	Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit J-4	Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

 

v

 

This CREDIT AGREEMENT is entered into as of May 31, 2018 among the following:  (i) GTT Communications, Inc., a Delaware corporation (the “ U.S. Borrower ”); (ii) GTT Communications B.V., a company organized under the laws of the Netherlands and a wholly-owned subsidiary of the U.S. Borrower (the “ EMEA Borrower ” and, together with the U.S. Borrower, each, a “ Borrower ” and collectively, the “ Borrowers ”); (iii) the lenders from time to time party hereto (each, a “ Lender ” and collectively, the “ Lenders ”); and (iv) KeyBank National Association, as the administrative agent (the “ Administrative Agent ”), and as an LC Issuer (as hereinafter defined).

 

PRELIMINARY STATEMENTS

 

(1)                                  Pursuant to the share purchase agreement, dated as of February 23, 2018 (the “ Target Acquisition Agreement ”), by and among GTT Holdings Limited, a private limited company registered in England and Wales as the purchaser (as successor by assignment to GTT Americas, LLC, the “ Purchaser ”), the U.S. Borrower, as a guarantor, Emasan AG (“ Emasan ”), Turbo Holdings Lux II Sarl (“ Turbo ” and, together with Emasan, the “ Sellers ”) and Interoute Communications Holdings S.A., a public limited liability company ( société anonyme ) organized under the laws of Luxembourg (the “ Target ”), the U.S. Borrower will, simultaneously with the making of the initial Loans hereunder, indirectly acquire all of the outstanding Equity Interests of the Target (the “ Target Acquisition ”).

 

(2)                                  The U.S. Borrower has requested that the Lenders and each LC Issuer extend credit to the U.S. Borrower to (a) finance the Target Acquisition, (b) repay and refinance the U.S. Borrower’s obligations under the Borrower Existing Credit Agreement and (c) provide working capital and funds for other general corporate purposes and other purposes permitted hereunder, including fees and expenses incurred in connection with the Transactions, in the form of (x) Closing Date U.S. Term Loans denominated in Dollars in the aggregate principal amount $1,770,000,000 and (y) Revolving Loans denominated in Approved Currencies in an aggregate principal amount not to exceed $200,000,000.

 

(3)                                  The EMEA Borrower has requested that the Lenders extend credit to the EMEA Borrower in order to (a) finance the Target Acquisition, (b) repay and refinance the Target’s obligations under the Target Existing Credit Agreements and (c) provide working capital and funds for other general corporate purposes and other purposes permitted hereunder, including fees and expenses incurred in connection with the Transactions, in the form of Closing Date EMEA Term Loans denominated in Euros in the aggregate principal amount of €750,000,000.

 

(4)                                  Subject to and upon the terms and conditions set forth herein, the Lenders and each LC Issuer are willing to extend credit and make available to the Borrowers the credit facilities provided for herein for the foregoing purposes.

 

AGREEMENT

 

In consideration of the premises and the mutual covenants contained herein, the parties hereto agree as follows:

 

ARTICLE I.

 

DEFINITION AND TERMS

 

Section 1.01                              Certain Defined Terms .  As used herein, the following terms shall have the meanings herein specified unless the context otherwise requires:

 

“ 1934 Act ” means the Securities Exchange Act of 1934, as amended.

 

“ 2024 Notes ” means the U.S. Borrower’s 7.875% senior notes due 2024 in an aggregate principal amount, as of the Closing Date, of $575,000,000.

 

 

“ 2024 Notes Indenture ” means the Indenture, dated as of December 22, 2016, among the U.S. Borrower (as successor to GTT Escrow Corporation), the subsidiary guarantors party thereto from time to time and The Wilmington Trust, National Association, as trustee, governing the 2024 Notes.

 

“ Acquisition ” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (i) the acquisition of all or substantially all of the assets of any Person, or any business or division of any Person, (ii) the acquisition or ownership of in excess of 50% of the Equity Interests of any Person, or (iii) the acquisition of another Person by a merger, consolidation, amalgamation or any other combination with such Person.

 

“ Additional Credit Extension Amendment ” means an amendment to this Agreement (which may, at the option of the Administrative Agent in consultation with the U.S. Borrower, be in the form of an amendment and restatement of this Agreement) providing for any Incremental Term Loans pursuant to Section 2.17 , Incremental Revolving Credit Commitments pursuant to Section 2.17 , Extended Revolving Commitments pursuant to Section 2.18 , Extended Term Loans pursuant to Section 2.19 , Refinancing Term Loans pursuant to Section 2.20 and/or Replacement Revolving Commitments pursuant to Section 2.21 , which shall be consistent with the applicable provisions of this Agreement and otherwise reasonably satisfactory to the parties thereto; provided that no such amendment shall effect any amendment that would require the consent of each affected Lender or all Lenders pursuant to the proviso to Section 11.12(a)  unless such consents have been obtained.

 

“ Additional Security Documents ” has the meaning provided in Section 6.10(a) .

 

“ Adjusted Eurocurrency Rate ” means with respect to each Interest Period for a Eurocurrency Loan, the greatest of (A) (i) (x) with respect to any Eurocurrency Loan denominated in Euros, the EURIBO Rate and (y) with respect to any Eurocurrency Loan denominated in an Approved Currency other than Euros, the rate per annum equal to the offered rate appearing on Bloomberg Screen US0003M Index Page (or on the appropriate page of any successor to or substitute for such service, or, if such rate is not available, on the appropriate page of any generally recognized financial information service, as selected by the Administrative Agent from time to time) that displays an average ICE Benchmark Administration (or any successor thereto) Interest Settlement Rate at approximately 11:00 A.M. (London time) two (2) Business Days prior to the commencement of such Interest Period, for deposits in the applicable Approved Currency with a maturity comparable to such Interest Period, divided (and rounded to the nearest 1/100th of 1%) by (ii) a percentage equal to 100% minus the then stated maximum rate of all reserve requirements (including any marginal, emergency, supplemental, special or other reserves and without benefit of credits for proration, exceptions or offsets that may be available from time to time) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D); provided , however , that if the rate referred to in clause (i) above is not available at any such time for any reason, then the rate referred to in clause (i) shall instead be the interest rate per annum, as determined by the Administrative Agent, to be the average (rounded to the nearest 1/100th of 1%) of the rates per annum at which deposits in the applicable Approved Currency in an amount equal to the amount of such Eurocurrency Loan are offered to major banks in the London interbank market at approximately 11:00 A.M. (London time), two (2) Business Days prior to the commencement of such Interest Period, for contracts that would be entered into at the commencement of such Interest Period for the same duration as such Interest Period and (B) 0.00% per annum.

 

“ Administrative Agent ” has the meaning provided in the first paragraph of this Agreement and includes any successor to the Administrative Agent appointed pursuant to Section 9.11 .

 

“ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person, or, in the case of any Lender that is an investment fund, the investment advisor thereof and any investment fund having the same investment advisor.  A Person shall be deemed to control a second Person if such first Person possesses, directly or indirectly, the power (i) to vote 10% or more of the securities having ordinary voting power for the election of directors or managers of such second Person or (ii) to direct or cause the direction of the management and policies of such second Person, whether through the ownership of voting securities, by contract or otherwise.  Notwithstanding the foregoing, neither the Administrative Agent nor any Lender shall in any event be considered an Affiliate of the U.S. Borrower or any of its Subsidiaries.

 

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“ Aggregate Credit Facility Exposure ” means, at any time, the sum of (i) the Aggregate Revolving Facility Exposure at such time and (ii) the aggregate principal amount of the Term Loans outstanding at such time.

 

“ Aggregate Foreign Currency Exposure ” means, at any time, the portion of the Aggregate Revolving Facility Exposure comprised of Revolving Loans and LC Outstandings denominated in an Approved Foreign Currency.

 

“ Aggregate Revolving Facility Exposure ” means, at any time, the sum of (i) the aggregate principal amount of all Revolving Loans made by all Lenders and outstanding at such time and (ii) the aggregate amount of the LC Outstandings at such time.

 

“ Agreed Customer Lien Subordination Agreement ” means a lien subordination agreement entered into by the Administrative Agent and any customer of the U.S. Borrower or any Subsidiary from time to time which agreement shall be in form and substance reasonably acceptable to the Administrative Agent (it being agreed that the Hibernia Atlantic Lien Subordination Agreement, dated as of June 14, 2017, among Keybank National Association, as administrative agent, the Credit Parties thereto and Microsoft is in form and substance satisfactory to the Administrative Agent).

 

“ Agreed Customer NDA ” means a non-disturbance and attornment agreement entered into by the Administrative Agent and any customer of the U.S. Borrower or any Subsidiary from time to time which agreement shall be in form and substance reasonably acceptable to the Administrative Agent (it being agreed that the Hibernia Atlantic Cable System Non-Disturbance and Attornment Agreement, dated as of June 14, 2017, between Keybank National Association, as administrative agent and Microsoft is in form and substance satisfactory to the Administrative Agent).

 

“ Agreed Security Principles ” means the principles set forth on Schedule 1.01(a) .

 

“ Agreement ” means this Credit Agreement, including any exhibits or schedules, as the same may from time to time be amended, restated, amended and restated, supplemented or otherwise modified.

 

“ Anti-Corruption Laws ” means all laws, rules, and regulations of any jurisdiction applicable to the U.S. Borrower or any Subsidiary from time to time concerning or relating to bribery or corruption.

 

“ Anti-Terrorism Law ” means the USA Patriot Act or any other domestic or foreign law pertaining to the prevention of future acts of terrorism, in each case as such law may be amended from time to time.

 

“ Applicable Borrower ” means (a) with respect to EMEA Facility Obligations, the EMEA Borrower, and (b) with respect to the Loans that are U.S. Obligations, Letters of Credit and Revolving Commitments, the U.S. Borrower.

 

“ Applicable Lending Office ” means, with respect to each Lender, the office designated by such Lender to the Administrative Agent as such Lender’s lending office for all purposes under this Agreement.  A Lender may have a different Applicable Lending Office for Base Rate Loans and Eurocurrency Loans.

 

“ Applicable Margin ” means the Applicable Term Loan Margin or the Applicable Revolving Loan Margin.

 

“ Applicable Prepayment Portion” means, with respect to

 

(i)                                 any prepayment required by Section 2.13(c)(iv)  to be made by the EMEA Borrower, the aggregate amount of Excess Cash Flow that is attributable to the Non-U.S. Prepayment Group;

 

(ii)                                 any prepayment required by Section 2.13(c)(iv)  to be made by the U.S. Borrower, the aggregate amount of Excess Cash Flow that is attributable to the U.S. Prepayment Group;

 

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(iii)                                  any prepayment required by Section 2.13(c)(v)  to be made by the EMEA Borrower, the aggregate amount of Excess Asset Sale Proceeds that are attributable to the sale or disposition of assets that were owned by the Non-U.S. Prepayment Group;

 

(iv)                               any prepayment required by Section 2.13(c)(v)  to be made by the U.S. Borrower, the aggregate amount of Excess Asset Sale Proceeds that are attributable to the sale or disposition of assets that were owned by the U.S. Prepayment Group;

 

(v)                                any prepayment required by Section 2.13(c)(vii)  to be made by the EMEA Borrower, the aggregate amount of Excess Event of Loss Proceeds that are attributable to the Event of Loss with respect to assets owned by the Non-U.S. Prepayment Group; and

 

(vi)                               any prepayment required by Section 2.13(c)(vii)  to be made by the U.S. Borrower, the aggregate amount of Excess Event of Loss Proceeds that are attributable to the Event of Loss with respect to assets owned by the U.S. Prepayment Group.

 

“ Applicable Revolving Loan Margin ” means (i) 175 basis points for Revolving Loans that are Base Rate Loans, (ii) 275 basis points for Revolving Loans that are Eurocurrency Loans denominated in an Approved Currency other than Euros and (iii) 325 basis points for Revolving Loans that are Eurocurrency Loans denominated in Euros.

 

“ Applicable Term Loan Margin ” means (a) with respect to Closing Date Term Loans, (i) 175 basis points for Closing Date U.S. Term Loans that are Base Rate Loans, (ii) 275 basis points for Closing Date U.S. Term Loans that are Eurocurrency Loans and (iii) 325 basis points for Closing Date EMEA Term Loans, and (b) with respect to any other Class of Term Loans, the rate or rates specified in the applicable Additional Credit Extension Amendment.

 

“ Approved Bank ” has the meaning provided in subpart (ii) of the definition of “Cash Equivalents”.

 

“ Approved Currency ” means each of Dollars, Euros, Sterling and any other currency that is approved in accordance with Section 1.05 .

 

“ Approved Foreign Currency ” means any Approved Currency other than Dollars.

 

“ Approved Foreign Currency Sublimit ” means an amount equal to $20,000,000.  The Approved Foreign Currency Sublimit is a part of, and not in addition to, the Total Revolving Commitment.

 

“ Approved Fund ” means a fund that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit and that is administered or managed by a Lender or an Affiliate of a Lender or its investment advisor.  With respect to any Lender, an Approved Fund shall also include any swap, special purpose vehicle purchasing or acquiring security interests in collateralized loan obligations or any other vehicle through which such Lender may leverage its investments from time to time.

 

“ Asset Sale ” means, with respect to any Person, the sale, lease, transfer or other disposition (including by means of Sale and Lease-Back Transactions, and by means of mergers, consolidations, amalgamations and liquidations of a corporation, partnership or limited liability company of the interests therein of such Person) by such Person to any other Person of any of such Person’s assets; provided that the term Asset Sale specifically excludes the actual or constructive total loss of any property or the use thereof resulting from any Event of Loss.

 

“ Assignment Agreement ” means an Assignment Agreement substantially in the form of Exhibit G hereto.

 

“ Authorized Officer ” means, with respect to any Person, any of the following officers:  the President, the Chief Executive Officer, the Chief Financial Officer, the General Counsel, any Vice President or Assistant Vice President, any Vice President of Finance, the Treasurer, the Assistant Treasurer or the Controller, or any Secretary or Assistant Secretary, or such other officer of such Person as is authorized in writing to act on behalf of such

 

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Person.  Unless otherwise qualified, all references herein to an Authorized Officer shall refer to an Authorized Officer of the U.S. Borrower.

 

“ Available Amount ” means, as of any date of determination, the sum of (i) an amount equal to the greater of (x) $125,000,000 and (y) an amount equal to 25% of Pro Forma EBITDA for the most recently ended Testing Period at the date of determination, plus , (ii) the following determined on a cumulative basis, without duplication:

 

(a)                                  an amount, not less than zero in the aggregate, equal to the aggregate cumulative sum of Excess Cash Flow not required to prepay the Loans pursuant to Section 2.13(c)(iv)  for each fiscal year of the U.S. Borrower commencing with the fiscal year ending December 31, 2018, including any Retained Declined Proceeds, plus

 

(b)                                  the cumulative amount of all cash contributions to the common capital of the U.S. Borrower after the Closing Date or the amount of Net Cash Proceeds actually received by the U.S. Borrower after the Closing Date from the issuance of any Equity Interests other than Disqualified Equity Interests, plus

 

(c)                                   an amount equal to any returns (including dividends, interest, distributions, returns of principal and profits on sale) actually received by the U.S. Borrower or any of the Restricted Subsidiaries in cash in respect of any Investments made after the Closing Date pursuant to Section 7.05(o) , plus

 

(d)                                  the aggregate net cash proceeds received by the U.S. Borrower in the form of cash or Cash Equivalents dividends and distributions made by any Unrestricted Subsidiary or any joint venture and returns of principal, cash repayments, interest and similar payments made by any Unrestricted Subsidiary or joint venture in respect of Investments made by the U.S. Borrower or any Restricted Subsidiary to any Unrestricted Subsidiary or joint venture made in reliance on the Available Amount, and the net cash proceeds in connection with the sale, transfer or other disposition of assets or Investments consisting of Equity Interests of any Unrestricted Subsidiary or joint venture to any Person other than U.S. Borrower or a Restricted Subsidiary after the Closing Date to the extent such Investment was made in reliance on the Available Amount and, in each case, not to exceed the fair market value of the original Investment, plus

 

(e)                                   in the event that the U.S. Borrower redesignates any Unrestricted Subsidiary as a Restricted Subsidiary after the Closing Date (which, for purposes hereof, shall be deemed to also include (A) the merger, consolidation, liquidation or similar amalgamation of any Unrestricted Subsidiary into any Borrower or any Restricted Subsidiary, so long as such Borrower or such Restricted Subsidiary is the surviving Person, and (B) the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to any Borrower or any Restricted Subsidiary), the fair market value (as determined in good faith by the U.S. Borrower) of the Investment in such Unrestricted Subsidiary at the time of such redesignation, plus

 

(f)                                    the fair market value of all Equity Interests (other than Disqualified Equity Interests) of the U.S. Borrower issued upon conversion or exchange of Indebtedness or Disqualified Equity Interests of the  U.S. Borrower or any of its Restricted Subsidiaries incurred or issued after the Closing Date (other than Indebtedness owed to or Disqualified Equity Interests held by the U.S. Borrower or any of its Restricted Subsidiaries), minus

 

(g)                                   the sum of (i) the aggregate amount of Investments made after the Closing Date pursuant to Section 7.05(o)  and (ii) the aggregate amount of Restricted Payments made after the Closing Date pursuant to Section 7.06(h) .

 

“ 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.

 

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“ Banking Services Obligations ” means all obligations of the Credit Parties, whether absolute or contingent, and howsoever and whensoever created, arising, evidenced or acquired pursuant to Cash Management Agreements with any Cash Management Bank.

 

“ Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto, as hereafter amended.

 

“ Base Rate ” means, for any day, a fluctuating interest rate per annum as shall be in effect from time to time, which rate per annum shall at all times be equal to the greatest of: (i) the rate of interest established by the Administrative Agent, from time to time, as its “prime rate,” whether or not publicly announced, which interest rate may or may not be the lowest rate charged by it for commercial loans or other extensions of credit; (ii) the Federal Funds Effective Rate in effect from time to time, determined one (1) Business Day in arrears, plus 1/2 of 1% per annum; and (iii) the Adjusted Eurocurrency Rate for Loans denominated in Dollars with a one-month Interest Period on such day plus 1.00%; provided , that the Base Rate shall not be less than 1.00%.

 

“ Base Rate Loan ” means any Loan denominated in Dollars bearing interest at a rate based upon the Base Rate in effect from time to time.

 

“ 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 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”.

 

“ Borrower ” has the meaning provided in the first paragraph of this Agreement.

 

“ Borrower Existing Credit Agreement ” means the Credit Agreement, dated as of January 9, 2017 (as amended from time to time prior to the date hereof), among the U.S. Borrower, as borrower, the lenders party thereto and KeyBank National Association, as the administrative agent, and the other Loan Documents (as defined therein) related thereto.

 

“ Borrowing ” means a Revolving Borrowing or a Term Borrowing.

 

“ Business Day ” means (i) any day other than Saturday, Sunday or any other day on which commercial banks in Cleveland, Ohio, New York, New York or London, England (or, with respect any action taken by or with respect to any LC Issuer, any jurisdiction where such LC Issuer’s lending office is located) are authorized or required by law to close, or are in fact closed, (ii) with respect to any matters relating to Eurocurrency Loans, any day on which dealings in the applicable Approved Currency are carried on in the London interbank market and (iii) with respect to any Eurocurrency Loans made in Euros, any day described in clause (i) above that is also a TARGET Day.

 

“ Buyer Loan Parties ” has the meaning provided in Section 6.10(e) .

 

“ CALEA ” means the United States Communications Assistance for Law Enforcement Act, codified at 47 U.S.C. § 1001, et seq .

 

“ CALEA Requirements ” means the CALEA implementation and filing requirements imposed by the FCC on telecommunications carriers in the FCC Rules, including Title 47, Part 1, Subpart Z of the Code of Federal Regulations.

 

“ Calculation Date ” means (a) the last Business Day of each calendar month and (b) solely with respect to any Loans made or Letters of Credit issued in an Approved Foreign Currency, the second Business Day immediately preceding the date on which such Borrowing or LC Issuance, as applicable, is to be made.

 

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“ Canadian Contribution Regime ” means the Canadian national revenue-based contribution regime which subsidizes the high cost of residential telephone service in rural and remote parts of Canada and which is established and maintained by the CRTC.

 

“ Canadian Contribution Regime Requirements ” means the Canadian Contribution Regime contribution and reporting requirements imposed by the CRTC on telecommunications service providers.

 

“ Canadian Defined Benefit Pension Plan ” means any Canadian Pension Plan that contains a “defined benefit provision” as such term is defined in subsection 147.1(1) of the Income Tax Act (Canada).

 

“ Canadian Pension Plan ” means any “registered pension plan” as defined under section 248(1) of the Income Tax Act (Canada) that is maintained, sponsored or contributed to by the U.S. Borrower or any Subsidiary of the U.S. Borrower with respect to its employees.

 

“ Canadian Pension Plan Event ” means (a) the voluntary full or partial wind up of a Canadian Pension Plan; (b) the institution of proceedings by any Governmental Authority to terminate in whole or in part a Canadian Pension Plan or have an administrator appointed to administer such a Canadian Pension Plan; (c) any other event or condition which might constitute grounds for the termination of, winding up or partial termination of, winding up or the appointment of an administrator to administer, any Canadian Pension Plan; (d) substantial non-compliance with any Canadian Pension Plan’s terms or with the requirements of any and all applicable laws, statutes, rules, regulations and orders; or (e) the creation of any Lien (save for contribution amounts not yet due) with respect to any Canadian Pension Plan.

 

“ Capital Distribution ” means, with respect to any Person, a payment made, liability incurred or other consideration given for the purchase, acquisition, repurchase, redemption or retirement of any Equity Interest of such Person or as a dividend, return of capital or other distribution in respect of any of such Person’s Equity Interests.

 

“ Capital Expenditures ” means, without duplication, (a) any expenditure or irrevocable commitment to expend money for any purchase or other acquisition of any asset including capitalized leasehold improvements, which would be classified as a fixed or capital asset on a consolidated balance sheet of the U.S. Borrower and its Subsidiaries prepared in accordance with GAAP, and (b) Capitalized Lease Obligations and Synthetic Lease Obligations, but excluding (i) expenditures made in connection with the replacement, substitution or restoration of property pursuant to Section 2.13(c)(vii) , (ii) the purchase price of equipment that is purchased substantially contemporaneously with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time and (iii) Permitted Acquisitions.

 

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

 

“ Capitalized Lease Obligations ” means, with respect to any Person, all obligations under Capital Leases of such Person, without duplication, in each case taken at the amount thereof accounted for as liabilities identified as “capital lease obligations” (or any similar words) on a consolidated balance sheet of such Person prepared in accordance with GAAP.

 

“ Cash Collateralize ” means, (i) to deposit into a cash collateral account maintained with (or on behalf of) the Administrative Agent, and under the sole dominion and control of the Administrative Agent, or (ii) to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the LC Issuers or Lenders, as collateral for LC Outstandings or obligations of Lenders to fund participations in respect of LC Outstandings, cash or deposit account balances or, if the Administrative Agent and each applicable LC Issuer shall agree in their sole discretion, other credit support; in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and each applicable LC Issuer.  “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 

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“ Cash Dividend ” means a Capital Distribution by a Person payable in cash to the holders of Equity Interests of such Person with respect to any class or series of Equity Interest of such Person.

 

“ Cash Equivalents ” means any of the following:

 

(i)                                 securities issued or directly and fully guaranteed or insured by the United States or Canadian governments, a Permissible Jurisdiction, Switzerland or Norway or, in each case, or any agency or instrumentality thereof ( provided that the full faith and credit of such country or such member state is pledged in support thereof) having maturities of not more than one year from the date of acquisition;

 

(ii)                                 U.S. dollar denominated time deposits, certificates of deposit and bankers’ acceptances of (x) any Lender, (y) any commercial bank of recognized standing organized under the laws of the United States (or any state thereof or the District of Columbia) and having capital and surplus in excess of $500,000,000 or (z) any commercial bank (or the parent company of such bank) of recognized standing and whose short-term commercial paper rating from S&P is at least A-1, A-2 or the equivalent thereof or from Moody’s is at least P-1, P-2 or the equivalent thereof (any such bank, an “ Approved Bank ”), in each case with maturities of not more than 360 days from the date of acquisition;

 

(iii)                                  commercial paper issued by any Lender or Approved Bank or by the parent company of any Lender or Approved Bank and commercial paper issued by, or guaranteed by, any industrial or financial company with a short-term commercial paper rating of at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s, or guaranteed by any industrial company with a long-term unsecured debt rating of at least A or A2, or the equivalent of each thereof, from S&P or Moody’s, as the case may be, and in each case maturing within 360 days after the date of acquisition;

 

(iv)                               fully collateralized repurchase agreements entered into with any Lender or Approved Bank having a term of not more than 30 days and covering securities described in clause (i) above;

 

(v)                                investments in money market funds substantially all the assets of which are comprised of securities of the types described in clauses (i) through (iv) above;

 

(vi)                               investments in money market funds access to which is provided as part of “sweep” accounts maintained with a Lender or an Approved Bank;

 

(vii)                                 investments in industrial development revenue bonds that (A) “re-set” interest rates not less frequently than quarterly, (B) are entitled to the benefit of a remarketing arrangement with an established broker dealer, and (C) are supported by a direct pay letter of credit covering principal and accrued interest that is issued by an Approved Bank;

 

(viii)                                  investments in pooled funds or investment accounts consisting of investments of the nature described in the foregoing clause (vii);

 

(ix)                               securities issued and fully guaranteed by any state, commonwealth or territory of the United States of America, any province of Canada, any Permissible Jurisdiction, Switzerland or Norway, or by any political subdivision (including any municipality) or taxing authority thereof, rated at least “A1” (or “Prime-1” or MIG-1 or other then equivalent grade) by Moody’s. or at least “A” (or A-l, SP1 or other then equivalent grade) by S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) and having maturities of not more than two years from the date of acquisition; and

 

(x)                                with respect to any Non-U.S. Subsidiary of the U.S. Borrower that are not organized in the United States, Canada, a Permissible Jurisdiction, Switzerland or Norway, the approximate equivalent of any of clauses (i) through (ix) above in the country in which such Non-U.S. Subsidiary is organized or maintains deposit accounts.

 

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“ Cash Management Agreement ” means any agreement to provide to the Borrower or any Restricted Subsidiary commercial credit cards, stored value cards, or treasury management services (including controlled disbursement automated clearinghouse transactions, return items, overdrafts, netting and interstate depository network services).

 

“ Cash Management Bank ” means the Administrative Agent, a Lead Arranger, a Lender or an Affiliate of the Administrative Agent, a Lead Arranger or a Lender (or a Person that was a Lender or an Affiliate of a Lender at the time of execution and delivery of a Cash Management Agreement) that has entered into a Cash Management Agreement with the U.S. Borrower or any of its Restricted Subsidiaries.

 

“ Cash Proceeds ” means, with respect to (i) any Asset Sale, the aggregate cash payments (including any cash received by way of deferred payment pursuant to a note receivable issued in connection with such Asset Sale, other than the portion of such deferred payment constituting interest, but only as and when so received) received by the U.S. Borrower or any Subsidiary from such Asset Sale, (ii) any Event of Loss, the aggregate cash payments, including all insurance proceeds and proceeds of any award for condemnation or taking, received in connection with such Event of Loss and (iii) the issuance or incurrence of any Indebtedness, the aggregate cash proceeds received by the U.S. Borrower or any Subsidiary in connection with the issuance or incurrence of such Indebtedness.

 

“ CERCLA ” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same may be amended from time to time, 42 U.S.C. § 9601 et seq.

 

“ CFC ” means Subsidiary that is a controlled foreign corporation within the meaning of Section 957 of the Code.

 

“ CFC Holdco ” means any Subsidiary with no material operations and no material assets other than capital stock of and/or indebtedness incurred by one or more CFCs or other CFC Holdcos.

 

“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

“ Change of Control ” means:

 

(i)                                      any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the 1934 Act, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “ option right ”)), directly or indirectly, of forty percent (40%) or more of the Equity Interests of the U.S. Borrower entitled to vote for members of the board of directors or equivalent governing body of the U.S. Borrower on a fully-diluted basis (and taking into account all such Equity Interests that such “person” or “group” has the right to acquire pursuant to any option right; or

 

(ii)                                   the occurrence of a change in control, or other similar provisions, under or with respect to any Material Indebtedness incurred pursuant to Sections 7.04(i)  and (l) .

 

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Notwithstanding the foregoing, any Holding Company Merger permitted under Section 7.02(a)(ii)  shall not constitute a Change of Control.  For purposes of this definition, (1) no Change of Control shall be deemed to have occurred solely as a result of a transfer of assets among any Borrower and the Restricted Subsidiaries and (2) a Person shall not be deemed to have beneficial ownership of securities subject to a stock purchase agreement, merger agreement or similar agreement until the consummation of the transactions contemplated by such agreement.

 

“ Charged Company ” has the meaning provided in Section 6.10(e) .

 

“ Charges ” has the meaning provided in Section 11.23 .

 

“ CIP Regulations ” has the meaning provided in Section 9.07 .

 

“ Claims ” has the meaning set forth in the definition of “Environmental Claims.”

 

“ Class ,” when used in reference to (i) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans made pursuant to a Revolving Commitment, Extended Revolving Commitment or Replacement Revolving Commitment, Closing Date EMEA Term Loans, Closing Date U.S. Term Loans, Other Term Loans, Refinancing Term Loans or Extended Term Loans; (ii) any Commitment, refers to whether such Commitment is a Revolving Commitment, Closing Date EMEA Term Commitment, Closing Date U.S. Term Commitment, Incremental Term Loan Commitment, Incremental Revolving Credit Commitment, Extended Revolving Commitment or Replacement Revolving Commitment; or (iii) any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class; provided that notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, the borrowing, prepayment and repayment of Revolving Loans shall be made on a pro rata basis across all Classes of Revolving Loans (except to the extent that any applicable Additional Credit Extension Amendment pursuant to Section 2.18 or 2.21 provides that the Class of Revolving Loans established thereunder shall be entitled to less than pro rata prepayments or repayments), and any termination of Revolving Commitments shall be made on a pro rata basis across all Classes of Revolving Commitments (except (i) to the extent that any applicable Additional Credit Extension Amendment pursuant to Section 2.18 or 2.21 provides that the Class of Revolving Commitments established thereunder shall be entitled to less than pro rata treatment and (ii) in respect of the Revolving Facility Termination Date of any Class of Revolving Commitments).  Commitments or Loans that have different maturity dates, pricing (other than upfront fees and other fees of the type excluded from the determination of “all-in yield”) or other terms shall be designated separate Classes.

 

“ Closing Date ” means May 31, 2018.

 

“ Closing Date EMEA Term Commitment ” means, with respect to each Lender, the amount, if any, set forth opposite such Lender’s name in Schedule 1 hereto as its “Closing Date EMEA Term Commitment” on the Closing Date or in the case of any Lender that becomes a party hereto pursuant to an Assignment Agreement, the amount set forth in such Assignment Agreement, as such commitment may be reduced from time to time as a result of assignments to or from such Lender pursuant to Section 11.06 .

 

“ Closing Date EMEA Term Loan ” has the meaning provided in Section 2.03(b) .

 

“ Closing Date EMEA Term Lender ” means a Lender with a Closing Date EMEA Term Commitment or an outstanding Closing Date EMEA Term Loan.

 

“ Closing Date Non-U.S. Subsidiary Guarantors ” means the Non-U.S. Subsidiary Guarantors as of the Closing Date.

 

“ Closing Date Non-U.S. Subsidiary Guaranty ” has the meaning provided in the definition of “Non-U.S. Subsidiary Guaranty.”

 

“ Closing Date Subsidiary Guarantors ” means Closing Date Non-U.S. Subsidiary Guarantors and Closing Date U.S. Subsidiary Guarantors.

 

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“ Closing Date U.S. Subsidiary Guarantors ” means the U.S. Borrower Guarantors as of the Closing Date.

 

“ Closing Date U.S. Subsidiary Guaranty ” has the meaning provided in the definition of “U.S. Subsidiary Guaranty.”

 

“ Closing Date Undelivered Stock Certificates ” has the meaning provided in Section 4.01(ix) .

 

“ Closing Date U.S. Term Commitment ” means, with respect to each Lender, the amount, if any, set forth opposite such Lender’s name in Schedule 1 hereto as its “Closing Date U.S. Term Commitment” on the Closing Date or in the case of any Lender that becomes a party hereto pursuant to an Assignment Agreement, the amount set forth in such Assignment Agreement, as such commitment may be reduced from time to time as a result of assignments to or from such Lender pursuant to Section 11.06 .

 

“ Closing Date Term Loans ” means, collectively, the Closing Date EMEA Term Loans and the Closing Date U.S. Term Loans.

 

“ Closing Date U.S. Term Lender ” means a Lender with a Closing Date U.S. Term Commitment or an outstanding Closing Date U.S. Term Loan.

 

“ Closing Date U.S. Term Loan ” has the meaning provided in Section 2.03(a) .

 

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time.  Section references to the Code are to the Code as in effect at the Closing Date and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.

 

“ Collateral ” means the U.S. Collateral and the EMEA Facility Collateral.

 

“ Collateral Assignments ” has the meaning specified in the definition of “U.S. Security Agreement”.

 

“ Collateral Coverage Requirement ” has the meaning specified in Section 6.10(g) .

 

“ Commercial Letter of Credit ” means any letter of credit or similar instrument issued for the purpose of providing the primary payment mechanism in connection with the purchase of materials, goods or services in the ordinary course of business.

 

“ Commitment ” means, with respect to each Lender, its Revolving Commitment, U.S. Term Commitment, EMEA Term Commitment, Incremental Term Loan Commitment, Incremental Revolving Credit Commitment, Extended Revolving Commitment, Replacement Revolving Commitment, commitment in respect of Extended Term Loans or commitment in respect of Refinancing Term Loans, if any, or, in the case of such Lender, all of such Commitments.

 

“ Commitment Fees ” has the meaning provided in Section 2.11(a) .

 

“ Commodities Hedge Agreement ” means a commodities contract purchased by the U.S. Borrower or any of its Subsidiaries in the ordinary course of business, and not for speculative purposes, with respect to raw materials necessary to the manufacturing or production of goods in connection with the business of the U.S. Borrower and its Subsidiaries.

 

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

 

“ Communications ” has the meaning provided in Section 9.16(a) .

 

“ Competitor ” means any competitor of the U.S. Borrower or its Subsidiaries that directly or indirectly is engaged in the same or similar line of business as the U.S. Borrower or its Subsidiaries.

 

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“ Compliance Certificate ” has the meaning provided in Section 6.01(c) .

 

“ Confidential Information ” has the meaning provided in Section 11.15(b) .

 

“ Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes, Canadian capital Taxes or branch profits Taxes.

 

“ Consolidated Current Assets ” means, as at any date of determination, the total assets of the U.S. Borrower and its Restricted Subsidiaries which may properly be classified as current assets (excluding deferred tax assets without duplication of amounts otherwise added in calculating Excess Cash Flow) on a consolidated balance sheet of the U.S. Borrower and its Restricted Subsidiaries in accordance with GAAP, excluding cash and Cash Equivalents; provided that Consolidated Current Assets shall be calculated without giving effect to the impact of purchase accounting.

 

“ Consolidated Current Liabilities ” means, as at any date of determination, the total liabilities (excluding deferred Taxes and Taxes payable, in each case, without duplication of amounts otherwise deducted in calculating Excess Cash Flow) of the U.S. Borrower and its Restricted Subsidiaries which may properly be classified as current liabilities (other than the current portion of any Loans and other long term liabilities and accrued interest thereon) on a consolidated balance sheet of the U.S. Borrower and its Restricted Subsidiaries in accordance with GAAP; provided that Consolidated Current Liabilities shall be calculated without giving effect to the impact of purchase accounting.

 

“ Consolidated Debt Service ” means, as of any period, (a) scheduled or mandatory repayments, prepayments or redemptions of the principal of Indebtedness of the U.S. Borrower and its Restricted Subsidiaries (and, in the case of any revolving credit facility, so long as there is a permanent reduction in the commitment thereunder), plus (b) Consolidated Interest Charges, plus (c) all fees and expenses with respect to outstanding Indebtedness of the U.S. Borrower and its Restricted Subsidiaries, including of the type referred to in clause (ix) of the definition of “Consolidated EBITDA.”

 

“ Consolidated EBITDA ” means, at any date of determination, an amount equal to Consolidated Net Income of the U.S. Borrower and its Restricted Subsidiaries on a consolidated basis for the most recently completed Testing Period plus , without duplication, (a) the following to the extent deducted in calculating Consolidated Net Income:

 

(i)                                 Consolidated Interest Charges;

 

(ii)                                 Consolidated Income Tax Expense;

 

(iii)                                  depreciation and amortization expense (including amortization of intangibles, goodwill, debt issue costs and amortization under FAS Rule 123);

 

(iv)                               other expenses reducing such Consolidated Net Income (other than the amortization of deferred costs) which do not represent a cash item in such period or any future period (in each case of or by the U.S. Borrower and its Restricted Subsidiaries for such Testing Period) (including non-cash costs and/or expenses incurred pursuant to any management equity plan, stock option plan or any other stock subscription or shareholder agreement and non-cash charges, losses and expenses relating to the impairment of goodwill);

 

(v)                                extraordinary, unusual or nonrecurring non-cash charges or non-cash expenses incurred during such Testing Period;

 

(vi)                               any provision for the reduction in the carrying value of assets recorded in accordance with GAAP and any non-cash gains (or losses) resulting from mark to market activity as a result of the implementation of Statement of Financial Accounting Standards 133, “Accounting for Derivative

 

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Instruments and Hedging Activities” (including specifically any non-cash charge in warrant fair market value or other non-cash compensation);

 

(vii)                                 any effect of any purchase accounting adjustments in connection with the Target Acquisition or any Permitted Acquisition or any permitted Investment or permitted Asset Sale;

 

(viii)                                  any non-recurring fees and expenses (or any amortization thereof) (including fees of counsel) related to Permitted Acquisitions, Investments, debt issuances (including amendments and waivers in connection with any such debt issuances), equity issuances or Asset Sales, including in connection with the Target Acquisition;

 

(ix)                               any financial advisory fees, financing arrangement fees, accountant fees, legal fees, rating agency fees, transfer or mortgage recording taxes and other out-of-pocket expenses of U.S. Borrower or any of its Restricted Subsidiaries (including expenses of third parties paid or reimbursed by U.S. Borrower or any of its Restricted Subsidiaries) incurred directly in connection with the Loan Documents and the Credit Facility, any permitted debt issuance, the establishment of rate management transactions permitted under the Loan Documents, and any amendments to any of the foregoing, including any refinancing transaction or any amendment or other modification of any debt instruments, including amendment fees and consent fees;

 

(x)                                cash synergies, cost savings, operating expense reductions, other operating improvements, initiatives and other pro forma adjustments to actual historical Consolidated EBITDA in connection with the Transactions or any Specified Transaction, to the extent they are (a) consistent with Regulation S-X of the United States Securities and Exchange Commission, or (b) projected by a financial officer in good faith to be reasonably anticipated to be realizable within eighteen (18) months of the Transactions or such Specified Transaction; provided that such synergies, cost savings, reductions, improvements, initiatives and other pro forma adjustments (A) shall be directly attributable to the Transactions or such Specified Transaction, (B) shall be factually supportable and (C) shall be reasonably identifiable; and provided , further , that all such amounts under this clause (x)(b) (other than any such addbacks related to the Transactions and any Specified Transactions that are reflected in the Private Lender Presentation), together with any add-backs pursuant to clause (xi), shall not exceed 25% of Pro Forma EBITDA for such period prior to the adjustments for clauses (x)(b) and (xi) in the aggregate;

 

(xi)                               restructuring and similar cash charges and costs, severance, relocation costs, integration and facilities opening costs and other business optimization expenses, signing costs, retention or completion bonuses, recruiting costs, transition costs, costs related to closure/consolidation of facilities and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities), including any one time expense relating to enhanced accounting function or other transaction costs, provided that such amounts added back under this clause (xi), together with any add-backs pursuant to clause (x)(b) (other than any such add-backs related to the Transactions and any Specified Transactions that are reflected in the Private Lender Presentation), shall not exceed 25% of Pro Forma EBITDA for such period prior to the adjustments for clauses (x)(b) and (xi) in the aggregate;

 

(xii)                                 charges, losses or expenses to the extent indemnified, insured, reimbursed or reimbursable or otherwise covered by a third party (to the extent expected to be received by the U.S. Borrower or any Restricted Subsidiary within 365 days);

 

(xiii)                                  currency translation losses (or any currency hedging losses) for such period; and

 

(xiv)                                any loss on early extinguishment of Indebtedness or Swap Obligations;

 

minus (b) the following to the extent included in calculating such Consolidated Net Income:  (i) all non-cash items increasing Consolidated Net Income other than amounts constituting amortization of deferred revenue (in each case of or by the U.S. Borrower and its Restricted Subsidiaries for such Testing Period), (ii) any deferred income tax benefits and (iii) any interest income.

 

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Notwithstanding the foregoing, Consolidated EBITDA shall be deemed to be (i) $142,900,000 for the fiscal quarter ended June 30, 2017, (ii) $146,300,000 for the fiscal quarter ended September 30, 2017, (iii) $153,300,000 for the fiscal quarter ended December 31, 2017 and (iv) $147,700,000 for the fiscal quarter ended March 31, 2018.

 

“ Consolidated Income Tax Expense ” means, for any period, all provisions for federal, state, local and foreign income taxes of the U.S. Borrower or any of its Restricted Subsidiaries (including any additions to such taxes, and any penalties and interest with respect thereto, and including any franchise taxes to the extent based upon income).

 

“ Consolidated Interest Charges ” means, for any Testing Period, the sum of (a) all cash interest payments, in each case to the extent paid, or required to be paid, in cash and treated as interest in accordance with GAAP and (b) the portion of rent expense under Capital Leases that is treated as interest in accordance with GAAP, in each case, of or by the U.S. Borrower and its Restricted Subsidiaries on a consolidated basis for the most recently completed Testing Period; provided that Consolidated Interest Charges shall not include any upfront fees in connection with any issuance of Indebtedness, any agent fees and any expenses in connection with any issuance or amendment of Indebtedness (whether or not consummated).

 

“ Consolidated Net Income ” means, at any date of determination, the net income (or loss) of the U.S. Borrower and its Restricted Subsidiaries on a consolidated basis for the most recently completed Testing Period; provided that Consolidated Net Income shall exclude (a) extraordinary gains and losses for such Testing Period, (b) any net gain or loss arising from the sale of capital assets or discontinuation of operations, (c) any net gain or loss arising from any write-up or write-down of assets for such Testing Period, (d) non-cash gains or losses resulting from fluctuations in currency exchange rates and (e) the net income of any Restricted Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of that income is not at the time permitted by operation of the terms of its Organizational Documents or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Restricted Subsidiary.

 

“ Consolidated Net Secured Leverage Ratio ” means, as of any date, the ratio of (i) Consolidated Total Debt on such date that is secured by a lien on any assets of the US Borrower and its Restricted Subsidiaries, minus the aggregate amount of Qualified Cash as of such date  to (ii) Pro Forma EBITDA for the most recently ended Testing Period.

 

“ Consolidated Net Working Capital ” means, at any time, Consolidated Current Assets at such time minus (i) Consolidated Current Liabilities and (ii) the long-term portion of deferred revenue less long-term deferred costs associated with such deferred revenue at such time.

 

“ Consolidated Total Debt ” means the sum (without duplication) of all Indebtedness of the type described in clauses (i), (iv) (but only to the extent that any such letter of credit has been drawn and not been reimbursed within two (2) Business Days or Cash Collateralized), (vii), (ix) (to the extent funded) and (xii) of the definition thereof of the US Borrower and its Restricted Subsidiaries, all as determined on a consolidated basis in accordance with GAAP; provided that purchase-price adjustments and earn-outs in connection with any Permitted Acquisition or other permitted Investment shall not constitute Indebtedness for purposes of this definition.

 

“ Consolidated Total Net Leverage Ratio ” means, as of any date, the ratio of (i) Consolidated Total Debt on such date, minus the aggregate amount of Qualified Cash as of such date  to (ii) Pro Forma EBITDA for the most recently ended Testing Period.

 

“ Continue ,” “ Continuation ” and “ Continued ” each refers to a continuation of a Eurocurrency Loan for an additional Interest Period as provided in Section 2.10 .

 

“ Convert ,” “ Conversion ” and “ Converted ” each refers to a conversion of Loans of one Type into Loans of another Type.

 

“ CPNI Requirements ” means the implementation, reporting and certification requirements regarding Customer Proprietary Network Information that are imposed by the FCC on telecommunications carriers and VoIP

 

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providers in the FCC Rules, including Title 47, Part 64, Subpart U of the Code of Federal Regulations.  The term “Customer Proprietary Network Information” has the meaning given to such term in Section 222(h)(1) of the U.S. Communications Act.

 

“ Credit Event ” means the making of any Borrowing, any Conversion or Continuation or any LC Issuance.

 

“ Credit Facilities ” mean the credit facilities established under this Agreement pursuant to which (i) (x) the Lenders shall make Revolving Loans to the U.S. Borrower, and shall participate in LC Issuances, under the Revolving Facility pursuant to the Revolving Commitment of each such Lender and (y)  each LC Issuer shall issue Letters of Credit for the account of the LC Obligors in accordance with the terms of this Agreement (such credit facility in respect of clauses (x) and (y), the “ Revolving Facility ”), (ii) each Lender with a U.S. Term Commitment shall make a U.S. Term Loan to the U.S. Borrower pursuant to such U.S. Term Commitment of such Lender (such credit facility, the “ U.S. Term Facility ”) and (iii) each Lender with an EMEA Term Commitment shall make an EMEA Term Loan to the EMEA Borrower pursuant to such EMEA Term Commitment of such Lender (such credit facility, the “ EMEA Term Facility ”).

 

“ Credit Facility Exposure ” means, for any Lender at any time, the sum of (i) such Lender’s Revolving Facility Exposure at such time and (ii) the outstanding aggregate principal amount of the Term Loan made by such Lender, if any.

 

“ Credit Party ” means each U.S. Credit Party and each EMEA Credit Party.

 

“ CRTC ” means the Canadian Radio-television and Telecommunications Commission.

 

“ Debtor Relief Laws ” means the Bankruptcy Code and any other federal, state, provincial, or foreign bankruptcy or insolvency law, each as now and hereinafter in effect, any successors to such statutes, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise), judicial management, administration, examinership or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and any law permitting a debtor to obtain a stay or a compromise or arrangement of the claims of its creditors (including any applicable corporate law relating to arrangements, reorganizations or restructuring which permits a debtor to seek a compromise or arrangement of a corporation’s debts or a stay of proceedings to enforce any claims of such corporation’s creditors against it).

 

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

 

“ Default Rate ” means, for any day, (i) with respect to any Loan, a rate per annum equal to 2% per annum above the interest rate that is or would be applicable from time to time to such Loan pursuant to Section 2.09(a)  or Section 2.09(b) , as applicable and (ii) with respect to any other amount, a rate per annum equal to 2% per annum above the rate that would be applicable to Revolving Loans that are Base Rate Loans pursuant to Section 2.09(a) .

 

“ Defaulting Lender ” means, subject to Section 2.15(b) , any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the U.S. Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any LC Issuer or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two (2) Business Days of the date when due, (b) has notified the U.S. Borrower, the Administrative Agent or any LC Issuer in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent

 

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or the U.S. Borrower, to confirm in writing to the Administrative Agent and the U.S. Borrower that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the U.S. Borrower), or (d) has, or has a direct or indirect parent company that has, other than via an Undisclosed Administration, (i) become the subject of a proceeding under the Bankruptcy Code or any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, in each case, which is still in effect or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b) ) upon delivery of written notice of such determination to the U.S. Borrower, each LC Issuer and each Lender.

 

“ Deferred Acquisition Obligations ” has the meaning provided in Section 7.04(j) .

 

“ Deposit Account ” has the meaning assigned to such term in Article 9 of the UCC.

 

“ Directed Divestment ” means (i) putting, on one or more occasions, any or all of Target German Assets (including any equity of the Target German Entities) into trust or otherwise subject to the control and/or management by any Person independent of the U.S. Borrower and its Subsidiaries (any, a “ Directed Divestment In Trust ”)and (ii) any other transfers, conveyances, sales or other dispositions of any or all of the Target German Assets, in any case, at the direction  (including any order, rule or similar action and, in connection with any Directed Investment In Trust, any request) of the German Federal Ministry for Economic Affairs and Energy ( Bundesministeriums für Wirtschaft und Energie ) (“ BMWi ”) or other agency of the German Federal government under or in connection with the German Foreign Trade and Payments Ordinance ( Außenwirtschaftsverordnung - AWV ) (“AWV”) or other German Federal statute.

 

“ Disqualified Equity Interests ” means any Equity Interest that (a) by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event (other than, subject to clause (d) below, a sale of such Person or Subsidiary, or a “change of control”), matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the Latest Maturity Date, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or other Indebtedness or (ii) any Equity Interest referred to in clause (a) above, in each case at any time on or prior to the date that is 91 days after the Latest Maturity Date, (c) requires Cash Dividend payments prior to the date that is 91 days after the Latest Maturity Date, or (d) provides the holders of such Equity Interests with any rights to receive any cash upon the occurrence of a change of control prior to the date on which the Obligations have been irrevocably paid in full, unless the rights to receive such cash are contingent on either (x) the Obligations being irrevocably paid in full or (y) the Required Lenders having consented to the change of control giving rise to the right to receive such payment.

 

“ Disqualified Lender ” means (i) any Person designated as a “Disqualified Lender” by the U.S. Borrower by written notice delivered to the Lead Arrangers prior to February 23, 2018, (ii) any Competitor (other than any Person that is a bona fide debt fund or investment fund that is engaged in making, purchasing, holding or otherwise investing in commercial loans or similar extensions of credit in the ordinary course of business) that has been identified by name in writing to the Administrative Agent from time to time and (iii) any of such Persons’ Affiliates to the extent such Affiliates (x) are clearly identifiable as Affiliates based solely on the similarity of such Affiliates’ names or (y) are identified by name in writing by the U.S. Borrower to the Administrative Agent from time to time

 

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(other than, in the case of any Affiliate of a Person described in clause (ii), a bona fide debt fund or investment fund that is engaged in making, purchasing, holding or otherwise investing in commercial loans or similar extensions of credit in the ordinary course of business); provided that the U.S. Borrower may supplement such lists with respect to clauses (ii) and (iii) from time to time after the Closing Date (with the consent of the Administrative Agent (such consent not to be unreasonably withheld)).  Notwithstanding anything contained herein, (x) the Administrative Agent shall be permitted to provide the list of Disqualified Lenders and any supplements thereto to any Lender upon such Lender’s request in connection with the proposed assignment of any Loans or Commitments and/or sale of participations and (y) in no event shall any such supplement or update apply retroactively to disqualify any Persons that have previously acquired an assignment (or entered into a binding confirmation for the acquisition of an assignment) or participation interest in the Loans or Commitments that was otherwise permitted prior to such permitted supplement or update.

 

“ Documentation Agents ” means Citizens Bank, National Association and ING Capital LLC, as documentation agents.

 

“ Dollar Amount” means at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount expressed in an Approved Foreign Currency, such amount converted to Dollars pursuant to Section 1.04(b)  and Section 1.06.

 

“ Dollars ,” “ U.S. Dollars ” and the sign “ $ ” each means lawful money of the United States.

 

“ Dutch Civil Code ” means the Dutch Civil Code ( Burgerlijk Wetboek ).

 

“ 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.

 

“ Eligible Assignee ” means (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund, and (iv) any other Person (other than a natural Person) approved by (A) the Administrative Agent, (B) in the case of an assignment under the Revolving Facility, each LC Issuer, and (C) unless (x) with respect to the Revolving Facility, a Specified Event of Default has occurred and is continuing or (y) with respect to the Term Loans, an Event of Default has occurred and is continuing, the U.S. Borrower (each such approval not to be unreasonably withheld or delayed (and, other than with respect to any prospective assignment or transfer to a Disqualified Lender, the U.S. Borrower shall be deemed to have consented if it fails to object to any assignment within five (5) Business Days after it received written notice thereof)); provided, however, no such approval of the Administrative Agent or the U.S. Borrower shall be required in connection with assignments to (x) with respect to the Term Loan facilities, any Lender under the Credit Facilities or any Affiliate thereof or (y) with respect to any Revolving Lender, any other Revolving Lender or any Affiliate of a Revolving Lender; and, provided , further , that notwithstanding the foregoing, “Eligible Assignee” shall not include (x) the U.S. Borrower or any of the U.S. Borrower’s Affiliates or Subsidiaries, (y) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y) or (z) any Disqualified Lender, unless the U.S. Borrower has otherwise consented, provided , that (A) such consent of the U.S. Borrower shall not be required for assignments to a Disqualified Lender if a Specified Event of Default has occurred and is continuing and (B) no assignment shall be made to a Disqualified Lender that is a Competitor without the consent of the U.S. Borrower under any circumstances.

 

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“ Eligible Participant ” means any financial institution; provided, however, that notwithstanding the foregoing, “Eligible Participant” shall not include (x) the U.S. Borrower or any of the U.S. Borrower’s Affiliates or Subsidiaries, (y) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (y), or (z) any Disqualified Lender, unless the U.S. Borrower has otherwise consented; provided , further , that (A) such consent of the U.S. Borrower shall not be required for sale of a participation to a Disqualified Lender if a Specified Event of Default has occurred and is continuing and (B) no sale of a participation shall be made to a Disqualified Lender that is a Competitor without the consent of the U.S. Borrower under any circumstances.

 

“ EMEA Borrower ” has the meaning provided in the preamble to this Agreement.

 

“ EMEA Borrower Guarantor ” means each U.S. Credit Party and each Non-U.S. Subsidiary Guarantor.

 

“ EMEA Credit Parties ” means the EMEA Borrower and the EMEA Borrower Guarantors.

 

“ EMEA Facility Collateral ” means the “Collateral” (or equivalent term) as defined in any applicable EMEA Facility Security Document, together with any other assets (whether Real Property or personal property) pledged pursuant to any EMEA Facility Security Document.

 

“ EMEA Facility Loan Document ” has the meaning specified in the definition of “EMEA Facility Obligations”.

 

“ EMEA Facility Obligations ” means all amounts, indemnities and reimbursement obligations, direct or indirect, contingent or absolute, of every type or description, and at any time existing, owing by the EMEA Borrower or any EMEA Borrower Guarantor to the Administrative Agent, any Lender, any Affiliate of any Lender, any Secured Hedge Provider or any Cash Management Bank pursuant to the terms of this Agreement, any other Loan Document to which any EMEA Credit Party is a party (collectively with this Agreement, the “ EMEA Facility Loan Documents ” and each an “ EMEA Facility Loan Document ”), any Secured Hedge Agreement or any Secured Cash Management Agreement (including, but not limited to, interest and fees that accrue after the commencement by or against any EMEA Credit Party of any insolvency proceeding or other proceeding under any Debtor Relief Laws, regardless of whether allowed or allowable in such proceeding or subject to an automatic stay under Section 362(a) of the Bankruptcy Code or analogous provision under any other Debtor Relief Laws); provided, however , that EMEA Facility Obligations shall not include any Excluded Swap Obligations.  Without limiting the generality of the foregoing description of EMEA Facility Obligations, the EMEA Facility Obligations include (a) the obligation to pay principal, interest, charges, expenses, fees, reasonable attorneys’ fees and disbursements, indemnities and other amounts payable by any EMEA Credit Party under any EMEA Facility Loan Document, (b) Banking Services Obligations of any EMEA Credit Party, (c) Hedging Obligations of any EMEA Credit Party and (d) the obligation of any EMEA Credit Party to reimburse any amount in respect of any of the foregoing that the Administrative Agent, any Lender, any Secured Hedge Provider, and Cash Management Bank or any Affiliate of any of them, in connection with the terms of any EMEA Facility Loan Document, may elect to pay or advance on behalf of the EMEA Credit Parties.  For the avoidance of doubt, “EMEA Facility Obligations” does not include any obligations of U.S. Credit Parties in respect of their guarantees of the Loans or other obligations of the U.S. Borrower.

 

“ EMEA Facility Security Documents ” means any Non-U.S. Security Agreement, the Purchaser Pledge Agreement, each Additional Security Document, each Mortgage, any UCC financing statement, and any similar filings, any Collateral Assignment, any Perfection Certificate and any document pursuant to which any Lien is granted or perfected by any EMEA Credit Party to the Administrative Agent as security for any of the EMEA Facility Obligations.

 

“ EMEA Term Commitment ” means, with respect to each Lender, the amount, if any, of its (a) Closing Date EMEA Term Commitment, (b) Incremental Term Loan Commitment in respect of EMEA Term Loans, or (c) in the case of any Lender that becomes a party hereto pursuant to an Assignment Agreement, the amount set forth in such Assignment Agreement, as such commitment may be reduced from time to time as a result of assignments to or from such Lender pursuant to Section 11.06 .

 

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“ EMEA Term Facility ” has the meaning assigned to such term in the definition of “Credit Facilities”.

 

“ EMEA Term Loans ” means any Closing Date EMEA Term Loan, any Incremental Term Loan, any Extended Term Loan and any Refinancing Term Loans, in each case made to the EMEA Borrower under the EMEA Term Facility.

 

“ EMEA Term Note ” means a promissory note substantially in the form of Exhibit A-3 hereto.

 

“ EMEA Ratio Debt Cap ” means a cap of $25,000,000.

 

“ Environmental Claims ” means any and all regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of non-compliance or violation, investigations or proceedings relating in any way to any Environmental Law or any permit issued under any such law (hereafter “ Claims ”), including (i) any and all Claims by any Governmental Authority 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 resulting from the storage, treatment or Release (as defined in CERCLA) of any Hazardous Materials or arising from alleged injury or threat of injury to the environment.

 

“ Environmental Law ” means any applicable Federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy and rule of common law now or hereafter in effect and in each case as amended, and any binding and enforceable judicial interpretation thereof, including any judicial or administrative order, consent decree or judgment issued to or rendered against the U.S. Borrower or any of its Subsidiaries relating to the protection of the environment or employee health and safety, or to Hazardous Materials, including CERCLA; RCRA; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. ; the Clean Air Act, 42 U.S.C. § 7401 et seq. ; the Safe Drinking Water Act, 42 U.S.C. § 300f et seq. ; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq. ; the Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq. , the Hazardous Material Transportation Act, 49 U.S.C. § 5101 et seq. and the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (to the extent it regulates occupational exposure to Hazardous Materials); and any state, provincial and local or foreign counterparts or equivalents, in each case as amended from time to time.

 

“ Equity Interest ” means with respect to any Person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or non-voting) of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited) or any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership, but in no event will Equity Interest include any debt securities convertible or exchangeable into equity unless and until actually converted or exchanged or any Permitted Convertible Call Transactions.

 

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.  Section references to ERISA are to ERISA, as in effect at the Closing Date and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.

 

“ ERISA Affiliate ” means, in respect of a U.S. Plan, each Person (as defined in Section 3(9) of ERISA), which together with the U.S. Borrower or a Subsidiary of the U.S. Borrower, would be deemed to be a “single employer” (i) within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(a)(14) or 4001(b)(i) of ERISA or (ii) as a result of the U.S. Borrower or a Subsidiary of the U.S. Borrower being or having been a general partner of such Person.

 

“ ERISA Event ” means, in respect of a U.S. Plan: (i) that a Reportable Event has occurred with respect to any U.S. Plan; (ii) the institution of any steps by the U.S. Borrower or any Subsidiary, any ERISA Affiliate, the PBGC or a plan administrator to terminate any U.S. Plan or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer,

 

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a U.S. Plan; (iii) the institution of any steps by the U.S. Borrower or any Subsidiary or any ERISA Affiliate to withdraw from any Multi-Employer Plan or Multiple Employer Plan, if such withdrawal would be reasonably likely to result in withdrawal liability (as described in Part 1 of Subtitle E of Title IV of ERISA or in Section 4063 of ERISA) in excess of $1,000,000; (iv) a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Code in connection with any U.S. Plan; (v) that a U.S. Plan has Unfunded Benefit Liabilities exceeding $1,000,000; (vi) the cessation of operations at a facility of the U.S. Borrower or any Subsidiary or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (vii) the conditions for imposition of a Lien under Section 303(k) of ERISA shall have been met with respect to a U.S. Plan; (viii) the adoption of an amendment to a U.S. Plan requiring the provision of security to such U.S. Plan pursuant to Section 206(g) of ERISA; (ix) the insolvency of or commencement of reorganization proceedings with respect to a Multi-Employer Plan; (x) any material increase in the contingent liability of the U.S. Borrower or any Subsidiary with respect to any post-retirement welfare liability; or (xi) the taking of any action by, or the threatening of the taking of any action by, the Internal Revenue Service, the Department of Labor or the PBGC with respect to any of the foregoing.

 

“ 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.

 

“ EU IFRS ” means the International Financial Reporting Standards as adopted by the European Union.

 

“ EURIBO Rate ” means, with respect to any Closing Date EMEA Term Loan for any Interest Period, the rate per annum equal to the European Money Markets Institute EURIBO Rate, as published by Reuters (or on the appropriate page of any successor to or substitute for such service, or, if such rate is not available, on the appropriate page of any generally recognized financial information service, as selected by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two TARGET Days prior to the commencement of such Interest Period, for deposits in Euros (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; provided , however , that if the rate referred to above is not available at any such time for any reason, then the rate referred to shall instead be the interest rate per annum, as determined by the Administrative Agent, to be the average (rounded to the nearest 1/100th of 1%) of the rates per annum at which deposits in Euros in an amount equal to the amount of such Eurocurrency Loan are offered to major banks in the London interbank market at approximately 11:00 A.M. (London time), two (2) TARGET Days prior to the commencement of such Interest Period, for contracts that would be entered into at the commencement of such Interest Period for the same duration as such Interest Period; provided, further , that the EURIBO Rate in respect of any applicable Interest Period shall be deemed to be 0.00% per annum if the EURIBO Rate calculated pursuant to the foregoing would otherwise be less than 0.00% per annum.

 

“ Euro ” and the sign “ € ” each means the single currency of any member state of the European Union that adopts or has adopted, and in each case continues to adopt, the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

 

“ Eurocurrency Loan ” means at any date each Loan bearing interest at a rate based upon the Adjusted Eurocurrency Rate.

 

“ European Insolvency Regulation ” has the meaning provided in Section 5.18 .

 

“ Event of Default ” has the meaning provided in Section 8.01 .

 

“ Event of Loss ” means, with respect to any property, (i) the actual or constructive total loss of such property or the use thereof resulting from destruction, damage beyond repair, or the rendition of such property permanently unfit for normal use from any casualty or similar occurrence whatsoever, (ii) the destruction or damage of a portion of such property from any casualty or similar occurrence whatsoever, (iii) the condemnation, confiscation or seizure of, or requisition of title to or use of, any property, or (iv) in the case of any property located upon a leasehold, the termination or expiration of such leasehold.

 

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“ Excess Cash Flow ” means, for any fiscal year of the U.S. Borrower (or, for the fiscal year ending December 31, 2018, the period beginning on the first day of the first full fiscal quarter beginning after the Closing Date and ending on December 31, 2018), an amount equal to the sum of:

 

(i)                                 Consolidated EBITDA for such measurement period (but without giving effect to any pro forma adjustments or pro forma cost savings pursuant to clause (a)(x) of the definition of “Consolidated EBITDA”), minus , without duplication:

 

(ii)                                 the aggregate amount of all cash Capital Expenditures (other than any such Capital Expenditures made with the proceeds of Indebtedness permitted hereunder (other than Revolving Loans)), minus

 

(iii)                                  the aggregate amount of Permitted Acquisitions and other permitted Investments (other than any such Permitted Acquisitions made with the proceeds of Indebtedness permitted hereunder (other than Revolving Loans)), including any holdback amount and any earn-out or deferred purchase price, to extent paid in cash during such measurement period, minus

 

(iv)                               Consolidated Income Tax Expense paid in cash or for which reserves have been established to the extent required under GAAP, minus

 

(v)                                Consolidated Debt Service paid in cash, minus

 

(vi)                               the absolute value of, if negative, Consolidated Net Working Capital at the end of the prior measurement period (or on the Closing Date with respect to the measurement period ending December 31, 2018), minus the amount of Consolidated Net Working Capital at the end of such measurement period, minus ;

 

(vii)                                 termination costs paid in cash (or accrued to be paid in cash) relating to Hedge Agreements, minus

 

(viii)                                  aggregate amount of cash items (including reserves or accruals established in purchase accounting in connection with the Target Acquisition and any other Permitted Acquisition and including expense and losses) added back in calculating Consolidated EBITDA (including in the calculation of Consolidated Net Income) for such measurement period, whether paid in such measurement period or in a subsequent measurement period (but, for the avoidance of doubt, without duplication), minus

 

(ix)                               the aggregate amount of dividends and other Restricted Payments made in cash and permitted under Section 7.06(c)  through (j)  of this Agreement, and plus

 

(x)                                if positive, the amount of Consolidated Net Working Capital at the end of the prior measurement period (or on the Closing Date with respect to the measurement period ending December 31, 2018) minus the amount of Consolidated Net Working Capital at the end of such measurement period;

 

provided , that, to the extent otherwise included therein, the net cash proceeds received from the (1) the sale or disposition of any property, (2) receipt of any insurance proceeds and (3) the issuance of any Equity Interests of the U.S. Borrower and its Restricted Subsidiaries shall be excluded from the calculation of Excess Cash Flow, all determined on a consolidated basis and in accordance with GAAP.

 

For purposes of calculating Excess Cash Flow for any measurement period, for each Permitted Acquisition or other permitted Investment consummated during such measurement period, (x) the Consolidated EBITDA of a target of any Permitted Acquisition or other permitted Investment shall be included in such calculation only from and after the date of the consummation of such Permitted Acquisition or other permitted Investment and (y) for the purposes of calculating Consolidated Net Working Capital, the (A) total assets of the target of such Permitted Acquisition or other permitted Investment (other than cash and Cash Equivalents), as calculated as at the date of consummation of the applicable Permitted Acquisition or other permitted Investment, which may properly be

 

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classified as current assets on a consolidated balance sheet of the U.S. Borrower and its Subsidiaries in accordance with GAAP (assuming, for the purpose of this clause (A), that such Permitted Acquisition or other permitted Investment has been consummated) and (B) total liabilities of the U.S. Borrower and its Restricted Subsidiaries, as calculated as at the date of consummation of the applicable Permitted Acquisition or other Permitted Investment, which may properly be classified as current liabilities (other than the current portion of any long term liabilities and accrued interest thereon) on a consolidated balance sheet of the U.S. Borrower and its Restricted Subsidiaries in accordance with GAAP (assuming, for the purpose of this clause (B), that such Permitted Acquisition or other permitted Investment has been consummated), shall, in the case of both immediately preceding clauses (A) and (B), be calculated as the difference between the Consolidated Net Working Capital at the end of the applicable Excess Cash Flow period from the date of consummation of such Permitted Acquisition or other permitted Investment.

 

For the avoidance of doubt, for purposes of calculating Excess Cash Flow, Consolidated EBITDA shall not be calculated on a Pro Forma Basis.

 

“ Excess Cash Flow Prepayment Amount ” has the meaning provided in Section 2.13(c)(iv) .

 

“ Exchange Rate ” means, on any day, for purposes of determining the Dollar Amount of any Approved Foreign Currency, the rate of exchange for the purchase of Dollars with the Approved Foreign Currency in the London foreign exchange market at or about 11:00 a.m. London time (or New York time, as applicable) on a particular day as displayed by ICE Data Services as the “ask price”, or as displayed on such other information service which publishes that rate of exchange from time to time in place of ICE Data Services (or if such service ceases to be available, the equivalent of such amount in Dollars as determined by the Administrative Agent using such other publicly available service for displaying exchange rates as selected by the Administrative Agent in its reasonable discretion in consultation with the U.S. Borrower).

 

“ Excluded Subsidiary ” means (i) any Unrestricted Subsidiary, (ii) any Immaterial Subsidiary other than, at the option of the U.S. Borrower, any Immaterial Subsidiary designated by the U.S. Borrower as a Subsidiary Guarantor, (iii) any joint venture, (iv) any Subsidiary that is prohibited or restricted by applicable law, rule or regulation or by any contractual obligation existing on the Closing Date and disclosed to the Administrative Agent in writing (or, if later, existing on the date such Subsidiary becomes a Restricted Subsidiary, so long as such contractual restriction was not created in contemplation of the provision of a guaranty) from guaranteeing the Obligations or which would require consent, approval, license or authorization from any Governmental Authority to provide a guarantee unless such consent, approval, license or authorization has been received, after giving effect to the anti-assignment provision of the UCC and other applicable law, (v) captive insurance companies, (vi) not-for-profit Subsidiaries, (vii) any Non-U.S. Subsidiary that is not required to become a Subsidiary Guarantor pursuant to the Agreed Security Principles and (viii) solely with respect to the guarantee of, or grant of security in respect of, any U.S. Obligations, (a) any CFC, (b) any CFC Holdco and (c) any Subsidiary of a CFC or a CFC Holdco.

 

“ Excluded Swap Obligation ” means, with respect to the U.S. Borrower or any Subsidiary Guarantor of the U.S. Borrower, (x) as it relates to all or a portion of the guaranty of such Subsidiary Guarantor or the U.S. Borrower made pursuant to a Guaranty Agreement or Article X, as applicable, any Swap Obligation if, and to the extent that, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Subsidiary Guarantor’s or the U.S. Borrower’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guarantee of such Subsidiary Guarantor or the U.S. Borrower becomes effective with respect to such Swap Obligation or (y) as it relates to all or a portion of the grant by such Subsidiary Guarantor or the U.S. Borrower of a security interest, any Swap Obligation if, and to the extent that, such Swap Obligation (or such security interest in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Subsidiary Guarantor’s or the U.S. Borrower’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the security interest of such Subsidiary Guarantor or the U.S. Borrower becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal.

 

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“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, Canadian capital Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Commitment (or in the case of a Loan not funded pursuant to a prior Commitment, an applicable interest in such Loan) pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the U.S. Borrower under Section 3.05 ) or (ii) such Lender changes its Applicable Lending Office, except in each case to the extent that, pursuant to Section 3.03 , amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in such Loan or Commitment or to such Lender immediately before it changed its Applicable Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.03(g) , (d) any withholding Taxes imposed under FATCA and (e) any Canadian withholding Tax resulting from (i) such Recipient not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with any Credit Party at the time of making such payment, or (ii) such Recipient being, or not dealing at arm’s length with, a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of a Credit Party at the time of such payment (in each case, other than where the non-arm’s length relationship arises, or where the Recipient is a “specified shareholder” or does not deal at arm’s length with a “specified shareholder”, in each case on account of the Recipient having executed, delivered, become a party to, received payments under or received or perfected a security interest under or received or enforced any rights under or in respect of this Agreement or any Loan Document, but, for the avoidance of doubt, shall not include any Swiss Withholding Tax.

 

“ Existing Class ” means a Class of Existing Revolving Commitments.

 

“ Existing Credit Agreements ” means, collectively, the Borrower Existing Credit Agreement and the Target Existing Credit Agreements.

 

“ Existing Letters of Credit ” means the letter of credit identified on Schedule 1.01(b)  hereto, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

 

“ Existing Revolving Commitment ” has the meaning set forth in Section 2.18(a) .

 

“ Existing Term Loans ” has the meaning set forth in Section 2.19(a) .

 

“ Extended Class ” means a Class of Extended Revolving Commitments.

 

“ Extended Revolving Commitment ” has the meaning set forth in Section 2.18(a) .

 

“ Extended Term Loan Maturity Date ” means with respect to any tranche of Extended Term Loans, the final maturity date applicable thereto as specified in the applicable Extension Notice accepted by the respective Extending Lender or Extending Lenders.

 

“ Extended Term Loans ” has the meaning set forth in Section 2.19(a) .

 

“ Extending Lender ” has the meaning set forth in Section 2.19(a) .

 

“ Extending Revolving Lender ” has the meaning set forth in Section 2.18(b) .

 

“ Extension ” has the meaning set forth in Section 2.19(a) .

 

“ Extension Date ” has the meaning set forth in Section 2.19(b) .

 

“ Extension Notice ” has the meaning set forth in Section 2.19(a) .

 

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“ Extension Offer ” has the meaning set forth in Section 2.19(a) .

 

“ Extension Series ” means all Extended Term Loans that are established pursuant to the same Additional Credit Extension Amendments (or any subsequent Additional Credit Extension Amendment to the extent such Additional Credit Extension Amendment expressly provides that the Extended Term Loans provided for therein are intended to be part of any previously established Class of Term Loans) and that provide for the same interest margins, extension fees, if any, and amortization schedule.

 

“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any applicable intergovernmental agreements with respect thereto (including any applicable law implementing such agreements) and any current or future regulations or official interpretations thereof.

 

“ FCC ” means the United States Federal Communications Commission and any successor thereto.

 

“ FCC Rules ” means Title 47 of the Code of Federal Regulations, as may be amended or supplemented from time to time, and FCC decisions, policies, reports and orders issued pursuant to the adoption of such regulations.

 

“ Federal Funds Effective Rate ” means, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent.

 

“ Fee Letter ” means the Fee Letter, dated as of February 23, 2018 (as amended, supplemented or modified), among the U.S. Borrower, the Lead Arrangers and certain Affiliates of the Lead Arrangers.

 

“ Fees ” means all amounts payable pursuant to, or referred to in, Section 2.11 .

 

“ Financial Covenant Event of Default ” has the meaning provided in Section 8.01(c) .

 

“ Financial Officer ” means the chief executive officer, the president or the chief financial officer of the U.S. Borrower.

 

“ Financial Projections ” has the meaning provided in Section 5.07(b) .

 

“ Flood Hazard Property ” means any Real Property located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.

 

“ Foreign Lender ” means (a) if the Applicable Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Applicable Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.

 

“ Fronting Exposure ” means, at any time there is a Defaulting Lender, with respect to any LC Issuer, such Defaulting Lender’s Revolving Facility Percentage of LC Outstandings with respect to Letters of Credit issued by such LC Issuer other than LC Outstandings as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

 

“ Funding Conditions Provision ” means the provisions set forth in Section 6.10(e) .

 

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“ GAAP ” means generally accepted accounting principles in the United States of America as in effect from time to time.

 

“ Governmental Authority ” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

“ Granting Lender ” has the meaning provided in Section 11.06(f) .

 

“ Guaranty Agreements ” means, collectively, the U.S. Subsidiary Guaranties and any Non-U.S. Subsidiary Guaranties.

 

“ Guaranty Obligations ” means as to any Person (without duplication) any obligation of such Person guaranteeing any Indebtedness (“ primary Indebtedness ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent: (i) to purchase any such primary Indebtedness or any property constituting direct or indirect security therefore; (ii) to advance or supply funds for the purchase or payment of any such primary Indebtedness or to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary Indebtedness of the ability of the primary obligor to make payment of such primary Indebtedness; or (iv) otherwise to assure or hold harmless the owner of such primary Indebtedness against loss in respect thereof, provided , however , that the definition of “Guaranty Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business.  The amount of any Guaranty Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary Indebtedness in respect of which such Guaranty Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder).

 

“ Hazardous Materials ” means (i) any petrochemical or petroleum products, radioactive materials, asbestos in any form that is or would become friable, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; and (ii) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “restricted hazardous materials,” “extremely hazardous wastes,” “restrictive hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants” or “pollutants,” or words of similar meaning and regulatory effect, under any applicable Environmental Law.

 

“ Hedge Agreement ” means (i) any interest rate swap agreement, any interest rate cap agreement, any interest rate collar agreement or other similar interest rate management agreement or arrangement, (ii) any currency swap or option agreement, foreign exchange contract, forward currency purchase agreement or similar currency management agreement or arrangement or (iii) any Commodities Hedge Agreement. For the avoidance of doubt, any Permitted Equity Derivatives will not constitute obligations in respect of any Hedging Agreement.

 

“ Hedging Obligations ” means all obligations of any Credit Party under and in respect of  any Secured Hedge Agreements.

 

“ HGB ” means the German Commercial Code ( Handelsgesetzbuch ).

 

“ Hibernia Atlantic Cable System ” means Hibernia Atlantic Cable System Limited, a private company limited by shares incorporated under the laws of Ireland.

 

“ Hibernia Express Entities ” means, collectively, Hibernia Express (Ireland) Limited, a private company limited by shares incorporated under the laws of Ireland, Hibernia Express (UK) Limited, a private limited liability company incorporated in England and Wales, and Hibernia Express (Canada) Limited, a limited company incorporated under the laws of the Province of Nova Scotia.

 

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“ Historical Financial Statements ” has the meaning provided in Section 4.01(x) .

 

“ Holding Company Merger ” means the merger of the U.S. Borrower into a wholly-owned, indirect subsidiary of the U.S. Borrower in accordance with Delaware General Corporation Law Section 251(g), with the U.S. Borrower as the surviving corporation of such merger, pursuant to which the U.S. Borrower becomes a wholly owned subsidiary of a corporation organized under the United States (“ New Parent ”) described in Schedule 1.01(g) .

 

“ Immaterial Subsidiary ” means, on any date, any Restricted Subsidiary of the U.S. Borrower (a) that has been designated as an “Immaterial Subsidiary” pursuant to a written notice delivered by the U.S. Borrower to the Administrative Agent (or identified in this definition) from time to time and (b) that did not, as of the last day of the most recently ended Testing Period, have (i) individually, either (A) assets with a value in excess of 5.0% of total assets of, or (B) revenues in an amount in excess of 5.0% of the total revenues of, the U.S. Borrower and its Restricted Subsidiaries (or in the case of any non-U.S. Subsidiary of the U.S. Borrower, in excess of 5.0% of the total revenues or assets, as applicable, of all non-U.S. Subsidiaries of the U.S. Borrower, collectively) on a consolidated basis for the most recently ended Testing Period or (ii) collectively, with all other Restricted Subsidiaries designated as Immaterial Subsidiaries pursuant to this definition that would otherwise be required to be Subsidiary Guarantors, either (A) assets with a value in excess of 10.0% of total assets of, or (B) revenues in an amount in excess of 10.0% of the total revenues of, the U.S. Borrower and its Restricted Subsidiaries (or in the case of any non-U.S. Subsidiary of the U.S. Borrower, in excess of 10.0% of the total revenues or assets, as applicable, of all non-U.S. Subsidiaries of the U.S. Borrower, collectively) on a consolidated basis for the most recently ended Testing Period.  As of the Closing Date, the Immaterial Subsidiaries are listed on Schedule 1.01(d) .  For the avoidance of doubt, any Person that becomes a Subsidiary Guarantor hereunder shall cease to be an Immaterial Subsidiary for purposes of this definition.

 

“ Incremental Equivalent Debt ” means Indebtedness incurred in lieu of Incremental Term Loans consisting of high-yield style notes (which may be unsecured or secured by Liens ranking pari passu with or junior to the Liens securing the U.S. Obligations or the EMEA Facility Obligations) issued in a public offering or SEC Rule 144A offering and/or loans (which may be unsecured or secured by Liens ranking junior to the Liens securing the U.S. Obligations or the EMEA Facility Obligations), and, in each case, on customary terms and subject to customary conditions; provided that (i) the aggregate principal amount of unsecured Incremental Equivalent Debt and Indebtedness incurred pursuant to Section 7.04(i), in each case, of the Non-U.S. EMEA Credit Parties (or any of them) shall not exceed the EMEA Ratio Debt Cap, (ii) such Incremental Equivalent Debt shall be subject to the requirements set forth in Section 2.17(b)  (other than the MFN Protection) and (d), (iii) the aggregate principal amount of all Incremental Revolving Credit Commitments, Incremental Term Loans and Incremental Equivalent Debt outstanding at such time shall not exceed the Incremental Facility Maximum Amount; provided that, in the case of any Incremental Equivalent Debt that is secured on a basis that is junior to the Liens securing the Obligations or that is unsecured, the applicable ratio test set forth in clause (B) of the definition of “Incremental Facility Maximum Amount” shall instead be (x) in the case of any such Incremental Equivalent Debt that is secured on a basis that is junior to the Liens securing the Obligations, the Consolidated Net Secured Leverage Ratio as of the last day of the Testing Period most recently ended is no greater than 5.00:1.00 (excluding, solely for the purposes of this calculation, the cash proceeds of any such  Incremental Equivalent Debt being incurred at such time) and (y) in the case of any such Incremental Equivalent Debt that is unsecured, the Consolidated Total Net Leverage Ratio as of the last day of the Testing Period most recently ended is no greater than 6.00:1.00 (excluding, solely for the purposes of this calculation, the cash proceeds of any such Incremental Equivalent Debt being incurred at such time) (in the case of each of the forgoing clauses (x) and (y), disregarding amounts incurred concurrently with the incurrence of Incremental Facilities in reliance on clause (A) of the definition of “Incremental Facility Maximum Amount”), (iv) if such Incremental Equivalent Debt is secured, it shall be subject to a customary intercreditor agreement with the Administrative Agent on behalf of the Secured Creditors that is reasonably acceptable to the Administrative Agent, (v) if such Incremental Equivalent Debt is incurred in connection with a Limited Condition Acquisition, the determination in clause (iii) shall be made as of the date on which the applicable transaction agreement is entered into, (vi) such Incremental Equivalent Debt will have a final scheduled maturity date no earlier than the Term Loan Maturity Date in respect of the Closing Date Term Loans (or, in the case of any such Incremental Equivalent Debt that is secured on a junior lien basis or is unsecured, 91 days after the Term Loan Maturity Date in respect of the Closing Date Term Loans), (vii) such Incremental Equivalent Debt (x) made to the U.S. Borrower shall, if secured, be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors ; provided that such Incremental Equivalent Debt may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary

 

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other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor and (y) made to the EMEA Borrower shall, if secured, be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Equivalent Debt may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor, and (viii) such Incremental Equivalent Debt shall have other terms (excluding pricing, fees, rate floors and optional prepayment or redemption terms) substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the U.S. Borrower in consultation with the Administrative Agent) to the lenders or holders providing such Incremental Equivalent Debt than, those applicable to the Closing Date Term Loans (except to the extent (x) such terms are conformed (or added) in the Loan Documents for the benefit of the Lenders pursuant to an amendment thereto subject solely to the reasonable satisfaction of the Administrative Agent or (y) applicable solely to periods after the Latest Maturity Date).

 

“ Incremental Facility ” means the credit facility established under Section 2.17 pursuant to the Incremental Term Loan Commitment of each Lender.

 

“ Incremental Facility Maximum Amount ” means the sum of (A) the greater of (x) $575,000,000 and (y) an amount equal to 100% of Pro Forma EBITDA for the most recently ended Testing Period, plus the aggregate amount of all voluntary prepayments (other than in connection with a refinancing) of the Term Loans and permanent reductions of the Revolving Credit Commitments, in each case, made prior to the date of incurrence of the applicable Incremental Revolving Credit Commitment or Incremental Term Loan Commitment and (B) unlimited additional amounts so long as immediately after giving effect to any Incremental Revolving Credit Commitment or any Incremental Term Loan Commitment pursuant to this clause (B) and, in each case, the application of the proceeds thereof (including any permitted Investment made with such proceeds in accordance with the terms of this Agreement), on a Pro Forma Basis (including with respect to any Permitted Acquisition or other permitted Investment to be made in whole or in part with the proceeds of the relevant Incremental Term Loan (including under any Incremental Term Loan Commitment becoming effective with any Incremental Revolving Credit Commitment)) and assuming in the case of any Revolving Commitments (including any Incremental Revolving Credit Commitments) that such Revolving Commitments are fully utilized, the Consolidated Net Secured Leverage Ratio as of the last day of the Testing Period most recently ended does not exceed 4.40:1.00 (excluding, solely for the purposes of this calculation, the cash proceeds of any Incremental Term Loans or Incremental Revolving Loans and any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments incurred simultaneously and, in any such case the Consolidated Net Secured Leverage Ratio being permitted to exceed such limit to the extent of such Incremental Facilities incurred substantially concurrently in reliance on clause (A)); provided that, if any Incremental Revolving Credit Commitment or Incremental Term Loan Commitment is incurred in connection with a Limited Condition Acquisition, such ratio shall be calculated as of the date the definitive agreement in respect of such Limited Condition Acquisition is entered into; provided , further that in the case of both clauses (A) and (B) in the aggregate, not more than $100,000,000 ( plus the aggregate amount of all voluntary reductions of the Revolving Credit Commitments) may be in the form of Incremental Revolving Credit Commitments.

 

“ Incremental Revolving Credit Commitment ” means the commitment of any Lender, established pursuant to Section 2.17 , to make Incremental Revolving Loans to the U.S. Borrower.

 

“ Incremental Revolving Credit Exposure ” means, with respect to any Lender at any time, the aggregate principal amount at such time of all outstanding Incremental Revolving Loans of such Lender.

 

“ Incremental Revolving Credit Lender ” means a Lender with an Incremental Revolving Credit Commitment or an outstanding Incremental Revolving Loan.

 

“ Incremental Revolving Credit Termination Date ” means the final maturity date of any Incremental Revolving Loan, as set forth in the applicable Additional Credit Extension Amendment.

 

“ Incremental Revolving Loans ” means Revolving Loans made by one or more Lenders to the U.S. Borrower pursuant to Section 2.17 .  Incremental Revolving Loans shall be made in the form of additional Revolving Loans.

 

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“ Incremental Term Lender ” means a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.

 

“ Incremental Term Loan Commitment ” means the commitment of any Lender, established pursuant to Section 2.17 , to make Incremental Term Loans to the Applicable Borrower.

 

“ Incremental Term Loan Maturity Date ” means the final maturity date of any Incremental Term Loan, as set forth in the applicable Additional Credit Extension Amendment.

 

“ Incremental Term Loan Repayment Dates ” means the dates scheduled for the repayment of principal of any Incremental Term Loan, as set forth in the applicable Additional Credit Extension Amendment.

 

“ Incremental Term Loans ” means Term Loans made by one or more Lenders to the Applicable Borrower pursuant to Section 2.17 .  Incremental Term Loans may be made in the form of additional Closing Date Term Loans or, to the extent permitted by Section 2.17 and provided for in the relevant Additional Credit Extension Amendment, Other Term Loans.

 

“ Indebtedness ” of any Person means without duplication:

 

(i)                                      all indebtedness of such Person for borrowed money;

 

(ii)                                   all indebtedness evidenced by bonds, notes, debentures, loan agreements and similar debt securities of such Person;

 

(iii)                                the deferred purchase price of capital assets or services that in accordance with GAAP would be shown on the liability side of the balance sheet of such Person;

 

(iv)                               the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder;

 

(v)                                  all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances;

 

(vi)                               all indebtedness of a second Person secured by any Lien on any property owned by such first Person, whether or not such indebtedness has been assumed;

 

(vii)                            all Capitalized Lease Obligations and Purchase Money Indebtedness of such Person;

 

(viii)                         the present value, determined on the basis of the implicit interest rate, of all basic rental obligations under all Synthetic Leases of such Person;

 

(ix)                               all obligations of such Person with respect to asset securitization financing (including, for the avoidance of doubt, any Permitted Receivables Financing);

 

(x)                                  [Reserved];

 

(xi)                               all net obligations of such Person under Hedge Agreements;

 

(xii)                            all Disqualified Equity Interests of such Person;

 

(xiii)                         the full outstanding balance of trade receivables, notes or other instruments sold with full recourse (and the portion thereof subject to potential recourse, if sold with limited recourse), other than in any such case any thereof sold solely for purposes of collection of delinquent accounts;

 

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(xiv)                        purchase price adjustments or earn-outs related to any Permitted Acquisition or permitted Investment, to the extent such adjustment or earn-out would be shown on the liability side of the balance sheet Person in accordance with GAAP; and

 

(xv)                           all Guaranty Obligations of such Person;

 

provided , however , that (a) neither trade payables (other than trade payables outstanding for more than 90 days after the date such trade payables were created), deferred revenue, taxes nor other similar accrued expenses, in each case arising in the ordinary course of business, shall constitute Indebtedness; and (b) the Indebtedness of any Person shall in any event include (without duplication) the Indebtedness of any other entity (including any general partnership in which such Person is a general partner) to the extent such Person is liable thereon as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide expressly that such Person is not liable thereon.

 

“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

 

“ Indemnitees ” has the meaning provided in Section 11.02 .

 

“ Initial Term Loan Maturity Date ” means May 31, 2025.

 

“ Initial Yield ” has the meaning provided in Section 2.17(b) .

 

“ Insolvency Event ” means, with respect to any Person:

 

(i)                                 the commencement of a voluntary case by such Person under the Bankruptcy Code or the seeking of relief by such Person under any Debtor Relief Law or analogous law in any jurisdiction outside of the United States;

 

(ii)                                 the commencement of an involuntary case against such Person under the Bankruptcy Code, any Debtor Relief Law or any analogous law in any jurisdiction outside of the United States and the petition is not controverted or dismissed within 60 days after commencement of the case;

 

(iii)                                  a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of such Person;

 

(iv)                               such Person commences (including by way of applying for or consenting to the appointment of, or the taking of possession by, a rehabilitator, receiver, administrative receiver, receiver-manager, administrator, judicial manager, mandataire ad hoc , conciliateur , compulsory manager, custodian, trustee, monitor, conservator or liquidator (collectively, a “ conservator ”) of such Person or all or any substantial portion of its property) any other proceeding under any Debtor Relief Law or similar law of any jurisdiction whether now or hereafter in effect relating to such Person (other than pursuant to a transaction permitted by Section  7.02(i) ;

 

(v)                                any such proceeding of the type set forth in clause (iv) above is commenced against such Person to the extent such proceeding is consented to by such Person or remains undismissed for a period of 60 days;

 

(vi)                               such Person is adjudicated insolvent or bankrupt, or is deemed to, or is declared to, be unable to pay its debts under applicable law;

 

(vii)                                 any order of relief or other order approving any such case or proceeding is entered;

 

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(viii)                                  such Person makes any arrangement with or general assignment for the benefit of creditors, generally does not pay its debts as such debts become due;

 

(ix)                               a moratorium is declared in respect of any indebtedness of any such Person.  If a moratorium occurs, the ending of the moratorium will not remedy an Event of Default caused by that moratorium;

 

(x)                                in the case of any Person organized under the laws of in Germany is overindebted within the meaning of section 19 of the German Insolvency Code ( Insolvenzordnung );

 

(xi)                               in the case of any Person organized under the laws of Singapore, and in addition to any of the events in clauses (i) through (ix) above, any corporate action, legal proceedings or other procedure or step is taken in relation to the suspension of payments a moratorium of any indebtedness or winding-up of such Person; or

 

(xii)                                 in the case of any Person organized under the laws of the Netherlands, and in addition to any of the events in clauses (i) through (ix) above, the occurrence or commencement of any bankruptcy ( faillissement ), administration ( onderbewindstelling ), moratorium ( surseance van betaling ) and any other event whereby such Person is limited in the right to dispose of its assets and which includes a Dutch entity having filed a notice under Section 36 of the Dutch Tax Collection Act ( Invorderingswet 1990 ) or Section 60 of the Dutch Social Insurance Financing Act ( Wet Financiering Sociale Verzekeringen ) in conjunction with Section 36 of the Dutch Tax Collection Act.

 

For purpose of this definition, (a) a winding-up, administration or dissolution with respect to a Person organized under the laws of the Netherlands, include such person being declared bankrupt ( failliet verklaard ) or dissolved ( ontbonden ), (b) a liquidator includes a curator , (c) an administrator includes a bewindvoerder, and (d) a receiver or an administrative receiver does not include a curator.

 

“ Intellectual Property ” has the meaning provided in the U.S. Security Agreement (or, as it relates to any non-U.S. property, the applicable Security Document).

 

“ Intercompany Subordination Agreement ” means the Intercompany Subordination Agreement substantially in the form of Exhibit I hereto.

 

“ Interest Period ” means, with respect to each Eurocurrency Loan, a period of one, two, three or six months as selected by the Applicable Borrower; provided, however, that (i) the initial Interest Period for any Borrowing of such Eurocurrency Loan shall commence on the date of such Borrowing (the date of a Borrowing resulting from a Conversion or Continuation shall be the date of such Conversion or Continuation) and each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period expires; (ii) if any Interest Period begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month; (iii) if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided, however, that if any Interest Period would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day; (iv) no Interest Period for any Eurocurrency Loan may be selected that would end after Revolving Facility Termination Date or Term Loan Maturity Date for such Credit Facility, as the case may be; and (v) if, with respect to any Eurocurrency Loans denominated in Dollars, upon the expiration of any Interest Period, the U.S. Borrower has failed to (or may not) elect a new Interest Period to be applicable to the respective Borrowing as provided above, the U.S. Borrower shall be deemed to have elected to Convert such Borrowing to Base Rate Loans effective as of the expiration date of such current Interest Period.

 

“ Interpolated Rate ” means the rate which results from interpolating on a linear basis between (a) a rate for the longest period (for which such rate is available) which is less than the Interest Period of that Loan and (b) the applicable rate for the shortest period (for which such rate is available) which exceeds the Interest Period of that

 

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Loan, in each case, with respect to any Eurocurrency Loan denominated in Euro, at approximately 11:00 a.m., London time, two (2) TARGET Days prior to the commencement of such Interest Period.

 

“ Investment ” means: (i) any direct or indirect purchase or other acquisition by a Person of any Equity Interest of any other Person; (ii) any loan, advance (other than deposits with financial institutions available for withdrawal on demand), capital contribution or extension of credit to, guarantee or assumption of debt or purchase or other acquisition of any other Indebtedness of, any Person by any other Person; or (iii) the purchase, acquisition or investment of or in any stocks, bonds, mutual funds, notes, debentures or other securities, or any deposit account, certificate of deposit or other investment of any kind.  For the avoidance of doubt, Permitted Equity Derivatives and acquisitions of or licenses for intellectual property or tangible assets used or useful in a Permitted Business do not constitute Investments.

 

“ Investment Grade Securities ” means:  (a) debt securities or debt instruments with a rating of “A-” or higher from S&P or “A3” or higher by Moody’s or the equivalent of such rating by such rating organization or, if no rating of Moody’s or S&P then exists, the equivalent of such rating by any other Nationally Recognized Statistical Rating Organization, but excluding any debt securities or instruments constituting loans or advances among the U.S. Borrower and its Subsidiaries; and (b) investments in any fund that invests exclusively in investments of the type described in clause (a) above which fund may also hold cash and Cash Equivalents pending investment or distribution.

 

“ Irish Secured Parties ” has the meaning specified in the definition of “Irish Security Agreements”.

 

“ Irish Security Agreements ” means the Non-U.S. Security Agreements governed by the laws of Ireland.

 

“ Irish Security Documents ” means the Irish Security Agreements, each Additional Security Document governed by the laws of Ireland and any document governed by Irish law pursuant to which any Lien is granted or perfected by any Credit Party to the Administrative Agent as security for any of the Obligations.

 

“ Irish Security Property ” means:

 

(i)                                 the Liens expressed to be granted under the Irish Security Documents in favor of the Administrative Agent as security trustee for the Irish Secured Parties and all proceeds of those Liens;

 

(ii)                                 all obligations expressed to be undertaken by a Credit Party to pay amounts in respect of the Obligations to the Administrative Agent as security trustee for the Irish Secured Parties and secured by the Irish Security Documents together with all representations and warranties expressed to be given by a Credit Party in favor of the Administrative Agent as security trustee for the Irish Secured Parties; and

 

(iii)                                  any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Administrative Agent is required by the terms of the Irish Security Documents to hold as security trustee on trust for the Irish Secured Parties.

 

“ IRS ” means the United States Internal Revenue Service.

 

“ IRU ” has the meaning provided in the definition of “Ordinary Course Dispositions”.

 

“ ISEDC ” means Innovation, Science and Economic Development Canada (formerly Industry Canada).

 

“ Junior Lien Debt Documents ” means, collectively, any loan agreements, indentures, note purchase agreements, promissory notes, guarantees and other instruments and agreements evidencing the terms of any Junior Lien Indebtedness.

 

“ Junior Lien Indebtedness ” means any Indebtedness that is secured by Liens that are junior to the Liens securing any Obligations.

 

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“ Key Customer ” means key customers of the Target listed on Schedule 7.03(h) .

 

“ Key Customer Lien ” means a Lien granted to a Key Customer who is under arrangements similar to those of the Microsoft Permitted Liens and consistent with past practice and in the ordinary course of business of the Target Companies to secure obligations owed to such Key Customer and existing on property of any Target Company as of the Closing Date.

 

“ Landing Site ” means each manhole associated with the trans-Atlantic fiber optic cable systems of the U.S. Borrower and its Subsidiaries, each location under or over which such trans-Atlantic fiber optic cable systems transverse between any such manhole and the corresponding cable landing station, and each cable landing station associated with such trans-Atlantic fiber optic cable systems, whether located on property that is owned, leased or licensed by the U.S. Borrower or any of its Subsidiaries.  As of the Closing Date, each Landing Site is listed on Schedule 1.01(f) .

 

“ Latest Maturity Date ” means, as of any date of determination, the latest of the Term Loan Maturity Date for any then outstanding Term Loans and the Revolving Facility Termination Date for any then outstanding Revolving Commitments, in each case then in effect on such date of determination.

 

“ LC Commitment Amount ” means $50,000,000.  The LC Commitment Amount is a part of, and not in addition to, the Total Revolving Commitment.

 

“ LC Documents ” means, with respect to any Letter of Credit, any documents executed in connection with such Letter of Credit.

 

“ LC Fee ” means any of the fees payable pursuant to Section 2.11(b)  or Section 2.11(c)  in respect of Letters of Credit.

 

“ LC Issuance ” means the issuance of any Letter of Credit by any LC Issuer for the account of an LC Obligor in accordance with the terms of this Agreement, and shall include any amendment thereto that increases the Stated Amount thereof or extends the expiry date of such Letter of Credit.

 

“ LC Issuer ” means KeyBank National Association or any of its Affiliates, or such other Lender that is requested by the U.S. Borrower and agrees to be an LC Issuer hereunder ( provided that any such Lender is entitled to agree or decline in its sole discretion) and is approved by the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed).

 

“ LC Obligor ” means, with respect to each LC Issuance, the U.S. Borrower or the Restricted Subsidiary for whose account such Letter of Credit is issued.

 

“ LC Outstandings ” means, at any time, the sum, without duplication, of (i) the aggregate Stated Amount of all outstanding Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings with respect to Letters of Credit.

 

“ LC Participant ” has the meaning provided in Section 2.05(g) .

 

“ LC Participation ” has the meaning provided in Section 2.05(g) .

 

“ LC Request ” has the meaning provided in Section 2.05(b) .

 

“ Lead Arrangers ” means Credit Suisse Securities (USA) LLC, KeyBanc Capital Markets Inc., SunTrust Robinson Humphrey, Inc., Goldman Sachs Bank USA, Morgan Stanley Senior Funding, Inc., Citizens Bank, National Association and ING Capital LLC, as joint lead arrangers and joint bookrunners of the Credit Facilities in effect on the Closing Date.

 

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“ Leaseholds ” of any Person means all the right, title and interest of such Person as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures.

 

“ Legal Reservations ” means, with respect to the Non-U.S. EMEA Credit Parties or (solely with respect to assets pledged under laws other than the United States, any State thereof, or the District of Columbia) any U.S. Credit Party:

 

(i)                                 the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court, the principle of reasonableness and fairness, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors and secured creditors;

 

(ii)                                 the time barring of claims under the Limitation Acts or any applicable limitation statutes, the possibility that an undertaking to assume liability for or indemnify a person against nonpayment of stamp duty may be void and defenses of set-off or counterclaim;

 

(iii)                                  the principle that in certain circumstances security granted by way of fixed charge may be recharacterised by a court as a floating charge or that security purported to be constituted as an assignment may be recharacterised as a charge;

 

(iv)                                 the principle that additional interest or payment of compensation imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;

 

(v)                                the principle that a court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant or the court itself has made an order for costs;

 

(vi)                                 the principle that the creation or purported creation of security over any contract or agreement which is subject to a prohibition on transfer, assignment or charging may be void, ineffective or invalid and may give rise to a breach of the contract or agreement over which security has purportedly been created;

 

(vii)                                 any other matters which are set out as qualifications or reservations (however described) as to matters of non-U.S. law in the legal opinions provided in respect of this Agreement;

 

(viii)                                 the principle that the legality, validity, binding nature or enforceability of any Security Document which is not governed by the laws of the jurisdiction where the asset or assets purported to be secured under that Security Document are situated may be flawed with respect to such assets; and

 

(ix)                                 similar principles, rights and defenses under the laws of any jurisdiction of organization of any Credit Party or any jurisdiction whose laws govern the provisions of security interests in assets of such Credit Party.

 

“ Lender ” and “ Lenders ” have the meaning provided in the first paragraph of this Agreement and includes any other Person that becomes a party hereto pursuant to an Assignment Agreement, other than any such Person that ceases to be a party hereto pursuant to an Assignment Agreement.  In addition to the foregoing, solely for the purpose of identifying the Persons entitled to share in payments and collections from the Collateral and the benefit of any guarantees of the Obligations, as more fully set forth in this Agreement and the other Loan Documents, the term “Lender” shall include Secured Hedge Providers and Cash Management Banks.  For the avoidance of doubt, any Secured Hedge Provider to whom any Hedging Obligations are owed or any Cash Management Bank to whom any Banking Services Obligations are owed and, in each case, which does not hold any Loans or commitments hereunder shall not be entitled to any other rights as a “Lender” under this Agreement or the other Loan Documents.

 

“ Lender Register ” has the meaning provided in Section 2.08(b) .

 

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“ Letter of Credit ” means (x) any Standby Letter of Credit or Commercial Letter of Credit, in each case issued by any LC Issuer under this Agreement pursuant to Section 2.05 for the account of any LC Obligor and (y) the Existing Letters of Credit.

 

“ Licenses ” means the U.S. Communications Licenses, the Non-U.S. Communications Licenses and all licenses, permits, authorizations, determinations, and registrations issued by any Governmental Authority to the U.S. Borrower or any of its Subsidiaries in connection with such Person’s activities or the conduct of its business.

 

“ Lien ” means any mortgage, pledge, security interest, hypothecation, encumbrance, standard security, assignation in security, trust or deemed trust, lien (statutory or otherwise) or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof).

 

“ Limitation Acts ” means the Limitation Act 1980, the Foreign Limitation Periods Act 1984, the Irish Statutes of Limitation 1957 to 2000 and the Prescription and Limitation Scotland Act 1973.

 

“ Limited Condition Acquisition ” means any Permitted Acquisition or other permitted Investment the consummation of which by the U.S. Borrower or any Restricted Subsidiary is contractually committed to consummate (it being understood that such commitment may be subject to conditions precedent, which conditions precedent may be amended, satisfied or waived in accordance with the terms of the applicable agreement) and is not expressly conditioned on the availability of, or on obtaining, third-party financing.

 

“ Loan ” means any Revolving Loan or Term Loan.

 

“ Loan Documents ” means this Agreement, the Notes, the Guaranty Agreements, the Security Documents, the Fee Letter, the Intercompany Subordination Agreement, any Agreed Customer Subordination Agreement, any Additional Credit Extension Amendment, any intercreditor agreement entered into by the Administrative Agent pursuant to the terms hereof and each LC Document.

 

“ Luxembourg GAAP ” has the meaning provided in Section 4.01(x) .

 

“ Margin Stock ” has the meaning provided in Regulation U.

 

“ Material Adverse Effect ” means any or all of the following: (i) any material adverse effect on the business, operations, property, assets, liabilities or financial condition of the U.S. Borrower and its Restricted Subsidiaries, taken as a whole; (ii) any material adverse effect on the ability of any Borrower and the other Credit Parties, taken as a whole, to perform their obligations under any of the Loan Documents to which they are party; (iii) subject to any Legal Reservations or Non-U.S. Perfection Requirements that are not overdue, any material adverse effect on the validity, effectiveness or enforceability, as against the Credit Parties, taken as a whole, of any of the Loan Documents to which they are a party; (iv) subject to any Legal Reservations or Non-U.S. Perfection Requirements that are not overdue, any material adverse effect on the rights and remedies of the Administrative Agent or any Lender under any Loan Document; or (v) subject to any Legal Reservations or Non-U.S. Perfection Requirements that are not overdue, any material adverse effect on the validity, perfection or priority of any material Lien in favor of the Administrative Agent on any of the Collateral.

 

“ Material Contract ” means each contract or agreement to which the U.S. Borrower or any of its Restricted Subsidiaries is a party, which if violated or terminated (other than contracts that by their terms may be terminated by the U.S. Borrower or such Restricted Subsidiary in the ordinary course of its business or which are replaced within 30 days of termination) would reasonably be expected to have a Material Adverse Effect.

 

“ Material Indebtedness ” means, as to the U.S. Borrower or any of its Restricted Subsidiaries, any particular Indebtedness (other than any intercompany Indebtedness between or among U.S. Borrower and/or any of its Restricted Subsidiaries) of the type described in clauses (i), (ii) or (ix) of the definition thereof of the U.S. Borrower or such Restricted Subsidiary (including any Guaranty Obligations in respect of Indebtedness of the type described in clauses (i), (ii) or (ix) of the definition thereof) in excess of the aggregate principal amount of $50,000,000.

 

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“ Maximum Rate ” has the meaning provided in Section 11.23 .

 

“ MFN Protection ” has the meaning provided in Section 2.17(b) .

 

“ Microsoft ” means Microsoft Ireland Operations Limited.

 

“ Microsoft Hibernia Atlantic Liens ” means the Liens granted by Hibernia Atlantic Cable System pursuant to the Assignment of System Agreements by Way of Security, dated as of May 31, 2016, in favor of Microsoft, which Liens secure certain obligations of Hibernia Atlantic Cable System pursuant to (a) the IRU Agreement, dated as of June 17, 2014, between Hibernia Atlantic Cable System and Microsoft, as amended by Amendment No. 1, dated as of May 31, 2016, and (b) the Operations, Maintenance & Colocation Services Agreement, dated as of June 17, 2014, among Hibernia Atlantic Cable System, the Target and Microsoft.

 

“ Microsoft Hibernia Express Liens ” means the Liens existing as of the Closing Date and granted by the Hibernia Express Entities pursuant to the Assignment of System Agreements by Way of Security, dated as of May 31, 2016, in favor of Microsoft, which Liens secure certain obligations of the Hibernia Express Entities pursuant to (a) the IRU Agreement, dated as of June 17, 2014, among the Hibernia Express Entities and Microsoft, as amended by Amendment No. 1, dated as of July 3, 2014, Amendment No. 2, dated as of September 21, 2015, Amendment No. 3, dated as of February 25, 2016, and Amendment No. 4, dated as of May 31, 2016, and (b) the Operations, Maintenance & Colocation Services Agreement, dated as of June 17, 2014, among the Hibernia Express Entities, the Target and Microsoft.

 

“ Microsoft Permitted Liens ” means the Microsoft Hibernia Atlantic Liens and the Microsoft Hibernia Express Liens.

 

“ Minimum Borrowing Amount ” means (i) with respect to any Base Rate Loan, $500,000, with minimum increments thereafter of $100,000, (ii) with respect to any Eurocurrency Loan denominated in Dollars, $500,000, with minimum increments thereafter of $100,000, (iii) with respect to any Loan denominated in Euro, €500,000, with minimum increments thereafter of €100,000 and (iv) with respect to any Loan denominated in Sterling £500,000, with minimum increments thereafter of £100,000.

 

“ Minimum Collateral Amount ” means, at any time, with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 105% of the Fronting Exposure of all LC Issuers with respect to Letters of Credit issued and outstanding at such time.

 

“ Moody’s ” means Moody’s Investors Service, Inc. and its successors.

 

“ Mortgage ” means a Mortgage, Deed of Trust, standard security or other instrument, in form and substance reasonably satisfactory to the Administrative Agent, executed by a Credit Party with respect to a Mortgaged Real Property (it being agreed that, in the case of any Mortgaged Real Property listed on Schedule 1.01(c) , the form and substance of the equivalent document delivered in connection with the Borrower Existing Credit Agreement is satisfactory to the Administrative Agent), as the same may from time to time be amended, restated or otherwise modified.

 

“ Mortgaged Real Property ” means each of the parcels of real property set forth on Schedule 1.01(c)  hereto, or interests therein, owned by a Credit Party, together with each other parcel of Real Property that shall become subject to a Mortgage after the Closing Date in accordance with Section 6.10(a) , in each case together with all of such Credit Party’s right, title and interest in the improvements and buildings thereon and all appurtenances, easements or other rights belonging thereto.

 

“ Multi-Employer Plan ” means a multi-employer plan, as defined in Section 4001(a)(3) of ERISA to which the U.S. Borrower or any Subsidiary of the U.S. Borrower or any ERISA Affiliate is making or accruing an obligation to make contributions or has within any of the preceding five plan years made or accrued an obligation to make contributions, but does not include a Canadian Pension Plan.

 

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“ Multiple Employer Plan ” means an employee benefit plan, other than a Multi-Employer Plan or a Canadian Pension Plan, to which the U.S. Borrower or any Subsidiary of the U.S. Borrower or any ERISA Affiliate, and one or more employers other than the U.S. Borrower or a Subsidiary of the U.S. Borrower or an ERISA Affiliate, is making or accruing an obligation to make contributions or, in the event that any such plan has been terminated, to which the U.S. Borrower or a Subsidiary of the U.S. Borrower or an ERISA Affiliate made or accrued an obligation to make contributions during any of the five plan years preceding the date of termination of such plan.

 

“ National Flood Insurance Program ” means the National Flood Insurance Program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004, in each case as amended from time to time, and any successor statutes.

 

“ Nationally Recognized Statistical Rating Organization ” means a nationally recognized statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the 1934 Act.

 

“ Net Cash Proceeds ” means, with respect to (i) any Asset Sale, the Cash Proceeds resulting therefrom net of (A) reasonable and customary expenses of sale incurred in connection with such Asset Sale, and other reasonable and customary fees and expenses incurred, and all state, provincial, local and foreign taxes paid or reasonably estimated to be payable by such person as a consequence of such Asset Sale, and the payment of principal, premium and interest of Indebtedness (other than the Obligations) secured by the asset that is the subject of such Asset Sale, and required to be, and that is, repaid under the terms thereof as a result of such Asset Sale, and (B) incremental federal, state, provincial, local and foreign income taxes paid or payable as a result thereof; (ii) any Event of Loss, the Cash Proceeds resulting therefrom net of (A) reasonable and customary expenses incurred in connection with such Event of Loss, and local taxes paid or reasonably estimated to be payable by such person as a consequence of such Event of Loss and the payment of principal, premium and interest of Indebtedness (other than the Obligations) secured by the asset that is the subject of the Event of Loss and required to be, and that is, repaid under the terms thereof as a result of such Event of Loss, and (B) incremental federal, state, provincial, local and foreign income taxes paid or payable as a result thereof; and (iii) the incurrence or issuance of any Indebtedness, the Cash Proceeds resulting therefrom net of reasonable and customary fees and expenses incurred in connection therewith and net of the repayment or payment of any Indebtedness or obligation intended to be repaid or paid with the proceeds of such Indebtedness; in the case of each of clauses (i), (ii) and (iii), to the extent, but only to the extent, that the amounts so deducted are (x) actually paid to a Person that, except in the case of reasonable out-of-pocket expenses, is not an Affiliate of such Person or any of its Subsidiaries and (y) properly attributable to such transaction or to the asset that is the subject thereof.

 

“ New Parent ” has the meaning provided in the definition of “Holding Company Merger”.

 

“ Non-Consenting Lender ” has the meaning provided in Section 11.12(h) .

 

“ Non-Credit Party ” means each Restricted Subsidiary that is not a Subsidiary Guarantor.

 

“ Non-Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time.

 

“ Non-U.S. Communications Laws ” means the laws of a Relevant Jurisdiction (other than the United States) as may be applicable to the conduct of the U.S. Borrower or any of its Subsidiaries or applicable to any of their respective networks, fiber assets, facilities, equipment or other property, and the telecommunications-related laws of any Relevant Jurisdiction (other than the United States) including but not limited to the Telecommunications Act (S.C.), 1993, C. 38 and its regulations, and the regulations, decisions, policies, reports and orders of any Governmental Authority in a Relevant Jurisdiction (other than the United States), including the CRTC and ISEDC, with jurisdiction over telecommunications-related matters as may be applicable to the conduct of the U.S. Borrower or its Subsidiaries or applicable to any of their respective networks, fiber assets, facilities, equipment or other property.

 

“ Non-U.S. Communications License ” means any license, permit, consent, certificate of compliance, franchise, approval, registration, waiver or authorization related to the conduct of the U.S. Borrower or any of its

 

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Subsidiaries or applicable to any of their respective networks, fiber assets, facilities, equipment or other property, granted or issued by any non-U.S. Governmental Authority, including the CRTC and ISEDC, with jurisdiction over telecommunications-related matters to and held by the U.S. Borrower or any of its Subsidiaries, including those pursuant to which the U.S. Borrower or any of its Subsidiaries is authorized to engage in any activity subject to the jurisdiction of such Governmental Authority.

 

“ Non-U.S. EMEA Credit Parties ” has the meaning provided in Section 6.10(g).

 

“ Non-U.S. EMEA Credit Party Loan Documents ” has the meaning assigned to such term in the definition of “Non-U.S. EMEA Credit Party Obligations”.

 

“ Non-U.S. EMEA Credit Party Obligations ” means, subject to Section 2.22 , all amounts, indemnities and reimbursement obligations, direct or indirect, contingent or absolute, of every type or description, and at any time existing, owing by the EMEA Borrower or any other Non-U.S. EMEA Credit Party to the Administrative Agent, any Lender, any Affiliate of any Lender, any Secured Hedge Provider or any Cash Management Bank pursuant to the terms of this Agreement, any other Loan Document to which any Non-U.S. EMEA Credit Party is a party (collectively with this Agreement, the “ Non-U.S. EMEA Credit Party Loan Documents ” and each a “ Non-U.S. EMEA Credit Party Loan Document ”), any Secured Hedge Agreement or any Secured Cash Management Agreement (including, but not limited to, interest and fees that accrue after the commencement by or against any Non-U.S. EMEA Credit Party of any insolvency proceeding or other proceeding under any Debtor Relief Laws, regardless of whether allowed or allowable in such proceeding or subject to an automatic stay under Section 362(a) of the Bankruptcy Code or analogous provision under any other Debtor Relief Laws); provided, however , that Non-U.S. EMEA Credit Party Obligations shall not include (x) any Excluded Swap Obligations or (y) any obligations of any U.S. Credit Party.  Without limiting the generality of the foregoing description of Non-U.S. EMEA Credit Party Obligations, the Non-U.S. EMEA Credit Party Obligations include (a) the obligation to pay principal, interest, charges, expenses, fees, reasonable attorneys’ fees and disbursements, indemnities and other amounts payable by any Non-U.S. EMEA Credit Party under any Non-U.S. EMEA Credit Party Loan Document, (b) Banking Services Obligations of any Non-U.S. EMEA Credit Party, (c) Hedging Obligations of any Non-U.S. EMEA Credit Party and (d) the obligation of any Non-U.S. EMEA Credit Party to reimburse any amount in respect of any of the foregoing that the Administrative Agent, any Lender, any Secured Hedge Provider, and Cash Management Bank or any Affiliate of any of them, in connection with the terms of any Non-U.S. EMEA Credit Party Loan Document, may elect to pay or advance on behalf of the Non-U.S. EMEA Credit Parties.

 

“ Non-U.S. Group ” means the group of Non-U.S. Subsidiaries that are Restricted Subsidiaries (excluding any Subsidiaries that are prohibited or restricted by applicable law, rule or regulation from becoming EMEA Credit Parties).

 

“ Non-U.S. Perfection Requirements ” means, with respect to any Non-U.S. Security Agreement, the making of or procuring of any and all registrations, filings, notices and other actions and steps required to be made in any non-U.S. jurisdiction pursuant to the terms of such Non-U.S. Security Agreement (including with a court or another official authority in that jurisdiction) in order to perfect security interests created by the Non-U.S. Security Agreement or in order to achieve the relevant priority for such security interests created thereunder.

 

“ Non-U.S. Plan ” shall mean any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by the U.S. Borrower or any of its Subsidiaries with respect to employees employed outside of the United States or outside of Canada and for greater clarity, does not include a Canadian Pension Plan.

 

“ Non-U.S. Plan Event ” shall mean, with respect to any Non-U.S. Plan, (i) substantial non-compliance with its terms or with the requirements of any applicable laws, statutes, rules, regulations and orders, (ii) failure to be maintained, where required, in good standing with applicable regulatory authorities, (iii) any obligation of the U.S. Borrower or its Subsidiaries in connection with the termination or partial termination of, or withdrawal from, any such Non-U.S. Plan, (iv) any Lien on the property of the U.S. Borrower or its Subsidiaries in favor of a Governmental Authority as a result of any action or inaction regarding such a Non-U.S. Plan, (v) for each such Non-U.S. Plan which is a funded or insured plan, failure to be funded or insured on an ongoing basis to the extent required by applicable non-U.S. law (using actuarial methods and assumptions which are consistent with the

 

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valuations last filed with the applicable Governmental Authorities), or (vi) failure to make all contributions in a timely manner to the extent required by applicable law.

 

“ Non-U.S. Prepayment Group ” means the group of Non-U.S. EMEA Credit Parties and their respective Restricted Subsidiaries.

 

“ Non-U.S. Security Agreement ” means any Security Document governed by the laws of a jurisdiction other than the United States or any state thereof.

 

“ Non-U.S. Subsidiary ” means any Subsidiary that is not a U.S. Subsidiary.

 

“ Non-U.S. Subsidiary Guarantor ” means any Non-U.S. Subsidiary of the U.S. Borrower (other than the EMEA Borrower) that is or hereafter becomes a party to a Non-U.S. Subsidiary Guaranty.

 

“ Non-U.S. Subsidiary Guaranty ” means each of (a) the Subsidiary Guaranty (Non-U.S. Subsidiaries), dated as of the Closing Date (as amended, restated, modified or supplemented from time to time), executed by the Non-U.S. Subsidiaries party thereto in favor of the Administrative Agent (the “ Closing Date Non-U.S. Subsidiary Guaranty ”), and (b) any guaranty executed by a Non-U.S. Subsidiary in favor of the Administrative Agent from time to time after the Closing Date which guaranty shall be in form and substance reasonably acceptable to the Administrative Agent.

 

“ Northern Irish Security Documents ” means, collectively, the mortgage and charge governed by the laws of Northern Ireland in respect of the Northern Irish Security Property and any document governed by Northern Irish law pursuant to which any Lien is granted or perfected by any Credit Party to the Administrative Agent as security for any of the Obligations.

 

“ Northern Irish Security Property ” means the Liens expressed to be granted under the Northern Irish Security Documents in favor of the Administrative Agent and all proceeds of those Liens.

 

“ Note ” means a Revolving Facility Note or a Term Note, as applicable.

 

“ Notice of Borrowing ” has the meaning provided in Section 2.06(b) .

 

“ Notice of Continuation or Conversion ” has the meaning provided in Section 2.10(b) .

 

“ Notice Office ” means the office of the Administrative Agent at 4900 Tiedeman Road; Mail Code: OH-01-49-0362, Brooklyn, Ohio 44144, Attention: Paula C. Gordon (agent_servicing@keybank.com with copy to john_bowden@keybank.com), or such other office(s) as the Administrative Agent may designate in writing to the U.S. Borrower from time to time.

 

“ Obligations ” means, collectively, the U.S. Obligations, the EMEA Facility Obligations and the Non-U.S. EMEA Credit Party Obligations and, individually, as the context may require.

 

“ OFAC ” has the meaning provided in Section 5.24(a) .

 

“ Operating Lease ” as applied to any Person means any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is not accounted for as a Capital Lease on the balance sheet of that Person.

 

“ Ordinary Course Dispositions ” means, the following:

 

(a)                                  dispositions or the abandonment of obsolete, excess, worn out or surplus furniture, fixtures, equipment or other property, real or personal, tangible or intangible, and property no longer material, used or useful to the business of the U.S. Borrower or any of its Restricted Subsidiaries, whether now owned or hereafter acquired;

 

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(b)                                  dispositions of inventory in the ordinary course of business (including, for the avoidance of doubt, any sale, license, lease or other conveyance of capacity on communication networks (including of any fiber or fiber pair) or collocation capacity, in each case, to customers in the ordinary course of business);

 

(c)                                   dispositions of equipment or Real Property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property;

 

(d)                                  licenses of Intellectual Property in the ordinary course of business;

 

(e)                                   dispositions of Cash Equivalents in the ordinary course of business;

 

(f)                                    termination of leased office locations in the ordinary course of business;

 

(g)                                   dispositions of accounts receivable in connection with the collection or compromise thereof;

 

(h)                                  any forgiveness, write-off or write-down of any intercompany obligations owed by a Credit Party;

 

(i)                                   any dispositions resulting from a loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the U.S. Borrower or any Restricted Subsidiary;

 

(j)                                  Liens permitted under Section 7.03 , Investments permitted under Section 7.05 and Restricted Payments permitted under Section 7.06 ; and

 

(k)                                  exchanges or dispositions of, or any indefeasible right of use (“ IRU ”) agreement covering, fiber the absence of which would not interfere in any material respect with the ordinary conduct of business of the U.S. Borrower or any of its Restricted Subsidiaries.

 

“ Organizational Documents ” means, with respect to any Person (other than an individual), such Person’s Articles (Certificate or Memorandum) of Incorporation, or equivalent formation documents, and Regulations (Bylaws or Articles), or equivalent governing documents, and, in the case of any partnership, includes any partnership agreement and any amendments to any of the foregoing.

 

“ Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

“ Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.05 ).

 

“ Other Term Loans ” has the meaning provided in Section 2.17(a) .

 

“ Participant Register ” has the meaning provided in Section 11.06(b ).

 

“ Payment Office ” means the office of the Administrative Agent at 4900 Tiedeman Road; Mail Code: OH-01-49-0362, Brooklyn, Ohio 44144, Attention: Paula C. Gordon (agent_servicing@keybank.com with copy to

 

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john_bowden@keybank.com), or such other office(s), as the Administrative Agent may designate to the U.S. Borrower in writing from time to time.

 

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

 

“ Perfection Certificate ” has the meaning provided in the U.S. Security Agreement.

 

“ Permissible Jurisdiction ” means any member state of the European Union or, to the extent it has ceased to be a member state of the European Union, the United Kingdom.

 

“ Permitted Acquisition ” means any Acquisition as to which all of the following conditions are satisfied:

 

(i)                                 such Acquisition involves a line or lines of business that is or are reasonably related or complementary to the lines of business in which the U.S. Borrower and its Subsidiaries, considered as an entirety, are engaged on the Closing Date;

 

(ii)                                 (a) in the case of an asset Acquisition, such Acquisition shall include all or substantially all of the assets, or business or division of the target and (b) in the case of a stock Acquisition, such Acquisition shall include no less than 100% of the Equity Interests of the Person being acquired (except for minority equityholders as required by local law);

 

(iii)                                  to the extent the total consideration (including any Deferred Acquisition Obligations) for such Acquisition exceeds $50,000,000 and such Acquisition is financed (in whole or in part) with the proceeds of Revolving Loans, Incremental Revolving Loans or Incremental Term Loans, the Person or business to be acquired shall have generated Pro Forma EBITDA (determined on a basis consistent with such term but substituting references therein and in its component definitions to the U.S. Borrower and its Restricted Subsidiaries for such Person being acquired) for the Testing Period most recently ended prior to the date of consummation of such Acquisition of greater than $0; and

 

(iv)                                 within 60 days of such Acquisition (or within 120 days of such Acquisition in the case of any Real Property (including any Landing Site) located in the U.S., or within 150 days of such Acquisition in the case of any security interest created or perfected under the laws of a jurisdiction other than the U.S.), or in each case, such later date as may be agreed by the Administrative Agent in its reasonable discretion, (A) any acquired or newly formed Subsidiary shall take all actions required to be taken pursuant to Section 6.09 and Section 6.10 of this Agreement and (B) in the case of an acquisition of all or substantially all of the property or assets of any Person, the Person acquiring such property or assets shall take all actions required to be taken pursuant to Section 6.10 of this Agreement.

 

“ Permitted Acquisition Agreement ” means each stock purchase agreement, asset purchase agreement or other agreement entered into by the U.S. Borrower or any of its Restricted Subsidiaries in connection with any Permitted Acquisition, in each case as amended, supplemented or otherwise modified from time to time.

 

“ Permitted Acquisition Documentation ” means, collectively, each Permitted Acquisition Agreement and all schedules, exhibits and annexes thereto and all side letters and agreements (including without limitation all non-competition agreements) affecting the terms thereof or entered into in connection therewith, in each case as amended, supplemented or otherwise modified from time to time.

 

“ Permitted Bond Hedge Transaction ” means (a) any call option or capped call option (or substantively equivalent derivative transaction) on the common stock of the U.S. Borrower purchased by U.S. Borrower or any of its Subsidiaries in connection with an incurrence of Permitted Convertible Indebtedness, and (b) any call option or capped call option (or substantively equivalent derivative transaction) replacing or refinancing the foregoing; provided that (x) the sum of (i) the purchase price for any Permitted Bond Hedge Transaction occurring on or after the Closing Date, plus (ii) the purchase price for any Permitted Bond Hedge Transaction it is refinancing or replacing, if any, minus (iii) the cash proceeds received upon the termination or the retirement of the Permitted Bond

 

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Hedge Transaction it is replacing or refinancing, if any, less (y) the sum of (i) the cash proceeds from the sale of the related Permitted Warrant Transaction plus (ii) the cash proceeds from the sale of any Permitted Warrant Transaction refinancing or replacing such related Permitted Warrant Transaction, if any, minus (iii) the amount paid upon termination or retirement of such related Permitted Warrant Transaction, if any, does not exceed the Net Cash Proceeds from the incurrence of the related Permitted Convertible Indebtedness.

 

“ Permitted Business ” means the businesses, and any services, activities or businesses incidental, or reasonably related or complementary or similar to, any line of business, engaged in by the U.S. Borrower and its Subsidiaries (including, for the avoidance of doubt, the Target Companies) in each case as of the Closing Date or any business activity that is a reasonable extension, development or expansion thereof or ancillary thereto.

 

“ Permitted Convertible Indebtedness ” means unsecured debt securities of the U.S. Borrower or any of the Restricted Subsidiaries permitted to be Incurred pursuant to Section 7.04 (which may be guaranteed by the U.S. Borrower Guarantors to the extent permitted by Section 7.04) that is (1) convertible into, or exchangeable for, Equity Interests (other than Disqualified Equity Interests) of the U.S. Borrower (and cash in lieu of fractional shares) and/or cash (in an amount determined by reference to the price of such common stock) and/or (2) sold as units with call options, warrants, rights or obligations to purchase (or substantially equivalent derivative transactions) that are exercisable for Equity Interests (other than Disqualified Equity Interests) of the U.S. Borrower and/or cash (in an amount determined by reference to the price of such common stock).

 

“ Permitted Convertible Indebtedness Call Transaction ” means any Permitted Bond Hedge Transaction and any Permitted Warrant Transaction.

 

“ Permitted Creditor Investment ” means any securities (whether debt or equity) received by the U.S. Borrower or any of its Subsidiaries in connection with the bankruptcy or reorganization of any customer or supplier of the U.S. Borrower or any such Subsidiary and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business.

 

“ Permitted Equity Derivatives ” means (a) any forward purchase, accelerated share purchase or other equity derivative transactions relating to the Equity Interests of the U.S. Borrower entered into by the U.S. Borrower or any Restricted Subsidiary; provided that any Restricted Payment made in connection with such transaction is permitted pursuant to Section 7.06 and (b) any Permitted Convertible Indebtedness Call Transactions.

 

“ Permitted Lien ” means any Lien permitted by Section 7.03 .

 

“ Permitted Non-Credit Party Loans and Investments ” means loans and investments by a Credit Party or any of its Restricted Subsidiaries to or in an Unrestricted Subsidiary or Non-Credit Party made on or after the Closing Date and not otherwise prohibited by this Agreement.

 

“ Permitted Receivables Documents ” shall mean all documents and agreements evidencing, relating to or otherwise governing a Permitted Receivables Financing.

 

“ Permitted Receivables Financing ” means one or more transactions pursuant to which (i) Receivables Assets or interests therein are sold to or financed by one or more Special Purpose Receivables Subsidiaries, and (ii) such Special Purpose Receivables Subsidiaries finance their acquisition of such Receivables Assets or interests therein, or the financing thereof, by selling or borrowing against such Receivables Assets or interests therein; provided that recourse to the U.S. Borrower or any Subsidiary (other than the Special Purpose Receivables Subsidiaries) and any obligations or agreements of the U.S. Borrower or any Subsidiary (other than the Special Purpose Receivables Subsidiaries) in connection with such transactions shall be limited to the extent customary for similar transactions in the applicable jurisdictions.

 

“ Permitted Refinancing ” means any refinancing, restructuring, refunding, renewal, extension or replacement of Indebtedness permitted hereunder; provided that (i) the principal amount (or accreted value, if applicable) of such Indebtedness is not increased at the time of such refinancing, restructuring, refunding, renewal, extension or replacement (except by an amount equal to accrued interest and any premiums, fees and expenses

 

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incurred, in connection with such refinancing, restructuring, refunding, renewal, extension or replacement), (ii) such refinancing, restructuring, refunding, renewal, extension or replacement shall not result in an earlier maturity date or decreased weighted average life of such Indebtedness being refinanced, refunded, renewed, restructured, extended or replaced, (iii) the terms relating to collateral (if any) and subordination (if any), and other material terms, taken as a whole, of any such refinancing, restructuring, refunding, renewal, extension or replacement indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are not materially less favorable (taken as a whole) to the Credit Parties than the terms of the agreements or instruments governing the Indebtedness being refinanced, refunded, renewed, restructured, extended or replaced (taken as a whole) and (iv) the terms of such refinancing, restructuring, refunding, renewal, extension or replacement shall not bind any obligor that is not an obligor under the Indebtedness being refinanced, restructured, refunded, renewed, extended or replaced.

 

“ Permitted Warrant Transaction ” means any call options, warrants or rights to purchase (or substantively equivalent derivative transactions) on common stock of the U.S. Borrower purchased or sold by the U.S. Borrower or any of its Subsidiaries substantially concurrently with a Permitted Bond Hedge Transaction.

 

“ Person ” means any individual, partnership, joint venture, firm, corporation, limited liability company, association, central bank, trust or other enterprise or any governmental or political subdivision or any agency, department or instrumentality thereof.

 

“ Platform ” has the meaning provided in Section 9.16(b) .

 

“ primary Indebtedness ” has the meaning provided in the definition of “Guaranty Obligations”.

 

“ primary obligor ” has the meaning provided in the definition of “Guaranty Obligations”.

 

“ Private Lender Presentation ” the lender presentation dated April, 2018 made available to prospective lenders, other than prospective lenders that do not wish to receive material non-public information (within the meaning of the United States federal and state securities laws) with respect to the U.S. Borrower and its Subsidiaries.

 

“ Pro Forma Basis ” means, without duplication of any add backs otherwise added back in the definition of “Consolidated EBITDA”, with respect to the calculation of the Consolidated Net Secured Leverage Ratio, the Consolidated Total Net Leverage Ratio, the Incremental Facility Maximum Amount, the Available Amount, Pro Forma EBITDA and any other applicable provision of this Agreement or any other Loan Document, as of any time, that pro forma effect shall be given to the Transactions and any Specified Transaction that have occurred during the U.S. Borrower’s most-recently ended Testing Period, or subsequent to the end of such Testing Period but prior to such time for which a determination under this definition is made, as if each such event occurred on the first day of such Testing Period (giving effect to pro forma adjustments which are (i) determined on a basis consistent with Article 11 of Regulation S-X promulgated under the Exchange Act and as interpreted by the staff of the Securities and Exchange Commission (or any successor agency), (ii) recommended by any due diligence quality of earnings report conducted by (x) a firm of independent public accountants of recognized national standing or (y) any other accounting firm reasonably satisfactory to the Administrative Agent (such acceptance not to be unreasonably withheld), selected by the U.S. Borrower and retained by the U.S. Borrower; or (iii) otherwise determined in such other manner reasonably acceptable to the Administrative Agent); provided , that for purposes of determining actual compliance (and not pro forma compliance) with Section 7.07 , pro forma effect shall not be given to any Specified Transaction that occurred subsequent to the end of the most-recently ended Testing Period.

 

“ Pro Forma EBITDA ” means, as of any date of determination, Consolidated EBITDA for the Testing Period determined on a Pro Forma Basis.

 

“ 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.

 

“ Purchase Money Indebtedness ” means, for any Person, Indebtedness incurred for the purpose of financing all or any part of the purchase price of any fixed or capital assets (including Equity Interests of any Person owning

 

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fixed or capital assets) or the cost of installation, construction or improvement of any fixed or capital assets; provided that (i) such Indebtedness is incurred within 180 days after such acquisition, installation, construction or improvement of such fixed or capital assets (including Equity Interests of any person owning the applicable fixed or capital assets) by such person and (ii) the amount of such Indebtedness does not exceed the lesser of 100% of the fair market value of such fixed or capital asset or the cost of the acquisition, installation, construction or improvement thereof, as the case may be.

 

“ Purchaser ” has the meaning set for in the preamble to this Agreement.

 

“ Purchaser Pledge Agreement ” has the meaning provided in Section 6.10(e) .

 

“ Qualified Cash ” means the aggregate amount of cash and Cash Equivalents, excluding cash and Cash Equivalents that are listed as “restricted” on the consolidated balance sheet of the U.S. Borrower and its Restricted Subsidiaries as of such date of determination (other than the aggregate amount of cash and Cash Equivalents restricted in favor of the Credit Facilities (which may also secure other indebtedness secured by a pari passu or junior lien on Collateral securing the Credit Facilities)) in each case as determined in accordance with GAAP, in an amount not to exceed the greater of (i) $250,000,000 and (ii) an amount equal to 50% of the Pro Forma EBITDA for the most recently ended Testing Period.

 

“ Qualified ECP Guarantor ” means, in respect of any Obligations with respect to a Secured Hedge Agreement, each Credit Party that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Obligations or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

“ RCRA ” means the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.

 

“ Real Property ” of any Person shall mean all of the right, title and interest of such Person in and to land, improvements and fixtures, including Leaseholds.

 

“ Receivable ” means any indebtedness and other obligations owed to any Credit Party or a Special Purpose Receivables Subsidiary or any right of a Special Purpose Receivables Subsidiary or any Credit Party to payment from or on behalf of a purchaser of goods (or other obligor obligated to make payments pursuant to the contract relating to such Receivable) from any Credit Party or any right to reimbursement for funds paid or advanced by a Special Purpose Receivables Subsidiary or any Credit Party on behalf of a purchaser of goods (or other obligor obligated to make payments pursuant to the contract relating to such Receivable) from any Credit Party, whether constituting an account, chattel paper, payment intangible, instrument or general intangible, however arising (whether or not earned by performance), and includes the obligation to pay any finance charges, fees and other charges with respect thereto (it being understood that indebtedness and other obligations arising from any one transaction, including indebtedness and other obligations represented by an individual invoice or agreement, shall constitute a Receivable separate from a Receivable consisting of the indebtedness and other obligations arising from any other transaction).

 

“ Receivables Assets ” shall mean any Receivable and Related Security from time to time originated, acquired or otherwise owned by the U.S. Borrower or any Subsidiary.

 

“ Receiver ” means a receiver or receiver and manager or administrative receiver of the whole or any part of the collateral subject to Liens under the UK Security Documents, the Irish Security Documents or the Northern Irish Security Documents.

 

“ Recipient ” means (a) the Administrative Agent, (b) any Lender and (c) any LC Issuer, as applicable.

 

“ Refinancing ” means the (a) the repayment in full of all Indebtedness and other obligations under the Existing Credit Agreements (other than (x) contingent indemnification obligations for which no claim has been

 

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made, and (y) bank product obligations, secured hedging obligations and letters of credit (or issuance documents related thereto) to be cash collateralized, backstopped or deemed to be Letters of Credit issued pursuant to this Agreement) (which shall be deemed satisfied if made with proceeds of the initial Credit Event) and the termination of all commitments thereunder (which may be contemporaneous with such repayment); (b) the repayment of all funded Indebtedness of the Target and its Subsidiaries not permitted to remain outstanding under the Target Acquisition Agreement (in each case other than (x) contingent indemnification obligations for which no claim has been made, and (y) bank product obligations, secured hedging obligations and letters of credit (or issuance documents related thereto) to be cash collateralized, backstopped or deemed to be Letters of Credit issued pursuant to this Agreement) (which shall be deemed satisfied if made with proceeds of the initial Credit Event); and (c) the termination of all related commitments and the release of all related guarantees and liens (which may be contemporaneous with the repayments contemplated under the preceding clauses (a) and (b)).

 

“ Refinancing Term Effective Date ” has the meaning set forth in Section 2.20(b) .

 

“ Refinancing Term Lender ” has the meaning set forth in Section 2.20(b) .

 

“ Refinancing Term Loans ” has the meaning set forth in Section 2.20(a) .

 

“ Regulation D ” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.

 

“ Regulation U ” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

 

“ Regulatory Assessment ” means any payment, fee, charge, assessment or other amount required to be paid to or enforced by a U.S. federal, state or local Governmental Authority or any non-U.S. Governmental Authority to finance regulatory funding mechanisms, including United States state or federal Universal Service Fund, Canadian Contribution Regime, FCC, CRTC, or ISEDC regulatory fees, including but not limited to international bearer circuit and interstate telephone service provider fees, telecommunications relay systems, administration of the North American Numbering Plan, emergency calling services and other similar regulatory funding mechanisms.

 

“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the directors, officers, employees, representatives, agents and advisors of such Person and of such Person’s Affiliates.

 

“ Related Security ” means, with respect to any Receivable (a) all of a Special Purpose Receivables Subsidiary’s and any Credit Party’s interest in any goods (including returned goods), and documentation of title evidencing the shipment or storage of any goods (including returned goods), the sale of which gave rise to such Receivable; (b) all instruments and chattel paper that may evidence such Receivable (and do not evidence any asset that is not a Receivable); (c) all other security interests or liens and property subject thereto from time to time purporting to secure payment of such Receivable, whether pursuant to the contract related to such Receivable or otherwise, together with all UCC financing statements or similar filings relating thereto; (d) solely to the extent applicable to such Receivable, the rights, interests and claims under the contracts and all guarantees, indemnities, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable or otherwise relating to such Receivable, whether pursuant to the contract related to such Receivable or otherwise; (e) all of a Special Purpose Receivables Subsidiary’s rights, interests and claims under the Permitted Receivables Documents; and (f) all collections and other proceeds and products of any of the foregoing, as defined in the UCC, that are or were received by a Credit Party or Special Purpose Receivables Subsidiary, including all funds which either are received by a Credit Party or Special Purpose Receivables Subsidiary from or on behalf of the obligors in payment of any amounts owed (including invoice price, finance charges, interest and all other charges) in respect of the above Receivables or are applied to such amounts owed by the obligors (including any insurance payments that a Credit Party or Special Purpose Receivables Subsidiary applies in the ordinary course of its business to amounts owed in respect of any of the above Receivables, and net proceeds of sale or other disposition of repossessed goods or other collateral or property of the obligors in respect of the above Receivables or any other parties directly or indirectly liable for payment of any such Receivables, and all books and records of any Credit Party to the extent related to any of the Receivables Assets.

 

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“ Relevant Jurisdiction ” means (i) the jurisdiction of incorporation, organization or formation, as applicable, of the U.S. Borrower or any of its Subsidiaries, (ii) any jurisdiction where any asset of the U.S. Borrower or any of its Subsidiaries is situated, which as of the date of determination is subject to, or from time to time is intended to be subject to, a security interest in favor of Administrative Agent, (iii) any jurisdiction where the U.S. Borrower or any of its Subsidiaries conducts its business and (iv) the jurisdiction the laws of which govern the perfection of any Liens granted by the Credit Parties pursuant to the Security Documents.

 

“ Relevant Party ” has the meaning assigned to such term in Section 3.03(i) .

 

“ Replaced Revolving Commitments ” has the meaning set forth in Section 2.21(a) .

 

“ Replacement Revolving Commitments ” has the meaning set forth in Section 2.21(a) .

 

“ Replacement Revolving Lender ” has the meaning set forth in Section 2.21(b) .

 

“ Reportable Event ” means an event described in Section 4043 of ERISA or the regulations thereunder with respect to a U.S. Plan, other than those events as to which the notice requirement is waived under subsection .22, .23, .25, .27, .28, .29, .30, .31, .32, .34, .35, .62, .63, .64 or .65 of PBGC Regulation Section 4043.

 

“ Repricing Event ” means (a) any prepayment or refinancing of the Closing Date Term Loans (or any portion thereof) with the proceeds of, or any conversion of the Closing Date Term Loans (or any portion thereof) into, any new or replacement loans or similar bank indebtedness bearing interest with an “effective yield” (taking into account, for example, upfront fees, interest rate spreads, interest rate benchmark floors and original issue discount but excluding any arrangement, structuring, syndication, upfront and other fees paid in connection therewith that are not paid to all Lenders providing such new debt) less than the “effective yield” applicable to the Closing Date Term Loans subject to such event (as such comparative yields are reasonably determined by the Administrative Agent acting in good faith) and (b) any amendment to the Loan Documents which reduces the “effective yield” applicable to all or a portion of Closing Date Term Loans (as such comparative yields are reasonably determined by the Administrative Agent acting in good faith).

 

“ Required Lenders ” means Lenders whose Credit Facility Exposure and Unused Revolving Commitments constitute more than 50% of the sum of the Aggregate Credit Facility Exposure and the Unused Total Revolving Commitment.  The Credit Facility Exposure and Unused Revolving Commitments of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

 

“ Required Prepayment Date ” has the meaning given thereto in Section 2.13(i).

 

“ Required Revolving Lenders ” means Lenders whose Revolving Facility Exposure and Unused Revolving Commitments constitute more than 50% of the sum of the Aggregate Revolving Facility Exposure and the Unused Total Revolving Commitment.  The Revolving Facility Exposure and Unused Revolving Commitments of any Defaulting Lender shall be disregarded in determining Required Revolving Lenders at any time.

 

“ Reset Date ” has the meaning provided in Section 1.06 .

 

“ Responsible Officer ” means, as to any Person, the chief executive officer, president, any vice president, the secretary, treasurer or controller of such Person or, with respect to financial matters, the chief financial officer of such Person. Unless otherwise specified, “Responsible Officer” refers to a Responsible Officer of the U.S. Borrower.

 

“ Restricted Participant ” means (i) any Person who has a Standard Industrial Classification of 4813 and listed on the attachment to the most recently delivered Compliance Certificate, which list may be updated more frequently by the U.S. Borrower in a writing to the Administrative Agent and the Lenders from time to time or (ii) any Person that owns more than 5% of the outstanding common stock of the U.S. Borrower and has been specified in a written notice to the Administrative Agent and the Lenders by the U.S. Borrower from time to time.

 

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“ Restricted Payment ” means (i) any Capital Distribution or (ii) any amount paid by the U.S. Borrower or any of its Restricted Subsidiaries in repayment, redemption, retirement, repurchase, voluntary prepayment, direct or indirect, of (x) any Subordinated Indebtedness or (y) any Junior Lien Indebtedness.

 

“ Restricted Subsidiary ” means any Subsidiary of the U.S. Borrower (including the EMEA Borrower) that is not an Unrestricted Subsidiary.  The Restricted Subsidiaries of the U.S. Borrower as of the Closing Date are listed on Schedule 1.01(d) .

 

“ Restricted Upstream Subsidiary ” means (i) in the case of the U.S. Borrower, such Borrower’s Non-U.S. Subsidiaries and (ii) in the case of the EMEA Borrower, any Subsidiary of the EMEA Borrower (or any Subsidiary of the Purchaser) organized in a jurisdiction other than in the United Kingdom and as set forth on Schedule 1.01(d) .

 

“ Retained Declined Proceeds ” has the meaning given thereto in Section 2.13(i) .

 

“ Revolving Borrowing ” means the incurrence of Revolving Loans consisting of one Type of Revolving Loan by the U.S. Borrower from all of the Lenders having Revolving Commitments in respect thereof on a pro rata basis on a given date (or resulting from Conversions or Continuations on a given date) in the same currency, having in the case of any Eurocurrency Loans, the same Interest Period.

 

“ Revolving Commitment ” means, with respect to each Lender, the amount set forth opposite such Lender’s name in Schedule 1 hereto as its “Revolving Commitment” or, in the case of any Lender that becomes a party hereto pursuant to an Assignment Agreement, the amount set forth in such Assignment Agreement, as such commitment may be reduced from time to time pursuant to Section 2.12 or adjusted from time to time as a result of assignments to or from such Lender pursuant to Section 11.06 and any Incremental Revolving Credit Commitments.

 

“ Revolving Extension Effective Date ” has the meaning set forth in Section 2.18(b) .

 

“ Revolving Extension Election ” has the meaning set forth in Section 2.18(b) .

 

“ Revolving Facility ” has the meaning assigned to such term in the definition of “Credit Facilities”.

 

“ Revolving Facility Availability Period ” means, as of any date of determination, the period from the Closing Date until the latest Revolving Facility Termination Date in effect on such date.

 

“ Revolving Facility Exposure ” means, for any Lender at any time, the sum of (i) the principal amount of Revolving Loans made by such Lender and outstanding at such time, and (ii) such Lender’s share of the LC Outstandings at such time.

 

“ Revolving Facility Note ” means a promissory note substantially in the form of Exhibit A-1 hereto.

 

“ Revolving Facility Percentage ” means, at any time for any Lender, the percentage obtained by dividing such Lender’s Revolving Commitment by the Total Revolving Commitment, provided, however , that if the Total Revolving Commitment has been terminated, the Revolving Facility Percentage for each Lender shall be determined by dividing such Lender’s Revolving Commitment immediately prior to such termination by the Total Revolving Commitment immediately prior to such termination.  The Revolving Facility Percentage of each Lender as of the Closing Date is set forth on Schedule 1 hereto.

 

“ Revolving Facility Termination Date ” means, as applicable, the earlier of (a) the date that the Revolving Commitments have been terminated pursuant to Section 8.02 , and (b)(x) with respect to any Revolving Commitment in effect on the Closing Date, May 31, 2023, (y) with respect to any Extending Revolving Lender pursuant to Section 2.18 , the date agreed to in accordance with Section 2. 18 and (z) with respect to any Replacement Revolving Lender, the date agreed to in accordance with Section 2.21 .

 

“ Revolving Lender ” means a Lender with a Revolving Commitment or, if the Revolving Commitments have been terminated or expired, a Lender with Revolving Facility Exposure.

 

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“ Revolving Loan ” means, with respect to each Lender, any loan made by such Lender pursuant to Section 2.02 .

 

“ Right-of-Way ” means a right granted by any Person or Governmental Authority to the U.S. Borrower or any of its Subsidiaries to install and maintain fiber, conduit, manholes (beach or otherwise), and associated facilities and equipment in real property in connection with the activities or conduct of the business of the U.S. Borrower or any of its Subsidiaries (including any right granted by any Person or Governmental Authority to the U.S. Borrower or any of its Subsidiaries to place its submarine cable(s), including in any sanctuary or other protected area or over or in the vicinity of any subsea pipes or other structures).

 

“ S&P ” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., and its successors.

 

“ Sale and Lease-Back Transaction ” means any arrangement with any Person providing for the leasing by the U.S. Borrower or any Restricted Subsidiary of the U.S. Borrower of any property (except for temporary leases for a term, including any renewal thereof, of not more than one year and except for leases between the U.S. Borrower and a Restricted Subsidiary or between Restricted Subsidiaries), which property has been or is to be sold or transferred by the U.S. Borrower or such Restricted Subsidiary to such Person.

 

“ Sanctions ” has the meaning provided in Section 5.24(a) .

 

“ Scheduled Repayment ” means, with respect to any Term Loan, each regularly scheduled payment of principal as set forth in Section 2.13(b)  with respect to such Term Loan or, if applicable, as set forth in an Additional Credit Extension Amendment.

 

“ Scheduled Unavailability Date ” has the meaning specified in Section 2.09(i) .

 

“ Screen Rate ” means, as applicable, (a) the LIBOR quote on the applicable screen page specified in the definition of “Adjusted Eurocurrency Rate” that the Administrative Agent designates to determine the Adjusted Eurocurrency Rate and (b) the EURIBOR quote on the applicable screen page specified in the definition of “EURIBO Rate” that the Administrative Agent designates to determine the EURIBO Rate.

 

“ SEC ” means the United States Securities and Exchange Commission.

 

“ SEC Regulation D ” means Regulation D as promulgated under the Securities Act of 1933, as amended, as the same may be in effect from time to time.

 

“ SEC Rule 144A ” means Rule 144A as promulgated under the Securities Act of 1933, as amended, as the same may be in effect from time to time.

 

“ Secured Cash Management Agreement ” means any Cash Management Agreements entered into with any Cash Management Bank.

 

“ Secured Creditors ” means each of the Administrative Agent, the Lenders, each LC Issuer, each Secured Hedge Provider, each Cash Management Bank, and the respective successors and assigns of each of the foregoing provided that each Secured Hedge Provider and Cash Management Bank, other than the Administrative Agent, a Lender or an LC Issuer, is designated in a written notice by any Borrower to the Administrative Agent as a Secured Party in respect thereof and executes and delivers to the Administrative Agent a letter agreement in form and substance reasonably acceptable to the Administrative Agent pursuant to which such Person (i) appoints the Administrative Agent as its agent under the applicable Loan Documents, (ii) agrees to be bound by the provisions of Article IX , Sections 11.01 , 11.02 and 11.08 as if it were a Lender and (iii) agrees to be bound by the provisions of that certain agreement among the Secured Parties, dated as of the date hereof.

 

“ Secured Hedge Agreement ” means any Hedge Agreements entered into with any Secured Hedge Provider, which is in effect on, or entered into after, the Closing Date.

 

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“ Secured Hedge Provider ” means the Administrative Agent, a Lead Arranger, a Lender or an Affiliate of the Administrative Agent, a Lead Arranger or a Lender (or a Person who was a Lender or an Affiliate of a Lender at the time of execution and delivery of a Hedge Agreement) (i) who has entered into a Hedge Agreement with the U.S. Borrower or any of its Restricted Subsidiaries, or (ii)  that is a party to a Hedge Agreement in existence on the Closing Date with U.S. Borrower or any of its Restricted Subsidiaries, in its capacity as a counterparty to such Hedge Agreement.

 

“ Security Agreements ” means, collectively, the U.S. Security Agreement and the Non-U.S. Security Agreements.

 

“ Security Documents ” means the U.S. Security Documents and the EMEA Facility Security Documents.

 

“ Sellers ” has the meaning provided in the preliminary statements hereto.

 

“ Series A CoD ” means a certificate of designation in substantially the form of the Certificate of Designation attached as an exhibit to the Amended and Restated Securities Purchase Agreements, dated as of February 23, 2018, each between the U.S. Borrower, on the one hand, and The Spruce House Partnership LP and others, on the other hand.

 

“ Significant Subsidiary ” means any Restricted Subsidiary of the U.S. Borrower other than a Non-Credit Party that did not, as of the last day of the fiscal quarter of the U.S. Borrower most recently ended for which financial statements have been delivered to the Administrative Agent pursuant to Section 6.01(a)  or (b) , have individually, either (i) assets with a value in excess of 7.5% of total assets of, or (ii) revenues in an amount in excess of 7.5% of the total revenues of, the U.S. Borrower and its Restricted Subsidiaries on a consolidated basis for the Testing Period most recently ended .

 

“ Single Employer Plan ” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, to which the U.S. Borrower, any Subsidiary of the U.S. Borrower or any ERISA Affiliate is making or accruing an obligation to make contributions or, in the event that any such plan has been terminated, to which the U.S. Borrower, any Subsidiary of the U.S. Borrower or any ERISA Affiliate made or accrued an obligation to make contributions during any of the five plan years preceding the date of termination of such plan, but does not include a Canadian Pension Plan.

 

“ SPC ” has the meaning provided in Section 11.06(f) .

 

“ Special Purpose Receivables Subsidiary ” shall mean a direct or indirect Subsidiary of the U.S. Borrower established in connection with a Permitted Receivables Financing for the acquisition of Receivables Assets or interests therein, and which is organized in a manner intended to reduce the likelihood that it would be substantively consolidated with the U.S. Borrower or any of the Restricted Subsidiaries (other than Special Purpose Receivables Subsidiaries) in the event the U.S. Borrower or any such Restricted Subsidiary becomes subject to a proceeding under the Bankruptcy Code (or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law).

 

“ Specified Acquisition Agreement Representations ” means, with respect to the Target Companies, the representations and warranties made by, or with respect to, the Target Companies in the Target Acquisition Agreement as are material to the interests of the Lenders in their capacities as such, but only to the extent that the U.S. Borrower (or any of its Affiliates) has the right to terminate its or their obligations under the Target Acquisition Agreement (or decline or otherwise refuse to consummate the Acquisition pursuant to the Target Acquisition Agreement) as a result of a breach of any such representation and warranty in the Target Acquisition Agreement or any such representation and warranty not being accurate .

 

“ Specified Event of Default ” means any Event of Default under Sections 8.01(a)  or (i) .

 

“ Specified Representations ” mean the representations and warranties set forth in Section 5.01(i)  (solely with respect to the Credit Parties other than the Target Companies) (solely, for the avoidance of doubt, with respect

 

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to its jurisdiction of formation or organization, as applicable), Section 5.02 (solely with respect to the Credit Parties other than the Target Companies), Section 5.03(iii)  (solely with respect to the Credit Parties other than the Target Companies), Section 5.06(b)  and (c) , Section 5.08 , Section 5.16 , Section 5.19 and Section 5.24 .

 

“ Specified Transactions ” means acquisitions, dispositions, any issuance, incurrence, assumption or permanent repayment of Indebtedness (including Indebtedness issued, incurred or assumed as a result of, or to finance, any relevant transaction and for which the financial effect is being calculated), all sales, transfers and other dispositions or discontinuance of any Subsidiary, line of business or division, restructurings, cost savings initiatives, other operational changes or operational initiatives (in each case including for the avoidance of doubt, acquisitions and permitted investments occurring prior to the Closing Date); it being acknowledged and agreed that the acquisitions of (i) GC Pivotal, LLC, pursuant to that certain Membership Interest Purchase Agreement, dated as of June 23, 2017, by and among GTT Americas, LLC and GC Pivotal, LLC, Pivotal Global Capacity, LLC, (ii) Hibernia NGS Limited, pursuant to that certain Share Purchase Agreement, dated as of November 8, 2016, by and among the U.S. Borrower, Murosa Development S.A.R.L., Columbia Ventures Corporation and Hibernia NGS Limited, (iii) Accelerated Connections Inc., pursuant to that certain Share Purchase Agreement, dated as of March 8, 2018, by and among Michael Garb, 2497817 Ontario Limited, 2497816 Ontario Limited, The Garbe Family Trust, Hibernia Express (Canada) Limited and Accelerated Connections Inc. and (iv) Custom Connect International B.V., pursuant to that certain Share Purchase Agreement, dated as of December 29, 2017, by and among O.W.R. Beheer B.V., J.W. Meijer Beheer B.V., JITVentures B.V., Mamadoo Ventures B.V., Stupa Holding B.V., D. Warnar, R.E. Traag, Hibernia Express (Ireland), Ltd., and Custom Connect International B.V., in each case shall be deemed to be Specified Transactions.

 

“ Sponsor Model ” means the U.S. Borrower’s financial model delivered to the Lead Arrangers on February 19, 2018.

 

“ Standard Permitted Lien ” means any of the following:

 

(i)                                 Liens for taxes not yet delinquent or Liens for taxes, assessments or governmental charges being contested in good faith and by appropriate proceedings for which adequate reserves in accordance with GAAP have been established;

 

(ii)                                 Liens in respect of property or assets imposed by law that were incurred in the ordinary course of business, such as carriers’, suppliers’, warehousemen’s, materialmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business, that do not in the aggregate materially detract from the value of such property or assets or materially impair the use thereof in the operation of the business of the U.S. Borrower or any of its Restricted Subsidiaries and do not secure any Indebtedness;

 

(iii)                                  Liens created by this Agreement or the other Loan Documents;

 

(iv)                                 Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Section 8.01(h) ;

 

(v)                                Liens (other than any Lien imposed by ERISA or, except for contributions not yet due, applicable foreign pensions legislation) incurred or deposits made in the ordinary course of business in connection with workers compensation, unemployment insurance and other types of social security, and mechanic’s Liens, carrier’s Liens, and other Liens to secure the performance of tenders, statutory obligations, contract bids, trade contracts, leases, government contracts, surety, appeal, customs, performance and return-of-money bonds and other similar obligations, incurred in the ordinary course of business (exclusive of obligations in respect of the payment for borrowed money), whether pursuant to statutory requirements, common law or consensual arrangements;

 

(vi)                                 leases or subleases granted in the ordinary course of business to others not interfering in any material respect with the business of the U.S. Borrower or any of its Restricted Subsidiaries and any interest or title of a lessor under any lease not in violation of this Agreement;

 

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(vii)                                 easements (including reciprocal easement agreements), survey exceptions, or reservations of, or rights of others for, licenses, rights-of-way, sewer, electric lines, telegraph and telephone lines and other similar purposes, zoning, building codes or other restrictions, charges, ground leases, encumbrances, defects in title, prior rights of other persons, and obligations contained in similar instruments, in each case that do not secure Indebtedness and do not involve, and are not likely to involve at any future time, either individually or in the aggregate, (A) a substantial and prolonged interruption or disruption of the business activities of the U.S. Borrower and its Restricted Subsidiaries considered as an entirety, or (B) a Material Adverse Effect;

 

(viii)                                 Liens arising from the rights of lessors under leases (including financing statements regarding property subject to lease) not in violation of the requirements of this Agreement; provided that such Liens are only in respect of the property subject to, and secure only, the respective lease (and any other lease with the same or an affiliated lessor);

 

(ix)                                 Liens solely on any cash earnest money deposits made by the U.S. Borrower and any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement; provided that any such deposits shall be made solely in connection with Permitted Acquisitions or other Investments permitted hereunder;

 

(x)                                purported Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of personal property entered into in the ordinary course of business;

 

(xi)                                 Liens (i) in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods or (ii) on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such person to facilitate the purchase, shipment or storage of such inventory or goods in the ordinary course of business;

 

(xii)                                 Liens consisting of non-exclusive licenses of Intellectual Property in the ordinary course of business;

 

(xiii)                                 Liens of (i) a collection bank arising under Section 4-210 of the UCC (or any analogous statutory provision of applicable foreign law) on items in the course of collection or, solely with respect to accounts located in the Netherlands, which arise from article 24 or 25 of the general banking conditions ( algemene bankvoorwaarden ), (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and (iii) in favor of a banking or other financial institution arising as a matter of law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of setoff) and that are within the general parameters customary in the banking industry or arising pursuant to such banking institutions general terms and conditions;

 

(xiv)                                Liens that are contractual rights of setoff or rights of pledge (i) relating to the establishment of depository relations with banks or other financial institutions not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the U.S. Borrower or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the U.S. Borrower or any of its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the U.S. Borrower or any of its Restricted Subsidiaries in the ordinary course of business;

 

(xv)                               Liens on insurance premium refunds and insurance proceeds granted in favor of insurance companies (or their financing affiliates) in connection with the financing of insurance premiums;

 

(xvi)                                Liens in favor of a Governmental Authority arising in connection with any condemnation or eminent domain proceeding by such Governmental Authority affecting Real Property which does not otherwise constitute an Event of Default under this Agreement;

 

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(xvii)                                 Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the U.S. Borrower or any Restricted Subsidiary (as purchaser or consignee) not prohibited by this Agreement;

 

(xviii)                                 Liens solely on any cash earnest money deposits of the U.S. Borrower and any of its Restricted Subsidiaries provided to licensing authorities and governmental agencies in the ordinary course of business;

 

(xix)                                rights of access, licenses, step-in rights, leases and inspection rights granted to customers in the ordinary course of business;

 

(xx)                               rights of consignors of goods, whether or not perfected by the filing of a financing statement under the UCC;

 

(xxi)                                in the case of any Credit Party or Restricted Subsidiary organized under the laws of Canada or any province or territory thereof or any property located in Canada (A) reservations, limitations, provisos and conditions expressed in any original grant from the Crown or other grants of real or immovable property, or interests therein, that do not materially affect the use of the affected land for the purpose for which it is used by such Credit Party or Restricted Subsidiary, (B) the right reserved to or vested in any Governmental Authority by the terms of any lease, license, franchise, grant or permit acquired by such Credit Party or Restricted Subsidiary or by any statutory provision to terminate any such lease, license, franchise, grant or permit, or to require annual or other payments as a condition to the continuance thereof and (C) security given to a public utility or any Governmental Authority when required by such utility or authority in connection with the operations of such Credit Party or Restricted Subsidiary in the ordinary course of its business to secure obligations not yet overdue;

 

(xxii)                                 Liens over any rental deposits in respect of any Real Property leased or licensed by a Credit Party in the ordinary course of business;

 

(xxiii)                                 inchoate Liens (other than any Lien imposed by ERISA or, except for contributions not yet due, applicable foreign pensions legislation) that arise by operation of law;

 

(xxiv)                                Liens on any amounts held by a trustee under any indenture or other debt agreement (in each case, solely to the extent the Indebtedness evidenced thereby constitutes Indebtedness permitted by Section 7.04 ) issued in escrow pursuant to customary escrow arrangements pending the release thereof, or under any indenture or other debt agreement pursuant to customary discharge, redemption or defeasance provisions;

 

(xxv)                               Liens arising under the general terms and conditions of banks or Sparkassen ( Allgemeine Geschäftsbedingungen der Banken oder Sparkassen ) with whom U.S. Borrower or any of its Restricted Subsidiaries maintains a banking relationship in the ordinary course of business; and

 

(xxvi)                            any Lien created in order to secure pension liabilities or partial retirement liabilities ( Altersteilzeitverpflichtungen ) including pursuant to section 8a of the German Partial Retirement Act ( Altersteilzeitgesetz ) and/or section 7e of the book IV of the German Social Act ( Sozialgesetzbuch IV ).

 

“ Standby Letter of Credit ” means any standby letter of credit issued for the purpose of supporting workers compensation, liability insurance, releases of contract retention obligations, contract performance guarantee requirements and other bonding obligations or for other lawful purposes.

 

“ Stated Amount ” of each Letter of Credit shall mean the maximum amount available to be drawn thereunder (regardless of whether any conditions or other requirements for drawing could then be met).

 

“ Sterling ” and the sign “ £ ” each means lawful money of the United Kingdom (expressed in pounds sterling).

 

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“ Subordinated Debt Documents ” means, collectively, any loan agreements, indentures, note purchase agreements, promissory notes, guarantees and other instruments and agreements evidencing the terms of any Subordinated Indebtedness.

 

“ Subordinated Indebtedness ” means any Indebtedness that has been subordinated to the prior payment in full of all of the Obligations pursuant to a written agreement or written terms reasonably acceptable to the Administrative Agent.

 

“ Subsidiary ” of any Person means (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary Voting Power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have Voting Power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries, and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person directly or indirectly through Subsidiaries, owns more than 50% of the Equity Interests of such Person at the time or in which such Person, one or more other Subsidiaries of such Person or such Person and one or more Subsidiaries of such Person, directly or indirectly, has the power to direct the policies, management and affairs thereof.  Unless otherwise expressly provided, all references herein to “Subsidiary” shall mean a Subsidiary of the U.S. Borrower.

 

“ Subsidiary Guarantor ” means (a) any U.S. Borrower Guarantor and (b) any Non-U.S. Subsidiary Guarantor.  Schedule 1.01(e)  hereto lists each Subsidiary Guarantor as of the Closing Date.

 

“ Successor Rate ” has the meaning specified in Section 2.09(i) .

 

“ Successor Rate Conforming Changes ” means, with respect to any proposed Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, EURIBO Rate, Adjusted Eurocurrency Rate, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the reasonable discretion of the Administrative Agent, to reflect the adoption of such Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with customary market practice (or, if the Administrative Agent reasonably determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Successor Rate exists, in such other manner of administration as the Administrative Agent reasonably determines in consultation with the U.S. Borrower).

 

“ Supplier ” has the meaning assigned to such term in Section 3.03(i).

 

“ Swap Obligation ” means, with respect to any Borrower or Subsidiary Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

 

“ Swiss Guarantor ” means any Guarantor incorporated in Switzerland and/or having its registered office in Switzerland and/or qualifying as a Swiss resident pursuant to Art. 9 of the Swiss Withholding Tax Act.

 

“ Swiss Withholding Tax ” means any taxes imposed under the Swiss Withholding Tax Act.

 

“ Swiss Withholding Tax Act ” means the Swiss Federal Act on the Withholding Tax ( Bundesgesetz über die Verrechnungssteuer ) of October 13, 1965, as amended from time to time (SR 642.21), together with the related ordinances, regulations and guidelines, all as amended and applicable from time to time.

 

“ Syndication Agent ” means Credit Suisse AG, Cayman Islands Branch, KeyBank National Association, SunTrust Bank, Goldman Sachs Bank USA and Morgan Stanley Senior Funding, Inc., as syndication agents.

 

“ Synthetic Lease ” means any lease (i) that is accounted for by the lessee as an Operating Lease, and (ii) under which the lessee is intended to be the “owner” of the leased property for federal income tax purposes.

 

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“ Synthetic Lease Obligations ” means, as to any person, an amount equal to the capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a balance sheet of such person in accordance with GAAP if such obligations were accounted for as Capitalized Lease Obligations.

 

“ Target ” has the meaning provided in the first paragraph to this Agreement.

 

“ Target Acquisition ” has the meaning provided in the preliminary statements hereto.

 

“ Target Acquisition Agreement ” has the meaning provided in the preliminary statements hereto.

 

“ Target Acquisition Documentation ” means, collectively, the Target Acquisition Agreement and all schedules, exhibits and annexes thereto and all side letters and agreements affecting the terms thereof or entered into in connection therewith.

 

“ Target Companies ” means the Target and its Subsidiaries.

 

“ TARGET Day ” means any day on which TARGET2 is open for the settlement of payments in Euro.

 

“ TARGET2 ” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007 (or any successor settlement system as reasonably determined by the Administrative Agent in consultation with the U.S. Borrower).

 

“ Target Existing Credit Agreements ” mean (i) the Term Loan Facility Agreement, dated as of October 9, 2017, by and among Interoute Communications Limited, as borrower, the guarantors party thereto, the lenders party thereto, Credit Suisse AG, London Branch as facility agent and Barclays Bank plc as security agent, and the other Finance Documents (as defined therein) related thereto, and (ii) the Multicurrency Revolving Credit Facility Agreement, dated as of November 4, 2016, by and among Interoute Communications Limited, as borrower, the guarantors party thereto, the lenders party thereto, Barclays Bank plc as facility agent and security agent, and the other Finance Documents (as defined therein) related thereto.

 

“ Target German Assets ” means the Equity Interests issued by and the assets of the Target German Entities, together with the liabilities of, including all Indebtedness of, the Target German Entities.

 

“ Target German Entities ” means Interoute German GmbH, ATP3 Dusseldorf GmbH and Easynet Global Services GmbH.

 

“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

“ Term Borrowing ” means the incurrence of Closing Date EMEA Term Loans, Closing Date U.S. Term Loans or Incremental Term Loans consisting of one Type by the Applicable Borrower from all of the Lenders having Term Commitments in respect thereof on a pro rata basis on a given date (or resulting from Conversions or Continuations on a given date), having in the case of Eurocurrency Loans the same Interest Period.

 

“ Term Commitment ” means the U.S. Term Commitment and the EMEA Term Commitment.

 

“ Term Lender ” means a Lender with a Term Commitment or an outstanding Term Loan.

 

“ Term Loan ” means, the U.S. Term Loans and the EMEA Term Loans, if any.

 

“ Term Loan Maturity Date ” means, as applicable, (a) with respect to any Closing Date Term Loans, the Initial Term Loan Maturity Date, (b) with respect to any Incremental Term Loan, the applicable Incremental Term Loan Maturity Date, (c) with respect to any Extended Term Loan, the applicable Extended Term Loan Maturity Date, or (d) with respect to all Term Loans, the latest of the dates referred to in clause (a), (b) and (c).

 

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“ Term Note ” means a U.S. Term Note or EMEA Term Note.

 

“ Testing Period ” means a single period consisting of the four consecutive fiscal quarters of the U.S. Borrower then last ended (whether or not such quarters are all within the same fiscal year) for which financial statements have been or were required to be delivered pursuant to Section 4.01(x) , 6.01(a)  or 6.01(b) , except that if a particular provision of this Agreement indicates that a Testing Period shall be of a different specified duration, such Testing Period shall consist of the particular fiscal quarter or quarters then last ended that are so indicated in such provision.

 

“ Title Company ” has the meaning specified in Section 6.10(d)(ii)(A) .

 

“ Title Policy ” has the meaning specified in Section 6.10(d)(ii)(A) .

 

“ Total Revolving Commitment ” means the sum of the Revolving Commitments of the Lenders as the same may be decreased pursuant to Section 2.12(c)  hereof.  As of the Closing Date, the amount of the Total Revolving Commitment is $200,000,000.

 

“ Total Term Loan Commitment ” means the sum of the Term Commitments of the Lenders.  As of the Closing Date, the amount of the Total Term Loan Commitment is the sum of (i) $1,770,000,000 and (ii) €750,000,000.

 

“ Transactions ” means the Target Acquisition, the issuance of common stock by the U.S. Borrower pursuant to the Target Acquisition Agreement, the issuance of common and preferred stock by the U.S. Borrower and the use of proceeds therefrom to finance in part the Target Acquisition and the Refinancing, the Refinancing, the entering into and initial borrowings under this Agreement, the payment of fees and expenses in connection with the foregoing and other related transactions.

 

“ Type ” means any type of Loan determined with respect to the interest option and currency denomination applicable thereto, which in each case shall be a Base Rate Loan or a Eurocurrency Loan.

 

“ UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York (or, if the context may require, each other applicable jurisdiction).  References to the UCC shall include the Personal Property Security Act of Nova Scotia (or successor statute) or similar legislation of any other Canadian jurisdiction, including the Civil Code of Québec, the laws of which are required by such legislation to be applied in connection with the issue, perfection, enforcement, opposability, enforceability, validity or effect of security interests or hypothecs.

 

“ Undisclosed Administration ” means 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 governmental supervisory authority or regulator under or based on the law in the country where such Lender is subject to home jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed.

 

“ Unfunded Benefit Liabilities ” of any U.S. Plan means the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.

 

“ United States ” and “ U.S . ” each means United States of America.

 

“ Universal Service Administrative Company ” means the independent, not-for-profit corporation designated by the FCC as the administrator of the Universal Service Fund created pursuant to Section 254 of the U.S. Communications Act.

 

“ Universal Service Fund ” means the Universal Service Fund created pursuant to Section 254 of the U.S. Communications Act or any similar fund established under federal, state or local law or regulation.

 

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“ Unpaid Drawing ” means, with respect to any Letter of Credit, the aggregate Dollar Amount of the draws made on such Letter of Credit that have not been reimbursed by the U.S. Borrower or the applicable LC Obligor or converted to a Revolving Loan pursuant to Section 2.05(f)(i) , and, in each case, all interest that accrues thereon pursuant to this Agreement.

 

“ Unrestricted Subsidiary ” means (a) a direct or indirect Subsidiary of the U.S. Borrower designated as an Unrestricted Subsidiary pursuant to Section 6.13 ; provided that in no event may any Borrower be designated as an Unrestricted Subsidiary, or (b) any Special Purpose Receivables Subsidiary; provided that any such Special Purpose Receivables Subsidiary of the U.S. Borrower that is an Unrestricted Subsidiary shall, upon the termination of any such Permitted Receivables Financing (other than as a result of an event of default thereunder unless and until the obligations thereunder are repaid in full), cease to be an Unrestricted Subsidiary and may not be re-designated as an Unrestricted Subsidiary.  As of the Closing Date, immediately following the consummation of the Target Acquisition, there are no Unrestricted Subsidiaries.

 

“ Unused Revolving Commitment ” means, for any Lender at any time, the excess of (i) such Lender’s Revolving Commitment at such time over (ii) such Lender’s Revolving Facility Exposure at such time.

 

“ Unused Total Revolving Commitment ” means, at any time, the excess of (i) the Total Revolving Commitment at such time over (ii) the Aggregate Revolving Facility Exposure at such time.

 

“ UK Secured Parties ” has the meaning specified in the definition of “UK Security Agreements”.

 

“ UK Security Agreements ” means the Non-U.S. Security Agreements governed by the laws of England or (as applicable) the laws of Scotland.

 

“ UK Security Documents ” means the UK Security Agreements, each Additional Security Document governed by the laws of England or (as applicable) the laws of Scotland and any document governed by English law or (as applicable) Scots law pursuant to which any Lien is granted or perfected by any Credit Party to the Administrative Agent as security for any of the Obligations.

 

“ UK Security Property ” means:

 

(i)                                 the Liens expressed to be granted under the UK Security Documents in favor of the Administrative Agent as security trustee for the UK Secured Parties and all proceeds of those Liens;

 

(ii)                                 all obligations expressed to be undertaken by a Credit Party to pay amounts in respect of the Obligations to the Administrative Agent as security trustee for the UK Secured Parties and secured by the UK Security Documents together with all representations and warranties expressed to be given by a Credit Party in favor of the Administrative Agent as security trustee for the UK Secured Parties; and

 

(iii)                                  any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Administrative Agent is required by the terms of the UK Security Documents to hold as security trustee on trust for the UK Secured Parties.

 

“ Unity ” has the meaning assigned to such term in Section 3.03(i) .

 

“ U.S. Borrower ” has the meaning provided in the preamble to this Agreement.

 

“ U.S. Borrower Guaranteed Obligations ” has the meaning provided in Section 10.01 .

 

“ U.S. Borrower Guarantor ” means any U.S. Subsidiary that is or hereafter becomes a party to a U.S. Subsidiary Guaranty, other than any Excluded Subsidiary.

 

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“ U.S. Collateral ” means the “Collateral” (or any equivalent term) as defined in the U.S. Security Agreement or any other applicable U.S. Security Document, together with any other assets (whether Real Property or personal property) pledged pursuant to any U.S. Security Document.

 

“ U.S. Communications Act ” means the United States Communications Act of 1934, as amended, codified as Chapter 5 of Title 47 of the U.S. Code, 47 U.S.C. 151 et. seq.

 

“ U.S. Communications Laws ” means (i) the U.S. Communications Act, (ii) An Act Relating to the Landing and Operation of Submarine Cables in the United States, 47 U.S.C. §§34-39, and related executive orders, (iii) FCC Rules and FCC decisions, policies, reports, and orders issued from time to time, (iv) CALEA, (v) such other laws of the United States codified or otherwise included in Title 47 of the U.S. Code as may be applicable to the conduct of the U.S. Borrower or its Subsidiaries or applicable to any of their respective networks, fiber assets, facilities, equipment or other property, (vi) the telecommunications-related laws of any state or of any county, parish or other local division of any state of the United States and regulations, decisions, policies, reports and orders issued by state agencies or local division agencies with jurisdiction over telecommunications-related matters pursuant to such laws, and (vii) the regulations, decisions, policies, reports and orders of any Governmental Authority in the United States with jurisdiction over telecommunications-related matters as may be applicable to the conduct of the U.S. Borrower or any of its Subsidiaries or applicable to any of their respective networks, fiber assets, facilities, equipment or other property.

 

“ U.S. Communications License ” means any license, permit, consent, certificate of compliance, franchise, approval, waiver or authorization related to the conduct of the U.S. Borrower or any of its Subsidiaries or applicable to any of their respective networks, fiber assets, facilities, equipment or other property and granted or issued by the FCC or any other local, state or federal U.S. Governmental Authority with jurisdiction over telecommunications-related matters (including any state public utility commission) to and held by the U.S. Borrower or any of its Subsidiaries, including those pursuant to which the U.S. Borrower or any of its Subsidiaries is authorized to engage in any activity subject to the jurisdiction of such Governmental Authority.  The term “U.S. Communications License” includes the rights of the U.S. Borrower or any of its Subsidiaries, established by Section 63.21(h) of the FCC Rules.

 

“ U.S. Credit Parties ” means the U.S. Borrower and the U.S. Borrower Guarantors.

 

“ U.S. Prepayment Group ” means the U.S. Credit Parties and their respective Restricted Subsidiaries (other than any member of the Non-U.S. Prepayment Group).

 

“ U.S. Loan Document ” has the meaning specified in the definition of “U.S. Obligations”.

 

“ U.S. Loans ” means U.S. Term Loans and Revolving Loans.

 

“ U.S. Obligations ” means all amounts, indemnities and reimbursement obligations, direct or indirect, contingent or absolute, of every type or description, and at any time existing, owing by the U.S. Borrower, any other U.S. Credit Party or other Restricted Subsidiary that is a U.S. Subsidiary to the Administrative Agent, any Lender, any Affiliate of any Lender, any Secured Hedge Provider, any Cash Management Bank or any LC Issuer pursuant to the terms of this Agreement, any other Loan Document to which any U.S. Credit Party is a party (collectively with this Agreement, the “ U.S. Loan Documents ” and each a “ U.S. Loan Documents ”), any Secured Hedge Agreement or any Secured Cash Management Agreement (including, but not limited to, interest and fees that accrue after the commencement by or against any U.S. Credit Party of any insolvency proceeding or other proceeding under any Debtor Relief Laws, regardless of whether allowed or allowable in such proceeding or subject to an automatic stay under Section 362(a) of the Bankruptcy Code or analogous provision under any other Debtor Relief Laws); provided, however , that U.S. Obligations shall not include any Excluded Swap Obligations.  Without limiting the generality of the foregoing description of U.S. Obligations, the U.S. Obligations include (a) the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, reasonable attorneys’ fees and disbursements, indemnities and other amounts payable by any U.S. Credit Party under any U.S. Loan Document, (b) Banking Services Obligations of any U.S. Credit Party or other Restricted Subsidiary that is a U.S. Subsidiary, (c) Hedging Obligations of any U.S. Credit Party or other Restricted Subsidiary that is a U.S. Subsidiary and (d) the obligation of any U.S. Credit Party to reimburse any amount in respect of any of the foregoing that the

 

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Administrative Agent, any Lender, any Secured Hedge Provider, and Cash Management Bank or any Affiliate of any of them, in connection with the terms of any U.S. Loan Document, may elect to pay or advance on behalf of the U.S. Credit Parties.  For the avoidance of doubt, “U.S. Obligations” does not include any obligations of U.S. Credit Parties in respect of their guarantees of the Loans or other obligations of the EMEA Borrower.

 

“ U.S. Person ” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

 

“ U.S. Plan ” means any Multi-Employer Plan, Multiple Employer Plan or Single-Employer Plan.

 

“ U.S. Security Agreement ” means the Pledge and Security Agreement, dated as of the Closing Date (as amended, restated, modified or supplemented from time to time), executed by the U.S. Borrower and the U.S. Borrower Guarantors in favor of the Administrative Agent.

 

“ U.S. Security Documents ” means the U.S. Security Agreement, each Additional Security Document, each Mortgage, any UCC financing statement and any similar filings, any Collateral Assignment, any Perfection Certificate and any document pursuant to which any Lien is granted or perfected by any U.S. Credit Party to the Administrative Agent.

 

“ U.S. Subsidiary ” means any Subsidiary organized under the laws of the United States, any State thereof, or the District of Columbia.

 

“ U.S. Subsidiary Guaranty ” means each of (a) the Subsidiary Guaranty (U.S. Subsidiaries), dated as of the Closing Date (as amended, restated, modified or supplemented from time to time), executed by the U.S. Borrower Guarantors in favor of the Administrative Agent (the “ Closing Date U.S. Subsidiary Guaranty ”), and (b) any guaranty executed by a U.S. Subsidiary in favor of the Administrative Agent from time to time after the Closing Date which guaranty shall be in form and substance reasonably acceptable to the Administrative Agent.

 

“ U.S. Tax Compliance Certificate ” has the meaning assigned to such term in Section 3.03(g)(ii)(B)(3) .

 

“ U.S. Term Commitment ” means, with respect to each Lender, the amount, if any, of its (a) Closing Date U.S. Term Commitment, (b) Incremental Term Loan Commitment in respect of U.S. Term Loans, or (c) in the case of any Lender that becomes a party hereto pursuant to an Assignment Agreement, the amount set forth in such Assignment Agreement, as such commitment may be reduced from time to time as a result of assignments to or from such Lender pursuant to Section 11.06 .

 

“ U.S. Term Facility ” has the meaning assigned to such term in the definition of “Credit Facilities”.

 

“ U.S. Term Loans ” means any Closing Date U.S. Term Loan, any Incremental Term Loan, any Extended Term Loan and any Refinancing Term Loans, in each case made to the U.S. Borrower under the U.S. Term Facility.

 

“ U.S. Term Note ” means a promissory note substantially in the form of Exhibit A-2 hereto.

 

“ USA Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001.” USF Requirements ” means the Universal Service Fund contribution and reporting requirements imposed by the FCC on providers of interstate telecommunications under the U.S. Communications Act or imposed by any state Governmental Authority.

 

“ VAT ” means:

 

(i)                                 any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

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(ii)                                 any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

 

“ VAT Receiver ” has the meaning assigned to such term in Section 3.03(i) .

 

“ VoIP ” means interconnected Voice over Internet Protocol services as that term is defined in Title 47, Part 9 of the Code of Federal Regulations.

 

“ Voting Power ” means, with respect to any Person, the exclusive ability to control, through the ownership of shares of capital stock, partnership interests, membership interests or otherwise, the election of members of the board of directors or other similar governing body of such Person, and the holding of a designated percentage of Voting Power of a Person means the ownership of shares of capital stock, partnership interests, membership interests or other interests of such Person sufficient to control exclusively the election of that percentage of the members of the board of directors or other similar governing body of such Person.

 

“ Waivable Mandatory Prepayment ” has the meaning given thereto in Section 2.13(i) .

 

“ Withholding Agent ” means any Credit Party and the Administrative Agent and, with respect to U.S. federal income taxes, any other applicable withholding agent.

 

“ 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.

 

Section 1.02                                Computation of Time Periods .  In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each means “to but excluding” and the word “through” means “through and including.”

 

Section 1.03                                Accounting Terms .  Except as otherwise specifically provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that if the U.S. Borrower notifies the Administrative Agent and the Lenders that the U.S. Borrower wishes to amend any financial ratio or requirement to eliminate the effect of any change in GAAP that occurs after the Closing Date on the operation of such financial ratio or requirement (or if the Administrative Agent notifies the U.S. Borrower that the Required Lenders (or the Required Revolving Lenders with respect to any financial ratio contemplated under Section 7.07 ) wish to amend any financial ratio or requirement for such purpose), then the U.S. Borrower’s compliance with such financial ratio or requirement shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such financial ratio or requirement is amended in a manner satisfactory to the U.S. Borrower, the Administrative Agent and the Required Lenders (or Required Revolving Lenders as the case may be), the U.S. Borrower, the Administrative Agent and the Lenders agreeing to enter into good faith negotiations to amend any such financial ratio or requirement promptly upon receipt from any party entitled to send such notice.  Notwithstanding the foregoing, (A) all financial statements delivered hereunder shall be prepared, and all financial covenants contained herein shall be calculated, without giving effect to any election under Statement of Financial Accounting Standards 159 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof and (B) all leases of the U.S. Borrower and its Restricted Subsidiaries that were treated as operating leases in accordance with GAAP on the Closing Date shall continue to be treated as operating leases for purposes of the financial definitions contained herein, regardless of any change in GAAP after the Closing Date that would otherwise require such operating leases to be treated as Capital Leases; provided that the U.S. Borrower shall provide to the Administrative Agent financial statements and other documents required under this Agreement which include a reconciliation showing such treatment before and after giving effect to such change in GAAP.

 

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Section 1.04                              Terms Generally .

 

(a)                                  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections, Schedules and Exhibits shall be construed to refer to Sections of, and Schedules and Exhibits to, this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all Real Property, tangible and intangible assets and properties, including cash, securities, accounts and contract rights, and interests in any of the foregoing, and (f) any reference to a statute, rule or regulation is to that statute, rule or regulation as now enacted or as the same may from time to time be amended, re-enacted or expressly replaced.

 

(b)                                  Notwithstanding anything to the contrary contained herein, for purposes of any determination under Article VI and Article VII and the calculation of compliance with any financial ratio for purposes of determining financial covenant compliance or taking any action hereunder or other transaction, event or circumstance, or any other determination under any other provision of this Agreement not covered elsewhere in this Section 1.04(b)  (any of the foregoing, a “ specified transaction ”), in a currency other than Dollars, (i) the Dollar Amount of a specified transaction in a currency other than Dollars shall be calculated based on the rate of exchange quoted by a publicly available service for displaying exchange rates customarily referenced by the Administrative Agent for such foreign currency, as in effect at 11:00 A.M. (New York time) on the date of such specified transaction (which, in the case of any Restricted Payment, shall be deemed to be the date of the declaration thereof and, in the case of the incurrence of Indebtedness, shall be deemed to be on the date first committed); provided , that if any Indebtedness is incurred (and, if applicable, associated Lien granted) pursuant to any Permitted Refinancing of Indebtedness denominated in a currency other than Dollars, and the relevant Permitted Refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such Permitted Refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Indebtedness following such Permitted Refinancing (and, if applicable, associated Lien granted) does not exceed an amount sufficient to repay the principal amount of such Indebtedness subject to such Permitted Refinancing, except by an amount equal to (x) unpaid accrued interest and premiums (including tender premiums) thereon plus other reasonable and customary fees and expenses (including upfront fees and original issue discount) incurred in connection with such Permitted Refinancing, (y) any existing commitments unutilized thereunder and (z) additional amounts permitted to be incurred under Section 7.04 and (ii) for the avoidance of doubt, no Default or Event of Default shall be deemed to have occurred solely as a result of a change in the rate of currency exchange occurring after the time of any specified transaction so long as such specified transaction was permitted at the time incurred, made, acquired, committed, entered or declared as set forth in this Section.

 

Section 1.05                              Additional Approved Currencies .

 

(a)                                  The U.S. Borrower may from time to time request that Revolving Loans be made and/or Letters of Credit be issued in a currency other than those specifically listed in the definition of “Approved Currency”; provided that (i) such requested currency is a lawful currency that is readily transferable and readily convertible into Dollars in the London interbank market and (ii) dealings in deposits in such requested currency are carried on in the London interbank market.  Such request shall be subject to the reasonable approval of the Administrative Agent and the Revolving Lenders; and, in the case of any such request with respect to the issuance of Letters of Credit, such request shall also be subject to the reasonable approval of the applicable LC Issuer.

 

(b)                                  Any such request shall be made to the Administrative Agent not later than 11:00 a.m. (London time), five (5) Business Days prior to the date of the desired Borrowing or issuance of a Letter of Credit (or such

 

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other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the applicable LC Issuer, in its or their sole discretion).  In the case of any such request pertaining to Revolving Loans, the Administrative Agent shall promptly notify each Revolving Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall also promptly notify the applicable LC Issuer thereof.  Each Revolving Lender and the applicable LC Issuer (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m. (London time), two (2) Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Revolving Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.

 

(c)                                   Any failure by a Revolving Lender or an LC Issuer, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Revolving Lender or LC Issuer, as the case may be, to permit Revolving Loans to be made or Letters of Credit to be issued in such requested currency.  If the Administrative Agent and all the Revolving Lenders consent to making Revolving Loans in such requested currency, the Administrative Agent shall so notify the U.S. Borrower and such currency shall thereupon be deemed for all purposes to be an Approved Currency hereunder for purposes of any Borrowing of Revolving Loans; and if the applicable LC Issuer also consents to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the U.S. Borrower and such currency shall thereupon be deemed for all purposes to be an Approved Currency hereunder for purposes of any Letter of Credit issuances by such LC Issuer.  If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.05 , the Administrative Agent shall promptly so notify the U.S. Borrower.

 

Section 1.06                              Exchange Rates .

 

(a)                                  Not later than 1:00 p.m. on each Calculation Date, the Administrative Agent shall (i) determine the Exchange Rate as of such Calculation Date with respect to any Approved Foreign Currency and (ii) give written notice thereof to the Lenders and the U.S. Borrower.  The Exchange Rate so determined shall become effective on the first Business Day immediately following the relevant Calculation Date (a “ Reset Date ”) or other date of determination, shall remain effective until the next succeeding Reset Date, and shall for purposes of this Agreement (other than any provision expressly requiring the use of a current Exchange Rate) be the Exchange Rates employed in determining the Dollar Amount of any Loan or Letter of Credit denominated in an Approved Foreign Currency.

 

(b)                                  Not later than 5:00 p.m. on each Reset Date and on each date on which Loans are made or Letters of Credit are issued in an Approved Foreign Currency, the Administrative Agent shall (i) determine the Dollar Amount of the Loans, Letters of Credit, Revolving Facility Exposure, Aggregate Credit Facility Exposure, Aggregate Revolving Facility Exposure, Aggregate Foreign Currency Exposure and LC Outstandings then outstanding (after giving effect to all Revolving Loans repaid and all reimbursements of Unpaid Drawings made concurrently with the making of any Revolving Loans) and (ii) notify the Lenders and the U.S. Borrower of the results of such determination.

 

Section 1.07                              Swedish Terms .

 

In this Agreement, where it relates to a Swedish entity, a reference to (a) a composition, assignment or similar arrangement with any creditor includes a företagsrekonstruktion, konkursförfarande or ackordsuppgörelse under the Swedish Bankruptcy Act ( konkurslagen ) or the Swedish Reorganisation Act ( lag om fõretagsrekonstruktion ) (as the case may be), (b) a compulsory manager, receiver, administrator includes a konkursförvaltare, företagsrekonstruktör or likvidator under Swedish law, (c) gross negligence means grov vårdslöshet under Swedish law, (d) a guarantee includes any garanti under Swedish law which is independent from the debt to which it relates and any borgen under Swedish law which is accessory to or dependant on the debt to which it relates, (e) merger includes any fusion implemented in accordance with Chapter 23 of the Swedish Companies Act ( aktiebolagslagen ) and (f) a winding up, administration or dissolution includes a frivillig likvidation or tvångslikvidation under Chapter 25 of the Swedish Companies Act ( aktiebolagslagen ).

 

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ARTICLE II.

 

THE TERMS OF THE CREDIT FACILITY

 

Section 2.01                                Establishment of the Credit Facilities .  On the Closing Date, and subject to and upon the terms and conditions set forth in this Agreement and the other Loan Documents, the Administrative Agent, the Lenders and each LC Issuer agree to establish the Credit Facilities for the benefit of the Borrowers; provided , however, that at no time will the Credit Facility Exposure of any Lender exceed the aggregate amount of such Lender’s Commitment.

 

Section 2.02                                Revolving Facility .  During the Revolving Facility Availability Period, each Revolving Lender severally, and not jointly, agrees, on the terms and conditions set forth in this Agreement, to make a Revolving Loan or Revolving Loans to the U.S. Borrower from time to time pursuant to such Lender’s Revolving Commitment, which Revolving Loans:  (i) may, except as set forth herein, at the option of the U.S. Borrower, be incurred and maintained as, or Converted into, Revolving Loans that are Eurocurrency Loans denominated in any Approved Currency or Base Rate Loans denominated in Dollars; (ii) may be repaid or prepaid and reborrowed in accordance with the provisions hereof; and (iii) shall not be made if, after giving effect to any such Revolving Loan, (A) the Revolving Facility Exposure of any Lender would exceed such Lender’s Revolving Commitment, (B) the Aggregate Revolving Facility Exposure would exceed the Total Revolving Commitment, (C) the Aggregate Foreign Currency Exposure with respect to Revolving Loans and Letters of Credit denominated in Approved Foreign Currencies would exceed the Approved Foreign Currency Sublimit, or (D) the U.S. Borrower would be required to prepay Loans or Cash Collateralize Letters of Credit pursuant to Section 2.13(c)(ii)  or ( iii) .  The Revolving Loans to be made by each Lender will be made by such Lender on a pro rata basis based upon such Lender’s Revolving Facility Percentage of each Revolving Borrowing, in each case in accordance with Section 2.07 hereof.

 

Section 2.03                              Term Loans .

 

(a)                                  On the Closing Date, each Closing Date U.S. Term Lender that has a Closing Date U.S. Term Commitment severally, and not jointly, agrees, on the terms and conditions set forth in this Agreement, to make a term loan denominated in Dollars (each a “ Closing Date U.S. Term Loan ”) to the U.S. Borrower pursuant to such Closing Date U.S. Term Lender’s Closing Date U.S. Term Commitment.  The Closing Date U.S. Term Loans shall not exceed (A) for any Closing Date U.S. Term Lender at the time of incurrence thereof the amount of such Closing Date U.S. Term Lender’s Closing Date U.S. Term Commitment and (B) for all the Closing Date U.S. Term Lenders at the time of incurrence thereof the aggregate amount of the Closing Date U.S. Term Commitments of all Closing Date U.S. Term Lenders.  The Closing Date U.S. Term Loans to be made by each Closing Date U.S. Term Lender will be made by such Closing Date U.S. Term Lender in the aggregate amount of its Closing Date U.S. Term Commitment in accordance with Section 2.07 hereof.

 

(b)                                  On the Closing Date, each Closing Date EMEA Term Lender that has a Closing Date EMEA Term Commitment severally, and not jointly, agrees, on the terms and conditions set forth in this Agreement, to make term loans denominated in Euro (each a “ Closing Date EMEA Term Loan ”) to the EMEA Borrower pursuant to such Closing Date EMEA Term Lender’s Closing Date EMEA Term Commitment.  The Closing Date EMEA Term Loans shall not exceed (A) for any Closing Date EMEA Term Lender at the time of incurrence thereof the amount of such Closing Date EMEA Term Lender’s Closing Date EMEA Term Commitment and (B) for all the Closing Date EMEA Term Lenders at the time of incurrence thereof the aggregate amount of the Closing Date EMEA Term Commitments of all Closing Date EMEA Term Lenders.  The Closing Date EMEA Term Loans to be made by each Closing Date EMEA Term Lender will be made by such Closing Date EMEA Term Lender in the aggregate amount of its Closing Date EMEA Term Commitment in accordance with Section 2.07 hereof.

 

(c)                                   With respect to all Term Loans, such Term Loans (i) once prepaid or repaid, may not be reborrowed; (ii) may, except as set forth herein, at the option of the Applicable Borrower, (x) in the case of U.S. Term Loans, be incurred and maintained as, or Converted into, Term Loans that are Base Rate Loans or Eurocurrency Loans denominated in Dollars and (y) in the case of EMEA Term Loans, be incurred and maintained as, or Converted into, Term Loans that are Eurocurrency Loans denominated in Euro; provided that all Term Loans made as part of the same Term Borrowing shall consist of Term Loans of the same Type; and (iii) shall be repaid in accordance with Section 2.13(b) .

 

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Section 2.04                              [ Reserved .]

 

Section 2.05                              Letters of Credit .

 

(a)                                  LC Issuances .  During the Revolving Facility Availability Period, the U.S. Borrower may request an LC Issuer at any time and from time to time to issue, for the account of an eligible LC Obligor, and subject to and upon the terms and conditions herein set forth, each LC Issuer agrees to issue from time to time Letters of Credit denominated and payable in an Approved Currency and in each case in such form as may be approved by such LC Issuer and the Administrative Agent; provided , however , that notwithstanding the foregoing, no LC Issuance shall be made if, after giving effect thereto, (i) the LC Outstandings would exceed the LC Commitment Amount, (ii) the Revolving Facility Exposure of any Lender would exceed such Lender’s Revolving Commitment, (iii) the Aggregate Revolving Facility Exposure would exceed the Total Revolving Commitment, (iv) the Aggregate Foreign Currency Exposure with respect to Revolving Loans and Letters of Credit denominated in Approved Foreign Currencies would exceed the Approved Foreign Currency Sublimit or (v) the U.S. Borrower would be required to prepay Loans or Cash Collateralize Letters of Credit pursuant to Section 2.13(c)(ii)  or ( iii)  hereof; and provided, further , that the U.S. Borrower shall be a co-applicant, and be jointly and severally liable, with respect to each Letter of Credit issued for the account of any Restricted Subsidiary that is not a U.S. Borrower Guarantor.  Subject to Section 2.05(c)  below, each Letter of Credit shall have an expiry date (including any renewal periods) occurring not later than the earlier of (y) one year from the date of issuance thereof, or (z) ten (10) Business Days prior to the latest Revolving Facility Termination Date.  Each Existing Letter of Credit shall be deemed to be a Letter of Credit issued under this Agreement and entitled to the benefits of a Letter of Credit issued hereunder. Upon such Existing Letters of Credit becoming Letters of Credit hereunder on the Closing Date, the U.S. Borrower or the applicable Subsidiary shall be and shall be treated as the account party thereunder for all purposes hereunder and all provisions of this Section 2.05 shall apply correspondingly.

 

(b)                                  LC Requests .  Whenever the U.S. Borrower desires that a Letter of Credit be issued for its account or the account of any eligible LC Obligor, the U.S. Borrower shall give the Administrative Agent and the applicable LC Issuer written or telephonic notice (in the case of telephonic notice, promptly confirmed in writing if so requested by the Administrative Agent) which, if in the form of written notice, shall be substantially in the form of Exhibit B-3 (each such request, an “ LC Request ”), or transmit by electronic communication (if arrangements for doing so have been approved by the applicable LC Issuer), prior to 11:00 A.M. (local time at the Notice Office) at least three (3) Business Days (or such shorter period as may be acceptable to the relevant LC Issuer in its reasonable discretion) prior to the proposed date of issuance (which shall be a Business Day), which LC Request shall include such supporting documents that such LC Issuer customarily requires in connection therewith (including, in the case of a Letter of Credit for an account party other than the U.S. Borrower, an application for, and if applicable a reimbursement agreement with respect to, such Letter of Credit).  In the event of any inconsistency between any of the terms or provisions of any LC Document and the terms and provisions of this Agreement respecting Letters of Credit, the terms and provisions of this Agreement shall control.

 

(c)                                   Auto-Renewal Letters of Credit .  If an LC Obligor so requests in any applicable LC Request, each LC Issuer shall agree to issue a Letter of Credit that has automatic renewal provisions; provided , however , that any Letter of Credit that has automatic renewal provisions must permit such LC Issuer to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior written notice to the beneficiary thereof not later than a day in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.  Once any such Letter of Credit that has automatic renewal provisions has been issued, the Lenders shall be deemed to have authorized (but may not require) such LC Issuer to permit the renewal of such Letter of Credit at any time to an expiry date not later than ten (10) Business Days prior to the latest Revolving Facility Termination Date; provided , however , that such LC Issuer shall not permit any such renewal if (i) such LC Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof, or (ii) it has received notice (which may be by telephone or in writing) on or before the day that is two (2) Business Days before the date that such LC Issuer is permitted to send a notice of non-renewal from the Administrative Agent, any Lender or the U.S. Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied.

 

(d)                                  Applicability of ISP98 and UCP .  Unless otherwise expressly agreed by the applicable LC Issuer and the applicable LC Obligor, when a Letter of Credit is issued, (i) the rules of the “International Standby Practices

 

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1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each Standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance (including the International Chamber of Commerce’s decision published by the Commission on Banking Technique and Practice on April 6, 1998 regarding the European single currency (euro)) shall apply to each Commercial Letter of Credit.

 

(e)                                   Notice of LC Issuance .  Each LC Issuer shall, on the date of each LC Issuance by it, give the Administrative Agent, each applicable Lender and the U.S. Borrower written notice of such LC Issuance, accompanied by a copy to the Administrative Agent of the Letter of Credit or Letters of Credit issued by it.  Each LC Issuer shall provide to the Administrative Agent a quarterly (or monthly if requested by any applicable Lender) summary describing each Letter of Credit issued by such LC Issuer and then outstanding and an identification for the relevant period of the daily aggregate LC Outstandings represented by Letters of Credit issued by such LC Issuer.

 

(f)                                    Reimbursement Obligations .

 

(i)                                The U.S. Borrower hereby agrees to reimburse (or cause any LC Obligor for whose account a Letter of Credit was issued to reimburse) each LC Issuer, by making payment directly to such LC Issuer in immediately available funds at the payment office of such LC Issuer, for any Unpaid Drawing with respect to any Letter of Credit promptly after, and in any event on the date on which, such LC Issuer notifies the U.S. Borrower (or any such other LC Obligor for whose account such Letter of Credit was issued) of such payment or disbursement (which notice to the U.S. Borrower (or such other LC Obligor) shall be delivered reasonably promptly after any such payment or disbursement), such payment to be made in Dollars (or another Approved Currency pursuant to the proviso below), with interest on the amount so paid or disbursed by such LC Issuer, to the extent not reimbursed prior to 1:00 P.M. (local time at the payment office of the applicable LC Issuer) on the date of such payment or disbursement, from and including the date paid or disbursed to but not including the date such LC Issuer is reimbursed therefor at a rate per annum that shall be the rate then applicable to Revolving Loans pursuant to Section 2.09(a)  that are Base Rate Loans or, if not reimbursed on the date of such payment or disbursement, at the Default Rate, any such interest also to be payable on demand; provided that in the case of a Letter of Credit denominated in an Approved Foreign Currency, the U.S. Borrower shall reimburse such LC Issuer in such Approved Foreign Currency, unless (A) such LC Issuer (at its option) shall have specified in its notice to the U.S. Borrower that it will require reimbursement in Dollars or (B) in the absence of any such requirement for reimbursement in Dollars, the U.S. Borrower shall have notified such LC Issuer promptly following receipt of the LC Issuer’s notice that the U.S. Borrower will reimburse the LC Issuer in Dollars, in each case of clauses (A) and (B) at the Exchange Rate in effect on the date such payment is required.  If by 11:00 A.M. on the Business Day immediately following notice to it of its obligation to make reimbursement in respect of an Unpaid Drawing, the U.S. Borrower or the relevant LC Obligor has not made such reimbursement out of its available cash on hand or, in the case of the U.S. Borrower, a contemporaneous Borrowing hereunder (if such Borrowing is otherwise available to the U.S. Borrower), (x) the U.S. Borrower will in each case be deemed to have given a Notice of Borrowing for Revolving Loans that are Base Rate Loans in U.S. Dollars (in the case of any Letter of Credit denominated in an Approved Foreign Currency, at the Exchange Rate in effect on the date such payment is required) in an aggregate principal amount sufficient to reimburse such Unpaid Drawing (and the Administrative Agent shall promptly give notice to the Lenders of such deemed Notice of Borrowing), (y) the Lenders shall, unless they are legally prohibited from doing so, make the Revolving Loans contemplated by such deemed Notice of Borrowing (which Revolving Loans shall be considered made under Section 2.02 ), and (z) the proceeds of such Revolving Loans shall be disbursed directly to the applicable LC Issuer to the extent necessary to effect such reimbursement and repayment of the Unpaid Drawing, with any excess proceeds to be made available to the U.S. Borrower in accordance with the applicable provisions of this Agreement.

 

(ii)                                  Obligations Absolute .  Each LC Obligor’s obligation under this Section to reimburse each LC Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that such LC Obligor may have or have had against such LC Issuer, the Administrative Agent or any Lender, including any defense based upon the failure of any drawing under a Letter of Credit to conform to the terms of the Letter of Credit or any non-application or misapplication by the beneficiary of the proceeds of such drawing;

 

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provided , however, that no LC Obligor shall be obligated to reimburse an LC Issuer for any wrongful payment made by such LC Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such LC Issuer.

 

(g)                                   LC Participations .

 

(i)                                Immediately upon each LC Issuance, the LC Issuer of such Letter of Credit shall be deemed to have sold and transferred to each Lender with a Revolving Commitment, and each such Lender (each an “ LC Participant ”) shall be deemed irrevocably and unconditionally to have purchased and received from such LC Issuer, without recourse or warranty, an undivided interest and participation (an “ LC Participation ”), to the extent of such Lender’s Revolving Facility Percentage of the Stated Amount of such Letter of Credit in effect at such time of issuance, in such Letter of Credit (including, for the avoidance of doubt, the Existing Letters of Credit), each substitute Letter of Credit, each drawing made thereunder, the obligations of any LC Obligor under this Agreement with respect thereto (although LC Fees relating thereto shall be payable directly to the Administrative Agent for the account of the Lenders as provided in Section 2.11 and the LC Participants shall have no right to receive any portion of any fees of the nature contemplated by Section 2.11(c)  or Section 2.11(e) ), the obligations of any LC Obligor under any LC Documents pertaining thereto, and any security for, or guaranty pertaining to, any of the foregoing.

 

(ii)                                  In determining whether to pay under any Letter of Credit, an LC Issuer shall not have any obligation relative to the LC Participants other than to determine that any documents required to be delivered under such Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit.  Any action taken or omitted to be taken by an LC Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for such LC Issuer any resulting liability.

 

(iii)                                  If an LC Issuer makes any payment under any Letter of Credit and the applicable LC Obligor shall not have reimbursed such amount in full to such LC Issuer pursuant to Section 2.05(f) , such LC Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each LC Participant of such failure, and each LC Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such LC Issuer, the amount of such LC Participant’s Revolving Facility Percentage of such payment in Dollars (in the case of any Letter of Credit denominated in an Approved Foreign Currency, at the Exchange Rate in effect on the date such payment is made by the LC Issuer) and in same-day funds; provided , however , that no LC Participant shall be obligated to pay to the Administrative Agent its Revolving Facility Percentage of such unreimbursed amount for any wrongful payment made by such LC Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such LC Issuer.  If the Administrative Agent so notifies any LC Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M. (local time at its Notice Office) on any Business Day, such LC Participant shall make available to the Administrative Agent for the account of the relevant LC Issuer such LC Participant’s Revolving Facility Percentage of the amount of such payment on such Business Day in same-day funds.  If and to the extent such LC Participant shall not have so made its Revolving Facility Percentage of the amount of such payment available to the Administrative Agent for the account of the relevant LC Issuer, such LC Participant agrees to pay to the Administrative Agent for the account of such LC Issuer, forthwith on demand, such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such LC Issuer at the Federal Funds Effective Rate.  The failure of any LC Participant to make available to the Administrative Agent for the account of the relevant LC Issuer its Revolving Facility Percentage of any payment under any Letter of Credit shall not relieve any other LC Participant of its obligation hereunder to make available to the Administrative Agent for the account of such LC Issuer its Revolving Facility Percentage of any payment under any Letter of Credit on the date required, as specified above, but no LC Participant shall be responsible for the failure of any other LC Participant to make available to the Administrative Agent for the account of such LC Issuer such other LC Participant’s Revolving Facility Percentage of any such payment.

 

(iv)                                Whenever an LC Issuer receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such LC Issuer any payments from the LC Participants pursuant to subpart (iii) above, such LC Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each LC Participant that has paid its Revolving Facility Percentage thereof, in same-day funds,

 

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an amount equal to such LC Participant’s Revolving Facility Percentage of the principal amount thereof and interest thereon accruing after the purchase of the respective LC Participations, as and to the extent so received.

 

(v)                                The obligations of the LC Participants to make payments to the Administrative Agent for the account of each LC Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including any of the following circumstances:

 

(A)                                any lack of validity or enforceability of this Agreement or any of the other Loan Documents;

 

(B)                                the existence of any claim, set-off defense or other right that any LC Obligor may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any LC Issuer, any Lender, or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the applicable LC Obligor and the beneficiary named in any such Letter of Credit), other than any claim that the applicable LC Obligor may have against any applicable LC Issuer for gross negligence or willful misconduct of such LC Issuer in making payment under any applicable Letter of Credit;

 

(C)                                any draft, certificate or other document presented under the Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

 

(D)                                the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or

 

(E)                                 the occurrence of any Default or Event of Default.

 

(vi)                                To the extent any LC Issuer is not indemnified by the U.S. Borrower or any LC Obligor, the LC Participants will reimburse and indemnify such LC Issuer, in proportion to their respective Revolving Facility Percentages, for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature that may be imposed on, asserted against or incurred by such LC Issuer in performing its respective duties in any way related to or arising out of LC Issuances by it; provided, however, that no LC Participants shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements resulting from such LC Issuer’s gross negligence or willful misconduct.

 

Section 2.06                              Notice of Borrowing .

 

(a)                                  Time of Notice .  Each Borrowing of a Loan (other than (x) a Borrowing on the Closing Date which notice must be received by the Administrative Agent prior to 12:00 p.m., New York City time, on the Business Day prior to the Closing Date or (y) Continuation or Conversion) shall be made upon notice in the form provided for below which shall be provided by the Applicable Borrower to the Administrative Agent at its Notice Office not later than (i) in the case of each Borrowing of a Eurocurrency Loan, 11:00 A.M. (local time at its Notice Office) at least three (3) Business Days’ prior to the date of such Borrowing, and (ii) in the case of each Borrowing of a Base Rate Loan, prior to 11:00 A.M. (local time at its Notice Office) on the proposed date of such Borrowing.

 

(b)                                  Notice of Borrowing .  Each request for a Borrowing (other than a Continuation or Conversion) shall be made by an Authorized Officer of the Applicable Borrower by delivering written notice of such request substantially in the form of Exhibit B-1 hereto (each such notice, a “ Notice of Borrowing ”) or by telephone (to be confirmed promptly (and in any event on the day of such telephonic notice) in writing by delivery by an Authorized Officer of the Applicable Borrower of a Notice of Borrowing), and in any event each such request shall be irrevocable and shall specify (i) whether such Borrowing is to be a Borrowing of EMEA Term Loans, U.S. Term Loans, Revolving Loans, Incremental Term Loans or Incremental Revolving Loans, (ii) the aggregate principal

 

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amount of the Loans to be made pursuant to such Borrowing, (iii) the date of the Borrowing (which shall be a Business Day), (iv) the Type and, in the case of Revolving Loans and/or Letters of Credit, Approved Currency of Loans such Borrowing will consist of, and (v) if applicable, the initial Interest Period.  Without in any way limiting the obligation of the Applicable Borrower to confirm in writing any telephonic notice permitted to be given hereunder, the Administrative Agent may act prior to receipt of written confirmation without liability upon the basis of such telephonic notice believed by the Administrative Agent in good faith to be from an Authorized Officer of the Applicable Borrower entitled to give telephonic notices under this Agreement on behalf of the Applicable Borrower.  In each such case, the Administrative Agent’s record of the terms of such telephonic notice shall be conclusive absent manifest error.

 

(c)                                   Minimum Borrowing Amount .  The aggregate principal amount of each Borrowing by the Applicable Borrower shall not be less than the Minimum Borrowing Amount.

 

(d)                                  Maximum Borrowings .  More than one Borrowing may be incurred by a Borrower on any day; provided, however, that (i) if there are two (2) or more Borrowings on a single day (other than with respect to a Term Borrowing made on the Closing Date) by any Borrower that consist of Eurocurrency Loans, each such Borrowing shall have a different initial Interest Period, and (ii) at no time shall there be more than ten (10) Borrowings of Eurocurrency Loans outstanding hereunder.

 

Section 2.07                              Funding Obligations; Disbursement of Funds .

 

(a)                                  Several Nature of Funding Obligations .  The Commitments of each Lender hereunder and the obligation of each Lender to make Loans and acquire and fund LC Participations are several and not joint obligations.  No Lender shall be responsible for any default by any other Lender in its obligation to make Loans or fund any participation hereunder and each Lender shall be obligated to make the Loans provided to be made by it and fund its participations required to be funded by it hereunder, regardless of the failure of any other Lender to fulfill any of its Commitments hereunder.  Nothing herein and no subsequent termination of the Commitments pursuant to Section 2.12 shall be deemed to relieve any Lender from its obligation to fulfill its commitments hereunder and in existence from time to time or to prejudice any rights that any Borrower may have against any Lender as a result of any default by such Lender hereunder.

 

(b)                                  Borrowings Pro Rata .  All Loans hereunder shall be made as follows:  (i) all Revolving Loans made, and LC Participations acquired by each Lender, shall be made or acquired, as the case may be, on a pro rata basis based upon each Lender’s Revolving Facility Percentage of the amount of such Revolving Borrowing or Letter of Credit in effect on the date the applicable Revolving Borrowing is to be made or the Letter of Credit is to be issued; and (ii) all Term Loans of any Class shall be made by the Lenders having Term Commitments of such Class  pro rata on the basis of their respective Term Commitments of such Class.

 

(c)                                   Notice to Lenders .  The Administrative Agent shall promptly give each Lender, as applicable, written notice (or telephonic notice promptly confirmed in writing) of each proposed Borrowing, or Conversion or Continuation thereof, and LC Issuance, and of such Lender’s proportionate share thereof or participation therein and of the other matters covered by the Notice of Borrowing, Notice of Continuation or Conversion, or LC Request, as the case may be, relating thereto.

 

(d)                                  Funding of Loans .  No later than 2:00 P.M. (local time at the Payment Office) on the date specified in each Notice of Borrowing, each Lender will make available its amount, if any, of each Borrowing requested to be made on such date to the Administrative Agent at the Payment Office in the applicable Approved Currency and in immediately available funds and the Administrative Agent promptly will make available to the Applicable Borrower by depositing to its account at the Payment Office (or such other account as such Borrower shall specify) the aggregate of the amounts so made available in the type of funds received.

 

(e)                                   Advance Funding .  Unless the Administrative Agent shall have been notified by any Lender prior to the date of Borrowing that such Lender does not intend to make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make

 

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available to the Applicable Borrower a corresponding amount.  If such corresponding amount is not in fact made available to the Administrative Agent by such Lender and the Administrative Agent has made the same available to the Applicable Borrower, the Administrative Agent shall be entitled to recover such corresponding amount from such Lender.  If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Applicable Borrower, and the Applicable Borrower shall immediately pay such corresponding amount to the Administrative Agent.  The Administrative Agent shall also be entitled to recover from such Lender or Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to such Borrower to the date such corresponding amount is recovered by the Administrative Agent at a rate per annum equal to (i) if paid by such Lender, the overnight Federal Funds Effective Rate or (ii) if paid by such Borrower, the then applicable rate of interest, calculated in accordance with Section 2.09 , for the respective Loans (but without any requirement to pay any amounts in respect thereof pursuant to Section 3.02 ).

 

Section 2.08                              Evidence of Obligations .

 

(a)                                  Loan Accounts of Lenders .  Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Obligations of the Applicable Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

 

(b)                                  Loan Accounts of the Administrative Agent; Lender Register .  The Administrative Agent shall maintain accounts in which it shall record: (i) the amount of each Loan and Borrowing made hereunder, the Type and Class thereof, the currency in which such Loan is denominated, the Interest Period and applicable interest rate; (ii) the amount and other details with respect to each Letter of Credit issued hereunder; (iii) the amount of any principal due and payable or to become due and payable from any Borrower to each Lender hereunder; (iv) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof; and (v) the other details relating to the Loans, Letters of Credit and other Obligations.  In addition, the Administrative Agent shall maintain a register (the “ Lender Register ”) on or in which it will record the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loan owing to, each Lender, pursuant to the terms hereof from time to time.  The entries in the Lender Register shall be conclusive absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Lender Register pursuant to the terms hereof as a Lender for all purposes of this Agreement.  The Administrative Agent will make the Lender Register available to any Lender (with respect to such Lender’s own interest only) or any Borrower, at any reasonable time and from time to time upon reasonable prior notice.

 

(c)                                   Effect of Loan Accounts, etc .  The entries made in the accounts maintained pursuant to Section 2.08(b)  shall be prima facie evidence of the existence and amounts of the Obligations recorded therein; provided , that the failure of the Administrative Agent to maintain such accounts or any error (other than manifest error) therein shall not in any manner affect the obligation of any Credit Party to repay or prepay the Loans or the other Obligations in accordance with the terms of this Agreement.

 

(d)                                  Notes .  Upon reasonable written request of any Lender, the Applicable Borrower will execute and deliver to such Lender (i) a Revolving Facility Note with blanks appropriately completed in conformity herewith to evidence such Borrower’s obligation to pay the principal of, and interest on, the Revolving Loans made to it by such Lender and (ii) a Term Note with blanks appropriately completed in conformity herewith to evidence its obligation to pay the principal of, and interest on, the applicable Term Loan made to it by such Lender; provided, however, that the decision of any Lender to not request a Note shall in no way detract from such Borrower’s obligation to repay the applicable Loans and other amounts owing by such Borrower to such Lender.

 

Section 2.09                              Interest; Default Rate .

 

(a)                                  Interest on Revolving Loans .  The outstanding principal amount of each Revolving Loan denominated in Dollars made by each Lender shall bear interest at a fluctuating rate per annum that shall at all times be equal to (i) during such periods as such Revolving Loan is a Base Rate Loan, the Base Rate plus the Applicable Revolving Loan Margin in effect from time to time and (ii) during such periods as such Revolving Loan is a

 

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Eurocurrency Loan, the relevant Adjusted Eurocurrency Rate for such Eurocurrency Loan for the applicable Interest Period plus the Applicable Revolving Loan Margin in effect from time to time. The outstanding principal amount of each Revolving Loan denominated in an Approved Foreign Currency made by each Lender shall bear interest at a fluctuating rate per annum that shall at all times be equal to the relevant Adjusted Eurocurrency Rate for such Eurocurrency Loan for the applicable Interest Period plus the Applicable Revolving Loan Margin in effect from time to time.

 

(b)                                  Interest on Term Loans .  The outstanding principal amount of each U.S. Term Loan made by each Lender shall bear interest at a fluctuating rate per annum that shall at all times be equal to (i) during such periods as such Term Loan is a Base Rate Loan, the Base Rate plus the Applicable Term Loan Margin in effect from time to time, and (ii) during such periods as such Term Loan is a Eurocurrency Loan, the relevant Adjusted Eurocurrency Rate for such Eurocurrency Loan for the applicable Interest Period plus the Applicable Term Loan Margin in effect from time to time. The outstanding principal amount of each EMEA Term Loan made by each Lender shall bear interest at a fluctuating rate per annum that shall at all times be equal to the relevant Adjusted Eurocurrency Rate for such Eurocurrency Loan for the applicable Interest Period plus the Applicable Term Loan Margin in effect from time to time.

 

(c)                                   [ Reserved .]

 

(d)                                  Default Interest .  Notwithstanding the above provisions, if (x) any Event of Default other than a Specified Event of Default has occurred and is continuing, then upon written notice by the Administrative Agent (which notice the Administrative Agent shall give at the direction of the Required Lenders), or (y) any Specified Event of Default has occurred and is continuing, then automatically:  the overdue principal amount of all Loans outstanding shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable Debtor Relief Laws) payable on demand, at a rate per annum equal to the Default Rate.

 

(e)                                   Accrual and Payment of Interest .  Interest shall accrue from and including the date of any Borrowing to but excluding the date of any prepayment or repayment thereof and shall be payable by the Applicable Borrower: (i) in respect of each Base Rate Loan, quarterly in arrears on the last Business Day of each March, June, September and December: (ii) in respect of each Eurocurrency Loan, on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three (3) months, on the dates that are successively three (3) months after the commencement of such Interest Period; and (iii) in respect of all Loans, other than Revolving Loans accruing interest at a Base Rate, on any repayment, prepayment or Conversion (on the amount repaid, prepaid or Converted), at maturity (whether by acceleration or otherwise), and, after such maturity or, in the case of any interest payable pursuant to Section 2.09(c) , on demand.

 

(f)                                    Computations of Interest .  All computation of interest hereunder shall be made on the actual number of days elapsed over a year of 360 days, except that interest computed by reference to the Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year).

 

(g)                                   Information as to Interest Rates .  The Administrative Agent, upon determining the interest rate for any Borrowing, shall promptly notify the Applicable Borrower and the Lenders of the applicable Class thereof, and the Administrative Agent will promptly provide notice of such determinations to the Applicable Borrower and the Lenders of the applicable Class.  Any such determination by the Administrative Agent shall be conclusive and binding absent manifest error.

 

(h)                                  Recalculation of Interest and Fees . By entering into this Agreement, the parties have assumed in bona fide that the interest and fees payable hereunder are not and will not become subject to any Tax deduction on account of Swiss Withholding Tax. Nevertheless, if a Tax deduction is required by Swiss law to be made by a Credit Party in respect of any interest or fees payable by it under this Agreement and should it be unlawful for the relevant Credit Party to comply with Section 3.03 ( Net Payments ) for any reason, then

 

(i)                                      the applicable interest rate/fee in relation to that interest/fee payment shall be (i) the interest rate/fee which would have applied to that interest payment/fee (as provided for in Section 2.09(a) and Section 2.09(b) or otherwise in this Agreement in the absence of this Section 2.09(h) divided by (ii) one (1) minus the rate at which the relevant Tax deduction

 

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is required to be made (where the rate at which the relevant Tax deduction is required to be made is for this purpose expressed as a fraction of one (1) rather than as a percentage); and

 

(ii)                                   the relevant Credit Party shall be obliged:

 

(A)                                to pay the relevant interest/fee at the adjusted rate in accordance with sub-section (i) above; and

 

(B)                                to make the Tax deduction on the interest/fee so recalculated; and

 

all references to a rate of interest/fee in Section 2.09(a) and Section 2.09(b) or otherwise in this Agreement shall be construed accordingly.  To the extent that interest/fee payable by a Credit Party under this Agreement becomes subject to Swiss Withholding Tax, the relevant Credit Party will provide to the Administrative Agent and the other Recipients those documents which are required by law and applicable double taxation treaties to be provided by the payer of such tax for the Administrative Agent and each other relevant Recipient to prepare a claim for refund of Swiss Withholding Tax and the Administrative Agent and each other relevant Recipient and the relevant Credit Party shall promptly co-operate in completing any procedural formalities (including submitting forms and documents required by the appropriate Tax authority) to the extent possible and necessary for the relevant Credit Party to obtain authorisation to make interest payments without them being subject to Swiss Withholding Tax or to allow the Administrative Agent and the other Recipients to prepare claims for the refund of any Swiss Withholding Tax so deducted.

 

(i)                                      Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the U.S. Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrower) that the U.S. Borrower or Required Lenders (as applicable) have determined, that:

 

(i)                                adequate and reasonable means do not exist for ascertaining the Adjusted Eurocurrency Rate for any requested Interest Period, including, without limitation, because the Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or

 

(ii)                                 the administrator of the Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Screen Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “ Scheduled Unavailability Date ”), or

 

(iii)                                  syndicated loans currently being executed, or that include language similar to that contained in this Section, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the benchmark rates used in the Adjusted Eurocurrency Rate,

 

then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the U.S. Borrower may amend this Agreement to replace the Adjusted Eurocurrency Rate with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), (any such proposed rate, a “ Successor Rate ”), together with any proposed Successor Rate Conforming Changes and any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth (5 th ) Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the U.S. Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment.

 

If no Successor Rate has been determined and the circumstances under clause (i) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the U.S. Borrower and each Lender.  Thereafter, (i) the obligation of the Lenders to make or maintain Eurocurrency Loans shall be suspended, (to the extent of the affected Eurocurrency Loans or Interest Periods), (ii) the Adjusted

 

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Eurocurrency Rate component shall no longer be utilized in determining the Base Rate, (iii) any Notice of Continuation or Conversion that requests the conversion of any Loan denominated in such effected currency to, or continuation of any Loan denominated in such currency as, a Eurocurrency Loan in such currency may be revoked by the Borrower and, if not revoked, any Eurocurrency Loan denominated in such currency that is requested to be continued (A) if such currency is the Dollar, shall be converted to Base Rate Loan on the last day of the Interest Period applicable thereto and (B) if such currency is an Approved Foreign Currency, shall bear interest at such rate as the Administrative Agent (acting on instructions of the Required Lenders) shall, acting in good faith, determine adequately and fairly reflects the cost to the Lenders or making or maintaining such Loans for the applicable Interest Period plus the applicable percentage set forth in the definition of “Applicable Term Loan Margin” or “Applicable Revolving Loan Margin” for Eurocurrency Loans and (iv) if any Notice of Borrowing requests a Eurocurrency Loan denominated in such effected currency, (A) if such currency is the Dollar, such Loans shall be made as Base Rate Loans and (B) if such currency is an Approved Foreign Currency, such Borrowing Request may be revoked by the Borrower and, if not revoked, such Loans shall bear interest at such rate as the Administrative Agent (acting on instructions of the Required Lenders) shall determine adequately and fairly reflects the cost to the Lenders or making or maintaining such Loans for the applicable Interest Period plus the applicable percentage set forth in the definition of “Applicable Term Loan Margin” or “Applicable Revolving Loan Margin” for Eurocurrency Loans.

 

Section 2.10                              Conversion and Continuation of Loans .

 

(a)                                  Conversion and Continuation of Revolving Loans .  Each Borrower shall have the right, subject to the terms and conditions of this Agreement, to elect to change or continue the Type of any Loans, as follows:

 

(i)                                in the case of Base Rate Loans, such Borrower may elect to Convert such Loans to Eurocurrency Loans denominated in Dollars as of any Business Day;

 

(ii)                                 in the case of Eurocurrency Loans denominated in Dollars, such Borrower may, subject to Section 3.02 , elect to (x) Convert all or a portion of such Eurocurrency Loans into a Borrowing or Borrowings of Base Rate Loans on any Business Day, and (y) Continue a Borrowing of such Eurocurrency Loans at the end of the applicable Interest Period as a new Borrowing of Eurocurrency Loans with a new Interest Period; and

 

(iii)                                  in the case of any Eurocurrency Loans denominated in any Approved Currency, (x) Convert all or a portion of the outstanding principal amount of such Eurocurrency Loans of one Type made to it into a Borrowing or Borrowings of another Type of Eurocurrency Loans in such Approved Currency that can be made to it pursuant to this Agreement and (y) Continue a Borrowing of Eurocurrency Loans in any Approved Currency at the end of the applicable Interest Period as a new Borrowing of Eurocurrency Loans in such Approved Currency with a new Interest Period.

 

(b)                                  Notice of Continuation and Conversion .  Each Continuation or Conversion of a Loan shall be made upon notice in the form provided for below provided by the Applicable Borrower to the Administrative Agent at its Notice Office not later than (i) in the case of each Continuation of or Conversion into a Eurocurrency Loan, prior to 11:00 A.M. (local time at its Notice Office) at least three (3) Business Days’ prior to the date of such Continuation or Conversion, and (ii) in the case of each Conversion to a Base Rate Loan, prior to 11:00 A.M. (local time at its Notice Office) on the proposed date of such Conversion.  Each such request shall be made by an Authorized Officer of the Applicable Borrower delivering written notice of such request substantially in the form of Exhibit B-2 hereto (each such notice, a “ Notice of Continuation or Conversion ”) or by telephone (to be confirmed promptly (and in any event on the day of such telephonic notice) in writing by delivery by an Authorized Officer of the Applicable Borrower of a Notice of Continuation or Conversion), and in any event each such request shall be irrevocable and shall specify (A) the Borrowings to be Continued or Converted, (B) the date of the Continuation or Conversion (which shall be a Business Day), and (C) the Interest Period or, in the case of a Continuation, the new Interest Period.  Without in any way limiting the obligation of the Applicable Borrower to confirm in writing any telephonic notice permitted to be given hereunder, the Administrative Agent may act prior to receipt of written confirmation without liability upon the basis of such telephonic notice believed by the Administrative Agent in good faith to be from an Authorized Officer of the Applicable Borrower entitled to give telephonic notices under this Agreement on behalf of the Applicable Borrower.  In each such case, the Administrative Agent’s record of the terms of such telephonic notice shall be conclusive absent manifest error.

 

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