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Exhibit 10.1

EXECUTION VERSION

AMENDMENT NO. 4 TO CREDIT AGREEMENT

This Amendment No. 4 to Credit Agreement (this “ Amendment ”) is dated as of June 28, 2019, by and among Gardner Denver Holdings, Inc. (f/k/a Renaissance Parent Corp.) (“ Holdings ”), Gardner Denver, Inc. (the “ U.S. Borrower ”), GD German Holdings II GmbH (the “ German Borrower ”), Gardner Denver Holdings Ltd. (the “ UK Borrower ”; and together with the German Borrower, the “ Foreign Borrowers ”; the Foreign Borrowers, together with the U.S. Borrower, the “ Borrowers ”), the other Credit Parties party hereto, the Extending Lenders (as defined below), the 2019 Revolving Credit Lenders (as defined below), the other Lenders party hereto, the Letter of Credit Issuers party hereto, UBS AG, Stamford Branch (“ UBS ”) as Resigning Agent (as defined below), and Citibank, N.A. (“ Citi ”) as Successor Agent (as defined below).

WHEREAS, reference is hereby made to that certain (i) Credit Agreement, dated as of July 30, 2013 (including the exhibits and schedules thereto, as amended by Amendment No. 1 to Credit Agreement, dated as of March 4, 2016, Amendment No. 2, dated as of August 17, 2017, and Amendment No. 3, dated as of December 13, 2018, and as further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “ Credit Agreement ”; and the Credit Agreement, as amended by this Amendment and as further amended, restated, supplemented or otherwise modified from time to time, the “ Amended Credit Agreement ”), among, inter alios , Holdings, the U.S. Borrower, the other Borrowers party thereto, the Lenders party thereto and UBS, as Administrative Agent, Collateral Agent, Swingline Lender and Letter of Credit Issuer; and (ii) Successor Agent Agreement, dated as of June 28, 2019 (the “ Successor Agent Agreement ”), by and among Holdings, the Borrowers, the other Credit Parties party thereto, UBS and Citi;

WHEREAS, (i) the Borrowers desire to terminate the existing Tranche B Revolving Credit Commitments (as defined in the Credit Agreement) and the existing Tranche C Revolving Credit Commitments (as defined in the Credit Agreement) as set forth herein, (ii) the Borrowers and the Extending Lenders (as defined below) desire to extend the maturity of the existing Tranche A Revolving Credit Commitments (as defined in the Credit Agreement) as set forth herein, (iii) substantially concurrently with such extension, the Borrowers desire to increase the aggregate amount of the Extended Revolving Credit Commitments (as defined below) to $1,000,000,000 (the availability of which, prior to the satisfaction of the Increased Availability Condition (as defined below), shall be limited to $450,000,000), subject to the 2019 Mandatory Revolving Commitment Reduction (as defined below), (iv) immediately following such increase, the Borrowers and the Extending Lenders desire to amend the Extended Revolving Credit Commitments to be a single Class of Revolving Credit Commitments established as the 2019 Revolving Credit Commitments with the 2019 Revolving Credit Lenders (each as defined below) as set forth herein, having the terms and conditions set forth herein and in Exhibit A attached hereto, and (v) substantially concurrently with the foregoing, the Borrowers desire to permanently terminate the Non-Extended Revolving Credit Commitments of the Non-Extending Lenders (each as defined below) and prepay in full the outstanding Revolving Credit Loans thereunder (this clause (v), the “ Payoff ”);

WHEREAS, each Lender who executes and delivers this Amendment as an Extending Lender agrees to extend the maturity of all of such Lender’s Tranche A Revolving Credit Loans (as defined in the Credit Agreement) and Tranche A Revolving Credit Commitments in accordance with the terms and subject to the conditions set forth herein;

WHEREAS, the Credit Parties desire to replace the UK Borrower (as defined in the Credit Agreement) with the UK Borrower (as defined in this Amendment);

WHEREAS, UBS desires to resign on the date hereof as Administrative Agent, Collateral Agent, Swingline Lender and, except in connection with the Existing Letters of Credit as set forth below, Letter of Credit Issuer (in such capacities, together with its Affiliates, the “ Resigning Agent ”) under the Credit Agreement and the other Credit Documents;

WHEREAS, the Required Lenders desire to appoint on the date hereof Citi, a 2019 Revolving Credit Lender, as successor Administrative Agent and Collateral Agent (in such capacities, the “ Successor Agent ”) under the Amended Credit Agreement and the other Credit Documents, the Credit Parties desire to consent to such appointment, and the Successor Agent wishes to accept such appointment;

WHEREAS, pursuant to the Successor Agent Agreement, Citi desires to become the successor Swingline Lender under the Amended Credit Agreement;

WHEREAS, the parties hereto desire to continue as of the date hereof the Existing Letters of Credit (as defined below) in accordance with the terms and subject to the conditions set forth herein; and

WHEREAS, consistent with Section 2.14 and Section 13.1 of the Credit Agreement, the Credit Parties and the Required Lenders desire to amend the Credit Agreement to provide for additional terms and amendments to the Credit Agreement and the other Credit Documents.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained and for other valuable considerations, the parties hereto agree as follows:

Section 1.   Definitions .  Each capitalized term used herein and not otherwise defined in this Amendment shall be defined in accordance with the Amended Credit Agreement.

 

Section 2.   Termination of the Tranche B Revolving Credit Commitments and Tranche C Revolving Credit Commitments and Extension of the Tranche A Revolving Credit Commitments .

 

2.1          Pursuant to Section 4.2 of the Credit Agreement, upon the effectiveness of this Amendment but immediately prior to the Extension (as defined below), all Tranche B Revolving Credit Commitments and all Tranche C Revolving Credit Commitments shall be permanently terminated (but, for the avoidance of doubt, without reducing the amount of the existing Tranche A Revolving Credit Commitments), and any Tranche B Revolving Credit Loans and any Tranche C Revolving Credit Loans (each as defined in the Credit Agreement) existing thereunder shall be repaid in full on the Amendment Effective Date.

 

2.2          Each Lender that executes and delivers to the Administrative Agent (or its counsel) a counterpart of this Amendment as an “Extending Lender” shall become, upon the effectiveness of this Amendment, an Extending Lender (as defined in the Credit Agreement) (such Lenders, the “ Extending Lenders ”), in the amount of the existing Tranche A Revolving Credit Commitments (the “ Existing Revolving Credit Commitments ”) set forth next to its name on Schedule A attached hereto, and the Borrowers and the Extending Lenders agree that the Existing Revolving Credit Commitments of the Extending Lenders shall on the date hereof be converted to extend (the “ Extension ”) the scheduled maturity date of such Existing Revolving Credit Commitments to June 28, 2024 or, if such date is not a Business Day, the next preceding Business Day, and such Class of Existing Revolving Credit Commitments shall constitute a separate Class of Revolving Credit Commitments under the Amended Credit Agreement and the other Credit Documents (such Existing Revolving Credit Commitments so extended, the “ Extended Revolving Credit Commitments ”); provided , that, to the extent a Lender under the Credit Agreement immediately prior to the effectiveness of this Amendment has not converted and extended its Existing Revolving Credit Commitments set forth in Schedule A attached hereto as set forth in this Section 2.2 (such Existing Revolving Credit Commitments not converted and extended, the “ Non-Extended Revolving Credit Commitments ”, and such Lenders, the “ Non-Extending Lenders ”), the Non-Extended Revolving Credit Commitments of the Non-Extending Lenders shall be permanently terminated, and any Revolving Credit Loans existing thereunder repaid in full, pursuant to the Payoff on the Amendment Effective Date.

Section 3.  2019 Revolving Credit Commitment .

 

3.1          Immediately following the Extension and substantially concurrently with the Payoff, the Extended Revolving Credit Commitments shall be increased (the “ Increase ”), upon the effectiveness of this Amendment, to an aggregate amount of $1,000,000,000 (the availability of which, prior to the satisfaction of the Increased Availability Condition, shall be limited to $450,000,000) (the “ 2019 Revolving Credit Commitment ”, and the Lenders providing the 2019 Revolving Credit Commitment, which shall include the Extending Lenders, the “ 2019 Revolving Credit Lenders ”), subject to the 2019 Mandatory Revolving Commitment Reduction (as defined below), and, immediately following the Increase, shall be amended to be a single Class of Revolving Credit Commitments in an aggregate amount of $1,000,000,000 (the availability of which, prior to the satisfaction of the Increased Availability Condition, shall be limited to $450,000,000), established as the 2019 Revolving Credit Commitments and having the terms and conditions set forth herein and in Exhibit A attached hereto, and each 2019 Revolving Credit Lender hereby agrees to commit to provide its respective 2019 Revolving Credit Commitment as set forth on Schedule B attached hereto and made a part hereof on the terms and subject to the conditions set forth herein; provided , that, notwithstanding anything herein to the contrary, if the conditions set forth in Exhibit B to that certain Amended and Restated Commitment Letter, dated May 31, 2019 (the “ Revolver Commitment Letter ”), by and among U.S. Borrower and the Commitment Parties (as defined therein) (without giving effect to any limitations set forth in such conditions in connection with the effectiveness of the 2019 Revolving Credit Commitment prior to the consummation of the Merger (as defined in the Revolver Commitment Letter) (the “ Increased Availability Condition ”)) have not been satisfied (or waived in writing by the 2019 Revolving Credit Lenders) prior to the date (the “ 2019 Revolving Commitment Reduction Date ”) that is the earlier to occur of (i) prior to the consummation of the Merger, the termination of the Merger Agreement (as defined in the Revolver Commitment Letter) by the U.S. Borrower (or its affiliates) in writing or with the U.S. Borrower’s (or its affiliates’) written consent or otherwise in accordance with its terms (other than with respect to provisions therein that expressly survive termination) and (ii) 11.59 p.m., New York City time, on the date that is five Business Days after the earlier of (A) the Outside Date (as defined in the Merger Agreement as in effect on April 30, 2019) and (B) the consummation of the Merger, then the aggregate amount of the 2019 Revolving Credit Commitments shall be automatically and permanently reduced, on a pro rata basis, to $450,000,000 on the 2019 Revolving Commitment Reduction Date (the “ 2019 Mandatory Revolving Commitment Reduction ”) and the 2019 Revolving Credit Commitment of each 2019 Revolving Credit Lender shall be reduced proportionately.  For the avoidance of doubt, upon the effectiveness of the Amendment and the establishment of the 2019 Revolving Credit Commitment, the Tranche A Revolving Credit Commitments shall cease to be outstanding under the Amended Credit Agreement and shall be deemed to have been terminated and replaced in full by the 2019 Revolving Credit Commitment.

 

3.2          Concurrently with the effectiveness of the Increase, each 2019 Revolving Credit Lender that is an Extending Lender will automatically and without further action be deemed to have assigned to each other 2019 Revolving Credit Lender, and each such other 2019 Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of the 2019 Revolving Credit Commitments of each 2019 Revolving Credit Lender that is an Extending Lender to the extent necessary such that, after giving effect to the Increase and each such deemed assignment and assumption of 2019 Revolving Credit Commitments, each 2019 Revolving Credit Lender shall hold a 2019 Revolving Credit Commitment in the amount set forth opposite its name on Schedule B attached hereto, and each of the Credit Parties and the Lenders authorizes the Administrative Agent to adjust the Register to reflect the 2019 Revolving Credit Commitments of the 2019 Revolving Credit Lenders as set forth on Schedule B attached hereto.

 

3.3          Each 2019 Revolving Credit Lender (i) confirms that it has received a copy of the Credit Agreement, this Amendment and the other Credit Documents, together with copies of financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, any other 2019 Revolving Credit Lender or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Amended Credit Agreement; (iii) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent or the Collateral Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Amended Credit Agreement are required to be performed by it as a 2019 Revolving Credit Lender.

 

3.4          Upon the Amendment Effective Date, each undersigned 2019 Revolving Credit Lender shall be deemed to be, and acknowledges and agrees that it shall become, a Lender and a Revolving Credit Lender party to, under and for all purposes of, the Amended Credit Agreement and the other Credit Documents, shall be subject to and bound by the terms thereof, shall perform all the obligations of and shall have all rights of a Lender and a Revolving Credit Lender thereunder and shall have the respective 2019 Revolving Credit Commitment set forth next to its name on Schedule B attached hereto, each of which shall be recorded in the Register.

 

3.5          For all purposes under the Amended Credit Agreement and the other Credit Documents, (a) the 2019 Revolving Credit Commitment shall be deemed a Revolving Credit Commitment under the Amended Credit Agreement, (b) each Loan made under the 2019 Revolving Credit Commitment shall on and as of the date hereof be deemed a Revolving Credit Loan (each such Loan, a “ 2019 Revolving Credit Loan ”) and (c) each 2019 Revolving Credit Lender shall become a Revolving Credit Lender with respect to the 2019 Revolving Credit Commitment and all matters relating thereto.

 

3.6          Upon the Amendment Effective Date, (i) $200,000,000 (which amount shall, immediately and automatically upon the satisfaction of the Increased Availability Condition, be increased to $400,000,000) of the 2019 Revolving Credit Commitment (the “ 2019   Letter of Credit Sublimit ”) shall be available to the Borrowers on and as of the date hereof for the purpose of issuing Letters of Credit and (ii) each 2019 Revolving Credit Lender hereby agrees to be a Letter of Credit Issuer under the Amended Credit Agreement with a commitment to issue Letters of Credit up to the amount set forth on Schedule B attached hereto as such 2019 Revolving Credit Lender’s 2019 Letter of Credit Commitment.

 

3.7          For each relevant 2019 Revolving Credit Lender, delivered herewith to the Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such 2019 Revolving Credit Lender may be required to deliver to the Administrative Agent pursuant to Section 5.4(e) of the Amended Credit Agreement.

Section 4.   Existing Letters of Credit . Subject to the terms and conditions hereof and of the Amended Credit Agreement, (i) the parties hereto agree that each of the Letters of Credit set forth on Schedule C attached hereto and made a part hereof (the “ Existing Letters of Credit ”) that is outstanding on the Amendment Effective Date shall, effective as of the Amendment Effective Date and without any further action by the Credit Parties, UBS in its capacity as the applicable Letter of Credit Issuer, the Lenders or any other Person, be continued as a Letter of Credit under the Amended Credit Agreement, from and after the Amendment Effective Date be deemed a Letter of Credit for all purposes under the Amended Credit Agreement and be subject to and governed by the terms and conditions of the Amended Credit Agreement, in each case until such Existing Letter of Credit expires in accordance with its terms or is otherwise canceled and returned to UBS and (ii) solely in respect of the Existing Letters of Credit, UBS shall, effective as of the Amendment Effective Date and without any further action by the Credit Parties, UBS in its capacity as the applicable Letter of Credit Issuer, the Lenders or any other Person, continue as a Letter of Credit Issuer under the Amended Credit Agreement solely in respect of the Existing Letters of Credit, from and after the Amendment Effective Date be deemed a Letter of Credit Issuer solely in respect of the Existing Letters of Credit for all purposes under the Amended Credit Agreement and be subject to and governed by, and have the rights, powers, privileges and duties of a Letter of Credit Issuer solely in respect of the Existing Letters of Credit pursuant the terms and conditions of, the Amended Credit Agreement.  Each Revolving Credit Lender acknowledges and agrees that, on and as of the Amendment Effective Date and without any further action by the Credit Parties, UBS in its capacity as the applicable Letter of Credit Issuer, the Lenders or any other Person, all outstanding L/C Participations in Existing Letters of Credit shall be canceled and UBS in its capacity as a Letter of Credit Issuer in respect of the Existing Letters of Credit shall be deemed to have sold and transferred to each Revolving Credit Lender (after giving effect to this Amendment), and each such Revolving Credit Lender shall be deemed irrevocably and unconditionally to have purchased and received from UBS in its capacity as a Letter of Credit Issuer in respect of the Existing Letters of Credit, an L/C Participation in each Existing Letter of Credit issued by UBS and outstanding on and as of the Amendment Effective Date equal to such Revolving Credit Lender’s Revolving Credit Commitment Percentage (calculated after giving effect to the effectiveness of the 2019 Revolving Credit Commitments under the Amended Credit Agreement) of the aggregate amount available to be drawn under such Existing Letter of Credit.  Such L/C Participation shall be governed by the terms of Sections 3.3 and 3.4 of the Amended Credit Agreement.  Notwithstanding anything to the contrary contained herein, in the Amended Credit Agreement or any other Credit Document or otherwise, it is understood and agreed that, effective as of the Amendment Effective Date, UBS shall have no Letter of Credit Commitment or other commitment or obligation to issue any additional Letters of Credit under the Amended Credit Agreement or to extend or renew any Existing Letter of Credit and the Credit Parties hereby agree not to extend or renew any of the Existing Letters of Credit.

 

Section 5.  Replacement of the UK Borrower . Pursuant to Section 9.11(b) and Section 10.3(e) of the Credit Agreement, on the date hereof, the UK Borrower (as defined in the Credit Agreement) shall hereby be replaced (the “ Replacement ”) by Gardner Denver Holdings Ltd. (which shall constitute an Additional Borrower) for purposes of the Amended Credit Agreement and the other Credit Documents and the 2019 Revolving Credit Commitment, and the Administrative Agent and the Lenders hereby acknowledge such replacement (for the avoidance of doubt, as of the date hereof, all references to the UK Borrower in the Amended Credit Agreement and the other Credit Documents shall mean Gardner Denver Holdings Ltd.).

 

Section 6.   Amendments to Credit Documents .

 

6.1          Each of the parties hereto (as of the Amendment Effective Date constituting the Administrative Agent, the Collateral Agent, all Revolving Credit Lenders, the other Lenders party hereto, each Letter of Credit Issuer, the Swingline Lender and the Credit Parties) agrees that, effective on the Amendment Effective Date (and, for the avoidance of doubt, immediately following the Extension and Increase), the Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text ) as set forth in the pages of the Amended Credit Agreement attached as Exhibit A hereto and made a part hereof.

6.2           Each of the parties hereto (as of the Amendment Effective Date constituting the Administrative Agent, the Collateral Agent, all Revolving Credit Lenders, the other Lenders party hereto, each Letter of Credit Issuer, the Swingline Lender and the Credit Parties) agrees that, effective on the Amendment Effective Date (and, for the avoidance of doubt, immediately following the Extension and Increase), Schedule 13.2 to the Credit Agreement is hereby amended to delete the address and other contact information for the Resigning Agent and insert the following address and other contact information for Citi:

 

Citibank, N.A.

1615 Brett Road, Ops III

New Castle, DE 19720,

Attention of Bank Loan Syndications Department

Fax No. (646) 274‑5080)

Email: GLAgentOfficeOps@citi.com

6.3          Each of the parties hereto (as of the Amendment Effective Date constituting the Administrative Agent, the Collateral Agent, all Revolving Credit Lenders, the other Lenders party hereto, each Letter of Credit Issuer, the Swingline Lender and the Credit Parties) agrees that, effective on the Amendment Effective Date (and, for the avoidance of doubt, immediately following the Extension and Increase), all defined terms or provisions referencing UBS AG, Stamford Branch (or “UBS” or references of similar import) as the “Administrative Agent”, the “Collateral Agent”, the “Swingline Lender”, the “Agent”, the “Chargee”, the “Security Agent”, the “Pledgee”, the “administrative agent”, the “collateral agent”, the “trustee” for the Secured Parties or the “facility agent” (or references of similar import) in any Credit Document shall be deemed to have been amended to refer to Citibank, N.A., as the Administrative Agent, the Collateral Agent, the Swingline Lender, the Agent, the Chargee, the Security Agent, the Pledgee, the administrative agent, the collateral agent, the trustee for the Secured Parties and the facility agent (and references of similar import) thereunder.

 

Section 7.  Required Lender Consent . The Lenders party hereto, constituting Required Lenders, hereby give their consent to all matters set forth in this Amendment and the Successor Agent Agreement. The Required Lenders hereby authorize the Administrative Agent and the Collateral Agent, as applicable, to take such actions, including making filings and entering into agreements and any amendments or supplements to any Security Document, as may be necessary or desirable to reflect the intent of this Amendment and the Successor Agent Agreement.

 

Section 8.  Representations . Each Credit Party hereby represents and warrants that:

 

8.1          Each Credit Party (i) has the corporate or other organizational power and authority to execute, deliver and carry out the terms and provisions of this Amendment and the Amended Credit Agreement, and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment and (ii) has duly executed and delivered this Amendment, and each of this Amendment and the Amended Credit Agreement constitutes the legal, valid and binding obligation of such Credit Party enforceable against such Credit Party in accordance with its terms, except as the enforceability hereof or thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and subject to general principles of equity;

 

8.2          The execution, delivery and performance by such Credit Party of this Amendment, will not (i) contravene any applicable provision of any material law, statute, rule, regulation, order, writ, injunction or decree of any court or governmental instrumentality, (ii) result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of such Credit Party or any of its Restricted Subsidiaries (other than Liens created under the Credit Documents) pursuant to, the terms of any material indenture, loan agreement, lease agreement, mortgage, deed of trust, agreement or other material instrument to which such Credit Party or any of its Restricted Subsidiaries is a party or by which it or any of its property or assets is bound other than any such breach, default or Lien that could not reasonably be expected to result in a Material Adverse Effect or (iii) violate any provision of the certificate of incorporation, by-laws, articles or other organizational documents of such Credit Party or any of its Restricted Subsidiaries;

 

8.3          All representations and warranties of the Credit Parties contained herein, in the Amended Credit Agreement or in the other Credit Documents shall be true and correct in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) with the same effect as though such representations and warranties had been made on and as of the Amendment Effective Date, except to the extent that such representations and warranties expressly relate to an earlier specified date or period, in which case such representations and warranties shall have been true and correct in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) as of the date when made or for the respective period, as the case may be.

 

8.4          On the Amendment Effective Date, no Default or Event of Default shall exist immediately before or after giving effect to the effectiveness hereof.

 

Section 9.  Effectiveness .  This Amendment shall be effective on the date (the “ Amendment Effective Date ”) on which each of the following conditions have been satisfied (or waived) in accordance with the terms therein:

 

(a)          this Amendment shall have been executed and delivered by each Credit Party, the Extending Lenders, the 2019 Revolving Credit Lenders, the Resigning Agent, the Successor Agent and Lenders constituting Required Lenders (and each Required Lender shall be deemed to have consented to this Amendment and the Successor Agent Agreement for all purposes requiring its consent);

 

(b)          the Successor Agent Agreement shall have been executed and delivered by Holdings, the Borrowers, the other Credit Parties party thereto, the Resigning Agent and the Successor Agent and all documents and instruments required to create or perfect the Successor Agent’s security interest in the Collateral shall, to the extent necessary to create or perfect the Successor Agent’s security interest in the Collateral, have been executed and delivered by each Credit Party party thereto and, if applicable, be in proper form for filing;

 

(c)           in connection with the Replacement, the Administrative Agent shall have received (A) from the U.S. Borrower a Borrower Designation Agreement duly executed by the U.S. Borrower and Gardner Denver Holdings Ltd., (B) a loan certificate of Gardner Denver Holdings Ltd., including the attachments specified in Section 6.5 of the Credit Agreement and (C) all Security Documents, guarantees and other documents and instruments as Gardner Denver Holdings Ltd. is required to deliver under the Credit Agreement to become a Guarantor;

 

(d)          all fees and out-of-pocket expenses required to be paid or reimbursed by Holdings and each of the Borrowers pursuant to Sections 13.5 and 2.11 of the Credit Agreement and all other fees and out-of-pocket expenses separately agreed between the U.S. Borrower and the 2019 Revolving Credit Lenders or the Successor Agent in connection with this Amendment shall have been paid or reimbursed by (or on behalf of) Holdings and each of the Borrowers;

 

(e)          the 2019 Revolving Credit Lenders shall have received (a) the audited consolidated balance sheets and related statements of operations and cash flows as of and for the fiscal years ended on December 31, 2018 and December 31, 2017 of the U.S. Borrower and its subsidiaries; and (b) the unaudited consolidated balance sheet and the related unaudited consolidated statement of operations and cash flows of the U.S. Borrower and its subsidiaries as of and for the fiscal quarter ended on March 31, 2019 (and the same period in the prior year);

(f)           the Administrative Agent shall have received a customary closing certificate of each Credit Party, dated the date hereof, executed by an Authorized Officer of such Credit Party which includes (i) a good standing certificate (to the extent such concepts exist) for each Credit Party from the applicable governmental authority of such Credit Party’s jurisdiction of incorporation, organization or formation and (ii) a copy of the resolutions of the board of directors or other managers of each Credit Party (or duly authorized committee thereof) authorizing the execution and delivery of this Amendment and any other Credit Documents delivered on the Amendment Effective Date to which it is a party and the performance by it of this Amendment and each other Credit Document delivered on the Amendment Effective Date to which it is a party, (iii) (x) a copy of the certificate of incorporation and by-laws, certificate of formation and operating agreement or other comparable organizational documents, as applicable, of each Credit Party or (y) a certification by an Authorized Officer of such Credit Party, dated the date hereof, that there have been no amendments to such organizational documents, as applicable, and (iv) the signature and incumbency certificates of the Authorized Officers of each Credit Party executing this Amendment and the other Credit Documents delivered on the date hereof to which it is a party;

 

(g)           the Administrative Agent shall have received an opinion of (i) Simpson Thacher & Bartlett LLP, as New York counsel to the Credit Parties, (ii) Addleshaw Goddard (Germany) LLP, as German counsel to the Credit Parties and (iii) Bryan Cave Leighton Paisner LLP, as English counsel to the Credit Parties, each in form and substance reasonably satisfactory to the Administrative Agent;

 

(h)         the representations and warranties in Section 8 of this Amendment with respect to Sections 8.1 , 8.2 (in each case related to the borrowing under, guaranteeing under, granting of security interests in the Collateral pursuant to, entry into and performance of, the Amendment), 8.3(b) and (c) (in each case, solely as they relate to conflicts arising as a result of entry into, or performance of, the Amendment after giving effect to the transactions contemplate thereby), 8.5 , 8.7 , 8.17 (but with references to the “Closing Date” and the “Transactions” to be deemed to be references to the Amendment Effective Date and the transactions contemplated by this Amendment, respectively); 8.18 (but with references to the “Closing Date” to be deemed to be references to the Amendment Effective Date) and 8.19 of the Credit Agreement shall be true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on the Amendment Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date);

 

(i)            the Administrative Agent and the 2019 Revolving Credit Lenders shall have received at least three business days prior to the Amendment Effective Date all documentation and other information about the Borrowers and the Guarantors as shall have been reasonably requested in writing by the Administrative Agent or the 2019 Revolving Credit Lenders at least ten calendar days prior to the Amendment Effective Date and as required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.  At least three business days prior to the Amendment Effective Date (to the extent requested at least ten business days prior to the Amendment Effective Date), any Borrower or any Guarantor that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230) (the “ Beneficial Ownership Regulation ”)   shall deliver a beneficial ownership certificate to any 2019 Revolving Credit Lender or Letter of Credit Issuer that has requested such certification, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association (a “ Beneficial Ownership Certification ”), in relation to such Borrower or Guarantor;

 

(j)           the 2019 Revolving Credit Lenders shall have received a solvency certificate as to the U.S. Borrower and its restricted subsidiaries on a consolidated basis (as of the Amendment Effective Date) substantially in the form of Annex B-I to the Revolving Commitment Letter, certified by a senior authorized financial officer of the U.S. Borrower;

 

(k)          no Event of Default shall exist on the Amendment Effective Date after giving effect to the 2019 Revolving Credit Commitments; and

 

(l)           (i) the Payoff shall have been consummated, (ii) any existing Tranche B Revolving Credit Loans and any Tranche C Revolving Credit Loans shall have been repaid in full and (iii) all accrued and unpaid interest and fees on the existing Loans, Commitments and Letters of Credit under the Credit Agreement shall have been paid in full, in each case on the Amendment Effective Date.

 

Section 10.  Miscellaneous .

 

10.1         This Amendment shall constitute an Extension Amendment and a Joinder Agreement in accordance with Section 2.14 of the Credit Agreement.

 

10.2         Each reference that is made in the Amended Credit Agreement or any Credit Document to the Credit Agreement shall hereafter be construed as a reference to the Credit Agreement, as amended hereby.  Except as herein otherwise specifically provided, all provisions of the Credit Agreement shall remain in full force and effect and be unaffected hereby and this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Credit Agreement or any other Credit Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Credit Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect.  This Amendment is a Credit Document.

 

10.3         Each of the undersigned Credit Parties acknowledges (i) all of its Obligations (as amended hereby) under the Amended Credit Agreement and each other Credit Document to which it is a party are reaffirmed and remain in full force and effect on a continuous basis, (ii) its grant of guarantees and/or security interests pursuant to the Credit Documents are reaffirmed and remain in full force and effect after giving effect to this Amendment, (iii) the Obligations include, among other things and without limitation, the due and punctual payment of the principal of, interest on, the Revolving Credit Commitments effected pursuant to this Amendment, and (iv) the execution of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent, the Collateral Agent or any other Secured Party, constitute a waiver of any provision of any of the Credit Documents or serve to effect a novation of the Obligations.

 

10.4          This Amendment may be executed in any number of counterparts, by different parties hereto in separate counterparts (including by facsimile or other electronic transmission (e.g., a “pdf” or “tif”)) and by facsimile signature, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement.

 

10.5          Holdings and each of the Borrowers agree to pay on demand all costs and expenses required to be paid or reimbursed pursuant to Section 13.5 of the Credit Agreement or the Amended Credit Agreement incurred by the Administrative Agent or the Resigning Agent in connection with the preparation, negotiation and execution of this Amendment, including without limitation, the reasonable and documented costs, fees, expenses and disbursements of the Administrative Agent’s and the Resigning Agent’s legal counsel.

 

10.6          This Amendment may not be amended, modified or waived except in accordance with the terms of Section 13.1 of the Amended Credit Agreement. Any term or provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment, and the effect thereof shall be confined to the term or provision so held to be invalid or unenforceable.

 

10.7          This Amendment is specifically limited to the matters expressly set forth herein.  This Amendment and all other instruments, agreements and documents executed and delivered in connection with this Amendment embody the final, entire agreement among the parties hereto with respect to the subject matter hereof and supersede any and all prior commitments, agreements, representations and understandings, whether written or oral, relating to the matters covered by this Amendment, and may not be contradicted or varied by evidence of prior, contemporaneous or subsequent oral agreements or discussions of the parties hereto.  There are no oral agreements among the parties hereto relating to the subject matter hereof or any other subject matter relating to the Amended Credit Agreement.

 

10.8          The provisions of Sections 13.12 , 13.13 and 13.15 of the Amended Credit Agreement apply to this Amendment, mutatis mutandis .

 

10.9          The parties hereto acknowledge and agree that the amendment of the Credit Agreement pursuant to this Amendment and the amendment and/or execution of any other Credit Document in connection with this Amendment shall not constitute a novation of the Credit Agreement or any other Credit Document as in effect prior to the Amendment Effective Date.

 

[Remainder of Page Intentionally Left Blank; Signature Pages Follow]

IN WITNESS WHEREOF, this Amendment No. 4 to Credit Agreement has been executed by the parties hereto as of the date first written above.

 

	HOLDINGS :
	GARDNER DENVER HOLDINGS, INC.
	By:	/s/ Andrew R. Schiesl
	Name: Andrew R. Schiesl
	Title:   Authorized Signatory
	U.S. BORROWER :
	GARDNER DENVER, INC.
	By:	/s/ Andrew R. Schiesl
	Name: Andrew R. Schiesl
	Title:   Authorized Signatory
	GERMAN BORROWER :
	GD GERMAN HOLDINGS II GMBH
	By:	/s/ Andrew R. Schiesl
	Name: Andrew R. Schiesl
	Title:   Authorized Signatory
	UK BORROWER :
	GARDNER DENVER HOLDINGS LTD.
	By:	/s/ Andrew R. Schiesl
	Name: Andrew R. Schiesl
	Title:   Authorized Signatory

 

	CREDIT PARTIES :
	GD GLOBAL HOLDINGS, INC.
	GARDNER DENVER INVESTMENTS, INC.
	GARDNER DENVER INTERNATIONAL, INC.
	GD GLOBAL HOLDINGS II, INC.
	By:	/s/ Andrew R. Schiesl
	Name: Andrew R. Schiesl
	Title:   President
	EMCO WHEATON USA, INC.
	GARDNER DENVER NASH LLC
	GARDNER DENVER THOMAS, INC.
	LEROI INTERNATIONAL, INC.
	GARDNER DENVER PETROLEUM PUMPS LLC
	THOMAS INDUSTRIES INC.
	TRI-CONTINENT SCIENTIFIC, INC.
	By:	/s/ Andrew R. Schiesl
	Name: Andrew R. Schiesl
	Title:   Secretary

 

	SUCCESSOR AGENT AND SWINGLINE LENDER :
	CITIBANK, N.A.
	By:	/s/ Matthew Burke
	Name: Matthew Burke
	Title:   Managing Director & Vice President

 

 

	EXTENDING LENDER :
	DEUTSCHE BANK AG NEW YORK BRANCH
	By:	/s/ Michael Strobel
	Name: Michael Strobel
	Title:   Vice President
	By:	/s/ Yumi Okabe
	Name: Yumi Okabe
	Title:   Vice President

 

[Signature Page to Amendment No. 4 to Credit Agreement (Gardner Denver)]

	EXTENDING LENDER :
	CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
	By:	/s/ Gordon Yip
	Name: Gordon Yip
	Title:   Director
	By:	/s/ Thibault Rosset
	Name: Thibault Rosset
	Title:   Managing Director

[Signature Page to Amendment No. 4 to Credit Agreement (Gardner Denver)]

	EXTENDING LENDER :
	CITIBANK, N.A.
	By:	/s/ Matthew Burke
	Name: Matthew Burke
	Title:   Managing Director & Vice President

	EXTENDING LENDER :
	HSBC BANK USA, N.A.
	By:	/s/ Andrew Horn
	Name: Andrew Horn
	Title:   Director

	EXTENDING LENDER :
	MIZUHO BANK, LTD.
	By:	/s/ Donna DeMagistris
	Name: Donna DeMagistris
	Title:   Authorized Signatory

Lender signature pages on file.

 

[Signature Page to Amendment No. 4 to Credit Agreement (Gardner Denver)]

Exhibit A

 

Amended Credit Agreement

 

(See attached.)

1	As amended by Amendment No. 1 to Credit Agreement, dated as of March 4, 2016, Amendment No. 2, dated as of August 17, 2017, Amendment No. 3, dated as of December 13, 2018 and Amendment No. 4, dated as of June 28, 2019.

 

1	RBC Capital Markets is a marketing name for the investment banking activities of Royal Bank of Canada and its affiliates.

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(8)           (i) any after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments (including deferred financing costs written off and premiums paid), (ii) any non-cash income (or loss) related to currency gains or losses related to Indebtedness, intercompany balances and other balance sheet items and to Hedging Obligations pursuant to Financial Accounting Standards Codification No. 815—Derivatives and Hedging (or such successor provision) and (iii) any non-cash expense, income or loss attributable to the movement in mark to market valuation of foreign currencies, Indebtedness or derivative instruments pursuant to GAAP, shall be excluded,

 

(9)            any impairment charge, asset write-off or write-down pursuant to ASC 350 and ASC 360 (formerly Financial Accounting Standards Board Statement Nos. 142 and 144, respectively) and the amortization of intangibles arising pursuant to ASC 805 (formerly Financial Accounting Standards Board Statement No. 141) shall be excluded,

 

(10)          (i) any non-cash compensation expense recorded from grants of stock appreciation or similar rights, phantom equity, stock options units, restricted stock or other rights to officers, directors, managers or employees and (ii) non-cash income (loss) attributable to deferred compensation plans or trusts, shall be excluded,

 

(11)         any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, recapitalization, Asset Sale, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded,

 

(12)          accruals and reserves (including contingent liabilities) that are established or adjusted within twelve months after the Closing Date that are so required to be established as a result of the Transactions in accordance with GAAP, or changes as a result of adoption or modification of accounting policies, shall be excluded,

 

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

 

(14)          any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowance related to such items, shall be excluded, and

 

(15)          any costs or expenses incurred during such period relating to environmental remediation, litigation or other disputes in respect of events and exposures that occurred prior to the Closing Date shall be excluded.

 

“ Consolidated Senior Secured Debt ”   shall mean Consolidated Total Debt as of such date secured by a Lien on the Collateral on an equal priority basis (but without regard to the control of remedies) with liens on the Collateral securing the Obligations.

“ Consolidated Senior Secured Debt to Consolidated EBITDA Ratio ” shall mean, as of any date of determination, the ratio of (1) Consolidated Senior Secured Debt as of such date of determination, minus cash and Cash Equivalents (in each case, free and clear of all Liens (other than Permitted Liens)) of Holdings and its Restricted Subsidiaries to (2) Consolidated EBITDA of Holdings for the Test Period then last ended, in each case with such pro forma adjustments to Consolidated Senior Secured Debt and Consolidated EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio”.

 

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

 

“ Consolidated Total Debt ” shall mean, as at any date of determination, an amount equal to the sum of the aggregate amount of all outstanding Indebtedness of Holdings and the Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, Capitalized Lease Obligations and debt obligations evidenced by promissory notes and similar instruments (and excluding, for the avoidance of doubt, Hedging Obligations); provided that Consolidated Total Debt shall not include Letters of Credit, except to the extent of Unpaid Drawings thereunder.

 

“ Consolidated Total Debt to Consolidated EBITDA Ratio ”   shall mean, as of any date of determination, the ratio of (a) Consolidated Total Debt as of such date minus the aggregate cash and Cash Equivalents (in each case, free and clear of all Liens (other than Permitted Liens)) of Holdings and the Restricted Subsidiaries as at such date to (b) Consolidated EBITDA for the Test Period then last ended.

 

“ Consolidated Working Capital ” shall mean, at any date, the excess of (a) the sum of all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of Holdings and the Restricted Subsidiaries at such date excluding the current portion of current and deferred income taxes over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of Holdings and the Restricted Subsidiaries on such date, including deferred revenue but excluding, without duplication, (i) the current portion of any Funded Debt, (ii) all Indebtedness consisting of Loans and Letter of Credit Exposure to the extent otherwise included therein, (iii) the current portion of interest, (iv) the current portion of current and deferred income taxes, (v) any liabilities that are not Indebtedness and will not be settled in cash or Cash Equivalents during the next succeeding twelve month period after such date, (vi) the effects from applying purchase accounting, (vii) any accrued professional liability risks and (viii) restricted marketable securities.

 

“ Contingent Obligations ” shall mean, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“ primary obligations ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (1) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (2) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or (3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.

 

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

“ Contractual Requirement ”   shall have the meaning provided in Section 8.3 .

 

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

 

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

 

“ Covered Entity ”  means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

“ Covered Party ” shall have the meaning provided in Section 13.24.

 

“ Credit Documents ”   shall mean this Agreement, the Guarantees, the Security Documents and any promissory notes issued by any Borrower hereunder.

 

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

 

“ Credit Facilities ” shall mean, collectively, each category of Commitments and each extension of credit hereunder.

 

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

 

“ Credit Party ”   shall mean Holdings, each Borrower and the Guarantors.

 

“ CTA ” mean the United Kingdom’s Corporation Tax Act 2009.

 

“ Cure Amount ” shall have the meaning provided in Section 11.14 .

 

“ Cure Right ” shall have the meaning provided in Section 11.14 .

 

“ Debt Incurrence Prepayment Event ” shall mean any issuance or incurrence by Holdings or any of the Restricted Subsidiaries of any Indebtedness (excluding any Indebtedness permitted to be issued or incurred under Section 10.1 other than Section 10.1(y) and Section 10.1(aa) ).

 

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

 

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

 

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

 

“ Default Right ” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

“ Defaulting Lender ” shall mean any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of “Lender Default”.

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

 

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

 

“ Designated Non-Cash Consideration ”   shall mean the Fair Market Value of non-cash consideration received by Holdings or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of Holdings, setting forth the basis of such valuation, executed by either a senior vice president or the principal financial officer of Holdings, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-Cash Consideration.

 

“ Designated Preferred Stock ” shall mean preferred stock of Holdings or any direct or indirect parent company of Holdings (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by Holdings or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an officers’ certificate executed by the principal financial officer of Holdings or the parent company thereof, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (iii) of Section 10.5(a) .

 

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

 

“ Disqualified Lenders ” means such Persons that have been specified in writing to the Administrative Agent and the Lead Arrangers prior to the commencement of “primary syndication” as being “Disqualified Lenders.”

 

“ Disqualified Stock ” shall mean, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely for Qualified Stock), other than as a result of a change of control, asset sale or similar event, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely for Qualified Stock), other than as a result of a change of control, asset sale or similar event, in whole or in part, in each case, prior to the date that is 91 days after the Latest Term Loan Maturity Date hereunder; provided that if such Capital Stock is issued to any plan for the benefit of employees of Holdings or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by Holdings or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

 

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

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

 

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

 

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

 

“ 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.

 

“ Effective Yield ” shall mean, as to any Indebtedness, the effective yield on such Indebtedness in the reasonable determination of the Administrative Agent in consultation with the U.S. Borrower and consistent with generally accepted financial practices, taking into account the applicable interest rate margins, any interest rate floors (the effect of which floors shall be determined in a manner set forth in the proviso below) or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (a) the remaining weighted average life to maturity of such Indebtedness and (b) the four years following the date of incurrence thereof) payable generally to Lenders or other institutions providing such Indebtedness, but excluding any arrangement, structuring, ticking or other similar fees payable in connection therewith that are not generally shared with the relevant Lenders and, if applicable, consent fees for an amendment paid generally to consenting Lenders; provided that with respect to any Indebtedness that includes a “LIBOR floor” or “Base Rate floor,” (i) to the extent that the LIBOR Rate or ABR (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the purpose of calculating the Effective Yield and (ii) to the extent that the LIBOR Rate or ABR (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield.

 

“ Environmental Claims ” shall mean any and all actions, suits, orders, decrees, demand letters, claims, notices of noncompliance or potential responsibility or violation or proceedings pursuant to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereinafter, “ Claims ”), including, without limitation, (i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief relating to the presence Release or threatened Release of Hazardous Materials or arising from alleged injury or threat of injury to health or safety (to the extent relating to human exposure to Hazardous Materials), or the environment including, without limitation, ambient air, indoor air, surface water, groundwater, soil, land surface and subsurface strata and natural resources such as wetlands.

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

 

“ Equity Interest ” shall mean Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.

 

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

 

“ Equity Offering ” shall mean any public or private sale of common stock or preferred stock of Holdings or any direct or indirect parent company of Holdings (excluding Disqualified Stock), other than: (a) public offerings with respect to a Borrower or any of its direct or indirect parent company’s (including Holdings) common stock registered on Form S-8, (b) issuances to any Subsidiary of Holdings, (c) any such public or private sale that constitutes an Excluded Contribution and (d) any Cure Amount.

 

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

 

“ ERISA Affiliate ” shall mean any trade or business (whether or not incorporated) that, together with any Credit Party, is treated as a single employer under Section 414 (b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

 

“ ERISA Event ” shall mean (a) the failure of any Plan to comply with any provisions of ERISA and/or the Code (and applicable regulations under either) or with the terms of such Plan; (b) the existence with respect to any Plan of a non-exempt Prohibited Transaction; (c) any Reportable Event; (d) the failure of any Credit Party or ERISA Affiliate to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; (e) a determination that any Pension Plan is in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (f) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan; (g) the occurrence of any event or condition which might reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or the incurrence by any Credit Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Pension Plan, including but not limited to the imposition of any Lien in favor of the PBGC or any Pension Plan; (h) the receipt by any Credit Party or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan under Section 4042 of ERISA; (i) the failure by any Credit Party or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan; (j) the incurrence by any Credit Party or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Pension Plan (or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA) or Multiemployer Plan; (k) the receipt by any Credit Party or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from a Credit Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, Insolvent or in Reorganization, in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA), or terminated (within the meaning of Section 4041A of ERISA); or (l) the failure by any Credit Party or any of its ERISA Affiliates to pay when due (after expiration of any applicable grace period) any installment payment with respect to Withdrawal Liability under Section 4201 of ERISA.

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

 

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

 

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

 

(a)           the sum, without duplication, of

 

(i)             Consolidated Net Income for such period,

 

(ii)           an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income and cash receipts to the extent excluded in arriving at such Consolidated Net Income,

 

(iii)           decreases in Consolidated Working Capital for such period (other than (1) reclassification of items from short-term to long-term or vice versa and (2) any such decreases arising from acquisitions or Asset Sales by Holdings and the Restricted Subsidiaries completed during such period or the application of purchase accounting),

 

(iv)          an amount equal to the aggregate net non-cash loss on Asset Sales by Holdings and the Restricted Subsidiaries during such period (other than Asset Sales in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; and

 

(v)           cash receipts in respect of Hedge Agreements during such period to the extent not otherwise included in Consolidated Net Income;

 

over (b) the sum, without duplication, of

 

(i)             an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income and cash charges to the extent excluded in arriving at such Consolidated Net Income,

 

(ii)           without duplication of amounts deducted pursuant to clause (xi) below in prior periods, the amount of Capital Expenditures or acquisitions of Intellectual Property accrued or made in cash during such period, except to the extent that such Capital Expenditures or acquisitions were financed with the proceeds of long-term Indebtedness of Holdings or the Restricted Subsidiaries (unless such Indebtedness has been repaid),

 

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

(iv)         an amount equal to the aggregate net non-cash gain on Asset Sales by Holdings and the Restricted Subsidiaries during such period (other than Asset Sales in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income,

 

(v)           increases in Consolidated Working Capital for such period (other than (1) reclassification of items from short-term to long-term or vice versa and (2) any such decreases arising from acquisitions or Asset Sales by Holdings and the Restricted Subsidiaries completed during such period or the application of purchase accounting),

 

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

 

(vii)        without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal periods, the aggregate amount of cash consideration paid by Holdings and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such period constituting “Permitted Investments” or made pursuant to Section 10.5 to the extent that such Investments were not financed with the proceeds received from (A) the issuance or incurrence of long-term Indebtedness or (B) the issuance of Capital Stock,

 

(viii)       the amount of dividends paid during such period (on a consolidated basis) by Holdings and the Restricted Subsidiaries, to the extent such dividends were not financed with the proceeds received from (A) the issuance or incurrence of long-term Indebtedness or (B) the issuance of Capital Stock,

 

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

 

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

 

(xi)          without duplication of amounts deducted from Excess Cash Flow in other periods, (A) the aggregate consideration required to be paid in cash by Holdings or any of its Restricted Subsidiaries pursuant to binding contracts (the “ Contract Consideration ”) entered into prior to or during such period and (B) any planned cash expenditures by the U.S. Borrower or any of the Restricted Subsidiaries (the “ Planned Expenditures ”), in the case of each of clauses (A) and (B) , relating to Permitted Acquisitions (or Investments similar to those made for Permitted Acquisitions), Capital Expenditures or acquisitions of intellectual property to be consummated or made during the period of four consecutive fiscal quarters of the U.S. Borrower following the end of such period (except to the extent financed with any of the proceeds received from (A) the issuance or incurrence of long-term Indebtedness or (B) the issuance of Equity Interests); provided that to the extent that the aggregate amount of cash actually utilized to finance such Permitted Acquisitions (or Investments similar to those made for Permitted Acquisitions), Capital Expenditures or acquisitions of intellectual property during such following period of four consecutive fiscal quarters is less than the Contract Consideration and Planned Expenditures, the amount of such shortfall shall be added to the calculation of Excess Cash Flow, at the end of such period of four consecutive fiscal quarters;

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

 

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

 

“ Excluded Contribution ” shall mean net cash proceeds, the Fair Market Value of marketable securities or the Fair Market Value of Qualified Proceeds received by Holdings from (a) contributions to its common equity capital, and (b) the sale (other than to a Subsidiary of Holdings or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of Holdings) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of Holdings, in each case designated as Excluded Contributions pursuant to an officers’ certificate executed by either a senior vice president or the principal financial officer of Holdings on the date such capital contributions are made or the date such Equity Interests are sold, as the case may be, which are excluded from the calculation set forth in clause (iii) of Section 10.5(a) ; provided that any non-cash assets shall qualify only if acquired by a parent of Holdings in an arm’s-length transaction within the six months prior to such contribution.

 

“ Excluded Stock and   Stock Equivalents ”   shall mean (i) any Capital Stock or Stock Equivalents with respect to which, in the reasonable judgment of the Administrative Agent and Holdings (as agreed to in writing), the cost or other consequences of pledging such Capital Stock or Stock Equivalents in favor of the Secured Parties under the Security Documents shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (ii) solely in the case of any pledge of Capital Stock and Stock Equivalents of any Foreign Subsidiary or any Domestic Subsidiary substantially all of the assets of which consist of Capital Stock of Foreign Subsidiaries in each case to secure the Obligations of the U.S. Borrower (and for the avoidance of doubt not any Foreign Borrower), any Voting Stock or Stock Equivalents of any class of such Foreign Subsidiary or such Domestic Subsidiary in excess of 66% of the outstanding Voting Stock of such class (such percentage to be adjusted upon any Change in Law as may be required to avoid adverse U.S. federal income tax consequences to the U.S. Borrower or any Guarantor that is a Domestic Subsidiary), (iii) any Capital Stock or Stock Equivalents to the extent the pledge thereof would violate any applicable Requirement of Law (including any legally effective requirement to obtain the consent of any Governmental Authority unless such consent has been obtained), (iv) in the case of (A) any Capital Stock or Stock Equivalents of any Subsidiary to the extent such Capital Stock or Stock Equivalents are subject to a Lien permitted by clause (9) of the definition of “Permitted Lien” or (B) any Capital Stock or Stock Equivalents of any Subsidiary that is not wholly-owned by Holdings and its Subsidiaries at the time such Subsidiary becomes a Subsidiary, any Capital Stock or Stock Equivalents of each such Subsidiary described in clause   (A) or (B) to the extent (1) that a pledge thereof to secure the Obligations is prohibited by any applicable Contractual Requirement (other than customary non-assignment provisions which are ineffective under the Uniform Commercial Code or other applicable law), (2) any Contractual Requirement prohibits such a pledge without the consent of any other party; provided that this clause (2) shall not apply if (x) such other party is a Credit Party or wholly-owned Subsidiary or (y) consent has been obtained to consummate such pledge (it being understood that the foregoing shall not be deemed to obligate Holdings or any Subsidiary to obtain any such consent) and for so long as such Contractual Requirement or replacement or renewal thereof is in effect, or (3) a pledge thereof to secure the Obligations would give any other party (other than a Credit Party or wholly-owned Subsidiary) to any contract, agreement, instrument or indenture governing such Capital Stock or Stock Equivalents the right to terminate its obligations thereunder (other than customary non-assignment provisions which are ineffective under the Uniform Commercial Code or other applicable law), (v) any Capital Stock or Stock Equivalents of any Subsidiary to the extent that (A) the pledge of such Capital Stock or Stock Equivalents would result in adverse tax consequences to Holdings or any Subsidiary as reasonably determined by Holdings and (B) such Capital Stock or Stock Equivalents have been identified in writing to the Collateral Agent by an Authorized Officer of Holdings, (vi) any Capital Stock or Stock Equivalents that are margin stock and (vii) any Capital Stock and Stock Equivalents of any Subsidiary that is not a Material Subsidiary or is an Unrestricted Subsidiary.

“ Excluded Subsidiary ”   shall mean (a) each Subsidiary, in each case, for so long as any such Subsidiary does not (on a consolidated basis with its Restricted Subsidiaries) constitute a Material Subsidiary, (b) each Subsidiary that is not a wholly-owned Subsidiary on any date such Subsidiary would otherwise be required to become a Guarantor pursuant to the requirements of Section 9.11 (for so long as such Subsidiary remains a non-wholly-owned Restricted Subsidiary), (c) solely in the case of credit support for the Obligations of the U.S. Borrower, any Domestic Subsidiary substantially all the assets of which consist of (x) Capital Stock and Stock Equivalents of Foreign Subsidiaries and/or (y) other Domestic Subsidiaries so long as substantially all the assets of any such other Domestic Subsidiary consist of Capital Stock and Stock Equivalents of Foreign Subsidiaries, (d) solely in the case of credit support for the Obligations of the U.S. Borrower, any Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary, (e) any Foreign Subsidiary; provided that clause (e) shall not apply to the Foreign Borrowers and any of their Restricted Subsidiaries organized in the same jurisdiction which such Persons shall only guarantee the obligations of the Foreign Borrowers, (f) each Subsidiary that is prohibited by any applicable Contractual Requirement or Requirement of Law from guaranteeing or granting Liens to secure the Obligations at the time such Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction or any replacement or renewal thereof is in effect), (g) each Subsidiary with respect to which, as reasonably determined by Holdings, the consequence of providing a Guarantee of the Obligations would adversely affect the ability of Holdings and its Subsidiaries to satisfy applicable Requirements of Law, (h) any other Subsidiary with respect to which, (x) in the reasonable judgment of the Administrative Agent and Holdings, as agreed in writing, the cost or other consequences of providing a Guarantee of the Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (y) providing such a Guarantee would result in adverse tax consequences as reasonably determined by Holdings and notified in writing to the Administrative Agent, (i) each Unrestricted Subsidiary, (j) any Receivables Subsidiary and (k) each other Subsidiary acquired pursuant to a Permitted Acquisition and financed with assumed secured Indebtedness, and each Restricted Subsidiary acquired in such Permitted Acquisition that guarantees such Indebtedness, in each case to the extent that, and for so long as, the documentation relating to such Indebtedness to which such Subsidiary is a party prohibits such Subsidiary from guaranteeing the Obligations and such prohibition was not created in contemplation of such Permitted Acquisition.

 

“ Excluded Swap Obligation ” means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the Obligations of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or any Obligations 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).  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 Obligation or security interest is or becomes illegal.

“ Excluded Taxes ” shall mean, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Credit Party hereunder or under any other Credit Document, (i) Taxes imposed on or measured by its overall net income or branch profits (however denominated, and including (for the avoidance of doubt) any backup withholding in respect thereof under Section 3406 of the Code or any similar provision of state, local or foreign law), and franchise (and similar) Taxes imposed on it (in lieu of net income Taxes), in each case by a jurisdiction (including any political subdivision thereof) as a result of such recipient being organized in, having its principal office in, or in the case of any Lender, having its applicable lending office in, such jurisdiction, or as a result of any other present or former connection with such jurisdiction (other than any such connection arising solely from this Agreement or any other Credit Documents or any transactions contemplated thereunder), (ii) in the case of any Borrowing by the U.S. Borrower, any United States federal withholding Tax, in each case imposed on any payment by or on account of any obligation of any Credit Party hereunder or under any other Credit Document that  is required to be imposed on amounts payable to a Lender pursuant to laws in force at the time such Lender acquires an interest in any Credit Document, other than in the case of a Lender that is an assignee pursuant to a request by any Borrower or Holdings under Section 13.7 (or designates a new lending office), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive additional amounts from the U.S. Borrower with respect to such withholding Tax pursuant to Section 5.4(a) , (iii) any withholding taxes attributable to a Lender’s failure to comply with Section 5.4(e) or (iv) any United States federal withholding Tax imposed under FATCA.

 

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

 

“ Existing Credit Agreement Indebtedness ” means the principal, interest, fees and other amounts, other than contingent obligations not due and payable, outstanding under that certain Credit Agreement, dated as of September 19, 2008, by and among Gardner Denver, Inc., the lenders from time to time party thereto, and JPMorgan Chase Bank, N.A., as administrative agent.

 

“ Existing Letters of Credit ” shall mean each letter of credit existing on the Closing Date and identified on Schedule 1.1(a) .

 

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

 

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

 

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

 

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

 

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

 

“ Extended Revolving Credit Commitments ” shall have the meaning provided in Section 2.14(g)(ii) .

“ Extended Revolving Credit Loans ” shall have the meaning provided in Section 2.14(g)(ii) .

 

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

 

“ Extended Term Loans ” shall have the meaning provided in Section 2.14(g)(i) .

 

“ Extending Lender ” shall have the meaning provided in Section 2.14(g)(iii) .

 

“ Extension Amendment ” shall have the meaning provided in Section 2.14(g)(iv) .

 

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

 

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

 

“ Extension Request ” shall mean a Term Loan Extension Request.

 

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

 

“ Fair Market Value ” means with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as determined in good faith by the U.S. Borrower.

 

“ Fair Value ” shall mean the amount at which the assets (both tangible and intangible), in their entirety, of the U.S. Borrower and its Restricted Subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.

 

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

 

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

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

 

“ First Lien Intercreditor Agreement ” shall mean an Intercreditor Agreement substantially in the form of Exhibit I (with such changes to such form as may be reasonably acceptable to the Administrative Agent and the U.S. Borrower) among the Administrative Agent, the Collateral Agent and the representatives for purposes thereof for holders of one or more classes of Indebtedness.

 

“ First Lien Obligations ” shall mean the Obligations and the Permitted Other Indebtedness Obligations that are secured by the Collateral on an equal priority basis (but without regard to the control of remedies) with liens on the Collateral securing the Obligations.

 

“ Fixed Charge Coverage Ratio ” shall mean, as of any date of determination, the ratio of (1) Consolidated EBITDA for the Test Period then last ended to (2) the Fixed Charges for such Test Period.  In the event that Holdings or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires or extinguishes any Indebtedness or issues or redeems Disqualified Stock or preferred stock subsequent to the commencement of the Test Period but prior to or simultaneously with the date of determination, then the Fixed Charge Coverage Ratio shall be calculated giving Pro Forma Effect to such incurrence, assumption, guarantee, redemption, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or preferred stock (in each case, including a pro forma application of the net proceeds therefrom), as if the same had occurred at the beginning of the Test Period; provided , however , that Pro Forma Effect shall not give effect to any Indebtedness incurred on the date of such determination (except pursuant to the first paragraph of Section 10.1 and Section 10.1(n) ).

 

For purposes of calculating the Fixed Charge Coverage Ratio, Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (as determined in accordance with GAAP) that have been made by Holdings or any Restricted Subsidiary during the Test Period or subsequent to such Test Period and on or prior to or simultaneously with the date of determination shall be calculated on a Pro Forma Basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the Test Period.  If since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into Holdings or any Restricted Subsidiary since the beginning of such period) shall have made any Investment, acquisition, disposition, merger, consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving Pro Forma Effect thereto for such Test Period as if such Investment, acquisition, disposition, merger, consolidation or disposed operation had occurred at the beginning of the Test Period.

 

For purposes of this definition, whenever Pro Forma Effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of Holdings (and may include, for the avoidance of doubt and without duplication, cost savings and operating expense reductions resulting from such Investment, acquisition, merger or consolidation which is being given Pro Forma Effect that have been or are expected to be realized; provided that such costs savings and operating expense reductions are made in compliance with the definition of Pro Forma Adjustment).  If any Indebtedness bears a floating rate of interest and is being given Pro Forma Effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). If any Indebtedness bears a floating rate of interest and is being given Pro Forma Effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account for such entire period, any Hedging Obligation applicable to such Indebtedness with a remaining term of 12 months or longer, and in the case of any Hedging Obligation applicable to such Indebtedness with a remaining term of less than 12 months, taking into account such Hedging Obligation to the extent of its remaining term).  Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of Holdings to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.  For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a Pro Forma Basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period (or, if lower, the greater of (x) maximum commitments under such revolving credit facilities as of the date of determination and (y) the aggregate principal amount of loans outstanding under such a revolving credit facilities on such date).  Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as Holdings may designate.

“ Fixed Charges ” shall mean, with respect to any Person for any period, the sum of:

 

(a)            Consolidated Interest Expense of such Person for such period,

 

(b)           all cash dividend payments (excluding items eliminated in consolidation) on any series of preferred stock (including any Designated Preferred Stock) or any Refunding Capital Stock of such Person made during such period, and

 

(c)            all cash dividend payments (excluding items eliminated in consolidation) on any series of Disqualified Stock made during such period.

 

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

 

“ Foreign Benefit Arrangement ” shall mean any employee benefit arrangement mandated by non-US law that is maintained or contributed to by any Credit Party or any of its Subsidiaries.

 

“ Foreign Borrowers ” shall have the meaning provided in the preamble to this Agreement.

 

“ Foreign Plan ”   shall mean each employee benefit plan (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA) that is not subject to US law and is maintained or contributed to by any Credit Party or any of its Subsidiaries.

 

“ Foreign Plan Event ” shall mean, with respect to any Foreign Plan or Foreign Benefit Arrangement, (A) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such Foreign Plan or Foreign Benefit Arrangement; (B) the failure to register or loss of good standing with applicable regulatory authorities of any such Foreign Plan or Foreign Benefit Arrangement required to be registered; or (C) the failure of any Foreign Plan or Foreign Benefit Arrangement to comply with any provisions of applicable law and regulations or with the material terms of such Foreign Plan or Foreign Benefit Arrangement.

 

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

 

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

“ Fund ” shall mean any Person (other than a natural person) that is engaged or advises funds or other investment vehicles that are engaged in making, purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinary course.

 

“ Funded Debt ” shall mean all Indebtedness of Holdings and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of Holdings or any Restricted Subsidiary, to a date more than one year from the date of its creation or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date (including all amounts of such Funded Debt required to be paid or prepaid within one year from the date of its creation), and, in the case of the Borrowers, Indebtedness in respect of the Loans.

 

“ GAAP ” shall mean generally accepted accounting principles in the United States of America, as in effect from time to time; provided , however , that if the U.S. Borrower notifies the Administrative Agent that the U.S. Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision, regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.  Furthermore, at any time after the Closing Date, Holdings may elect to apply International Financial Reporting Standards (“ IFRS ”) accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP and GAAP concepts shall thereafter be construed to refer to IFRS and corresponding IFRS concepts (except as otherwise provided in this Agreement); provided any such election, once made, shall be irrevocable; provided   further that any calculation or determination in this Agreement that requires the application of GAAP for periods that include fiscal quarters ended prior to Holdings’ election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. Holdings shall give written notice of any such election made in accordance with this definition to the Administrative Agent. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness.

 

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

 

“ German Security ” means any Lien assumed and accepted by or through the Collateral Agent or any Lender, as the case may be, pursuant to any German Security Document and held or administered by the Collateral Agent on behalf of or in trust for any Lender under this Agreement and the German Security Documents, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

 

“ German Security Document ” means any Security Document governed by German law.

 

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

 

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

 

“ Guarantee ” shall mean (a) the Guarantee made by Holdings ( such Guarantee to be non-recourse and with the Collateral provided by Holdings limited to the Capital Stock of the U.S. Bor r rower), each Borrower and each Guarantor in favor of the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit B , and (b) any other guarantee of the Obligations made by a Restricted Subsidiary in form and substance reasonably acceptable to the Administrative Agent, in each case as the same may be amended, supplemented or otherwise modified from time to time.

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

 

“ Guarantors ” shall mean (a) each Subsidiary that is party to the Guarantee on the Closing Date, (b) each Subsidiary that becomes a party to the Guarantee after the Closing Date pursuant to Section 9.11 or otherwise and (c) Holdings.

 

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

 

“ Hedge Agreements ”   shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.

“ Hedge Bank ” shall mean (a) (i) any Person that, at the time it enters into a Hedge Agreement, is a Lender, an Agent or an Affiliate of a Lender or an Agent and (ii) with respect to any Hedge Agreement entered into prior to the Closing Amendment No. 4 Effective Date, any person that is a Lender or an Affiliate of a Lender on the Closing Amendment No. 4 Effective Date or (b) any Person listed on Schedule 1.1(d); provided that, in the case of this clause (b) , such Person 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 Credit Documents and (ii) agrees to be bound by the provisions of Sections 12, 13, 14, 26 and 27 of the U.S. Pledge Agreement and Sections 5.4, 5.5, 5.7, 6.5, 7, 8.1 and 8.16 of the U.S. Security Agreement, in each case, as if it were a Lender.

 

“ Hedging Obligations ” shall mean, with respect to any Person, the obligations of such Person under any Hedge Agreements.

 

“ Historical Financial Statements ”   shall mean the audited consolidated balance sheets of Holdings as of December 31, 2012, December 31, 2011 and December 31, 2010 and the audited consolidated statements of income, stockholders’ equity and cash flows of Holdings for each of the fiscal years in the three year period ending on December 31, 2012.

 

“ Holdings ”   shall mean (i) Holdings (as defined in the preamble to this Agreement) or (ii) after the Closing Date any other Person or Persons (the “ New Holdings ”) that is a Subsidiary of (or are Subsidiaries of) Holdings or of any Parent Entity of Holdings (or the previous New Holdings, as the case may be) but not the U.S. Borrower (the “ Previous Holdings ”); provided that (a) such New Holdings directly owns 100% of the Equity Interests of the U.S. Borrower, (b) the New Holdings shall expressly assume all the obligations of the Previous Holdings under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (c) if reasonably requested by the Administrative Agent, an opinion of counsel shall be delivered by the U.S. Borrower to the Administrative Agent to the effect that without limitation such substitution does not violate this Agreement or any other Credit Document, (d) all Capital Stock of the U.S. Borrower and substantially all of the other assets of the Previous Holdings are contributed or otherwise transferred to such New Holdings and pledged to secure the Obligations, (f) no Event of Default has occurred and is continuing at the time of such substitution and such substitution does not result in any Default or Event of Default or adverse tax consequences and (g) no Change of Control shall occur; provided , further , that if each of the foregoing is satisfied, the Previous Holdings shall be automatically released of all its obligations under the Credit Documents and any reference to “Holdings” in the Credit Documents shall be meant to refer to the “New Holdings”.

 

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

 

“ Incremental Loans ” shall mean New Term Loans and Incremental Revolving Credit Loans.

 

“ Incremental Revolving Credit Commitments ” shall have the meaning provided in Section 2.14(a).

 

“ Incremental Revolving Credit Lenders ” shall have the meaning provided in Section 2.14(b).

 

“ Incremental Revolving Credit Loans ” shall have the meaning provided in Section 2.14(n).

“ Indebtedness ” shall mean, with respect to any Person, (1) any indebtedness (including principal and premium) of such Person, whether or not contingent (a) in respect of borrowed money, (b) evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without double counting, reimbursement agreements in respect thereof), (c) representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business and (ii) any earn-out obligation until such obligation, within 60 days of becoming due and payable, has not been paid and such obligation is reflected as a liability on the balance sheet of such Person in accordance with GAAP, or (d) representing any Hedging Obligations, if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a net liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; provided that Indebtedness of any direct or indirect parent company appearing upon the balance sheet of Holdings solely by reason of push down accounting under GAAP shall be excluded, (2) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the obligations of the type referred to in clause (1) of another Person (whether or not such items would appear upon the balance sheet of such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business, and (3) to the extent not otherwise included, the obligations of the type referred to in clause (1) of another Person secured by a Lien on any asset owned by such Person, whether or not such Indebtedness is assumed by such Person; provided that notwithstanding the foregoing, Indebtedness shall be deemed not to include (A) Contingent Obligations incurred in the ordinary course of business, (B) obligations under or in respect of Receivables Facilities, (C) prepaid or deferred revenue arising in the ordinary course of business or (D) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warrants or other unperformed obligations of the seller of such asset.

 

For all purposes hereof, the Indebtedness of Holdings, the U.S. Borrower and its Restricted Subsidiaries, shall exclude all intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business consistent with past practice.

 

“ indemnified liabilities ”   shall have the meaning provided in Section 13.5 .

 

“ Indemnified Taxes ” shall mean all Taxes imposed on or with respect to, or measured by, any payment by or on account of any obligation of any Credit Party hereunder or under any other Credit Document, other than Excluded Taxes.

 

“ Identified Contingent Liabilities ” shall mean the maximum estimated amount of liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of the U.S. Borrower and its Restricted Subsidiaries taken as a whole after giving effect to the Transactions (including all fees and expenses related thereto but exclusive of such contingent liabilities to the extent reflected in Stated Liabilities), as identified and explained in terms of their nature and estimated magnitude by responsible officers of the U.S. Borrower.

 

“ Initial Dollar Term Loan ” shall have the meaning provided in Section 2.1(a) .

 

“ Initial Dollar Term Loan Commitment ” shall mean, in the case of each Lender that is a Lender on the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(c) as such Lender’s “Initial Dollar Term Loan Commitment”.  The aggregate amount of the Initial Dollar Term Loan Commitments as of the Closing Date is $1,900,000,000.

 

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

“ Initial Euro Term Loan ” shall have the meaning provided in Section 2.1(a) .

 

“ Initial Euro Term Loan Commitment ” shall mean, in the case of each Lender that is a Lender on the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(c) as such Lender’s “Initial Euro Term Loan Commitment”.  The aggregate amount of the Initial Euro Term Loan Commitments as of the Closing Date is €400,000,000.

 

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

 

“ Initial Investors ” shall Kohlberg Kravis Roberts & Co. L.P., KKR Associates North America Fund XI L.P. and KKR Renaissance Co-Invest GP LLC and each of their respective Affiliates but not including, however, any portfolio companies of any of the foregoing.

 

“ Initial Revolving Credit Commitments ” shall have the meaning provided in the definition of the term “Revolving Credit Commitment”.

 

“ Initial Revolving Credit Loans ” shall have the meaning provided in the definition of the term “Revolving Credit Commitment”.

 

“ Initial Term Loan ” shall mean, collectively, the Initial Dollar Term Loans and the Initial Euro Term Loans.

 

“ Initial Term Loan Commitment ” shall mean, collectively, the Initial Dollar Term Loan Commitments and the Initial Euro Term Loan Commitments.

 

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

 

“ Initial Term Loan Maturity Date ” shall mean July 30, 2020 or, if such date is not a Business Day, the first Business Day thereafter.

 

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

 

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

 

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

 

“ Intellectual Property ” shall mean U.S. and foreign intellectual property, including all (i) (a) patents, inventions, processes, developments, technology and know-how; (b) copyrights and works of authorship in any media, including graphics, advertising materials, labels, package designs and  photographs; (c) trademarks, service marks, trade names, brand names, corporate names, domain names, logos, trade dress and other source indicators, and the goodwill of any business symbolized thereby; (d) trade secrets, confidential, proprietary or non-public information and (ii) all registrations, applications renewals, extensions, substitutions, continuations, continuations-in-part, divisions, re-issues, re-examinations, foreign counterparts or similar legal protections related thereto.

 

“ Interest Period ”   shall mean, with respect to any Loan, the interest period applicable thereto, as determined pursuant to Section 2.9 .

“ Investment ” shall mean, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers, commission, travel and similar advances to officers and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of Holdings in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property; provided that Investments shall not include, in the case of the Borrower and its Restricted Subsidiaries, intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business.

 

For purposes of the definition of “Unrestricted Subsidiary” and Section 10.5 ,

 

(1)           “Investments” shall include the portion (proportionate to Holdings’ equity interest in such Subsidiary) of the Fair Market Value of the net assets of a Subsidiary of Holdings at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, Holdings shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (x) Holdings’ “Investment” in such Subsidiary at the time of such redesignation less (y) the portion (proportionate to Holdings’ equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation; and

 

(2)            any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer.

 

The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by Holdings or a Restricted Subsidiary in respect of such Investment.

 

“ Investment Grade Rating ” shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.

 

“ Investment Grade Securities ” shall mean:

 

(1)           securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents),

 

(2)            debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among Holdings and its Subsidiaries,

 

(3)           investments in any fund that invest at least 90% in investments of the type described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending investment or distribution, and

 

(4)            corresponding instruments in countries other than the United States customarily utilized for high-quality investments.

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

 

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

 

“ ITA ” means the United Kingdom’s Income Tax Act 2007.

 

“ Joinder Agreement ”   shall mean an agreement substantially in the form of Exhibit A .

 

“ Joint Lead Arrangers and Bookrunners ” shall mean UBS Securities LLC, Barclays Bank PLC, Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Mizuho Bank, LTD., KK R BC Capital Markets LLC , Macquarie Capital ( Goldman Sachs Bank USA ) Inc. and , HSBC Securities (USA) Inc. , JPMorgan Chase Bank, N.A., Mizuho Bank LTD., PNC Capital Markets, LLC, BMO Capital Markets Corp., Crédit Agricole Corporate and Investment Bank, MUFG Bank, Ltd. and Standard Chartered Bank.

 

“ Joint Manager and Arranger ”   shall mean KKR Capital Markets LLC and Sumitomo Mitsui Banking Corporation.

 

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

 

“ Junior Debt ” shall mean any Indebtedness in respect of the Senior Notes and Subordinated Indebtedness.

 

“ KKR ” shall mean each of Kohlberg Kravis Roberts & Co. L.P. and and KKR Associates North America Fund XI L.P.

 

“ Latest Term Loan Maturity Date ” shall mean, at any date of determination, the latest maturity or expiration date applicable to any Term Loan hereunder at such time, including the latest maturity or expiration date of any New Term Loan or any Extended Term Loan, in each case as extended in accordance with this Agreement from time to time.

 

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

 

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

 

“ L/C Obligations ” shall mean, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unpaid Drawings, including all L/C Borrowings.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the International Standby Practices (ISP98), such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.  Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time.

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

 

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

 

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

 

“ Lender Default ” shall mean (i) the refusal (which may be given verbally or in writing and has not been retracted) or failure of any Lender to make available its portion of any incurrence of Loans or Reimbursement Obligations, which refusal or failure is not cured within one business day after the date of such refusal or failure, (ii) the failure of any Lender to pay over to the Administrative Agent, any Swingline Lender, any Letter of Credit Issuer or any other Lender any other amount required to be paid by it hereunder within one business day of the date when due, unless the subject of a good faith dispute, (iii) a Lender has notified the Borrowers or the Administrative Agent that it does not intend to comply with its funding obligations under the this Agreement or has stated publicly that it will generally not comply with its funding obligations under loan agreements, credit agreements and other similar agreements, (iv) a Lender has failed, within three Business Days after request by the Administrative Agent, to confirm that it will comply with its funding obligations under this Agreement or (v) a Lender has admitted in writing that it is insolvent or such Lender becomes subject to a Lender-Related Distress Event.

 

“ Lender-Related Distress Event ” shall mean, with respect to any Lender (each, a “ Distressed Person ”), a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian, conservator, receiver or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s assets, or such Distressed Person, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any governmental authority having regulatory authority over such Distressed Person to be, insolvent or bankrupt; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interests in any Lender or any person that directly or indirectly controls such Lender by a governmental authority or an instrumentality thereof or such person that directly or indirectly controls such Lender becoming the subject of a Bail-in Action.

 

“ Letter of Credit ” shall mean each letter of credit and/or bank guarantee issued pursuant to Section 3.1 and , each Existing Letter of Credit and each 2019 Existing Letter of Credit .

 

“ Letter of Credit Commitment ” shall mean $200,000,000 , with respect to any Letter of Credit Issuer, the maximum permitted amount of the Letters of Credit Outstanding that may be attributable to Letters of Credit issued by such Letter of Credit Issuer. The initial amount of each Letter of Credit Issuer’s Letter of Credit Commitment is set forth on Schedule B to Amendment No. 4 under the heading “2019 Letter of Credit Commitment” or, in the case of any Letter of Credit Issuer that becomes a Letter of Credit Issuer hereunder pursuant to Sectio n 3.6, in a written agreement referred to in such Section or, in each case, such other maximum permitted amount with respect to any Letter of Credit Issuer as may have been agreed in writing (and notified in writing to the Administrative Agent) by such Letter of Credit Issuer and Holdings , as the same may be reduced from time to time pursuant to Section 3.1 .   The aggregate Letter of Credit Commitments of all Letter of Credit Issuers shall be $200,000,000 on the Amendment No. 4 Effective Date, provided that, upon the satisfaction of the 2019 Increased Availability Condition, the aggregate Letter of Credit Commitments of all Letter of Credit Issuers shall immediately and automatically increase to $400,000,000, in each case, as the same may be reduced from time to time pursuant to Section 3.1.

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

 

“ Letter of Credit Fee ” shall have the meaning provided in Section 4.1(b) .

 

“ Letter of Credit Issuer ” shall mean UBS AG, Stamford Branch, any of its each of the 2019 Revolving Credit Lenders listed on Schedule B to Amendment No. 4 with a Letter of Credit Commitment under the heading “2019 Letter of Credit Commitment”, any of their Affiliates or branches and any replacement, additional bank or successor pursuant to Section 3.6 .  The Letter of Credit   and, solely with respect to the 2019 Existing Letters of Credit, UBS AG, Stamford Branch (it being understood and agreed that, notwithstanding anything to the contrary contained herein, in any other Credit Document or otherwise, effective as of the Amendment No. 4 Effective Date, UBS AG, Stamford Branch shall have no Letter of Credit Commitment or other commitment or obligation to issue any additional Letters of Credit under this Agreement or to extend or renew any 2019 Existing Letter of Credit).  A Letter of Credit Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Letter of Credit Issuer, and in each such case the term “Letter of Credit Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.  In the event that there is more than one Letter of Credit Issuer at any time, references herein and in the other Credit Documents to the Letter of Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in respect of the applicable Letter of Credit or to all Letter of Credit Issuers, as the context requires.

 

“ Letters of Credit Outstanding ” shall mean, at any time, the sum of, without duplication, (a) the aggregate Stated Amount of all outstanding Letters of Credit and (b) the aggregate Dollar Equivalent amount of the principal amount of all Unpaid Drawings . ; provided that, solely with respect to the definition of “Letter of Credit Commitment” and Sections 3.1(b) and 3.1(c), the 2019 Existing Letters of Credit shall not be included for purposes of calculating the Letters of Credit Outstanding.

 

“ Letter of Credit Report ” shall have the meaning provided in Section 3.13.

 

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

 

“ Level I Status ” shall mean, on any date, the circumstance that Level II Status does not exist the Consolidated First Lien   Secured Debt to Consolidated EBITDA Ratio is less than or equal to 1.75 to 1.00 as of such date .

 

“ Level II Status ” shall mean, on any date, the circumstance that the Consolidated Senior First Lien Secured Debt to Consolidated EBITDA Ratio is less than or equal to 3.0 1.50 to 1.0 1.00 as of such date.

 

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

“ LIBOR Rate ”   shall mean, for any Interest Period with respect to a LIBOR Loan of any currency, the rate per annum equal to the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Bloomberg (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate), as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion ) at approximately 11:00 a.m., London time, two London Business Days prior to the commencement of such Interest Period, for deposits in such currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; provided that, notwithstanding the foregoing, in no event shall the LIBOR Rate applicable to the Initial Term Loans at any time be less than 1.00% per annum provided   further that, notwithstanding the foregoing, in no event shall the LIBOR Rate applicable to the Revolving Credit Loans or the Tranche B-1 Term Loans at any time be less than 0.00% per annum.  If such rate is not available at such time for any reason, then the “LIBOR Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in such currency for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBOR Loan being made, continued or converted by the Administrative Agent and with a term equivalent to such Interest Period would be offered by the Administrative Agent’s London Branch to major banks in the applicable London interbank eurocurrency market at their request at approximately 11:00 a.m. (London time) two London Business Days prior to the commencement of such Interest Period.

 

“ Lien ” shall mean with respect to any asset, any mortgage, lien, pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.

 

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

 

“ London Business Day ” shall mean any day on which dealings in deposits in the applicable currency are conducted by and between banks in the applicable London interbank market.

 

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

 

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

 

“ Material Subsidiary ”   shall mean, at any date of determination, (i) each wholly owned Restricted Subsidiary of Holdings (a) whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal period for which Section 9.1 Financials have been delivered were equal to or greater than 5.0% of the Consolidated Total Assets of Holdings and the Restricted Subsidiaries at such date or (b) whose revenues during such Test Period were equal to or greater than 5.0% of the consolidated revenues of Holdings and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Material Subsidiaries have, in the aggregate, (x) total assets at the last day of such Test Period equal to or greater than 7.5% of the Consolidated Total Assets of Holdings and the Restricted Subsidiaries at such date or (y) revenues during such Test Period equal to or greater than 7.5% of the consolidated revenues of Holdings and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP, then Holdings shall, on the date on which financial statements for such quarter are delivered pursuant to this Agreement, designate in writing to the Administrative Agent one or more of such Restricted Subsidiaries as “Material Subsidiaries” for each fiscal period until this proviso is no longer applicable.

“ Maturity Date ”   shall mean the Initial Term Loan Maturity Date, the Tranche B-1 Term Loan Maturity Date, the New Term Loan Maturity Date or the Revolving Credit Maturity Date, as applicable.

 

“ Maximum Incremental Facilities Amount ” shall mean, at any date of determination, (a) the sum of (i) if, as of the last day of the most recently ended Test Period, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio is equal to or less than 5.50 to 1.00, $250,000,000 (and otherwise, for the avoidance of doubt, $0) and (ii) the aggregate amount of voluntary prepayments of Loans (including purchases of the Loans by the Borrowers and their Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par) (and in the case of any Loans that are not Term Loans, a corresponding commitment reduction), in each case, other than from proceeds of Refinancing Indebtedness minus (b) the sum of (i) the aggregate principal amount of New Loan Commitments incurred pursuant to Section 2.14(a) prior to such date and (ii) the aggregate principal amount of Permitted Other Indebtedness issued or incurred (including any unused commitments obtained) pursuant to Section 10.1(x)(i)(a) prior to such date plus (c) additional amount if, after giving effect to the incurrence of such additional amount, Holdings would be in compliance with the Senior Secured Leverage Test (assuming the Indebtedness being incurred as of such date of determination would be included in the definition of Consolidated Total Senior Secured Leverage, whether or not such Indebtedness would otherwise be so included).

 

“ Minimum Borrowing Amount ”   shall mean (a) with respect to a Borrowing of LIBOR Loans, $1,000,000 (or, if less, the entire remaining applicable Commitments at the time of such Borrowing) and (b) with respect to a Borrowing of ABR Loans, $1,000,000 (or, if less, the entire remaining applicable Commitments at the time of such Borrowing).

 

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

 

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

 

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

 

“ Mortgage ” shall mean a mortgage, deed of trust, deed to secure debt, trust deed or other security document entered into by the owner of a Mortgaged Property and the Collateral Agent for the benefit of the Secured Parties in respect of that Mortgaged Property to secure the Obligations, in form and substance reasonably acceptable to the Collateral Agent, together with such terms and provisions as may be required by local laws.

 

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

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

 

“ Multicurrency Sublimit ” shall mean, at any date, (A) in the case of Euro, the lesser of (x) $400,000,000 and (y) the Total Revolving Credit Commitment at such date less the amount of Multicurrency Exposure denominated in Alternative Currencies and (B) in the case of Alternative Currencies, an aggregate amount equal to the lesser of (x) $200,000,000 and (y) the Total Revolving Credit Commitment at such date.

 

“ Multiemployer Plan ” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which any Credit Party or ERISA Affiliate had an obligation over the five preceding calendar years.

 

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

 

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

 

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

 

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

 

(iv)        in the case of any Asset Sale Prepayment Event or Casualty Event or Permitted Sale Leaseback, the amount of any proceeds of such Prepayment Event that Holdings or any Restricted Subsidiary has reinvested (or intends to reinvest within the Reinvestment Period or has entered into a binding commitment prior to the last day of the Reinvestment Period to reinvest) in the business of Holdings or any of the Restricted Subsidiaries, provided that any portion of such proceeds that has not been so reinvested within such Reinvestment Period (with respect to such Prepayment Event, the “ Deferred Net Cash Proceeds ”) shall, unless Holdings or a Restricted Subsidiary has entered into a binding commitment prior to the last day of such Reinvestment Period to reinvest such proceeds no later than 180 days following the last day of such Reinvestment Period, (x) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback occurring on the last day of such Reinvestment Period or, if later, 180 days after the date Holdings or such Restricted Subsidiary has entered into such binding commitment, as applicable (such last day or 180th day, as applicable, the “ Deferred Net Cash Proceeds Payment Date ”), and (y) be applied to the repayment of Term Loans in accordance with Section 5.2(a)(i) ,

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

 

(vi)        all fees and out of pocket expenses paid by Holdings or a Restricted Subsidiary in connection with any of the foregoing (for the avoidance of doubt, including, (i) in the case of the issuance of Permitted Other Indebtedness, any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such issuance and (ii) attorney’s fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, underwriting discounts and commissions, other customary expenses and brokerage, consultant, accountant and other customary fees),

 

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

 

“ Net Income ” shall mean, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“ New UK Lender ” shall have the meaning provided in Section 14.5 .

 

“ Non-Consenting Initial Dollar Term Loan Lender ” shall mean each Initial Dollar Term Loan Lender that did not execute and deliver a Consent to Amendment No. 2 with respect thereto on or prior to the Amendment No. 2 Effective Date.

 

“ Non-Consenting Initial Euro Term Loan Lender ” shall mean each Initial Euro Term Loan Lender that did not execute and deliver a Consent to Amendment No. 2 with respect thereto on or prior to the Amendment No. 2 Effective Date.

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

 

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

 

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

 

“ Non-U.S. Credit Party ”   shall mean any Credit Party that is not organized under the laws of the United States, any state thereof, or the District of Columbia.

 

“ Non-U.S. Lender ” shall mean any Agent or Lender that is not a “United States person” as defined by Section 7701(a)(30) of the Code.

 

“ Non-U.S. Security Documents ” shall mean, collectively, (x) any security document (other than any U.S. Security Document) entered into by a Non-U.S. Subsidiary as of the Closing Date or pursuant to Sections   9.11 or 9.12 and (y) any other security document entered into by a Non-U.S. Subsidiary, or governed by a law other than the laws of the United States, any state thereof, or the District of Columbia, in each case, that is designated by Holdings or such Non-U.S. Subsidiary as a “Security Document” for purposes of this Agreement, Non-U.S. Security Documents shall include any German Security Documents.

 

“ Non-U.S. Subsidiary ” shall mean each Subsidiary of Holdings that is not organized under the laws of the United States, any state thereof, or the District of Columbia.

 

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

 

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

 

“ Obligations ”   shall mean all advances to, and debts, liabilities, obligations, covenants and duties of, any Credit Party arising under any Credit Document or otherwise with respect to any Revolving Credit Commitment, Loan or Letter of Credit or under any Secured Cash Management Agreement, Secured Hedge Agreement (other than with respect to any Credit Party’s obligations that constitute Excluded Swap Obligations solely with respect to such Credit Party) or , Existing Letter of Credit or 2019 Existing Letter of Credit, in each case, entered into with Holdings or any of its Restricted Subsidiaries, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.  Without limiting the generality of the foregoing, the Obligations of the Credit Parties under the Credit Documents (and any of their Subsidiaries to the extent they have obligations under the Credit Documents) include the obligation (including guarantee obligations) to pay principal, interest, charges, expenses, fees, attorney costs, indemnities and other amounts payable by any Credit Party under any Credit Document.

 

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

“ Other Taxes ” shall mean all present or future stamp, registration or documentary Taxes or any other excise, property, intangible, mortgage recording or similar Taxes arising from any payment made hereunder or under any other Credit Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Credit Document; provided that such term shall not include (i) any Taxes that result from an assignment, grant of a participation pursuant to Section 13.6(c) or transfer or assignment to or designation of a new lending office or other office for receiving payments under any Credit Document (“ Assignment Taxes ”) to the extent such Assignment Taxes are imposed as a result of a connection between the assignor/participating Lender and/or the assignee/Participant and the taxing jurisdiction (other than a connection arising solely from any Credit Documents or any transactions contemplated thereunder), except to the extent that any such action described in this proviso is requested or required by any Borrower or Holdings or (ii) Excluded Taxes.

 

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

 

“ Parent Entity ” shall mean any Person that is a direct or indirect parent company (which may be organized as, among other things, a partnership) of Holdings and/or the U.S. Borrower, as applicable; provided that for purposes of clauses (a), (b) and (d) of the definition of “Change of Control”, references to “Holdings” shall be deemed to refer to any such Parent Entity.

 

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

 

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

 

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

 

“ PBGC ” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

 

“ Pension Plan ” shall mean any employee benefit pension plan (as defined in Section 3(2) of ERISA, but excluding any Multiemployer Plan) in respect of which any Credit Party or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4062 or Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

“ Permitted Asset Swap ” shall mean the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between Holdings or a Restricted Subsidiary and another Person; provided that any cash or Cash Equivalents received must be applied in accordance with Section 10.4 .

 

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

 

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

 

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

“ Permitted Holders ” shall mean each of (i) the Initial Investors and their respective Affiliates and members of management of Holdings (or its direct or indirect parent) who are holders of Equity Interests of Holdings (or its direct or indirect parent company) on the Closing Date and any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such group and without giving effect to the existence of such group or any other group, such Initial Investors, their respective Affiliates and members of management, collectively, have beneficial ownership of more than 50% of the total voting power of the Voting Stock of Holdings or any other direct or indirect parent company of Holdings and (ii) any direct or indirect parent of Holdings formed not in connection with, or in contemplation of, a transaction (other than Transactions) that, assuming such parent was not formed, after giving effect thereto would constitute a Change of Control.

 

“ Permitted Investments ” shall mean:

 

(a)          any Investment in Holdings or any Restricted Subsidiary;

 

(b)          any Investment in cash, Cash Equivalents or Investment Grade Securities at the time such Investment is made;

 

(c)         any Investment by Holdings or any Restricted Subsidiary in a Person that is engaged in a Similar Business if as a result of such Investment (a “ Permitted Acquisition ”) (1) such Person becomes a Restricted Subsidiary or (2) such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, Holdings or a Restricted Subsidiary, and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, consolidation or transfer;

 

(d)         any Investment in securities or other assets not constituting cash, Cash Equivalents or Investment Grade Securities and received in connection with an Asset Sale made pursuant to Section 10.4 or any other disposition of assets not constituting an Asset Sale;

 

(e)          any Investment existing on the Closing Date and listed on Schedule 10.5 ;

 

(f)          any Investment acquired by Holdings or any Restricted Subsidiary (1) in exchange for any other Investment or accounts receivable held by Holdings or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of Holdings of such other Investment or accounts receivable or (2) as a result of a foreclosure by Holdings or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;

 

(g)          Hedging Obligations permitted under clause (j) of Section 10.1 ;

 

(h)         any Investment in a Similar Business having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (h) that are at that time outstanding, not to exceed the greater of (x) $150,000,000 and (y) 30.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided , however , that if any Investment pursuant to this clause (h) is made in any Person that is not a Restricted Subsidiary of Holdings at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such investment shall thereafter be deemed to have been made pursuant to clause (a) above and shall cease to have been made pursuant to this clause (h) for so long as such Person continues to be a Restricted Subsidiary;

(i)           Investments the payment for which consists of Equity Interests of Holdings or any direct or indirect parent company of Holdings (exclusive of Disqualified Stock); provided that such Equity Interests will not increase the amount available for Restricted Payments under clause (iii) of Section 10.5(a) ;

 

(j)           guarantees of Indebtedness permitted under Section 10.1 ;

 

(k)          any transaction to the extent it constitutes an Investment that is permitted and made in accordance with the provisions of Section 9.9 ;

 

(l)          Investments consisting of purchases and acquisitions of inventory, supplies, material, equipment or other similar assets in the ordinary course of business;

 

(m)         additional Investments having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (m) that are at that time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), not to exceed the greater of (x) $175,000,000 and (y) 35.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided , however , that if any Investment pursuant to this clause (m) is made in any Person that is not a Restricted Subsidiary of Holdings at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such investment shall thereafter be deemed to have been made pursuant to clause (a) above and shall cease to have been made pursuant to this clause (m) for so long as such Person continues to be a Restricted Subsidiary

 

(n)         Investments relating to any Receivables Subsidiary that, in the good faith determination of the board of directors of Holdings, are necessary or advisable to effect a Receivables Facility or any repurchases in connection therewith;

 

(o)         advances to, or guarantees of Indebtedness of, employees not in excess of the greater of (x) $20,000,000 and (y) 4.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment;

 

(p)          loans and advances to officers, directors, managers and employees for business-related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practices or to fund such Person’s purchase of Equity Interests of Holdings or any direct or indirect parent company thereof;

 

(q)          Investments consisting of extensions of trade credit in the ordinary course of business;

 

(r)          Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices; and

(s)          non-cash Investments in connection with tax planning and reorganization activities; provided that after giving effect to any such activities, the security interests of the Lenders in the Collateral, taken as a whole, would not be materially impaired.

 

“ Permitted Liens ” shall mean, with respect to any Person:

 

(1) pledges or deposits by such Person under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;

 

(2) Liens imposed by law, such as carriers’, warehousemen’s, materialmen’s, repairmen’s and mechanics’ Liens, in each case for sums not yet overdue for a period of more than 30 days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;

 

(3) Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or which are being contested in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP, or for property taxes on property Holdings or one of its Subsidiaries has determined to abandon if the sole recourse for such tax, assessment, charge, levy or claim is to such property;

 

(4) Liens in favor of issuers of performance, surety, bid, indemnity, warranty, release, appeal or similar bonds or with respect to other regulatory requirements or letters of credit or bankers’ acceptances issued, and completion guarantees provided for, in each case pursuant to the request of and for the account of such Person in the ordinary course of its business;

 

(5) minor survey exceptions, minor encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights-of-way, servitudes, sewers, electric lines, drains, telegraph and telephone and cable television lines, gas and oil pipelines and other similar purposes, or zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental, to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

(6) Liens securing Indebtedness permitted to be incurred pursuant to clause (a) , (d) , (l)(ii) , (r) , (w) , (x) or (y) of Section 10.1 ; provided that, (i) in the case of clause (d) , such Lien may not extend to any property or equipment (or assets affixed or appurtenant thereto) other than the property or equipment being financed or refinanced under such clause (d) ; (ii) in the case of clause (r) , such Lien may not extend to any assets other than the assets owned by the Foreign Subsidiaries incurring such Indebtedness; (iii) in the case of Liens securing Permitted Other Indebtedness Obligations that constitute First Lien Obligations pursuant to this clause (6) , the applicable Permitted Other Indebtedness Secured Parties (or a representative thereof on behalf of such holders) shall enter into security documents with terms and conditions not materially more restrictive to the Credit Parties, taken as a whole, than the terms and conditions of the Security Documents and (x) in the case of the first such issuance of Permitted Other Indebtedness constituting First Lien Obligations, the Collateral Agent, the Administrative Agent and the representative for the holders of such Permitted Other Indebtedness Obligations shall have entered into the First Lien Intercreditor Agreement and (y) in the case of subsequent issuances of Permitted Other Indebtedness constituting First Lien Obligations, the representative for the holders of such Permitted Other Indebtedness Obligations shall have become a party to the First Lien Intercreditor Agreement in accordance with the terms thereof; and (iv) in the case of Liens securing Permitted Other Indebtedness Obligations that do not constitute First Lien Obligations pursuant to this clause (6) , the applicable Permitted Other Indebtedness Secured Parties (or a representative thereof on behalf of such holders) shall enter into security documents with terms and conditions not materially more restrictive to the Credit Parties, taken as a whole, than the terms and conditions of the Security Documents and shall (x) in the case of the first such issuance of Permitted Other Indebtedness that do not constitute First Lien Obligations, the Collateral Agent, the Administrative Agent and the representative of the holders of such Permitted Other Indebtedness Obligations shall have entered into the Second Lien Intercreditor Agreement and shall have become a party to the Second Lien Intercreditor Agreement and (y) in the case of subsequent issuances of Permitted Other Indebtedness that do not constitute First Lien Obligations, the representative for the holders of such Permitted Other Indebtedness shall have become a party to the Second Lien Intercreditor Agreement in accordance with the terms thereof; without any further consent of the Lenders, the Administrative Agent and the Collateral Agent shall be authorized to execute and deliver on behalf of the Secured Parties the First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement contemplated by this clause (6) ;

 

(7) Liens existing on Closing Date; provided that any Lien securing Indebtedness or other obligations in excess of (A) $10,000,000 individually or (B) $30,000,000 in the aggregate (when taken together with all other Liens securing obligations outstanding in reliance on this clause (B) that are not listed on Schedule 10.02) shall only be permitted if set forth on Schedule 10.02, and, in each case, any modifications, replacements, renewals or extensions thereof;

 

(8) Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming a Subsidiary; provided   further , however, that such Liens may not extend to any other property owned by Holdings or any Restricted Subsidiary;

 

(9) Liens on property at the time Holdings or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or into Holdings or any Restricted Subsidiary; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, merger or consolidation; provided   further that the Liens may not extend to any other property owned by Holdings or any Restricted Subsidiary;

 

(10) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to Holdings or another Restricted Subsidiary permitted to be incurred in accordance with Section 10.1 .

 

(11) Liens securing Hedging Obligations and Cash Management Services so long as the related Indebtedness is, and is permitted hereunder to be, secured by a Lien on the same property securing such Hedging Obligations and Cash Management Services;

(12) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

 

(13) leases, subleases, licenses or sublicenses (including of Intellectual Property) granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of Holdings or any Restricted Subsidiary and do not secure any Indebtedness;

 

(14) Liens arising from Uniform Commercial Code financing statement filings regarding operating leases or consignments entered into by Holdings or any Restricted Subsidiary in the ordinary course of business;

 

(15) Liens in favor of Holdings, a Borrower or any Guarantor;

 

(16) Liens on equipment of Holdings or any Restricted Subsidiary granted in the ordinary course of business to Holdings’ or such Restricted Subsidiary’s client at which such equipment is located;

 

(17) Liens on accounts receivable and related assets incurred in connection with a Receivables Facility;

 

(18) Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (6) , (7) , (8) , (9) , (10) and (15) of this definition of “Permitted Liens’;  provided that (x) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), and (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (6) , (7) , (8) , (9) , (10) and (15) at the time the original Lien became a Permitted Lien under this Agreement, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement;

 

(19) deposits made or other security provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements in the ordinary course of business;

 

(20) other Liens securing obligations incurred in the ordinary course of business which obligations do not exceed the greater of (x) $125,000,000 and (y) 25.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of the incurrence of such Lien;

 

(21) Liens securing judgments for the payment of money not constituting an Event of Default under Section 11.11 ;

 

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

 

(23) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code or any comparable or successor provision on items in the course of collection, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business and (iii) in favor of banking institutions arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;

(24) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 10.1 ; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;

 

(25) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

 

(26) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of Holdings or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Holdings and its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of Holdings or any of its Restricted Subsidiaries in the ordinary course of business;

 

(27) Liens solely on any cash earnest money deposits made by Holdings or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Agreement;

 

(28) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by Holdings or any of its Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;

 

(29) restrictive covenants affecting the use to which real property may be put; provided that the covenants are complied with;

 

(30) security given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with the operations of that Person in the ordinary course of business;

 

(31) zoning by-laws and other land use restrictions, including, without limitation, site plan agreements, development agreements and contract zoning agreements;

 

(32) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by Holdings or any Restricted Subsidiary in the ordinary course of business; and

 

(33) any Lien granted pursuant to a security agreement between Holdings or any Restricted Subsidiary and a licensee of their Intellectual Property to secure the damages, if any, of such licensee resulting from the rejection by Holdings or such Restricted Subsidiary of such licensee in a bankruptcy, reorganization or similar proceeding with respect to Holdings or such Restricted Subsidiary;  provided that such Liens, in the aggregate, do not encumber any assets of Holdings or any Restricted Subsidiary other than the assets subject to such Liens on the Closing Date;

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(34) Liens on goods purchased in the ordinary course of business the purchase price of which is financed by a documentary letter of credit issued for the account of the Company or any of its subsidiaries;

 

(35) Liens on Equity Interests in joint ventures; provided that any such Lien is in favor of a creditor of such joint venture and such creditor is not an Affiliate of any partner to such joint venture; and

 

(36) Liens on cash and Cash Equivalents that are earmarked to be used to satisfy or discharge Indebtedness; provided (x) such cash and/or Cash Equivalents are deposited into an account from which payment is to be made, directly or indirectly, to the Person or Persons holding the Indebtedness that is to be satisfied or discharged, (y) such Liens extend solely to the account in which such cash and/or Cash Equivalents are deposited and are solely in favor of the Person or Persons holding the Indebtedness (or any agent or trustee for such Person or Persons) that is to be satisfied or discharged and (z) the satisfaction or discharge of such Indebtedness is expressly permitted hereunder.

 

For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on such Indebtedness.

 

“ Permitted Other Indebtedness ” shall mean subordinated or senior Indebtedness (which Indebtedness may (x) be unsecured, (y) have the same lien priority as the First Lien Obligations (without regard to control of remedies) or (z) be secured by a Lien ranking junior to the Lien securing the First Lien Obligations), in each case issued or incurred by a Borrower or a Guarantor, (a) the weighted average life to maturity of which is no shorter than the weighted average life to maturity of any Term Loans outstanding at the time of such incurrence (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the applicable Term Loans), (b) the covenants, events of default, guarantees, collateral and other terms of which (excluding pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions (which shall not permit more than pro rata payment with the Term Loans)), taken as a whole, are not more restrictive to such Borrower and the Restricted Subsidiaries than those herein (taken as a whole) (except for covenants or other provisions applicable only to periods after the Latest Term Loan Maturity Date at the time of such refinancing) (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is either (i) also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (ii) only applicable after the Latest Term Loan Maturity Date at the time of such refinancing); provided that a certificate of an Authorized Officer of such Borrower delivered to the Administrative Agent at least five Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that such Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies such Borrower within two Business Days after receipt of such certificate that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees), (c) of which no Subsidiary of Holdings (other than a Borrower or a Guarantor) is an obligor and (d) that, if secured, are not secured by any assets other than the Collateral.

 

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

 

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

 

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

 

“ Permitted Sale Leaseback ” shall mean any Sale Leaseback consummated by Holdings or any of the Restricted Subsidiaries after the Closing Date, provided that any such Sale Leaseback not between Holdings and a Restricted Subsidiary is consummated for fair value as determined at the time of consummation in good faith by (i) Holdings or such Restricted Subsidiary or (ii) in the case of any Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds of which exceed the greater of (x) $100,000,000 and (y) 20.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of the incurrence of such Sale Leaseback, the board of directors of Holdings or such Restricted Subsidiary (which such determination may take into account any retained interest or other Investment of Holdings or such Restricted Subsidiary in connection with, and any other material economic terms of, such Sale Leaseback).

 

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

 

“ Plan ” shall mean any employee benefit plan (as defined in Section 3(3) of ERISA), including any employee welfare benefit plan (as defined in Section 3(1) of ERISA), any employee pension benefit plan (as defined in Section 3(2) of ERISA), and any plan which is both an employee welfare benefit plan and an employee pension benefit plan, and in respect of which any Credit Party or any ERISA Affiliate is (or, if such Plan were terminated, would under Section 4062 or Section 4069 of ERISA be reasonably likely to be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

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

 

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

 

“ Pounds Sterling ” shall mean British Pounds Sterling or any successor currency in the United Kingdom.

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

 

“ Present Fair Salable Value ” shall mean the amount that could be obtained by an independent willing seller from an independent willing buyer if the assets (both tangible and intangible) of the U.S. Borrower and its Restricted Subsidiaries taken as a whole are sold on a going concern basis with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.

 

“ primary obligor ” shall have the meaning provided such term in the definition of “guarantee obligations”.

 

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

 

“ Pro Forma Adjustment ”   shall mean, for any Test Period that includes all or any part of a fiscal quarter included in any Post-Acquisition Period, with respect to the Acquired EBITDA of the applicable Acquired Entity or Business or Converted Restricted Subsidiary or the Consolidated EBITDA of Holdings, the pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected by Holdings in good faith as a result of (a) actions taken during such Post-Acquisition Period for the purposes of realizing reasonably identifiable and factually supportable cost savings or (b) any additional costs incurred during such Post-Acquisition Period, in each case in connection with the combination of the operations of such Acquired Entity or Business or Converted Restricted Subsidiary with the operations of Holdings and the Restricted Subsidiaries; provided that (x) at the election of Holdings, such Pro Forma Adjustment shall not be required to be determined for any Acquired Entity or Business or Converted Restricted Subsidiary to the extent the aggregate consideration paid in connection with such acquisition was less than $10,000,000 and (y) so long as such actions are taken during such Post-Acquisition Period or such costs are incurred during such Post-Acquisition Period, as applicable, it may be assumed, for purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, that the applicable amount of such cost savings will be realizable during the entirety of such Test Period, or the applicable amount of such additional costs, as applicable, will be incurred during the entirety of such Test Period; provided further that any such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be without duplication for cost savings or additional costs already included in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, for such Test Period.

 

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

 

“ Pro Forma Basis ”,   “ Pro Forma Compliance ”   and “ Pro Forma Effect ”   shall mean, with respect to compliance with any test, financial ratio or covenant hereunder, that (A) to the extent applicable, the Pro Forma Adjustment shall have been made and (B) all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test or covenant:  (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (i) in the case of a sale, transfer or other disposition of all or substantially all Capital Stock in any Subsidiary of Holdings or any division, product line, or facility used for operations of Holdings or any of its Subsidiaries, shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction,” shall be included, (b) any retirement of Indebtedness and (c) any incurrence or assumption of Indebtedness by Holdings or any of the Restricted Subsidiaries in connection therewith (it being agreed that if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness as at the relevant date of determination);  provided that, without limiting  the application of the Pro Forma Adjustment pursuant to clause (a) above, the foregoing pro forma adjustments may be applied to any such test or covenant solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and give effect to operating expense reductions that are (i) (x) directly attributable to such transaction, (y) expected to have a continuing impact on Holdings, the Company or any of its Restricted Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of Pro Forma Adjustment.

 

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

 

“ Prohibited Transaction ” shall have the meaning assigned to such term in Section 406 of ERISA and Section 4975(c) of the Code.

 

“ Protected Party ” means the Administrative Agent or a UK Lender which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Credit Document.

 

“ Public Company Costs ” shall mean costs relating to compliance with the provisions of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity or debt securities, directors’ or managers’ compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders or debtholders, directors ’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees.

 

“ QFC ” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

 

“ QFC Credit Support ”   shall have the meaning provided in Section 13.24.

 

“ Qualified Proceeds ” shall mean assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business.

 

“ Qualifying IPO ” means the issuance by Holdings or any Parent Entity of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering) or in a firm commitment underwritten offering (or series of related offerings of securities to the public pursuant to a final prospectus) made pursuant to the Securities Act.

 

“ Qualifying Lender ” means:

 

(i)           for the purposes of Section 14 of this Agreement a UK Lender which is beneficially entitled to interest payable to that UK Lender in respect of a New Term Loan, Revolving Credit Loan or a Letter of Credit and is:

 

(A)          a UK Lender:

 

(1)          which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a New Term Loan, Revolving Credit Loan or a Letter of Credit and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or

 

(2)          in respect of an advance made under a New Term Loan, Revolving Credit Loan or a Letter of Credit by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

 

(B)          a UK Lender which is:

 

(1)          a company resident in the United Kingdom for United Kingdom tax purposes;

 

(2)          a partnership each member of which is:

 

(a)          a company so resident in the United Kingdom; or

 

(b)         a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which is required to bring into account in computing its chargeable profits (within the meaning of Section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA;

 

(3)          a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which is required to bring into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of Section 19 of the CTA) of that company; or

 

(C)          a Treaty Lender; or

 

(D)          a UK Lender which is a building society (as defined for the purpose of Section 880 of the ITA) making an advance under a New Term Loan, Revolving Credit Loan or a Letter of Credit.

 

“ Rating ” shall mean, with respect to S&P or Moody’s, (a) the public corporate credit rating of the U.S. Borrower assigned by S&P or the public corporate family rating of the U.S. Borrower assigned Moody’s, respectively, in each case giving effect to the Transactions (as defined in the Revolver Commitment Letter referred to in Amendment No. 4) or (b) if obtained prior to the assignment by S&P or Moody’s, as applicable, of the public corporate credit rating or public corporate family rating of the U.S. Borrower referred to in clause (a) above, such public corporate credit rating or public corporate family rating, as applicable, of   the U.S. Borrower as projected, giving effect to the Transactions (as defined in the Revolver Commitment Letter referred to in Amendment No. 4), by S&P’s Ratings Evaluation Service or Moody’s Rating Assessment Service, as applicable, in contemplation of the Transactions (as defined in the Revolver Commitment Letter referred to in Amendment No. 4).

 

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

 

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

 

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

 

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

 

“ Recipient ” shall have the meaning provided in Section 15(b) .

 

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

 

“ Refinancing Indebtedness ” shall have the meaning provided in Section 10.1(m) .

 

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

 

“ Refunding Capital Stock ” shall have the meaning provided in Section 10.5(b)(2) .

 

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

 

“ Regulation ”   shall have the meaning provided in Section 9.17 .

 

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

 

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

 

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

 

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

 

“ Reimbursement Obligations ” shall mean Borrower’s obligations to reimburse Unpaid Drawings pursuant to Section 3.4(a) .

 

“ Reinvestment Period ”   shall mean 450 days following the date of receipt of Net Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or Permitted Sale Leaseback.

 

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

 

“ Related Business Assets ” shall mean assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that any assets received by Holdings or the Restricted Subsidiaries in exchange for assets transferred by Holdings or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.

 

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

 

“ Release ” shall mean any release, spill, emission, discharge, disposal, escaping, leaking, pumping, pouring, dumping, emptying, injection or leaching into the environment.

 

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

 

“ Repayment Amount ”   shall mean the Initial Term Loan Repayment Amount, the Tranche B-1 Dollar Term Loan Repayment Amount, the Tranche B-1 Euro Term Loan Repayment Amount, a New Term Loan Repayment Amount with respect to any Series or an Extended Term Loan Repayment Amount with respect to any Extension Series, as applicable.

 

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

 

“ Reportable Event ” shall mean any “reportable event,” as defined in Section 4043(c) of ERISA or the regulations issued thereunder, with respect to a Pension Plan (other than a Pension Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code), other than those events as to which notice is waived pursuant to DOL Reg. § 4043 as in effect on the date hereof (no matter how such notice requirement may be changed in the future).

 

“ Repricing Transaction ” shall mean (a) the incurrence by the Borrower of any Indebtedness in the form of a similar term loan that is broadly marketed or syndicated to banks and other institutional investors (i) having an Effective Yield for the respective Type of such Indebtedness that is less than the Effective Yield for the Tranche B-1 Dollar Term Loans or Tranche B-1 Euro Term Loans of the respective equivalent Type, but excluding Indebtedness incurred in connection with a Qualifying IPO, Change of Control or Transformative Acquisition, and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of Tranche B-1 Dollar Term Loans or Tranche B-1 Euro Term Loans, as applicable, or (b) any effective reduction in the Effective Yield for the Tranche B-1 Dollar Term Loans or Tranche B-1 Euro Term Loans (e.g., by way of amendment, waiver or otherwise), except for a reduction in connection with a Qualifying IPO, Change of Control or Transformative Acquisition.  Any determination by the Administrative Agent with respect to whether a Repricing Transaction shall have occurred shall be conclusive and binding on all Lenders holding the Tranche B-1 Dollar Term Loans or Tranche B-1 Euro Term Loans, as applicable.

 

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

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

 

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

 

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

 

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

 

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

 

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

 

“ Restricted Investment ” shall mean an Investment other than a Permitted Investment.

 

“ Restricted Payment ” shall have the meaning provided in Section 10.5(a)(4) .

 

“ Restricted Subsidiary ” shall mean any Subsidiary of Holdings other than an Unrestricted Subsidiary.

 

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

 

“ Retired Capital Stock ” shall have the meaning provided in Section 10.5(b)(2) .

 

“ Revaluation Date ” shall mean (a) with respect to any Revolving Credit Loan or Swingline Loan, each of the following: (i) each date of a Borrowing of a Revolving Credit Loan or Swingline Loan, (ii) each date of a continuation of a Revolving Credit Loan pursuant to Section 2.6, and (iii) such additional dates as the Administrative Agent shall determine or the Required Revolving Credit Lenders or Swingline Lender shall require; provided that this clause (iii) shall not be exercised more than once per calendar month; and (b) with respect to any Letter of Credit, each of the following:  (i) each date of issuance of any such Letter of Credit, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by the applicable Letter of Credit Issuer under any Letter of Credit, and (iv) such additional dates as the Administrative Agent or the Letter of Credit Issuer shall determine or the Required Revolving Credit Lenders shall require; provided that this clause (iv) shall not be exercised more than once per calendar month.

 

“ Revolving Credit Commitment ” shall mean, (a) with respect to each Person that is a Lender on the Amendment No. 4 Effective   d D ate hereof , the amount set forth , opposite such Lender’s name on Schedule 1.1(c) B to Amendment No. 4 as such Lender’s Tranche A Revolving Credit Commitment, Tranche B Revolving Credit Commitment or Tranche C 2019 Revolving Credit Commitment and (b) in the case of any Person that becomes a Lender after the Amendment No. 4 Effective   d D ate hereof , the amount specified as such Lender’s Tranche A 2019 Revolving Credit Commitment, Tranche B Revolving Credit Commitment or Tranche C Revolving Credit Commitment in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Revolving Credit Commitment, in each case of the same may be changed from time to time pursuant to terms hereof.  The Subject to the 2019 Mandatory Revolving Commitment Reduction, the aggregate Revolving Credit Commitments of all Revolving Credit Lenders shall be $ 400,000,000 on the Closing Date 1,000,000,000 on the Amendment No. 4 Effective Date (the “ Initial Revolving Credit Commitments ”, and the loans thereunder, the “ Initial Revolving Credit Loans ”) , as such amount may be adjusted from time to time in accordance with the terms of this Agreement.

 

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

 

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

 

“ Revolving Credit Facility ” shall mean the Tranche A Revolving Credit Facility, Tranche B Revolving Credit Facility or Tranche C 2019 Revolving Credit Facility.

 

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

 

“ Revolving Credit Loan s ” shall have the meaning provided in Section 2.1(b)(i)( C D ) .

 

“ Revolving Credit Maturity Date ” shall mean (a) , with respect to each Amendment No. 1 Consenting Revolving Credit Lender (other than any Amendment No. 1 Consenting Revolving Credit Lender who has previously notified the Administrative Agent in writing that it will not extend its prior Revolving Credit Maturity Date, with respect to whom clause (b) of this definition will apply), April 30, 2020 and (b) with respect to each Amendment No. 1 Non-Consenting 2019 Revolving Credit Lender, July 30, 2018, and, in each case with respect of clauses (a) and (b), June 28, 2024, or if such date is not a Business Day, the next preceding Business Day.

 

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

 

“ Rollover Tranche B-1 Dollar Term Loan Commitment ” shall mean, with respect to a Cashless Option Tranche B-1 Dollar Term Loan Lender, the agreement of such Cashless Option Tranche B-1 Dollar Term Loan Lender to exchange all of its Initial Dollar Term Loans (or such lesser amount allocated to such Lender by the Amendment No. 2 Arrangers) for an equal aggregate principal amount of Tranche B-1 Dollar Term Loans on the Amendment No. 2 Effective Date, as evidenced by such Lender executing and delivering a Consent to Amendment No. 2 pursuant to which it selects the “Cashless Settlement Option” with respect to its Initial Dollar Term Loans on or prior to the Amendment No. 2 Effective Date.

 

“ Rollover Tranche B-1 Euro Term Loan Commitment ” shall mean, with respect to a Cashless Option Tranche B-1 Euro Term Loan Lender, the agreement of such Cashless Option Tranche B-1 Euro Term Loan Lender to exchange all of its Initial Euro Term Loans (or such lesser amount allocated to such Lender by the Amendment No. 2 Arrangers) for an equal aggregate principal amount of Tranche B-1 Euro Term Loans on the Amendment No. 2 Effective Date, as evidenced by such Lender executing and delivering a Consent to Amendment No. 2 pursuant to which it selects the “Cashless Settlement Option” with respect to its Initial Euro Term Loans on or prior to the Amendment No. 2 Effective Date.

 

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

 

“ Sale Leaseback ” shall mean any arrangement with any Person providing for the leasing by Holdings or any Restricted Subsidiary of any real or tangible personal property, which property has been or is to be sold or transferred by Holdings or such Restricted Subsidiary to such Person in contemplation of such leasing.

 

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

 

“ Second Lien Intercreditor Agreement ” shall mean an Intercreditor Agreement substantially in the form of Exhibit J (with such changes to such form as may be reasonably acceptable to the Administrative Agent and the U.S. Borrower) among the Administrative Agent, the Collateral Agent and the representatives for purposes thereof for any other Permitted Other Indebtedness Secured Parties that are holders of Permitted Other Indebtedness Obligations having a Lien on the Collateral ranking junior to the Lien securing the Obligations.

 

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

 

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

 

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

 

“ Secured Cash Management Obligations ” shall mean Obligations under Secured Cash Management Agreements.

 

“ Secured Hedge Agreement ” shall mean any Hedge Agreement that is entered into by and between Holdings or any Restricted Subsidiary and any Hedge Bank.

 

“ Secured Hedge Obligations ” shall mean Obligations under Secured Hedge Agreements.

 

“ Secured Parties ” shall mean the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer and each Lender, in each case with respect to the Credit Facilities, each Hedge Bank that is party to any Secured Hedge Agreement with Holdings or any Restricted Subsidiary, each Cash Management Bank that is party to a Secured Cash Management Agreement with Holdings or any Restricted Subsidiary and each sub-agent pursuant to Section 12 appointed by the Administrative Agent with respect to matters relating to the Credit Facilities or the Collateral Agent with respect to matters relating to any Security Document.

 

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

 

“ Security Documents ”   shall mean, collectively, (a) the Guarantee, (b) the U.S. Pledge Agreement, (c) the U.S. Security Agreement, (d) each Non-U.S. Security Document, (e) the Mortgages, (f) if executed, the First Lien Intercreditor Agreement, (g) if executed, the Second Lien Intercreditor Agreement and (h) each other security agreement or other instrument or document executed and delivered pursuant to Sections 9.11 , 9.12 or 9.14 or pursuant to any other such Security Documents to secure the Obligations.

 

“ Senior Notes ” shall have the meaning provided in the recitals to this Agreement and any modification, replacement, refinancing, refunding, renewal or extension thereof that is unsecured.

 

“ Senior Notes Indenture ” shall mean the Indenture, dated as of the Closing Date, among the U.S. Borrower, the guarantors party thereto and a trustee, pursuant to which the Senior Notes shall be issued, as the same may be amended, supplemented or otherwise modified from time to time in accordance therewith.

 

“ Senior Notes Offering ” shall have the meaning provided in the recitals of this Agreement.

 

“ Senior Secured Leverage Test ” shall mean, as of any date of determination, with respect to the last day of the most recently ended Test Period, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio shall be no greater than 4.50 to 1.0.

 

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

 

“ Similar Business ” shall mean any business conducted or proposed to be conducted by Holdings and the Restricted Subsidiaries on the Closing Date or any business that is similar, reasonably related, incidental or ancillary thereto.

 

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

 

“ Solvent ” shall mean, after giving effect to the consummation of the Transactions, that (i) the Fair Value of the assets of the U.S. Borrower and its Restricted Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities, (ii) the Present Fair Salable Value of the assets of the U.S. Borrower and its Restricted Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (iii) the U.S. Borrower and its Restricted Subsidiaries taken as a whole do not have Unreasonably Small Capital; and (iv) the U.S. Borrower and its Restricted Subsidiaries taken as a whole will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature.

 

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

 

“ Specified Representations ” shall mean the representations and warranties with respect to Holdings and the Borrowers set forth in Sections 8.1(a) (with respect to the Borrowers only), 8.2 (as related to the borrowing under, guaranteeing under, granting of security interests in the Collateral to, and performance of, the Credit Documents), 8.3(c) (with respect to the Borrowers only and as related to the borrowing under, guaranteeing under, granting of security interests in the Collateral to, and performance of, the Credit Documents), 8.5 , 8.7 , 8.17 and 8.18 of this Agreement and in Sections 3.2(a) and (b) of the U.S. Security Agreement and Section 5(d) of the U.S. Pledge Agreement.

 

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

 

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

 

“ Sponsor Management Agreement ” shall mean the management agreement between certain of the management companies associated with the Initial Investors and Holdings.

 

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

 

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

 

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

 

“ Stated Liabilities ” shall mean the recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the U.S. Borrower and its Restricted Subsidiaries taken as a whole, as of the date hereof after giving effect to the consummation of the Transactions (including the execution and delivery of this Agreement, the making of the Loans and the use of proceeds of such Loans on the date hereof), determined in accordance with GAAP consistently applied.

 

“ Status ” shall mean the existence of Level I Status or Level II Status, as the case may be, on such date.  Changes in Status resulting from changes in the Senior Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio shall become effective as of the first day following each date that (a) Section 9.1 Financials for the first full fiscal quarter ended after the Closing Amendment No. 4 Effective Date are delivered to the Administrative Agent under Section 9.1 and (b) an officer’s certificate is delivered by Holdings to the Administrative Agent setting forth, with respect to such Section 9.1 Financials, the then-applicable Status, and shall remain in effect until the next change to be effected pursuant to this definition, provided that each determination of the Senior Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio pursuant to this definition shall be made as of the end of the Test Period ending at the end of the fiscal period covered by the relevant Section 9.1 Financials.

 

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

 

“ Subject Party ” shall have the meaning provided in Section 15(b) .

 

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

 

“ Subsidiary ”   of any Person shall mean and include (a) any corporation more than 50% of whose Capital 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 Capital 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, or (b) any limited liability company, partnership, association, joint venture or other entity of which such Person directly or indirectly through Subsidiaries has more than a 50% equity interest at the time.  Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of Holdings.

 

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

 

“ Supplier ” shall have the meaning provided in Section 15(b) .

 

“ Supported QFC ” shall have the meaning provided in Section 13.24.

 

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

 

“ Swingline Commitment ” shall mean $50,000,000.  Swingline Commitment is part of and not in addition to the Tranche A Revolving Credit Commitment.

 

“ Swingline Exposure ” shall mean at any time the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline Exposure of any Revolving Credit Lender at any time shall equal its Revolving Credit Commitment Percentage of the aggregate Swingline Exposure at such time.

 

“ Swingline Lender ” shall mean UBS Citibank, N. A G , Stamford Branch . , in its capacity as lender of Swingline Loans hereunder or any replacement or successor thereto.

 

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

 

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

 

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

 

“ Tax Confirmation ” means a confirmation by a UK Lender that the person beneficially entitled to interest payable to that UK Lender in respect of New Term Loans, Revolving Credit Loans or the Letters of Credit is either:

 

(i)            a company resident in the United Kingdom for United Kingdom tax purposes; or

 

(ii)           a partnership each member of which is:

 

(a)        a company so resident in the United Kingdom; or

 

(b)       a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which is required to bring into account in computing its chargeable profits (within the meaning of Section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

(iii)         a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which is required to bring into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of Section 19 of the CTA) of that company.

 

“ Tax Credit ” means a credit against, relief or remission for, or repayment of any Tax.

 

“ Tax Deduction ” means a deduction or withholding for or on account of Tax from a payment under a Credit Document.

 

“ Tax Payment ” means either the increase in a payment made by a UK Relevant Borrower to a UK Lender under Section 14.2 ( Tax gross-up ) or a payment under Section 14.3 ( Tax indemnity ).

 

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

 

“ Term Loan Commitment ”   shall mean, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Tranche B-1 Dollar Term Loan Commitment, Tranche B-1 Euro Term Loan Commitment, and, if applicable, New Term Loan Commitment with respect to any Series.

 

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

 

“ Term Loan Lender ”   shall mean, at any time, any Lender that has a Term Loan Commitment or an outstanding Term Loan.

 

“ Term Loans ”   shall mean the Initial Term Loans, the Tranche B-1 Dollar Term Loans, the Tranche B-1 Euro Term Loans, any New Term Loans, any Replacement Term Loans and any Extended Term Loans, collectively.

 

“ Test Period ” shall mean, for any determination under this Agreement, the four consecutive fiscal quarters of Holdings then last ended and for which Section 9.1 Financials shall have been required to be delivered to the Administrative Agent (or, before the first delivery of Section 9.1 Financials, the most recent period of four fiscal quarters at the end of which financial statements are available).

 

“ Title Policy ” shall have the meaning provided in Section 9.14(d)(ii) .

 

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

 

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

 

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

 

“ Total Term Loan Commitment ”   shall mean the sum of the Initial Term Loan Commitments, the Tranche B-1 Dollar Term Loan Commitments, the Tranche B-1 Euro Term Loan Commitments, and the New Term Loan Commitments, if applicable, of all the Lenders.

 

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

 

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

 

“ Tranche A Revolving Credit Commitment ” means, as to each Tranche A Revolving Credit Lender, its obligation to make Tranche A Revolving Credit Loans to the U.S. Borrower pursuant to Section 2.1(b) , in an aggregate principal amount at any one time outstanding not to exceed the amount set forth , and opposite such Lender’s name on Schedule 1.1(c) under the caption “Tranche A Revolving Credit Commitment ” or in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including Section 2.14 ).  The aggregate Tranche A Revolving Credit Commitments of all Tranche A Revolving Credit Lenders shall be $ 400,000,000 on the Closing Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement.

 

“ Tranche B Revolving Credit Commitment ” means, as to each Tranche B Revolving Credit Lender, its obligation to make Tranche B Revolving Credit Loans to the German Borrower pursuant to Section 2.1(b) , in an aggregate principal amount at any one time outstanding not to exceed the amount set forth, and opposite such Lender’s name on Schedule 1.1(c) under the caption “Tranche B Revolving Credit Commitment” or in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including Section 2.14 ).  The aggregate Tranche B Revolving Credit Commitments of all Tranche B Revolving Credit Lenders shall be $200,000,000 on the Closing Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement.

 

“ Tranche B-1 Dollar Term Loan ” shall mean, collectively, any Term Loan made in Dollars on the Amendment No. 2 Effective Date pursuant to clause (i) or (ii) of the second sentence of Section 2.1(a).

 

“ Tranche B-1 Dollar Term Loan Allocation Schedule ” shall mean the schedule on file with the Administrative Agent and approved by the U.S. Borrower setting forth the name of each Additional Tranche B-1 Dollar Term Loan Lender and, next to such name, the amount of Additional Tranche B-1 Dollar Term Loans to be made to the U.S. Borrower in Dollars by such Additional Tranche B-1 Dollar Term Loan Lender on the Amendment No. 2 Effective Date.

 

“ Tranche B-1 Dollar Term Loan Commitment ” shall mean, with respect to a Cashless Option Tranche B-1 Dollar Term Loan Lender, its Rollover Tranche B-1 Dollar Term Loan Commitment and, with respect to any Additional Tranche B-1 Dollar Term Loan Lender, its Additional Tranche B-1 Dollar Term Loan Commitment.   The aggregate amount of Tranche B-1 Dollar Term Loan Commitments as of the Amendment No. 2 Effective Date is $1,285,514,233.31.

 

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

 

“ Tranche B-1 Dollar Term Loan Repayment Amount ” shall have the meaning provided in Section 2.5(b)(ii) .

 

“ Tranche B-1 Dollar Term Loan Repayment Date ” shall have the meaning provided in Section 2.5(b)(ii) .

 

“ Tranche B-1 Euro Term Loan ” shall mean, collectively, (i) a Term Loan in Euros made pursuant to clause (iii) of the second sentence of Section 2.1(a) and (ii) each Additional Tranche B-1 Euro Term Loan.

 

“ Tranche B-1 Euro Term Loan Allocation Schedule ” shall mean the schedule on file with the Administrative Agent and approved by the U.S. Borrower setting forth the name of each Additional Tranche B-1 Euro Term Loan Lender and, next to such name, the amount of Additional Tranche B-1 Euro Term Loans to be made to the U.S. Borrower in Euros by such Additional Tranche B-1 Euro Term Loan Lender on the Amendment No. 2 Effective Date.

 

“ Tranche B-1 Euro Term Loan Commitment ” shall mean, with respect to a Cashless Option Tranche B-1 Euro Term Loan Lender, its Rollover Tranche B-1 Euro Term Loan Commitment and, with respect to any Additional Tranche B-1 Euro Term Loan Lender, its Additional Tranche B-1 Euro Term Loan Commitment.   The aggregate amount of Tranche B-1 Euro Term Loan Commitments as of the Amendment No. 2 Effective Date is €615,000,000.

 

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

 

“ Tranche B-1 Euro Term Loan Repayment Amount ” shall have the meaning provided in Section 2.5(b)(iii) .

 

 

“ Tranche B-1 Euro Term Loan Repayment Date ” shall have the meaning provided in Section 2.5(b)(iii) .

 

“ Tranche B-1 Term Loan ” shall mean, collectively, the Tranche B-1 Dollar Term Loans and the Tranche B-1 Euro Term Loans.

 

“ Tranche B-1 Term Loan Commitment ” shall mean, collectively, the Tranche B-1 Dollar Term Loan Commitments and the Tranche B-1 Euro Term Loan Commitments.

 

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

 

“ Tranche B-1 Term Loan Maturity Date ” shall mean July 30, 2024 (or, if such date is not a Business Day, the first Business Day thereafter).

 

“ Tranche C Revolving Credit Commitment ” means, as to each Tranche C Revolving Credit Lender, its obligation to make Tranche C Revolving Credit Loans to the UK Borrower pursuant to Section 2.1(b) , in an aggregate principal amount at any one time outstanding not to exceed the amount set forth, and opposite such Lender’s name on Schedule 1.1(c) under the caption “Tranche C Revolving Credit Commitment” or in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including Section 2.14 ).  The aggregate Tranche C Revolving Credit Commitments of all Tranche C Revolving Credit Lenders shall be $200,000,000 on the Closing Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement.

 

“ Tranche A Revolving Credit Facility ” means, at any time, the aggregate amount of the Tranche A Revolving Credit Lenders’ Tranche A Revolving Credit Commitments at such time.

 

“ Tranche B Revolving Credit Facility ” means, at any time, the aggregate amount of the Tranche B Revolving Credit Lenders’ Tranche B Revolving Credit Commitments at such time.

 

“ Tranche C Revolving Credit Facility ” means, at any time, the aggregate amount of the Tranche C Revolving Credit Lenders’ Tranche C Revolving Credit Commitments at such time.

 

“ Tranche A Revolving Credit Lender ” means, at any time, any Lender that has a Tranche A Revolving Credit Commitment at such time.

 

“ Tranche B Revolving Credit Lender ” means, at any time, any Lender that has a Tranche B Revolving Credit Commitment at such time.

 

“ Tranche C Revolving Credit Lender ” means, at any time, any Lender that has a Tranche C Revolving Credit Commitment at such time.

 

“ Tranche A Revolving Credit Loan ” has the meaning specified in Section 2.1(b)(i)( A) .

 

“ Tranche B Revolving Credit Loan ” has the meaning specified in Section 2.1(b)(i)(B) .

 

“ Tranche C Revolving Credit Loan ” has the meaning specified in Section 2.1(b)(i)(C) .

“ Transaction Expenses ”   shall mean any fees or expenses incurred or paid by Holdings, the Borrowers or any of their Affiliates in connection with the Transactions, this Agreement and the other Credit Documents, the transactions contemplated hereby and thereby.

 

“ Transactions ”   shall mean, collectively, the transactions contemplated by this Agreement, the Senior Notes Indenture, the Acquisition and the Equity Investments, any repayment, repurchase, prepayment or defeasance of Indebtedness of Holdings or any of its Subsidiaries in connection therewith, the consummation of any other transactions in connection with the foregoing (including in connection with the Acquisition Agreement and the payment of the fees and expenses incurred in connection with any of the foregoing (including the Transaction Costs)).

 

“ Transfer Date ” shall have the meaning provided in Section 14.6(b) .