Exhibit 10.1

EXECUTION VERSION

REFINANCING AMENDMENT NO. 1 (this “ First Amendment ”) dated as of December 17, 2018, to the Amended and Restated Credit and Guaranty Agreement dated as of October 3, 2017 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “ Credit Agreement ”), among HOLOGIC, INC ., a Delaware corporation (the “ Company ”), HOLOGIC GGO 4 LTD . (the “ UK Borrower ”), certain subsidiaries of the Company from time to time party thereto as Designated Borrowers, the Guarantors from time to time party thereto, the lenders from time to time party thereto and BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “ Administrative Agent ”).

WHEREAS, each Person that agrees to make 2018 Refinancing Term Loans (as defined below) (collectively, the “ 2018 Refinancing Term Lenders ”) will make 2018 Refinancing Term Loans to the Company on the First Amendment Effective Date (as defined below) (the “ 2018 Refinancing Term Loans ”) in an amount equal to its 2018 Refinancing Term Commitment (defined below);

WHEREAS, each Revolving Credit Lender will convert their respective Revolving Credit Commitments under the 2017 Revolving Credit Facility to Revolving Credit Commitments ( each an “ Existing Revolving Commitments ”) on the First Amendment Effective Date in an amount equal to its 2018 Revolving Credit Commitments (hereinafter defined).

WHEREAS, the Company has requested an amendment to the Credit Agreement that would effect the modifications to the Credit Agreement set forth herein, and each Lender party hereto consents to this First Amendment;

WHEREAS, Merrill Lynch, Pierce, Fenner & Smith Incorporated (“ MLPFS ”), Wells Fargo Bank, National Association, Goldman Sachs Bank USA, JPMorgan Chase Bank,. N.A. and The Bank of Tokyo-Mitsubishi UFJ, Ltd. have been appointed as the Lead Arrangers (as defined below) with respect to this First Amendment; and

WHEREAS, this First Amendment includes amendments of the Credit Agreement that are subject to the approval of the Required Lenders, and that, in each case, will become effective on the First Amendment Effective Date on the terms and subject to the conditions set forth herein;

Accordingly, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

SECTION 1. Defined Terms. Capitalized terms used and not otherwise defined herein have the meanings assigned to them in the Credit Agreement as amended hereby (the “ Amended Credit Agreement ”).

SECTION 2. Refinancing Transactions.

(a) Subject to the terms and conditions set forth herein, each 2018 Refinancing Term Lender severally agrees to make a 2018 Refinancing Term Loan to the Company on the First Amendment Effective Date in a principal amount equal to its 2018 Refinancing Term Commitment, which amount shall be made available to the Administrative Agent in immediately available funds in accordance with the Credit Agreement. The “ 2018 Refinancing Term Commitment ” of each 2018 Refinancing Term Lender will be the amount set forth opposite such 2018 Refinancing Term Lender’s name on Schedule 1 hereto. On the First Amendment Effective Date, the 2018 Refinancing Term Loans shall replace or refinance in full the 2017 Refinancing Term Loans outstanding on the First Amendment Effective Date (immediately prior to the refinancing contemplated by this First Amendment (the “ Refinancing ”)) (the “ Existing Term Loans ”). Each Lender party hereto and the Administrative Agent hereby acknowledge that (i) the Company hereby provides notice under Section 2.19 of the Credit Agreement of its request for 2018 Refinancing Term Loans to refinance or replace in full the Existing Term Loans and (ii) all notice requirements set forth in Section 2.19 of the Credit Agreement with respect to the Refinancing have been satisfied. For the avoidance of doubt, there shall be no amount payable under Section 3.05(a) of the Credit Agreement in connection with the Refinancing.

(b) Subject to the terms and conditions set forth herein, each Revolving Credit Lender agrees to (x) convert their Existing Revolving Commitments into Revolving Credit Commitment under the 2018 Revolving Credit Facility as defined in the Credit Agreement after giving effect to this First Amendment) (the “ 2018 Revolving Credit Commitments ”) in an amount equal to their Existing Revolving Commitment set forth on Schedule 1 attached hereto, (y) that automatically upon the effectiveness of this First Amendment on the First Amendment Effective Date and without any further action by any Person, each Revolving Credit Lender’s Existing Revolving Commitments shall be deemed to have been converted to, and for all purposes under the Credit Agreement and the other Loan Documents, shall constitute Revolving Credit Commitments under the 2018 Revolving Credit Facility and (z) that the Administrative Agent may take whatever administrative actions it deems necessary and appropriate to reflect the foregoing in the Register.

(c) On and after the First Amendment Effective Date, each reference in the Loan Documents to “Term Loans” shall be deemed to be a reference to and include the 2018 Refinancing Term Loans made or deemed made (including by replacement) hereunder, and each reference to “Lenders” shall be deemed to include the 2018 Refinancing Term Lenders. Notwithstanding the foregoing, the provisions of the Credit Agreement with respect to indemnification, confidentiality, reimbursement of costs and expenses, increased costs and break funding payments shall continue in full force and effect with respect to, and for the benefit of, each Term Lender in respect of such Lender’s Existing Term Loans.

SECTION 3. Amendments to the Credit Agreement. Each of the parties hereto agrees that, effective on the First Amendment Effective Date, 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 Credit Agreement attached as Exhibit A hereto.

 

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SECTION 4. Amendments to the Pledge and Security Agreement. Each of the parties hereto agrees that, effective on the First Amendment Effective Date, the Pledge and Security 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 Pledge and Security Agreement attached as Exhibit B hereto.

SECTION 5. Representations and Warranties. To induce the other parties hereto to enter into this First Amendment, each Loan Party represents and warrants to each other party hereto, on and as of the First Amendment Effective Date, that the following statements are true and correct:

(a) The execution, delivery and performance of this First Amendment have been duly authorized by all necessary action on the part of each Loan Party. This First Amendment has been duly executed and delivered by each Loan Party and is the legally valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

(b) The representations and warranties of the Company and each other Loan Party contained in Article 5 of the Credit Agreement or any other Loan Document, or which are contained in any document furnished in connection herewith or therewith, shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified by materiality or Material Adverse Effect, in all respects) on and as of the First Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to any such representation or warranty that is qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date, and except that for purposes of this Section 5(b), the representations and warranties contained in Sections 5.08(a) and (b) shall be deemed to refer to the then-most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively.

(c) As of the First Amendment Effective Date, after giving effect to this First Amendment, no Default shall exist or would result from the consummation of the transactions contemplated hereby.

SECTION 6. First Amendment Effective Date. This First Amendment shall become effective as of the first date (the “ First Amendment Effective Date ”) on which each of the following conditions shall have been satisfied or waived by the 2018 Refinancing Term Lenders and the Revolving Credit Lenders:

 

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(i) the Administrative Agent shall have received counterparty signature pages of this Amendment from each of the Borrower, each Guarantor and each Lender;

(ii) the Administrative Agent shall have received (A) sufficient copies of each Organizational Document of each Loan Party, as applicable, and, to the extent applicable, certified as of the First Amendment Effective Date or a recent date prior thereto by the appropriate Governmental Authority; (B) signature and incumbency certificates of the officers of such Persons executing the Loan Documents on behalf of each Loan Party; (C) copies of resolutions of the Board of Directors or similar governing body of each Loan Party approving and authorizing the execution, delivery and performance of this First Amendment and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the First Amendment Effective Date and, in respect of the U.K. Borrower, authorizing the Company to act as its agent in connection with the Loan Documents, certified as of the First Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (D) other than with respect to the U.K. Borrower, a good standing certificate from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, dated as of the First Amendment Effective Date or a recent date prior thereto and (E) to the extent requested by the Administrative Agent in respect of the U.K. Borrower, (i) copies of resolutions of its shareholders approving the terms of, and the transactions contemplated by this First Amendment and (ii) a certificate signed by a Responsible Officer of the U.K. Borrower certifying that the U.K. Borrower Sublimit would not cause any borrowing or similar limit binding on it to be exceeded;

(iii) the Administrative Agent shall have received a favorable opinion of Brown Rudnick LLP, counsel for the Loan Parties, dated as of the First Amendment Effective Date, in a form consistent with the opinion delivered by Brown Rudnick LLP on the Restatement Date;

(iv) the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Company certifying (a) that the conditions specified in Sections 5(b) and (c) have been satisfied and (b) that there has been no event or circumstance since September 29, 2018 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;

(v) Concurrently with the making of the 2018 Refinancing Term Loans, (a) the entire aggregate principal amount of the 2017 Refinancing Term Loans and (b) all accrued interest, fees and other amounts accrued immediately prior to this First Amendment becoming effective in connection therewith shall have been paid in full and all Interest Periods in respect thereof shall have been terminated;

 

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(vi) Concurrently with the availability of the 2018 Revolving Credit Facility, (i) the Revolving Credit Commitments in effect immediately prior to this First Amendment becoming effective shall have been terminated and the entire aggregate principal amount of the all Revolving Credit Loans outstanding immediately prior to this First Amendment becoming effective shall have been paid in full and (ii) all accrued interest, fees and other amounts accrued prior to this First Amendment becoming effective in connection therewith shall have been paid in full and all Interest Periods in respect thereof shall have been terminated;

(vii) Any fees required to be paid pursuant to the Fee Letter on or before the First Amendment Effective Date shall have been paid by the Company to the Administrative Agent on the First Amendment Effective Date);

(viii) The Company shall have delivered a Committed Loan Notice with respect to the 2018 Refinancing Term Loans, and a notice of prepayment with respect to the Existing Term Loans, in each case, in accordance with the Credit Agreement;

(ix) The Company shall have paid all fees, charges and disbursements of Davis Polk & Wardwell LLP (it is hereby expressly acknowledged and agreed that any fees paid pursuant to this clause (ix) shall be paid by the Company to the Administrative Agent on the First Amendment Effective Date);

(x) The Loan Parties shall have provided the documentation and other information to the Administrative Agent and Lenders that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, to the extent the Company shall have received written requests therefor at least three (3) Business Days prior to the First Amendment Effective Date; and

(xi) The conditions specified in Section 2.19 of the Credit Agreement with respect to the Refinancing shall have been satisfied (it being understood and agreed that, as of the date hereof, such conditions shall be deemed to be satisfied).

(b) The First Amendment Effective Date shall not occur if any of the conditions set forth or referred to in this Section 6 has not been satisfied or waived in accordance with Section 10.01 of the Credit Agreement at or prior to 5:00 p.m., New York City time, on December 17, 2018 (it being understood that any such failure of the First Amendment Effective Date to occur by such date will not affect any rights or obligations of any Person under the existing Credit Agreement). The Administrative Agent shall promptly notify the Company and the Lenders of the First Amendment Effective Date.

 

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SECTION 7. Effect of Amendment.

(a) Except as expressly set forth herein, this First Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or Agents under the existing Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the existing Credit Agreement or any other provision of the existing Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Except as expressly set forth herein, nothing herein shall be deemed a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances.

(b) From and after the First Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, and each reference to the Credit Agreement in any other Loan Document shall be deemed a reference to the Credit Agreement as amended hereby. From and after the First Amendment Effective Date, each reference in the Loan Documents to the “Pledge and Security Agreement” shall be deemed a reference to the Pledge and Security Agreement as amended hereby. This First Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.

SECTION 8. Reaffirmation. Notwithstanding the effectiveness of this First Amendment and the transactions contemplated hereby, (i) each Loan Party acknowledges and agrees that, (A) each Loan Document to which it is a party is hereby confirmed and ratified and shall remain in full force and effect according to its respective terms (in the case of the Credit Agreement and the Pledge and Security Agreement, in each case, as amended hereby) and (B) the Collateral Documents do, and all of the Collateral does, and in each case shall continue to, secure the payment of all Secured Obligations (as defined in the Pledge and Security Agreement, as amended hereby) on the terms and conditions set forth in the Collateral Documents, and hereby ratifies the security interests granted by it pursuant to the Collateral Documents and (ii) each Guarantor hereby confirms and ratifies its continuing unconditional obligations as Guarantor under the Guaranty with respect to all of the Guaranteed Obligations.

SECTION 9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

 

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SECTION 10. Costs and Expenses. The Borrower agrees to reimburse the Administrative Agent for its actual and reasonable costs and expenses in connection with this First Amendment to the extent required pursuant to Section 10.04 of the Credit Agreement.

SECTION 11. Counterparts; Effectiveness. This First Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by facsimile or other electronic imaging means of an executed counterpart of a signature page to this First Amendment shall be effective as delivery of an original executed counterpart of this First Amendment.

SECTION 12. Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

[Remainder of page intentionally left blank]

 

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit A

[Amendments to Credit Agreement attached]

EXECUTION VERSION

 

 

 

Published CUSIP Number: 43644AAZ2

CUSIP (USD Revolving Credit Facility): 43644ABB4

CUSIP (Multicurrency Revolving Credit Facility): 43644ABA6

CUSIP (Term Facility): 43644ABC2

AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT

Originally dated as of May 29, 2015

, and amended and restated as of October 3, 2017 and amended as of December 17, 2018

among

HOLOGIC, INC. ,

and

CERTAIN SUBSIDIARIES

as Borrowers,

BANK OF AMERICA, N.A. ,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,

The Other Lenders Party Hereto,

BANK OF AMERICA MERRILL LYNCH, PIERCE, FENNER & SMITH

INCORPORATED,

CITIGROUP GLOBAL MARKETS, INC.,

WELLS FARGO BANK, NATIONAL ASSOCIATION,

GOLDMAN SACHS BANK USA,

JPMORGAN CHASE BANK, N.A.

and

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. ,

as

Co-Syndication Agents

DNB BANK ASA, NEW YORK

HSBC BANK USA, NATIONAL ASSOCIATION

MORGAN STANLEY SENIOR FUNDING, INC.

SUMITOMO MITSUI BANKING CORPORATION

and,

WELLS FARGO BANK, N.A.

CITIGROUP GLOBAL MARKETS INC.,

as Co-Documentation Agents

 

 

BANK OF AMERICA MERRILL LYNCH, PIERCE, FENNER & SMITH

INCORPORATED,

CITIGROUP GLOBAL MARKETS, INC.,

WELLS FARGO BANK, NATIONAL ASSOCIATION,

GOLDMAN SACHS BANK USA,

JPMORGAN CHASE BANK, N.A.

and

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. ,

as

Joint Lead Arrangers and Joint Bookrunners

 

 

 

TABLE OF CONTENTS

 

				P AGE
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01.		Defined Terms			2
Section 1.02.		Other Interpretive Provisions			77
Section 1.03.		Accounting Terms			79
Section 1.04.		Rounding			80
Section 1.05.		Exchange Rates; Currency Equivalents			80
Section 1.06.		Additional Alternative Currencies			80
Section 1.07.		Change of Currency			82
Section 1.08.		Times of Day			82
Section 1.09.		Letter of Credit Amounts			82
Section 1.10.		Pro Forma Calculations			82
ARTICLE 2
THE COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01.		The Loans			84
Section 2.02.		Borrowings, Conversions and Continuations of Loans			86
Section 2.03.		Letters of Credit			88
Section 2.04.		Swing Line Loans			102
Section 2.05.		Prepayments/Commitment Reductions			105
Section 2.06.		Application of Prepayments/Reductions			110
Section 2.07.		Scheduled Payments/Commitment Reductions			112
Section 2.08.		Interest			113
Section 2.09.		Fees			114
Section 2.10.		Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate			115
Section 2.11.		Evidence of Debt			116
Section 2.12.		Payments Generally; Administrative Agent’s Clawback			116
Section 2.13.		Sharing of Payments by Lenders			119
Section 2.14.		Designated Borrowers			120
Section 2.15.		Extension of Loans			121
Section 2.16.		Incremental Facilities			126
Section 2.17.		Cash Collateral			130
Section 2.18.		Defaulting Lenders			132
Section 2.19.		Refinancing Amendments			135
Section 2.20.		Foreign Obligors Not Obligated For U.S. Loan Party Obligations			137
Section 2.21.		U.S. Loan Parties; U.K. Borrower; Designated Borrowers			138
ARTICLE 3
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01.		Taxes			138

 

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Section 3.02.		Illegality			145
Section 3.03.		Inability to Determine Rates			146
Section 3.04.		Increased Costs; Reserves on Eurocurrency Rate Loans			148
Section 3.05.		Compensation for Losses			151
Section 3.06.		Mitigation Obligations; Replacement of Lenders			151
Section 3.07.		Survival			152
ARTICLE 4
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01.		Conditions of Initial Credit Extension			152
Section 4.02.		Conditions to all Credit Extensions			153
Section 4.03.		Conditions to the Restatement Date			156
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.01.		Organization; Requisite Power and Authority; Qualification			158
Section 5.02.		Equity Interests and Ownership			159
Section 5.03.		Due Authorization			159
Section 5.04.		No Conflict			159
Section 5.05.		Governmental Consents			160
Section 5.06.		Binding Obligation			160
Section 5.07.		Reserved			160
Section 5.08.		Financial Statements			160
Section 5.09.		No Material Adverse Effect			160
Section 5.10.		No Restricted Junior Payments			160
Section 5.11.		Adverse Proceedings, Etc			161
Section 5.12.		Payment of Taxes			161
Section 5.13.		Properties			161
Section 5.14.		Environmental Matters			163
Section 5.15.		No Defaults			163
Section 5.16.		Material Contracts			163
Section 5.17.		Governmental Regulation			164
Section 5.18.		Margin Stock			164
Section 5.19.		Employee Matters			164
Section 5.20.		Employee Benefit Plans			164
Section 5.21.		[Reserved]			165
Section 5.22.		Solvency			165
Section 5.23.		[Reserved]			165
Section 5.24.		Compliance with Statutes, Etc			166
Section 5.25.		Disclosure			166
Section 5.26.		Senior Indebtedness			166
Section 5.27.		PATRIOT Act; Sanctioned Persons			167
Section 5.28.		Use of Proceeds			167
Section 5.29.		Security Documents			167
Section 5.30.		Representations as to Foreign Obligors			168

 

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ARTICLE 6
AFFIRMATIVE COVENANTS
Section 6.01.		Financial Statements and Other Reports			169
Section 6.02.		Existence			174
Section 6.03.		Payment of Taxes and Claims			174
Section 6.04.		Maintenance of Properties			174
Section 6.05.		Insurance			175
Section 6.06.		Books and Records; Inspections			175
Section 6.07.		[ Reserved ]			176
Section 6.08.		Compliance with Laws			176
Section 6.09.		Environmental Matters			176
Section 6.10.		Subsidiaries			178
Section 6.11.		[ Reserved ]			178
Section 6.12.		Further Assurances			178
Section 6.13.		Maintenance of Ratings			179
Section 6.14.		Use of Proceeds			180
Section 6.15.		Senior Notes Repayment [ Reserved ]			180
ARTICLE 7
NEGATIVE COVENANTS
Section 7.01.		Indebtedness			181
Section 7.02.		Liens			185
Section 7.03.		No Further Negative Pledges			189
Section 7.04.		Restricted Junior Payments			190
Section 7.05.		Restrictions on Subsidiary Distributions			191
Section 7.06.		Investments			192
Section 7.07.		Financial Covenants			195
Section 7.08.		Fundamental Changes; Disposition of Assets; Acquisitions			196
Section 7.09.		Sales and Leasebacks			199
Section 7.10.		Transactions with Shareholders and Affiliates			200
Section 7.11.		Conduct of Business			201
Section 7.12.		Amendments or Waivers of Organizational Documents			202
Section 7.13.		Amendments or Waivers with Respect to Junior Financing			202
Section 7.14.		Fiscal Year			202
Section 7.15.		Massachusetts Securities Corporation			202
Section 7.16.		Sanctions and Anti-Corruption: Use of Proceeds			202
ARTICLE 8
EVENTS OF DEFAULT
Section 8.01.		Events of Default			203
Section 8.02.		Remedies upon Event of Default			206
Section 8.03.		Application of Funds			206

 

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ARTICLE 9
ADMINISTRATIVE AGENT
Section 9.01.		Appointment and Authority			207
Section 9.02.		Rights as a Lender			208
Section 9.03.		Exculpatory Provisions			208
Section 9.04.		Reliance by Administrative Agent			209
Section 9.05.		Delegation of Duties			210
Section 9.06.		Resignation of Administrative Agent			210
Section 9.07.		Non-Reliance on Administrative Agent and Other Lenders			212
Section 9.08.		No Other Duties, Etc			212
Section 9.09.		Administrative Agent May File Proofs of Claim; Credit Bidding			212
Section 9.10.		Collateral and Guaranty Matters			214
Section 9.11.		Secured Cash Management Agreements and Secured Hedge Agreements			215
ARTICLE 10
MISCELLANEOUS
Section 10.01.		Amendments, Etc.			215
Section 10.02.		Notices; Effectiveness; Electronic Communication			218
Section 10.03.		No Waiver; Cumulative Remedies; Enforcement			220
Section 10.04.		Expenses; Indemnity; Damage Waiver			221
Section 10.05.		Payments Set Aside			224
Section 10.06.		Successors and Assigns			225
Section 10.07.		Treatment of Certain Information; Confidentiality			231
Section 10.08.		Right of Setoff			232
Section 10.09.		Interest Rate Limitation			233
Section 10.10.		Counterparts; Integration; Effectiveness			233
Section 10.11.		Survival of Representations and Warranties			233
Section 10.12.		Severability			234
Section 10.13.		Replacement of Lenders			234
Section 10.14.		Governing Law; Jurisdiction; Etc.			235
Section 10.15.		Waiver of Jury Trial			236
Section 10.16.		No Advisory or Fiduciary Responsibility			236
Section 10.17.		Electronic Execution of Assignments and Certain Other Documents			237
Section 10.18.		USA PATRIOT Act			237
Section 10.19.		Judgment Currency			237
Section 10.20.		Entire Agreement			238
Section 10.21.		Acknowledgement and Consent to Bail-In of EEA Financial Institutions			238
Section 10.22.		Cashless Rollovers			239
Section 10.23.		Amendment and Restatement; No Novation			239

 

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ARTICLE 11
G UARANTY
Section 11.01.		Guaranty of the Obligations			239
Section 11.02.		Contribution by Guarantors			239
Section 11.03.		Payment by Guarantors			240
Section 11.04.		Liability of Guarantors Absolute			240
Section 11.05.		Waivers by Guarantors			243
Section 11.06.		Guarantors’ Rights of Subrogation, Contribution, Etc.			243
Section 11.07.		Subordination of Other Obligations			244
Section 11.08.		Continuing Guaranty			244
Section 11.09.		Authority of Guarantors or Borrowers			244
Section 11.10.		Financial Condition of Loan Parties			245
Section 11.11.		Bankruptcy, Etc.			245
Section 11.12.		Discharge of Guaranty Upon Sale of Guarantor			246
Section 11.13.		Keepwell			246

 

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SCHEDULES
1.01(A)		Asset Sales
1.01(B)		Existing Letters of Credit
1.01(C)		[Reserved]
1.01(D)(1)		Immaterial Domestic Subsidiaries
1.01(D)(2)		Immaterial Subsidiaries
1.01(E)		[Reserved]
2.01		Commitments and Applicable Percentages
5.01		Jurisdictions of Organization
5.02		Equity Interests and Ownership
5.11		Adverse Proceedings
5.13(b)		Real Estate Assets
5.13(c)		Intellectual Property Litigation
5.16		Material Contracts
5.24		Compliance with Statutes
6.12(c)		Post-Closing Actions
7.01		Existing Indebtedness
7.02		Existing Liens
7.03		Negative Pledges
7.04		Certain Restricted Payments
7.05		Certain Restrictions on Subsidiary Distributions
7.06(k)		Certain Investments
7.09		Sale and Leasebacks
7.10		Certain Affiliate Transactions
10.02		Administrative Agent’s Office; Certain Addresses for Notices

 

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EXHIBITS
A		Form of Committed Loan Notice
B		Form of Swing Line Loan Notice
C-1.1		Form of Multicurrency Revolving Credit Note (Company)
C-1.2		Form of Multicurrency Revolving Credit Note (U.K. Borrower)
C-1.3		Form of Multicurrency Revolving Credit Note (Designated Borrower)
C-2.1		Form of Swing Line Note (Company)
C-2.2		Form of Swing Line Note (U.K. Borrower)
C-2.3		Form of Swing Line Note (Designated Borrower)
C-3		Form of Term Note
C-4.1		Form of USD Revolving Credit Note (Company)
C-4.2		Form of USD Revolving Credit Note (U.K. Borrower)
C-4.3		Form of USD Revolving Credit Note (Designated Borrower)
D		Form of Compliance Certificate
E-1		Form of Assignment and Assumption
E-2		Form of Administrative Questionnaire
F		Form of Notice of Loan Prepayment
G		Counterpart Agreement
H		Form of Designated Borrower Request and Assumption Agreement
I		Form of Designated Borrower Notice
J		Pledge and Security Agreement
K		Form of U.S. Tax Compliance Certificate
L		Form of Joinder Agreement
M		Form of Solvency Certificate
N		Form of Letter of Credit Report

 

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AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT

This AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT (this “ Agreement ”) originally dated as of May 29, 2015 and amended and restated as of October 3, 2017 among HOLOGIC, INC., a Delaware corporation (the “ Company ”), HOLOGIC GGO 4 Ltd LTD (the “ U.K. Borrower ”, and together with the Company, the “ Initial Borrowers ”), HOLOGIC UK FINANCE LTD and certain other Subsidiaries of the Company party hereto pursuant to Section 2.14 (each a “ Designated Borrower ” and, together with the Initial Borrowers, the “ Borrowers ” and, each a “ Borrower ”), the Guarantors from time to time party hereto, each lender from time to time party hereto (collectively, the “ Lenders ” and individually, each a “ Lender ”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.

WHEREAS, the Company, the U.K. Borrower, the Designated Borrowers, the Guarantors and the Administrative Agent are party to the Original Credit Agreement (such terms and other capitalized terms used in these preliminary statements being defined in Section 1.01 hereof), together with the lenders party thereto, which became effective as of May 29, 2015;

WHEREAS, the Company desires to obtain 2017 Refinancing Term Loans, the proceeds of which will be used on the Restatement Date to prepay in full all of the Existing Term A Loans outstanding immediately prior to the effectiveness of this Agreement;

WHEREAS, the Company desires to obtain (a) 2017 Incremental Term Loans on the Restatement Date, the proceeds of which will be used to pay Convertible Note Repayment Obligations, purchase, repurchase or redeem Convertible Notes pursuant to Section 7.04(c)(y), to fund the Convertible Note Repayment Reserve as permitted hereunder, and for working capital and all other general corporate purposes and (b) commitments under the 2017 Revolving Credit Facility;

WHEREAS, the 2017 Refinancing Term Loans and the 2017 Incremental Term Loans will, when taken together, comprise a single Class of Term Loans under this Agreement, having identical terms; and

WHEREAS, pursuant to the terms of this Amended and Restated Credit and Guaranty Agreement and upon satisfaction of the conditions set forth herein, the Original Credit Agreement is being amended and restated in the form of this Agreement, effective as of the Restatement Date.

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

ARTICLE 1

DEFINITIONS AND ACCOUNTING TERMS

Section 1.01. Defined Terms . As used in this Agreement, the following terms shall have the meanings set forth below:

“ 2017 Incremental Term Commitment ” means, as to any 2017 Incremental Term Lender, its obligation to make 2017 Incremental Term Loans to the Company on the Restatement Date pursuant to Section 2.01(a) in the amount set forth opposite such 2017 Incremental Term Lender’s name on Schedule 2.01.

“ 2017 Incremental Term Lender ” means any Lender with a 2017 Incremental Term Commitment.

“ 2017 Incremental Term Loan ” means the Incremental Term Loans made to the Company on the Restatement Date pursuant to Section 2.01(a).

“ 2017 Notes ” means unsecured Indebtedness of the Company in the form of notes; provided that such unsecured Indebtedness (1) matures after, and does not require any scheduled amortization or scheduled or mandatory payments of principal prior to, the date which is at least 120 days after the latest maturity date of the Term Loans (it being understood that such Indebtedness may have mandatory prepayment, repurchase or redemption provisions satisfying the requirement of clause (2) of this definition), (2) has terms and conditions (other than interest rates, fees, funding discounts, redemption premiums or other premiums, optional redemption or prepayment provisions and, to the extent customary, subordination terms), taken as a whole, that are not materially less favorable to the Company than the terms and conditions for the existing Senior Notes, as determined in good faith by the Company and (3) shall not be guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors and the terms of such guarantee shall be no more favorable to the secured parties in respect of such Indebtedness than the terms of the Guaranty, taken as a whole, as determined in good faith by the Company.

“ 2017 Refinancing Term Commitment ” means, as to any 2017 Refinancing Term Lender, its obligation to make 2017 Refinancing Term Loans to the Company on the Restatement Date pursuant to Section 2.01(a) in the amount set forth opposite such 2017 Refinancing Term Lender’s name on Schedule 2.01.

“ 2017 Refinancing Term Lender ” means any Lender with a 2017 Refinancing Term Commitment.

“ 2017 Refinancing Term Loan ” means the Refinancing Term Loans made to the Company on the Restatement Date pursuant to Section 2.01(a).

“ 2017 Revolving Credit Facility ” means the Revolving Credit Facility established on the Restatement Date.

“ 2017 Term Facility ” means the facility established on the Restatement Date with respect to the 2017 Term Loans.

 

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“ 2017 Term Loans ” means the 2017 Incremental Term Loans and the 2017 Refinancing Term Loans.

“ 2018 Refinancing Term Commitment ” means, as to any 2018 Refinancing Term Lender, its obligation to make 2018 Refinancing Term Loans to the Company on the First Amendment Effective Date pursuant to Section 2.01(a) in the amount set forth opposite such 2018 Refinancing Term Lender’s name on Schedule 2.01.

“ 2018 Refinancing Term Lender ” means any Lender with a 2018 Refinancing Term Commitment.

“ 2018 Refinancing Term Loans ” means the Term Loans made to the Company on the First Amendment Effective Date pursuant to Section 2.01(a).

“ 2018 Revolving Credit Facility ” means the Revolving Credit Facility established on the First Amendment Effective Date.

“ 2018 Term Facility ” means the term loan facility established on the First Amendment Effective Date with respect to the 2018 Refinancing Term Loans.

“ Acquired Non-Investment-Grade Securities ” means any and all investment securities (including equity securities listed on a national securities exchange) acquired by the Company and/or any Subsidiary of the Company in any Permitted Acquisition, Prior Acquisition and/or any other acquisition that constitutes a permitted Investment which are not Investment Grade Securities or securities issued by an Affiliate of such Subsidiary, a Subsidiary of Company or the Company, to the extent that such investment securities were owned by such Subsidiary at the time of such Permitted Acquisition, Prior Acquisition and/or any other acquisition that constitutes a permitted Investment, as applicable, and were not acquired in contemplation thereof.

“ Additional Lender ” has the meaning specified in Section 2.19.

“ Adjusted Consolidated Cash Interest Expense ” means for any period, the Adjusted Consolidated Interest Expense for such period, excluding any amount not payable in Cash, original issue discount and amortization and write-off of deferred financing fees and other imputed non-cash interest charges relating to the Convertible Notes or any other Indebtedness now or hereafter outstanding.

“ Adjusted Consolidated Interest Expense ” means for any period and without duplication, total interest expense in accordance with GAAP (including that portion attributable to Capital Leases in accordance with GAAP, capitalized interest, amortization and write-off of deferred financing fees and amortization in relation to terminated Hedge Agreements) of the Company and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of the Company and its Subsidiaries, including all commissions, discounts and other fees and charges owed with respect to letters of credit, net costs under Interest Rate Agreements, capitalized interest and the interest component of all Attributable Receivables Indebtedness.

 

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“ Administrative Agent ” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

“ Administrative Agent’s Office ” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify the Company and the Lenders.

“ Administrative Questionnaire ” means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.

“ Adverse Proceeding ” means any action, suit, proceeding, hearing (in each case, whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of the Company or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of any Responsible Officer of the Company or any of its Subsidiaries, threatened against or affecting the Company or any of its Subsidiaries or any property of the Company or any of its Subsidiaries.

“ Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

“ Agent ” means each of the Administrative Agent, the Co-Syndication Agents, the Collateral Agent, the Arrangers, the Co-Documentation Agents and any other Person appointed under the Loan Documents to serve in an agent or similar capacity.

“ Agent Parties ” has the meaning specified in Section 10.02(c).

“ Aggregate Commitments ” means the Commitments of all the Lenders.

“ Aggregate Multicurrency Revolving Commitments ” means the Multicurrency Revolving Credit Commitments of all the Multicurrency Revolving Credit Lenders.

“ Aggregate Payments ” has the meaning specified in Section 11.02.

“ Aggregate Revolving Commitments ” means, collectively, the Aggregate Multicurrency Revolving Commitments and the Aggregate USD Revolving Commitments.

“ Aggregate USD Revolving Commitments ” means the USD Revolving Credit Commitments of all the USD Revolving Credit Lenders.

“ Agreement ” means the Original Credit Agreement as amended and restated by this Amended and Restated Credit and Guaranty Agreement.

 

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“ Agreement Currency ” has the meaning specified in Section 10.19.

“ Alternative Currency ” means each of the following currencies: Euro, Sterling and each other currency (other than Dollars) that is approved in accordance with Section 1.06.

“ Alternative Currency Equivalent ” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as calculated by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the then-most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.

“ Alternative Currency Sublimit ” means an amount equal to the lesser of the Aggregate Multicurrency Revolving Commitments and $300,000,000. The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Multicurrency Revolving Commitments.

“ Applicable Foreign Obligor Documents ” has the meaning specified in Section 5.30.

“ Applicable Percentage ” means (a) in respect of the Term Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Facility represented by such Term Lender’s outstanding Term Loans at such time, (b) in respect of the Multicurrency Revolving Credit Facility, with respect to any Multicurrency Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Multicurrency Revolving Credit Facility represented by such Multicurrency Revolving Credit Lender’s Multicurrency Revolving Credit Commitment at such time, subject to adjustment as provided in Section 2.18 and (c) in respect of the USD Revolving Credit Facility, with respect to any USD Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the USD Revolving Credit Facility represented by such USD Revolving Credit Lender’s USD Revolving Credit Commitment at such time, subject to adjustment as provided in Section 2.18. If the Commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Revolving Credit Lender in respect of the applicable Revolving Credit Facility shall be determined based on the Applicable Percentage of such Revolving Credit Lender then-most recently in effect, after giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

“ Applicable Rate ” means, from time to time, in respect of the Term Facility, the Revolving Credit Facility and the Commitment Fee, (i) from the Restatement First Amendment Effective Date to the date on which the Administrative Agent receives a Compliance Certificate pursuant to Section 6.01(c) for the Fiscal Quarter ending

 

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December 30, 2017 2018 , a percentage per annum determined by reference to Pricing Level 3 set forth below and (ii) thereafter, the applicable percentage per annum set forth below determined by reference to the Total Net Leverage Ratio as set forth in the then-most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.01(c):

 

Pricing Level		Total Net Leverage Ratio				Applicable Rate for Eurocurrency Rate Loans / LIBOR Daily Floating Rate Loans / Letter of Credit Fees				Applicable Rate for Base Rate Loans				Commitment Fee
1			³   4.00 4.25 :1.00				2.00 1.75	%			1.00 0.75	%			0.35 0.25	%
2			<  4.00 4.25 :1.00 ³  3.50:1.00				1.75 1.50	%			0.75 0.50	%			0.30 0.225	%
3			< 3.50:1.00 ³ 2.50:1.00				1.50 1.375	%			0.50 0.375	%			0.25 0.20	%
4			< 2.50:1.00 ³ 2.00:1.00				1.25	%			0.25	%			0.20	%
5			<2.00:1.00				1.00	%			0.00	%			0.15	%

Any increase or decrease in the Applicable Rate resulting from a change in the Total Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.01(c); provided , however , that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered.

Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).

“ Applicable Period ” has the meaning specified in the term “Applicable Rate.”

“ Applicable Revolving Credit Percentage ” means (a) with respect to any Multicurrency Revolving Credit Lender at any time, such Multicurrency Revolving Credit Lender’s Applicable Percentage in respect of the Multicurrency Revolving Credit Facility at such time and (b) with respect to any USD Revolving Credit Lender at any time, such USD Revolving Credit Lender’s Applicable Percentage in respect of the USD Revolving Credit Facility at such time.

 

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“ Applicable Time ” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

“ Applicant Borrower ” has the meaning specified in Section 2.14(a).

“ Appropriate Lender ” means, at any time, (a) with respect to the Term Facility or the Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or holds a Term Loan or a Revolving Credit Loan, respectively, at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer, (ii) if any Multicurrency Letters of Credit have been issued pursuant to Section 2.03, the Multicurrency Revolving Credit Lenders and (iii) if any USD Letters of Credit have been issued pursuant to Section 2.03, the USD Revolving Credit Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the USD Revolving Credit Lenders.

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

“ Arrangers ” means (i) with respect to the Term Facility and the Revolving Credit Facilities established on the Closing Date, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets , Inc., Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A. and The Bank of Tokyo-Mitsubishi UFJ, Ltd., in their capacities as joint lead arrangers and joint bookrunners and , (ii) with respect to the 2017 Term Facility and the 2017 Revolving Credit Facilities, Merrill Lynch, Pierce, Fenner & Smith Incorporated in its capacity as sole lead arranger and sole bookrunner . and (iii) with respect to the 2018 Refinancing Term Facility and the 2018 Revolving Credit Facilities, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Bank, National Association, Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A. and The Bank of Tokyo-Mitsubishi UFJ, Ltd., in their capacities as joint lead arrangers and joint bookrunners.

“ Asset Sale ” means a sale or lease (as lessor), sale and leaseback, assignment, conveyance, exclusive license (as licensor), transfer or other Disposition to, or any exchange of property with, any Person (other than the Company or any Subsidiary Guarantor), in one transaction or a series of transactions, of all or any part of the Company’s or any of its Subsidiaries’ businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, created, leased or licensed, including the Equity Interests of any of the Company’s Subsidiaries (but, for the avoidance of doubt, not including the issuance by the Company or any Subsidiary of Equity Interests), other than (i) inventory (or other tangible or intangible assets) sold, assigned, leased or licensed out in the ordinary course

 

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of business to the extent not otherwise prohibited hereunder, (ii) any Disposition to effect or in furtherance of the Reorganization, (iii) the transactions listed on Schedule 1.01(A), (iv) Permitted Licenses, (vi) the sale or other Disposition of Investment Grade Securities and Cash Equivalents in exchange for Cash, (vii) the sale, assignment, lease or license of any Discontinued Real Property and , (viii) the surrender or waiver of contract rights on the settlement, release or surrender of contract, tort or other claims and (ix) the sale or other Disposition of a Securitization Intercompany Note in connection with a Qualified Intercompany Note Transaction .

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.

“ Attributable Receivables Indebtedness ” at any time means the principal amount of Indebtedness which (i) if a Qualified Receivables Transaction is structured as a secured lending agreement, constitutes the principal amount of such Indebtedness or (ii) if a Qualified Receivables Transaction is structured as a purchase agreement, would be outstanding at such time under the Qualified Receivables Transaction if the same were structured as a secured lending agreement rather than a purchase agreement.

“ Audited Financial Statements ” means the audited consolidated balance sheet of the Company and its Subsidiaries for the Fiscal Year ended September 24, 2016, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such Fiscal Year of the Company and its Subsidiaries, including the notes thereto.

“ Auto-Extension Letter of Credit ” has the meaning specified in Section 2.03(b).

“ Auto-Reinstatement Letter of Credit ” has the meaning specified in Section 2.03(b).

“ Availability Period ” means, in respect of a Class of the Revolving Credit Facility, the period from and including the Closing Date to the earliest of (a) the Maturity Date for such Class of the Revolving Credit Facility, (b) the date of termination of the Revolving Credit Commitments of such Class pursuant to Section 2.05, and (c) the date of termination of the commitment of each Revolving Credit Lender of such Class to make Revolving Credit Loans of such Class and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.

“ Available Amount ” means, on any date (the “ Available Amount Reference Time ”), the sum of:

(a) $200,000,000, plus

(b) the Available ECF Amount, plus

 

8

(c) the amount of any Net Equity Proceeds from any issuance of Equity Interests received by or made to the Company (or any direct or indirect parent thereof and contributed by such parent to the Company) during the period commencing on the first day of the Fiscal Year ending in September 2018 through and including the Available Amount Reference Time, in each case, to the extent that such Equity Issuance is not prohibited hereunder, plus

(d) to the extent not (i) already included in the calculation of Consolidated Net Income of the Company and its Subsidiaries or (ii) already reflected as a return of capital, repayment of principal, or deemed reduction in the amount of such Investment pursuant to clause (e) below or any other provision of Section 7.06, the aggregate amount of all cash dividends, profits, returns, repayment of principal, cash distributions, or similar other amounts received by the Company or any Subsidiary from any Investment pursuant to Section 7.06 during the period commencing on the first day of the Fiscal Year ending in September 2018 through and including the Available Amount Reference Time, minus

(e) the aggregate amount of any Restricted Junior Payment made from the Available Amount pursuant to Section 7.04(k), in each case, during the period commencing on the first day of the Fiscal Year ending in September 2018 through and including the Available Amount Reference Time.

“ Available ECF Amount ” means, on any date, an amount determined on a cumulative basis equal to Consolidated Excess Cash Flow for each Fiscal Year of the Company commencing with the Fiscal Year ending in September 2018.

“ Availability Period ” means, in respect of a Class of the Revolving Credit Facility, the period from and including the Closing Date to the earliest of (a) the Maturity Date for such Class of the Revolving Credit Facility, (b) the date of termination of the Revolving Credit Commitments of such Class pursuant to Section 2.05, and (c) the date of termination of the commitment of each Revolving Credit Lender of such Class to make Revolving Credit Loans of such Class and of the obligation of the L/C Issuer to make L/C Credit Extensions of such Class pursuant to Section 8.02.

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

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

“ Bank of America ” means Bank of America, N.A. and its successors.

“ Base Indenture ” means that certain Indenture dated as of December 10, 2007 by and between Wilmington Trust Company, as trustee, and the Company.

 

9

“ Base Rate ” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the Eurocurrency Rate plus 1.00%; and if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

“ Base Rate Loan ” means a Revolving Credit Loan or a Term Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.

“ Beneficial Ownership Regulation ” means 31 C.F.R. § 1010.230.

“ Board of Directors ” shall mean, as to any Person, the board of directors or managers, as applicable, or other governing body of such Person, or if such person is managed by a single entity, the board of directors or managers, as applicable, or other governing body of such entity.

“ Borrower ” and “ Borrowers ” each has the meaning specified in the introductory paragraph hereto.

“ Borrowing ” means a Revolving Credit Borrowing, a Term Borrowing and/or a Swing Line Borrowing, as the context may require.

“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office with respect to Loan Document Obligations denominated in Dollars is located and:

(a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan or a LIBOR Daily Floating Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan or LIBOR Daily Floating Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan or LIBOR Daily Floating Rate Loan, means any such day that is also a London Banking Day;

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

 

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(c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and

(d) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

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

“ Cash ” means money, currency or a credit balance in any demand or Deposit Account.

“ Cash Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of the Lenders to fund participations in respect thereof, cash or deposit account balances or, at the request of the Company, if the Administrative Agent, the L/C Issuer or the Swing Line Lender shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent, the L/C Issuer or the Swing Line Lender (as applicable). “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“ Cash Equivalents ” means, as at any date of determination, any of the following: (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States government, (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, or (c) issued or directly and unconditionally guaranteed as to interest and principal by any country which is a member of the Organization for Economic Cooperation and Development (the “ OECD ”), in each case maturing within one year after such date of determination; (ii) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date of determination and having, at the time of the acquisition thereof, a rating of at least A 1 from S&P or at least P-1 from Moody’s; (iii) (a) commercial paper maturing no more than one year from such date of determination and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s and (b) securities commonly known as “short-term bank notes” issued by any Lender and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s; (iv) demand deposits, certificates of deposit, bankers’ acceptances and/or time deposits maturing within one year after such date of determination and issued or accepted

 

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by any Lender or by (a) any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia or Canada that has total assets of not less than $1,000,000,000 or (b) a commercial bank organized under the laws of any other country which is a member of the OECD, or a political subdivision of such country, and having total assets of not less than $1,000,000,000, provided that such bank is acting through a branch or agency located in the country in which is organized or another country which is a member of the OECD; (v) taxable or tax-exempt securities which at the time of purchase have been rated and the ratings for which are not less than A 3 if rated by Moody’s, and not less than A- if rated by S&P, (vi) shares of any money market mutual fund or similar fund that is primarily invested in some combination of the types of investments referred to in clauses (i) through (v) above (though such mutual fund shall not be required to maintain investments in each of such types of investments); and (vii) instruments equivalent to those referred to in clauses (i) to (vi) above denominated in Euros, Pounds Sterling, or any other major currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent required or advisable in connection with any business conducted by the Company or any Subsidiary organized or operating in such jurisdiction.

“ Cash Management Agreements ” means those agreements entered into from time to time by the Company or its Subsidiaries with a Cash Management Provider in connection with the obtaining of any Cash Management Services.

“ Cash Management Obligations ” means all obligations, liabilities, contingent reimbursement obligations, fees and expenses owing by the Company or any of its Subsidiaries to any Cash Management Provider pursuant to or evidenced by the Cash Management Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising.

“ Cash Management Provider ” means any Lender or Affiliate of a Lender which provides Cash Management Services to the Company or its Subsidiaries; provided that each such Affiliate shall appoint the Collateral Agent as its agent and agree to be bound by the Loan Documents as a Secured Party, subject to Section 9.11.

“ Cash Management Services ” means any cash management, including controlled disbursement, accounts, brokerage services, or related services (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) provided to the Company or any of its Subsidiaries by a Cash Management Provider.

“ CFC ” means a Person that is a controlled foreign corporation under Section 957 of the Code.

“ Change in Law ” means the occurrence, after the Restatement Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making

 

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or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith, (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III and (z) the CRD IV and any law or regulation which implements CRD IV in any jurisdiction, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“ Change of Control ” means, at any time, (i) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) (a) shall have acquired beneficial ownership of 35% or more on a fully diluted basis of the total outstanding voting interest in the Equity Interests of the Company or (b) shall have obtained the power (whether or not exercised) to elect a majority of the members of the Board of Directors (or similar governing body) of the Company; or (ii) the occurrence of a “Change of Control” (or any comparable term) under, and as defined in, the documents evidencing any Indebtedness permitted pursuant to one or more of Sections 7.01(h), (j), (k), (o) or (p) in an aggregate principal amount of not less than $100,000,000.

“ Class ” means (i) with respect to Lenders, each of the following classes of Lenders: (a) Term Lenders, (b) Multicurrency Revolving Credit Lenders, (c) USD Revolving Credit Lenders (including the Swing Line Lender) and (d) New Term Loan Lenders; (ii) with respect to Loans, each of the following classes of Loans: (a) Term Loans, (b) Multicurrency Revolving Credit Loans, (c) USD Revolving Credit Loans (including Swing Line Loans) and (d) each Series of New Term Loans; (iii) with respect to Commitments, each of the following classes of Commitments: (a) Term Commitments, (b) Multicurrency Revolving Credit Commitments, (c) USD Revolving Credit Commitments and (d) New Term Loan Commitments and (iv) with respect to Facilities, each of the following classes of Facilities: (a) the Term Facility, (b) the Multicurrency Revolving Credit Facility and (c) the USD Revolving Credit Facility.

“ Closing Date ” means May 29, 2015.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Co-Development Agreement ” means an agreement between the Company or any Subsidiary and a third party (excluding, for the avoidance of doubt, any joint venture or Subsidiary) which primarily relates to the co-development or joint development of Intellectual Property, and which does not materially interfere with the conduct of the Company’s or any of its Subsidiaries’ business as conducted on the Restatement Date (or as permitted by Section 7.11) or materially detract from the value thereof.

“ Co-Documentation Agents ” means (i) with respect to the Term Facility and the Revolving Credit Facilities established on the Closing Date, DNB Bank ASA, New York, HSBC Bank USA, National Association and Sumitomo Mitsui Banking Corporation, in their capacities as documentation agents and , (ii) with respect to the 2017 Term Facility

 

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and the 2017 Revolving Credit Facilities, Morgan Stanley Senior Funding, Inc. and Wells Fargo Bank, N.A. National Association and (iii) with respect to the 2018 Refinancing Term Facility and the 2018 Revolving Credit Facilities, DNB Bank ASA, New York, HSBC Bank USA, National Association, Morgan Stanley Senior Funding, Inc., Sumitomo Mitsui Banking Corporation and Citigroup Global Markets Inc.

“ Collateral ” means all of the “ Collateral ” or other similar terms referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties.

“ Collateral Agent ” means Bank of America, in its capacity as Collateral Agent under the Collateral Documents.

“ Collateral Documents ” means the Pledge and Security Agreement, the Intellectual Property Security Agreements, and all other instruments, documents and agreements delivered by any Loan Party pursuant to this Agreement or any of the other Loan Documents in order to grant to, or perfect in favor of, the Collateral Agent, for the benefit of the Secured Parties, a Lien on any real, personal or mixed property of that Loan Party as security for the Obligations.

“ Commitment ” means a Term Commitment or a Revolving Credit Commitment, as the context may require.

“ Committed Loan Notice ” means a notice of (a) a Term Borrowing, (b) a Multicurrency Revolving Credit Borrowing, (c) a USD Revolving Credit Borrowing, (d) a conversion of Loans from one Type to the other, or (e) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the applicable Borrower.

“ Commitment Fee ” has the meaning specified in Section 2.09.

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

“ Commodity Price Protection Agreement ” means any forward contract, commodity swap, commodity option or other similar financial agreement or arrangement relating to, or the value of which is dependent upon, fluctuations in commodity prices.

“ Company ” has the meaning specified in the introductory paragraph hereto.

“ Company Materials ” has the meaning specified in Section 6.01(m).

“ Compliance Certificate ” means a certificate substantially in the form of Exhibit D.

 

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

“ Consolidated Adjusted EBITDA ” means, for any period, the Consolidated Net Income of the Company and its Subsidiaries for such period plus, without duplication and to the extent reducing net income (and not excluded in determining Consolidated Net Income) for such period, the sum of:

(a) any expense and provision for taxes, paid or accrued (including any penalties and interest related thereto), including without limitation, the U.S. medical device excise tax and any business license or state or other governmental franchise fees,

(b) Adjusted Consolidated Interest Expense, milestone payments in connection with any investment or series of related investments, losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of gains on such hedging obligations, and costs of surety bonds in connection with financing activities,

(c)	Consolidated Depreciation and Amortization Expense,

(d) any non-cash expenses, losses and charges and non-cash revenue loss recorded in respect of purchase accounting (including, but not limited, to revenue not recognized as a result of the write-up of accounts receivable), and non-cash or unrealized exchange, translation or performance expenses, losses and charges relating to any foreign currency hedging transactions or currency fluctuations,

(e) (i) any non-cash exchange, translation or performance losses relating to any foreign currency hedging transactions or currency fluctuations and (ii) any other non-cash expenses, losses and charges (including, without limitation, incurred pursuant to any equity incentive plan or award or arising from any impairment of intangible assets or goodwill, but excluding any such non-cash charge to the extent that it represents an accrual or reserve for cash expenses in any future period, an amortization of a prepaid cash expense that was paid in a prior period or a write-off, writedown or reserve with respect to current assets),

(f) any unusual expenses, losses or charges, including without limitation, any pre-opening, opening, restructuring, closure, integration, transition and similar expenses, losses or charges accrued during such period, including any charges to establish accruals and reserves or to make payments associated with the reassessment or realignment of the business and operations of the Company and its Subsidiaries, including, without limitation, the sale, disposal, closing, abandonment or discontinuance of assets (other than in the ordinary course of business), facilities or operations, severance and curtailments or modifications to pension and post-retirement employee benefit plans, retention payments in connection therewith, asset write-downs or asset disposals, write-downs for purchase and lease commitments, write-downs of excess, obsolete or unbalanced inventories, relocation costs which are not otherwise capitalized and any related costs of existing products or product lines; provided that the aggregate amount

 

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added back pursuant to this paragraph (f), together with the amount of projected synergies and cost savings added back pursuant to Section 1.10(c), shall not exceed 15% of Consolidated Adjusted EBITDA for such period, calculated without giving effect to any adjustment pursuant to this paragraph (f) or Section 1.10(c) as it relates to projected synergies and cost savings,

(g) expenses, losses and charges with respect to casualty events or business interruption,

(h) expenses, losses and charges incurred to the extent covered by indemnification provisions in any agreement in connection with any acquisition or disposition permitted hereunder, so long as such Person has made a determination that a reasonable basis exists for indemnification or reimbursement, but only to the extent that such amount is in fact indemnified or reimbursed within 12 months of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 12 months),

(i) any contingent or deferred payment obligations (including, but not limited to, severance, retention, earn-out payments, non-compete payments and consulting payments, together with any interest or similar charge of expense imputed or otherwise accrued in respect of any of the foregoing but excluding ongoing royalty payments) incurred in connection with any Prior Acquisition or any Permitted Acquisition (or any other acquisition constituting a permitted Investment),

(j) non-cash expenses, losses and charges pursuant to Statement of Financial Accounting Standards No. 158 (codified within Accounting Standards Codifications 715-20, Defined Benefit Plans—General and 715-30, Defined Benefit Plans—Pension); and

(k) all costs or expenses incurred in connection with the payment or accrual of dividend equivalent rights pursuant to any equity incentive plan or award, but only to the extent that equivalent payments are being or have been made with respect to Equity Interests in the Company;

minus (without duplication) , to the extent increasing net income (and not excluded in determining Consolidated Net Income) for such period, (i) any cash payments made during such period on account of non-cash charges added to Consolidated Net Income pursuant to clause (e) above in such period or any prior period, (ii) all non-cash income or gains (but excluding any such amount (x) in respect of which cash or other assets were received in a prior period or will be received or (y) which represents the reversal of an accrual or cash reserve for anticipated cash charges in any prior period) and non-cash exchange, translation or performance gains relating to any foreign currency hedging transactions or currency fluctuations and (iii) any unusual income or gains, all calculated for the Company and its Subsidiaries in accordance with GAAP on a consolidated basis;

 

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provided that, without duplication and to the extent included in Consolidated Net Income, any adjustments resulting from the application of Accounting Standards Codification 815 shall be excluded in determining Consolidated Adjusted EBITDA.

“ Consolidated Capital Expenditures ” means, for any period, the aggregate of all expenditures of the Company and its Subsidiaries during such period determined on a consolidated basis that, in accordance with GAAP, are or should be included in “purchase of property and equipment,” “construction in-process,” “purchase or capitalized development of intellectual property,” “increase in equipment under customer usage agreements” or similar items reflected in the consolidated statement of cash flows of the Company and its Subsidiaries.

“ Consolidated Current Assets ” means, as at any date of determination, the total assets of a Person and its Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding Cash and Cash Equivalents.

“ Consolidated Current Liabilities ” means, as at any date of determination, the total liabilities of a Person and its Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP, excluding the current portion of long-term debt.

“ Consolidated Depreciation and Amortization Expense ” means with respect to any Person for any period, the total amount of depreciation and amortization expense, including any amortization of intangibles, including, without limitation, goodwill, of such Person and its Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.

“ Consolidated Excess Cash Flow ” means, for any period, an amount (if positive (it being understood and agreed that if actual Consolidated Excess Cash Flow is negative for any period, Consolidated Excess Cash Flow shall be zero for such period)) equal to:

(a) the sum, without duplication (including, without limitation, duplication of the effects of adjustments or exclusions provided for in the definitions of Consolidated Adjusted EBITDA and Consolidated Net Income), of (i) Consolidated Adjusted EBITDA, (ii) the Consolidated Working Capital Adjustment (which may be a negative amount) and (iii) the amount related to items that were deducted or excluded (with the result that Consolidated Adjusted EBITDA was reduced) hereunder in calculating Consolidated Adjusted EBITDA to the extent either (A) such items represent cash received by the Company or any Subsidiary (but excluding, other than for purposes of the definition of Available ECF Amount, cash gains excluded from Consolidated Net Income pursuant to clause (h) of the definition thereof) or (B) such items do not represent cash paid by the Company or any Subsidiary; minus

 

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(b) the sum, without duplication (including, without limitation, duplication of the effects of adjustments or exclusions provided for in the definitions of Consolidated Adjusted EBITDA and Consolidated Net Income), of the amounts for such period paid in cash (or, in the case of clause (I) below, held in reserve) from operating cash flow (except, with respect to clauses (B) (solely with respect to scheduled repayments of Indebtedness for borrowed money), (E), (I) and (J) below, to the extent funded with Cash proceeds from Indebtedness (including, without limitation, Revolving Credit Loans) or Cash proceeds from the issuance of any Equity Interests of the Company or any of its Subsidiaries) of (A) payments relating to expenses or provision for taxes with respect to such period, (B) Adjusted Consolidated Cash Interest Expense, milestone payments in connection with any investment or series of related investments, costs of surety bonds in connection with financing activities and scheduled repayments of Indebtedness for borrowed money and scheduled repayments of obligations under Capital Leases, (C) consideration in respect of any Consolidated Capital Expenditure, (D) consideration in respect of any Prior Acquisition or any Permitted Acquisition (or any other acquisition constituting a permitted Investment), (E) the aggregate amount of principal prepayments of long-term Indebtedness of the Company and its Subsidiaries, excluding (v) amounts prepaid pursuant to Section 2.05(c)(ix)(B)(y), (w) all prepayments of Term Loans (other than, for the avoidance of doubt, scheduled payments of Term Loans referred to in clause (b)(B) above and mandatory prepayments pursuant to Sections 2.05(c)(i) and 2.05(c)(ii)), (x) all prepayments of Swing Line Loans and Revolving Credit Loans, (y) all prepayments in respect of any revolving credit facility, except to the extent there is an equivalent permanent reduction in commitments thereunder and (z) all prepayments of Junior Financing, (F) the amount related to items that were added back or excluded (with the result that Consolidated Adjusted EBITDA was increased) hereunder in calculating Consolidated Adjusted EBITDA to the extent either (1) such items represent cash payments made by the Company or any Subsidiary (which had not reduced Consolidated Excess Cash Flow upon the accrual thereof in a prior Fiscal Year), (but excluding, other than for purposes of the definition of Available ECF Amount, cash losses excluded from Consolidated Net Income pursuant to clause (h) of the definition thereof) or (2) such items do not represent cash received by the Company or any Subsidiary, (G) to the extent not expensed during such period, the aggregate amount of costs, fees and expenses in connection with the consummation of any Prior Acquisition, Permitted Acquisition, permitted Investment, Asset Sale, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or other modification of any Indebtedness (in each case, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed), (H) payments made with respect to any and all existing and future Adverse Proceedings, ( I) amounts used to fund the Convertible Note Repayment Reserve to the extent permitted under the definition thereof and (J) without duplication of amounts deducted pursuant to clause (b)(I) above in a prior period that were applied to Convertible Note Repayment Obligations or to purchase or repurchase Convertible Notes pursuant to Section 7.04(c)(y), the aggregate amount applied to (x) Convertible Note Repayment Obligations or (y) purchase or repurchase Convertible Notes pursuant to Section 7.04(c)(y), in each case in such period; plus

(c) amounts deducted pursuant to clause (b)(I) above in a prior period to the extent not applied to the Convertible Note Repayment Obligations or to purchase or repurchase Convertible Notes pursuant to Section 7.04(c)(y) within the applicable time period specified in the definition of Convertible Note Repayment Reserve;

 

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provided that, for the purpose of calculating Consolidated Net Income or Consolidated Adjusted EBITDA included in the definition of Consolidated Excess Cash Flow in connection with any Pro Forma Transaction, the income (or loss) of any Person or business accrued prior to the date it becomes a Subsidiary of the Company shall not be included.

“ Consolidated Net Debt ” means, as of any date of determination, (a) Consolidated Total Debt less (b) the aggregate amount (not to exceed $1,000,000,000) of Qualified Cash as of such date.

“ Consolidated Net Income ” means, for any period, the consolidated net income (or loss) of the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP; provided that, in calculating the Consolidated Net Income of the Company and its Subsidiaries for any period, there shall be excluded (without duplication):

(a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary of the Company or is merged into or consolidated with the Company or any of its Subsidiaries (except as contemplated by Section 1.10);

(b) the income (or deficit) of any Person in which the Company or any of its Subsidiaries has an ownership interest that is either (x) not a Subsidiary or (y) accounted for by the equity method of accounting, except to the extent that any such income is actually received by the Company or such Subsidiary in the form of dividends or similar distributions;

(c) the undistributed earnings of any Subsidiary of the Company to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any agreement, instrument, contract or other undertaking to which such Subsidiary is a party or by which any of its property is bound or any law, treaty, rule, regulation or determination of an arbitrator or a court of competent jurisdiction or other Governmental Authority, in each case, applicable or binding upon such Subsidiary or any of its property or to which such Subsidiary or any of its property is subject;

(d) any fees, expenses, charges or losses recognized during such period, or any amortization or write-off thereof for such period, in connection with the consummation of any Prior Acquisition, Permitted Acquisition, Investment, asset disposition, issuance or repayment of Indebtedness, issuance of Equity Interests, recapitalizations, mergers, refinancing transaction or amendment, waiver or other modification of any Indebtedness or similar transactions (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 or unusual costs, expenses or losses recognized during such period as a result of any such transaction;

 

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(e) any amortization of deferred charges resulting from the application of Accounting Standards Codification 470-20, Debt (but only to the extent of the information therein that was codified from Financial Accounting Standards Board Staff Position No. APB 14-1—Accounting for Convertible Debt Instruments That May Be Settled in Cash upon Conversion (Including Partial Cash Settlement) or related interpretations or guidance) (including, for the avoidance of doubt, as a result of its application to Convertible Notes issued in exchange for other Convertible Notes);

(f) any unusual, non-recurring or extraordinary gain, loss, expense or charge (including, without limitation, any gains, losses, expenses or charges arising out of judgments or the settlement of any Adverse Proceeding listed on Schedule 5.11);

(g) any income, loss, expense or charge for such period attributable to the exchange or early extinguishment of Indebtedness, together with any related provision for taxes on any such income;

(h) any net after-tax gains or losses attributable to (i) asset dispositions (including any Qualified Receivables Transaction and any asset dispositions referenced in clause (ix) of the definition of “Asset Sale” set forth herein ) other than in the ordinary course of business and (ii) dispositions of minority investments, in each case, as determined in good faith by the Company;

(i) any non-cash gain, loss, expense or charge attributable to the movement in the mark-to-market valuation of Indebtedness; and

(j) (x) any gains or losses resulting from any reappraisal, revaluation or write-up or write-down of assets, and (y) the purchase accounting effects of in process research and development expenses and adjustments to property, inventory, accounts receivable (including revenue not recognized as a result of the write up of accounts receivable) and equipment, software and other intangible assets and deferred revenue and deferred expenses in component amounts required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the Company and the Subsidiaries), in the case of clause (y), as a result of any acquisition consummated prior to the Closing Date, or any Permitted Acquisition, or the amortization or write-off of any amounts thereof.

“ Consolidated Senior Secured Debt ” means, as of any date of determination, Consolidated Total Debt that is secured by a Lien on the assets of the Loan Parties.

“ Consolidated Senior Secured Net Debt ” means, as of any date of determination, (a) Consolidated Senior Secured Debt less (b) the aggregate amount (not to exceed $1,000,000,000) of Qualified Cash as of such date.

“ Consolidated Tangible Assets ” means the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom all goodwill, trade names, patents, unamortized debt discount and expense and any other like intangibles, in each case as set forth on the then-most recent consolidated balance sheet of the Company and computed in accordance with GAAP.

 

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“ Consolidated Total Debt ” means, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of the Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP.

“ Consolidated Working Capital ” means, as at any date of determination, the excess of Consolidated Current Assets of the Company and its Subsidiaries over Consolidated Current Liabilities of the Company and its Subsidiaries.

“ Consolidated Working Capital Adjustment ” means, for any period on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period. In calculating the Consolidated Working Capital Adjustment, there shall be excluded the effect of reclassification during such period of current assets to long-term assets, long term assets to current assets, current liabilities to long-term liabilities and long term liabilities to current liabilities and the effect of any Permitted Acquisition (and/or any other acquisition that constitutes a permitted Investment) or Asset Sale during such period; provided that there shall be included with respect to any Permitted Acquisition (and/or any other acquisition that constitutes a permitted Investment) or Asset Sale during such period, an amount (which may be a negative number) by which the Consolidated Working Capital acquired in such Permitted Acquisition (and/or any other acquisition that constitutes a permitted Investment) or disposed of in such Asset Sale as at the time of such acquisition or such Asset Sale exceeds (or is less than) Consolidated Working Capital at the end of such period.

“ Contractual Obligation ” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.

“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

“ Contributing Guarantors ” has the meaning specified in Section 11.02.

“ Convertible Note Put Date ” means with respect to each series of Convertible Notes, a date on which holders thereof may require the Company to repurchase such Convertible Notes under the terms thereof.

“ Convertible Note Repayment Event ” means (i) the repurchase of Convertible Notes by the Company upon the exercise of the holder’s right to require the Company to repurchase its Convertible Notes, (ii) the redemption of Convertible Notes by the Company upon the exercise of the Company’s option to call or otherwise redeem such Convertible Notes from the holder thereof, (iii) the election by the Company to make a settlement payment, in whole or in part, in cash (rather than Equity Interests) following the conversion of any Convertible Notes into Equity Interests by the holder thereof or (iv) the exchange of Convertible Notes by the Company in connection with a Permitted Refinancing, in each case in accordance with the terms of the applicable Convertible Notes.

 

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“ Convertible Note Repayment Obligations ” means any cash payment paid by the Company or any of its Subsidiaries (i) to a holder of a Convertible Note upon the occurrence of a Convertible Note Repayment Event including without limitation, the purchase price in regards to the Convertible Note being purchased or repurchased and/or all cash payments of principal, premium, interest, accretion, and fees incurred in connection with any redemption, purchase or repurchase in connection with such Convertible Note Repayment Event (other than an event set forth in clause (iv) of the definition thereof), or (ii) on account of any recapture taxes (or any other applicable taxes) due by the Company or any of its Subsidiaries in respect thereto, in each case, in connection with the redemption, repayment, repurchase, conversion or exchange thereof upon a Convertible Note Repayment Event.

“ Convertible Note Repayment Reserve ” means, with respect to each series of Convertible Notes, cash reserves established by the Company, in its discretion, to fund future Convertible Note Repayment Obligations in an amount not to exceed the Convertible Note Repayment Obligation which the Company in its good faith, reasonable judgment believes it will incur in connection with the next scheduled Convertible Note Put Date, which reserve the Company may begin to fund eighteen (18) months immediately preceding the next scheduled Convertible Note Put Date in respect of the applicable series of Convertible Notes (it being understood and agreed that to the extent the amount reserved in any period exceeds the actual Convertible Note Repayment Obligations, the Company shall not be required to apply such excess amount to make an excess cash flow payment (if any) in connection with any Loans) . The Convertible Note Repayment Reserve (x) shall be invested in Cash or Cash Equivalents held in a general (i.e., non-escrow) deposit account of the Company and (y) for the avoidance of doubt may be applied to the purchase or repurchase of Convertible Notes pursuant to Section 7.04(c)(y) (including pursuant to the purchase or repurchase of such Convertible Notes through negotiated or open market transactions).

“ Convertible Notes ” means (i) the 2.00% Convertible Exchange Senior Notes due 2037, issued by the Company pursuant to the Base Indenture and that certain Second Supplemental Indenture dated as of November 23, 2010, by and between Wilmington Trust Company, as trustee, and the Company, (ii) the 2.00% Convertible Senior Notes due 2042, issued by the Company pursuant to the Base Indenture and that certain Third Supplemental Indenture dated as of March 5, 2012, by and between Wilmington Trust Company, as trustee, and the Company, (iii) the 2.00% Convertible Senior Notes due 2043 issued by the Company pursuant to the Base Indenture and that certain Fourth Supplemental Indenture dated as of February 21, 2013 by and between Wilmington Trust Company, as trustee, and the Company and (iv) any other series of convertible notes which may be issued in a Permitted Refinancing of such Convertible Notes (including an exchange therefor).

“ Cost Shared Intangibles ” has the meaning specified in the term “Permitted R&D Cost Sharing Agreement.”

 

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“ Co-Syndication Agents ” means (i) with respect to the Term Facility and the Revolving Credit Facilities established on the Closing Date, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets , Inc., Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A. and The Bank of Tokyo-Mitsubishi UFJ, Ltd., in their capacities as syndication agents, (ii) with respect to the 2017 Term Facility and the 2017 Revolving Credit Facilities established on the Restatement Date , October 3, 2017, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A. and The Bank of Tokyo-Mitsubishi UFJ, Ltd., in their capacities as syndication agents and ( ii iii ) with respect to the 2017 2018 Refinancing Term Facility and the 2017 2018 Revolving Credit Facilities established on the Restatement Date , October 3, 2017 . , Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Bank, National Association, Goldman Sachs Bank USA, JPMorgan Chase Bank, N.A. and the Bank of Tokyo-Mitsubishi UFJ, Ltd.

“ Counterpart Agreement ” means a Counterpart Agreement substantially in the form of Exhibit G delivered by a Loan Party pursuant to Section 6.10.

“CRD IV” means (A) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 and (B) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC.

“ Credit Agreement Refinancing Indebtedness ” has the meaning specified in in Section 2.19.

“ Credit Date ” means the date of a Credit Extension.

“ Credit Extension ” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

“ CTA ” means the Corporation Tax Act 2009.

“ Currency Agreement ” means any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic cap or other similar agreement or arrangement, each of which is for the purpose of hedging the foreign currency risk associated with the Company’s and its Subsidiaries’ operations and not for speculative purposes.

“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, the Insolvency Act 1986 of the United Kingdom and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States, the United Kingdom or other applicable jurisdictions from time to time in effect.

“ Declined Proceeds ” has the meaning specified in Section 2.05(c)(x).

 

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“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“ Default Rate ” means (a) when used with respect to Loan Document Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided, however , that with respect to a Eurocurrency Rate Loan or a LIBOR Daily Floating Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.

“ Defaulting Lender ” means, subject to Section 2.18(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Company in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Company, the Administrative Agent, the L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative Agent and the Company that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Company), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or such Lender or its direct or indirect parent company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment or become insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of creditors or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a

 

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Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.18(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Company, the L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination. Failure of the Administrative Agent to conclude that a Lender is a Defaulting Lender shall not limit the rights and remedies of the Loan Parties in regards to any Lender that constitutes a Defaulting Lender.

“ Deposit Account ” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.

“ Designated Borrower ” has the meaning specified in the introductory paragraph hereto.

“ Designated Borrower Sublimit ” means an amount equal to the lesser of the Aggregate Revolving Commitments and $200,000,000. The Designated Borrower Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

“ Designated Borrower Notice ” has the meaning specified in Section 2.14(a).

“ Designated Borrower Request and Assumption Agreement ” has the meaning specified in Section 2.14(a).

“ Designated Non-Cash Consideration ” means non-cash consideration (including any purchase price holdbacks) received by the Company or a Subsidiary in connection with an Asset Sale pursuant to Section 7.08(c) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer setting forth the fair market value thereof and the basis of such valuation (which amount will be reduced by the fair market value of the portion of such non-cash consideration converted to Cash within 270 days following the consummation of the applicable Asset Sale).

“ Discontinued Real Property ” means all or any portion of real property owned or leased by the Company or a Subsidiary which, in the good faith judgment of the Company, is no longer used or useful in the business of the Company and its Subsidiaries; provided that no Material Real Estate Asset shall constitute Discontinued Real Property.

 

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“ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback Transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith (but, for the avoidance of doubt, not including the issuance by the Company or any Subsidiary of Equity Interests).

“ Disqualified Equity Interests ” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily redeemable (other than solely for Equity Interests which are not otherwise Disqualified Equity Interests), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of the holder thereof (other than solely for Equity Interests which are not otherwise Disqualified Equity Interests), in whole or in part, (iii) requires the scheduled payments or dividends in cash or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the Latest Maturity Date, except, in the case of clauses (i) and (ii), if as a result of a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence of such a change of control or asset sale event are subject to the prior payment in full of all Obligations, the cancellation or expiration of all Letters of Credit and the termination of the Commitments.

“ Disqualified Institution ” means (a) any Person that competes with the business of the Company and its Subsidiaries from time to time, as identified on a list made available to the Administrative Agent from time to time and (b) as to any entity referenced in clause (a) above (a “ Primary Disqualified Institution ”), any of such Primary Disqualified Institution’s known Affiliates that is readily identifiable as such by name, but excluding any Affiliate that is primarily engaged in, or that advises funds, or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course and with respect to which such Primary Disqualified Institution does not, directly or indirectly, possess the power to direct or cause the direction of such entity; it being understood and agreed that the identification of any Person as a Disqualified Institution after the Closing Date shall not apply to retroactively disqualify any Person that has previously acquired an assignment or participation interest in any Loan or Commitment to the extent that Person still holds such Loan or participation interest at the time that such Person is identified as a Disqualified Institution. The list of Disqualified Institutions shall be posted to the Platform, it being understood that the Company may update such list from time to time with respect to Disqualified Institutions to the extent provided for above, and the Administrative Agent shall, upon request of the Company, post such updated schedule to the Platform promptly following its receipt thereof, with such updates effective solely upon the posting thereof to the Platform.

“ Dollar ” and “$” mean lawful money of the United States.

 

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“ Dollar Equivalent ” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as calculated by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the then-most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.

“ Domestic Real Estate Asset ” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any U.S. Loan Party in any real property located in the United States.

“ Domestic Subsidiary ” means any Subsidiary of the Company that is organized under the laws of any political subdivision of the United States.

“ Drop-Down Consideration ” has the meaning specified in the definition of Permitted Foreign Subsidiary Realignment Transaction.

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

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

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

“ Eligible Assignee ” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).

“ Employee Benefit Plan ” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored within the prior six (6) years, maintained or contributed to by, or required to be contributed by, the Company, any of its Subsidiaries or any of their respective ERISA Affiliates.

“ Environmental Claim ” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order (conditional or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of, or liability under, any Environmental Law; (ii) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment.

 

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“ Environmental Laws ” means any and all foreign, domestic or transnational, federal or state (or any subdivision of either of them) statutes, common law, ordinances, orders, rules, regulations, judgments, Governmental Authorizations or any other requirements of or agreements with Governmental Authorities as any of the foregoing may be amended relating to (i) environmental matters, including those relating to any Hazardous Materials Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous Materials; or (iii) occupational and human safety and health, industrial hygiene or land use, in any manner applicable to the Company or any of its Subsidiaries or any Real Property Facility.

“ Equity Interests ” of any Person means any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock, other equity interests whether now outstanding or issued after the Restatement Date, partnership interests (whether general or limited), limited liability company interests, any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any preferred stock, and any rights (other than debt securities convertible into, or exchangeable for or valued by reference to, Equity Interests until and unless any such debt security is converted into Equity Interests), warrants or options exchangeable for or convertible into such Equity Interest or any other rights to subscribe to or otherwise acquire such Equity Interests.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.

“ ERISA Affiliate ” means, as applied to any Person, (i) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Code of which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member. Any former ERISA Affiliate of the Company or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of the Company or any such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of the Company or such Subsidiary and with respect to liabilities attributable to such period arising after such period for which the Company or such Subsidiary could be liable under the Code or ERISA.

“ ERISA Event ” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code), or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan, or the failure to make by its due date any required contribution to a Multiemployer Plan; (iii) the provision by

 

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the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by the Company, any of its Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two (2) or more contributing sponsors or the termination of any such Pension Plan resulting in liability to the Company, any of its Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or Section 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which would reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on the Company, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or Section 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of the Company, any of its Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Section 4203 and Section 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefore, or the receipt by the Company, any of its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or Section 4042 of ERISA; (viii) the occurrence of an act or omission which would reasonably be expected to give rise to the imposition on the Company, any of its Subsidiaries or any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Section 409, Section 502(c), (i) or (l) or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against the Company, any of its Subsidiaries or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; (xi) the imposition of a Lien pursuant to Section 430(k) of the Code or ERISA or a violation of Section 436 of the Code; or (xii) the occurrence of a Foreign Benefit Event.

“ 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.

“ Euro ” and “ € ” mean the single currency of the Participating Member States.

“ Eurocurrency Rate ” means:

(a) With respect to any Credit Extension:

(i) denominated in a LIBOR Quoted Currency, for any Interest Period with respect to a Eurocurrency Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“ LIBOR ”) or a successor rate (or, if not available, a comparable rate), which rate is approved by the Administrative Agent, as published on the applicable

 

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Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (the “ LIBOR Screen Rate ”) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period;

(ii) denominated in any Non-LIBOR Quoted Currency, the rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent, the Multicurrency Revolving Credit Lenders and/or the L/C Issuer pursuant to Section 1.06(a); and

(b) for any interest rate calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day;

provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided , further , that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent; provided , further , that if the Eurocurrency Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

“Eurocurrency Rate Loan ” means a Revolving Credit Loan or a Term Loan that bears interest at a rate based on clause (a) of the definition of “Eurocurrency Rate”. Eurocurrency Rate Loans that are Multicurrency Revolving Credit Loans may be denominated in Dollars or in an Alternative Currency. Eurocurrency Rate Loans that are Term Loans or USD Revolving Credit Loans shall be denominated in Dollars. All Loans denominated in an Alternative Currency must be Eurocurrency Rate Loans.

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

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.

“ Excluded Disregarded Entity ” means any Subsidiary of the Company substantially all of the assets of which are Equity Interests in one or more Foreign Subsidiaries that are CFCs.

“ Excluded Subsidiary ” means (i) any Subsidiary of the Company that is a Massachusetts securities corporation or a Receivables Entity, (ii) any Foreign Subsidiary, (iii) any Immaterial Domestic Subsidiary , (iv) any Real Estate Loan Borrower (only so long as such Indebtedness incurred pursuant to Section 7.01(z) remains outstanding) and (iv) unless otherwise agreed by the Company in writing, any Domestic Subsidiary that is an Excluded Disregarded Entity or a Subsidiary of a Foreign Subsidiary that is a CFC.

 

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“ Excluded Swap Obligation ” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) (after giving effect to any keepwell, guaranty or other support agreement) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one “swap” within the meaning of section 1a(47) of the Commodity Exchange Act, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.

“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii) or (c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.

“ Existing Class ” has the meaning specified in Section 2.15(a).

“Existing Credit Agreement” means that certain Credit and Guaranty Agreement dated as of August 1, 2012 (as amended, modified or otherwise supplemented prior to the Closing Date) among the Company, the subsidiaries of the Company party thereto, Goldman Sachs Bank USA, as Administrative Agent and the other parties thereto.

“ Existing L/C Issuer ” means JPMorgan Chase Bank, N.A., in its capacity as issuer of the Existing Letters of Credit.

“ Existing Letters of Credit ” means those certain letters of credit issued in connection with and/or outstanding under the Existing Credit Agreement and outstanding on the Closing Date and listed on Schedule 1.01(B) hereto.

 

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“ Existing Multicurrency Revolving Credit Commitments ” has the meaning specified in Section 2.15(c).

“ Existing Revolving Credit Commitments ” means the Existing Multicurrency Revolving Credit Commitments and/or the Existing USD Revolving Credit Commitments, as the context may require.

“ Existing Term A Loan ” means all Term Loans outstanding immediately prior to the effectiveness of this Agreement.

“ Existing Term Loans ” has the meaning specified in Section 2.15(c).

“ Existing USD Revolving Credit Commitments ” has the meaning specified in Section 2.15(c).

“ Extended Maturity Date ” has the meaning specified in Section 2.15(a).

“ Extended Multicurrency Revolving Credit Commitments ” has the meaning specified in Section 2.15(c).

“ Extended Revolving Credit Commitments ” means the Extended Multicurrency Revolving Credit Commitments and/or the Extended USD Revolving Credit Commitments, as the context may require.

“ Extended Term Loans ” has the meaning specified in Section 2.15(c).

“ Extended USD Revolving Credit Commitments ” has the meaning specified in Section 2.15(c).

“ Extension ” has the meaning specified in Section 2.15(a).

“ Extension Amendments ” has the meaning specified in Section 2.15(f).

“ Extension Offer ” has the meaning specified in Section 2.15(a).

“ Facility ” means the Term Facility or any Revolving Credit Facility, as the context may require.

“ Fair Share ” has the meaning specified in Section 11.02.

“ Fair Share Contribution Amount ” has the meaning specified in 11.02.

“ FASB ASC ” means the Accounting Standards Codification of the Financial Accounting Standards Board.

“ FATCA ” means Sections 1471 through 1474 of the Code, as of the Restatement Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

 

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“ FCPA ” has the meaning specified in Section 5.27(a).

“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds 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, (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent and (c) if the Federal Funds Rate is less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.

“ Fee Letter ” means (i) immediately before this Agreement became effective on the Restatement Date, the Administrative Agent Fee Letter dated as of April 17, 2015 among the Company, Bank of America and Merrill Lynch, Pierce, Fenner & Smith Incorporated and (“ MLPFS ”), (ii) upon this Agreement becoming effective on the Restatement Date until immediately before the First Amendment Effective Date , the Administrative Agent Fee Letter dated as of August 11, 2017 among the Company, Bank of America and Merrill Lynch, Pierce, Fenner & Smith Incorporated (“ MLPFS ”). MLPFS and (iii) upon the First Amendment Effective Date, the Administrative Agent Fee Letter dated as of December 17, 2018 among the Company, MLPFS and Administrative Agent.

“ Financial Officer Certification ” means, with respect to the financial statements for which such certification is required, the certification of the chief financial officer or Chief Accounting Officer of the Company that such financial statements fairly present, in all material respects, the financial condition of the Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments, and, with respect to quarterly financial statements, absence of footnotes. +

“ First Amendment ” means Refinancing Amendment No. 1 to this Agreement dated December 17, 2018.

“ First Amendment Effective Date ” means the “First Amendment Effective Date” as defined in the First Amendment.

“ First Priority ” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Permitted Lien.

“ First-Tier Foreign Subsidiary ” means a Foreign Subsidiary, the Equity Interests of which are directly owned by the Company or a Domestic Subsidiary that is not a Subsidiary of a Foreign Subsidiary.

 

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“ Fiscal Quarter ” means a fiscal quarter of any Fiscal Year.

“ Fiscal Year ” means the fiscal year of the Company and its Subsidiaries ending on the last Saturday of September of each calendar year.

“ Foreign Benefit Event ” means, with respect to any Foreign Pension Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law or in excess of the amount that would be permitted absent a waiver from a governmental authority, (b) the failure to make the required contributions or payments, under any applicable law, on or before the due date for such contributions or payments, (c) the receipt of a notice by a governmental authority relating to the intention to terminate any such Foreign Pension Plan or to appoint a trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension Plan, or (d) the occurrence of any transaction that is prohibited under any applicable law and that could reasonably be expected to result in the incurrence of any liability by the Company or any Subsidiary, excluding, in each case under clauses (a) through (d) above, any unfunded liabilities, failure to make required contributions or payments, receipt of notice, the occurrence of any transaction, or any such other matters referred to therein (i) that are being contested in good faith by appropriate proceedings and for which adequate reserves have been made or provided in accordance with GAAP or (ii) with respect to which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

“ Foreign Disposition ” shall have the meaning assigned to such term in Section 2.05(c)(ix).

“ Foreign Jurisdiction ” means any jurisdiction other than the United States, any state thereof or the District of Columbia.

“ Foreign Pension Plan ” means any benefit plan that under applicable law, other than the laws of the United States or any political subdivision thereof, is required to be funded through a trust or other funding vehicle other than a trust or funding vehicle maintained exclusively by a governmental authority.

“ Foreign Lender ” means, with respect to any Borrower, (a) if such Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if such Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes. For purposes of this definition, the United States, each state thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“ Foreign Obligor ” means a Loan Party that is a Foreign Subsidiary.

“ Foreign Subsidiary ” means any direct or indirect Subsidiary of the Company that is not a Domestic Subsidiary.

“ FRB ” means the Board of Governors of the Federal Reserve System of the United States, or any successor thereto.

 

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“ Fronting Exposure ” means (a) at any time there is a Revolving Credit Lender of any Class that is a Defaulting Lender, with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the Outstanding Amount of all outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders of the same Class or Cash Collateralized in accordance with the terms hereof, and (b) at any time there is a USD Revolving Credit Lender that is a Defaulting Lender, with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other USD Revolving Credit Lenders in accordance with the terms hereof.

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

“ Funding Guarantors ” has the meaning Specified in Section 11.02.

“ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

“ Gen-Probe ” means Gen-Probe Incorporated, a Delaware corporation.

“ Gen-Probe Acquisition ” means the acquisition by the Company of 100% of the Equity Interests of Gen-Probe.

“ Governmental Authority ” means any federal, state, municipal, foreign, transnational, national or other government (including any supra-national bodies such as the European Union), governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity, officer or examiner exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government, any regulatory authority or any court, in each case whether associated with a state of the United States, the United States, the United Kingdom or a foreign entity or government (including any supra-national bodies such as the European Union).

“ Governmental Authorization ” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.

“ Guaranty ” means, collectively, (a) the Guaranty made by the Guarantors under Article 11 in favor of the Secured Parties and (b) each other guaranty and guaranty supplement delivered pursuant to Section 6.12.

 

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“ Grantor ” has the meaning assigned to that term in the Pledge and Security Agreement.

“ Guaranteed Obligations ” has the meaning specified in Section 11.01

“ Guarantor ” means (a) in respect of (i) the Obligations of the U.K. Borrower and any Designated Borrowers and (ii) Cash Management Obligations and Hedge Obligations owing by any Loan Party or any Subsidiary of any Loan Party, the Company and each Subsidiary Guarantor and (b) in respect of the Obligations of the Company, each Subsidiary Guarantor; provided, however, that no Excluded Subsidiary shall be required to be a Guarantor.

“ Hazardous Materials ” means any chemical, material, waste or substance, which is prohibited, limited or regulated by any Governmental Authority or Environmental Law or which may or could pose a hazard to the health and safety of any Persons or to the indoor or outdoor environment pursuant to any Governmental Authority or Environmental Law.

“ Hazardous Materials Activity ” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.

“ Hedge Agreement ” means an Interest Rate Agreement, Commodity Price Protection Agreement or a Currency Agreement entered into with a Lender Counterparty.

“ Hedge Obligations ” means all obligations of any Loan Party from time to time owed to any Lender Counterparties, to the extent arising under any Hedge Agreement, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Loan Party, would have accrued on any Obligation, whether or not a claim is allowed against such Loan Party for such interest in the related bankruptcy proceeding), payments for early termination of Hedge Agreements, fees, expenses, indemnification or otherwise.

“ Honor Date ” has the meaning specified in Section 2.03(c).

“ ICC ” has the meaning specified in the definition of UCP.

“ IFRS ” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to herein.

 

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“ Immaterial Domestic Subsidiary ” means, at any date of determination, any Domestic Subsidiary of the Company that, together with all other Immaterial Domestic Subsidiaries, (i) had consolidated assets comprising in the aggregate less than 5 10 % of Total Assets of the Company and its Subsidiaries on the last day of the then-most recent Fiscal Quarter for which financial statements are available and (ii) contributed in the aggregate less than 5 10 % of Consolidated Adjusted EBITDA of the Company and its Subsidiaries for the period of four (4) Fiscal Quarters then-most recently ended for which financial statements are available. The Immaterial Domestic Subsidiaries as of the Restatement Date are listed on Schedule 1.01(D)(1).

“ Immaterial Subsidiary ” means at any date of determination, any Domestic Subsidiary or any Foreign Subsidiary (other than the U.K. Borrower or any Designated Borrower) of the Company that, together with all other Immaterial Subsidiaries, (i) had consolidated assets comprising in the aggregate less than 5% of Total Assets on the last day of the then-most recent Fiscal Quarter for which financial statements are available and (ii) contributed in the aggregate less than 5% of Consolidated Adjusted EBITDA for the period of four (4) Fiscal Quarters then-most recently ended for which financial statements are available. The Immaterial Subsidiaries as of the Restatement Date are listed on Schedule 1.01(D)(2).

“ Increased Amount Date ” has the meaning specified in Section 2.16.

“ Impacted Loans ” has the meaning specified in Section 3.03(a).

“ Incremental Cap ” has the meaning specified in Section 2.16

“ Incremental Facility ” means the facility under which New Term Loans or New Revolving Credit Loans are made available, as applicable.

“ Indebtedness ” means, as applied to any Person, without duplication, (i) all indebtedness for borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable, bonds, debentures or other similar instruments and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of property or services, which purchase price is (a) due more than six (6) months from the date of incurrence of the obligation in respect thereof or (b) evidenced by a note or similar written instrument, and all conditional sale obligations of such Person and all obligations of such Person under a title retention agreement, excluding, in the case of this clause (iv) trade accounts (including intercompany accounts receivable) or accrued expenses payable in the ordinary course of business and (B) obligations incurred under ERISA or deferred employee or director compensation and accruals for employee expenses in the ordinary course of business; (v) all obligations of others that constitute Indebtedness (other than pursuant to this clause (v)) of others secured by any Lien on any property or asset owned or held by such Person regardless of whether the Indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; (vi) the face amount of any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (vii) Disqualified Equity Interests; (viii) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the Indebtedness of

 

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another; (ix) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the Indebtedness of the obligor thereof will be paid or discharged, or any agreement relating thereto will be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof; (x) any liability of such Person for Indebtedness of another through any agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such Indebtedness or any security therefor, or to provide funds for the payment or discharge of such Indebtedness (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under subclauses (a) or (b) of this clause (x), the primary purpose or intent thereof is as described in clause (ix) above; (xi) all obligations of such Person in respect of any exchange traded or over-the-counter derivative transaction, including any Interest Rate Agreement, any Commodity Price Protection Agreement and any Currency Agreement, in each case, whether entered into for hedging or speculative purposes; provided , in no event shall obligations under any derivative transaction (including, without limitation, any transaction evidenced by any Interest Rate Agreement, any Commodity Price Protection Agreement and/or any Currency Agreement) be deemed “Indebtedness” for any purpose under Section 7.07; and (xii) all Attributable Receivables Indebtedness. Notwithstanding the foregoing, in connection with the purchase by the Company or any Subsidiary of any business or assets, the term “Indebtedness” will exclude indemnification, purchase price adjustment, earn-outs, holdbacks and contingent payment obligations (including, but not limited to, obligations to make payments or distributions to dissenting stockholders, together with any interest or similar charge of expense imputed or otherwise accrued in respect of any such payments or distributions with respect thereto or any of the foregoing) to which the seller thereof may become entitled; provided that, to the extent such payment is fixed and determinable (and not otherwise contingent), the amount is paid within 90 days after the date such payment becomes fixed and determinable (and not otherwise contingent) (and to the extent not so paid, such amount shall become Indebtedness for all purposes hereunder).

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

“ Indemnitees ” has the meaning specified in Section 10.04(b).

“ Information ” has the meaning specified in Section 10.07.

“ Initial Borrowers ” has the meaning specified in the introductory paragraph hereto.

“ Installment ” means a Term Loan Installment or a scheduled repayment of principal of New Term Loans, if any, pursuant to the proviso to Section 2.07, as the case may be.

 

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“ Institutional Incremental Term Facility ” means a term Incremental Facility that is an Institutional Term Facility.

“ Institutional Term Facility ” means a term loan facility of the type marketed primarily to institutional term loan lenders (as opposed to commercial banks) in the primary syndication thereof.

“ Intangible Property ” has the meaning specified in the term “Permitted Inter-Company License Transaction.

“ Intellectual Property ” has the meaning assigned to that term in the Pledge and Security Agreement.

“ Intellectual Property Asset ” means, at the time of determination, any interest (fee, license or otherwise) then owned by any U.S. Loan Party in any registrations of, or pending applications for registration of, Intellectual Property in the United States.

“ Intellectual Property Security Agreements ” means the Trademark Security Agreement, the Copyright Security Agreement and the Patent Security Agreement as such terms are defined in the Pledge and Security Agreement.

“ Intercompany Note ” means that certain Intercompany Subordinated Demand Promissory Note, dated as of the Closing Date, by and among the Loan Parties and their respective applicable subsidiaries, each as a Payor and as a Payee, as it may be amended, supplemented or otherwise modified in accordance with the terms thereof from time to time.

“ Interest Coverage Ratio ” means the ratio, as of the last day of any Fiscal Quarter, of (i) Consolidated Adjusted EBITDA for the prior four (4)-Fiscal Quarter period then ending to (ii) Adjusted Consolidated Cash Interest Expense for such four (4)-Fiscal Quarter period.

“ Interest Payment Date ” means, (a) as to any Eurocurrency Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided, however , that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any LIBOR Daily Floating Rate Loan, Base Rate Loan or Swing Line Loan, five (5) Business Days after the last Business Day of each Fiscal Quarter and the Maturity Date of the Facility under which such Loan was made (with Swing Line Loans being deemed made under the Revolving Credit Facility for purposes of this definition).

“ Interest Period ” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one week or one, two, three or six months thereafter (in each case, subject to availability), as selected by the applicable Borrower in its Committed Loan Notice, or such other period that is twelve months or less requested by the applicable Borrower and consented to by all the Appropriate Lenders; provided that:

 

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(i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Eurocurrency Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(ii) any Interest Period pertaining to a Eurocurrency Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period (unless such Interest Period is for one week); and

(iii) no Interest Period shall extend beyond the Maturity Date.

“ Interest Rate Agreement ” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, entered into (A) to hedge or mitigate risks to which the Company or any Subsidiary has actual or anticipated exposure, and not for speculative purposes, (B) in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from floating to fixed rates or from one floating rate to another floating rate or otherwise), and not for speculative purposes, with respect to any interest-bearing liability or investment of the Company or any Subsidiary.

“ Investment ” means (i) any direct or indirect purchase or other acquisition by the Company or any of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person; (ii) any direct or indirect redemption, retirement, purchase or other acquisition for value, by any Subsidiary of the Company from any Person, of any Equity Interests of such Person; (iii) any direct or indirect loan, advance (other than advances to employees, officers, directors or consultants for payroll, fees and other compensation, moving, entertainment and travel expenses, drawing accounts and similar expenditures, in each case, in the ordinary course of business) or capital contributions by the Company or any of its Subsidiaries to any other Person, including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business (excluding, in the case of the Company and its Subsidiaries, (a) intercompany loans, receivables, advances, balances or Indebtedness having a term not exceeding 90 days (inclusive of all rollover or extension of terms) and entered into in the ordinary course of business and (b) intercompany licenses and related support and royalty agreements); (iv) all investments consisting of any exchange-traded or over-the-counter derivative transaction, including any Interest Rate Agreement, Commodity Price Protection Agreement or Currency Agreement, whether entered into for hedging or speculative purposes; and (v) the acquisition whether by purchase, merger or otherwise of all or substantially all of the assets of, or a business line, unit or division of, any Person. For the avoidance of doubt, the formation of a Subsidiary shall not, in and of itself, constitute an Investment (but any capitalization or other initial or subsequent Investment in connection therewith shall constitute an

 

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Investment). For purposes of covenant compliance, (i) the amount of any Investment shall be the original cost of such Investment of the type described in clauses (i), (ii) and (iii) plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment, but, giving effect to any returns or distributions of capital or repayment of principal actually received in cash by such Person with respect thereto (but only to the extent that the aggregate amount of all such returns, distributions and repayments with respect to such Investment does not exceed the principal amount of such Investment) and (ii) any modification, replacement, renewal or extension of an Investment (or any other conversion or exchange of one type of an Investment to or for another type of an Investment) shall be permitted (and shall not be deemed to constitute another Investment) so long as the initial Investment was permitted and the amount of such Investment (after giving effect to such modification, replacement, renewal, extension, conversion or exchange) is not increased thereby other than as otherwise permitted by Section 7.06 (including, without limitation, by using the unused portion of any baskets set forth in Section 7.06).

“ Investment Grade Securities ” means each of the following investment securities (excluding, for the avoidance of doubt, securities issued by an Affiliate of the Company) purchased in the ordinary course of the Company’s cash management operations consistent with its past practice:

(i) securities issued or directly and fully guaranteed or insured by the U.S. government or any agency or instrumentality thereof (other than Cash Equivalents);

(ii) investments in any fund that invests exclusively in investments of the type described in clause (a) of this definition, which fund may also hold immaterial amounts of cash pending investment and/or distribution;

(iii) corresponding instruments in countries other than the United States customarily utilized for high-quality investments and, in each case, with maturities not exceeding two (2) years from the date of acquisition; and

(iv) securities that have a Moody’s rating of Baa3 or better and an S&P rating of BBB- or better and, in each case, with maturities not exceeding one (1) year from the date of acquisition.

“ IRS ” means the United States Internal Revenue Service.

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

“ Issuer Documents ” means, with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Company (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.

 

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“ ITA ” means the Income Tax Act 2007.

“ Joinder Agreement ” means an agreement substantially in the form of Exhibit L.

“ Judgment Currency ” has the meaning specified in Section 10.19.

“ Junior Financing ” means any unsecured indebtedness issued pursuant to and in accordance with Section 7.01(k) or 7.01(x), the Convertible Notes, the Senior Notes, Permitted Second Priority Refinancing Debt, Permitted Unsecured Refinancing Debt and any Permitted Incremental Equivalent Debt (other than Indebtedness secured as contemplated by clause (i)(A) of the proviso to the definition thereof) and any Permitted Refinancing of any of the foregoing (and any Permitted Refinancing of any such Permitted Refinancing).

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

“ Laws ” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“ L/C Advance ” means, with respect to each Revolving Credit Lender, such Revolving Credit Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving Credit Percentage. All L/C Advances shall be denominated in Dollars.

“ L/C Borrowing ” means 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 Revolving Credit Borrowing. All L/C Borrowings shall be denominated in Dollars.

“ L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

“ L/C Issuer ” means (a) Bank of America, (b) with respect to the Existing Letters of Credit, the Existing L/C Issuer and (C) any other Lender that becomes an L/C Issuer in accordance with Section 2.03(l) and 10.06(g), in each case in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.

 

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“ L/C Obligations ” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“ Legal Reservations ” means:

(a) the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganization and other laws generally affecting the rights of creditors;

(b) the time barring of claims under U.K. Limitation Act 1980 and the U.K. Foreign Limitation Periods Act 1984 or similar limitation acts in any other relevant jurisdiction, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of stamp duty may be void and defenses of set-off or counterclaim; and

(c) any other matters which are set out as qualifications or reservations as to matters of law of general application in the legal opinions delivered to the Administrative Agent under Sections 4.01(a)(iv) and 4.03(a)(iii).

“ Lender ” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lender. For the avoidance of doubt, upon this Agreement becoming effective until the First Amendment Effective Date , the 2017 Incremental Term Lenders and the 2017 Refinancing Term Lenders shall constitute “Lenders” for all purposes hereof and from and after the First Amendment Effective Date, the 2018 Refinancing Term Lenders shall constitute “Lenders for all purposes hereof (together with the Revolving Credit Lenders) .

“ Lender Counterparty ” means each Lender, each Agent and each of their respective Affiliates counterparty to a Hedge Agreement (including any Person who is an Agent or a Lender (and any Affiliate thereof) as of the Closing Date or thereafter (so long as such Person was an Agent, Lender or Affiliate of an Agent or Lender when becoming counterparty to a Hedge Agreement) even if such counterparty to the Hedge Agreement subsequently ceases to be an Agent, a Lender or an Affiliate of an Agent or Lender after becoming counterparty to a Hedge Agreement, as the case may be).

“ Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Company and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.

 

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“ Letter of Credit ” means a Multicurrency Letter of Credit or a USD Letter of Credit issued hereunder and each Existing Letter of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit.

“ Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.

“ Letter of Credit Expiration Date ” means (a) with respect to any Multicurrency Letter of Credit, the day that is seven days prior to the Maturity Date then in effect for the Multicurrency Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day) and (b) with respect to any USD Letter of Credit or any Existing Letter of Credit, the day that is seven days prior to the Maturity Date then in effect for the USD Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).

“ Letter of Credit Fee ” has the meaning specified in Section 2.03(h).

“ Letter of Credit Report ” means a certificate substantially the form of Exhibit N or any other form approved by the Administrative Agent.

“ Letter of Credit Sublimit ” means an amount equal to the lesser of (a) the Aggregate Revolving Commitments and (b) $100,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

“ LIBOR ” has the meaning specified in the definition of Eurocurrency Rate.

“ LIBOR Daily Floating Rate ” means a fluctuating rate of interest, which can change on each Business Day, equal to one month LIBOR, or a comparable successor rate, which rate is approved by the Administrative Agent in its reasonable discretion (following consultation with the Borrower), as published on the Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent in its reasonable discretion from time to time) at approximately 11:00 a.m. London time two Business Days prior to the date in question, for Dollar deposits with a term equivalent to one month beginning on that date; provided that to the extent a comparable or successor rate is approved by the Administrative Agent in its reasonable discretion (following consultation with the Borrower) in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided , further that (a) to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and (b) if the LIBOR Daily Floating Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this agreement.

“ LIBOR Daily Floating Rate Loan ” means a Loan that bears interest at a rate based on the LIBOR Daily Floating Rate. LIBOR Daily Floating Rate Loans shall only be available in Dollars.

 

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“ LIBOR Quoted Currency ” means each of the following currencies: Dollars; Euro and Sterling, in each case as long as there is a published LIBOR rate with respect thereto.

“ LIBOR Successor Rate ” has the meaning specified in Section 3.03(c).

“ LIBOR Successor Rate Conforming Changes ” has the meaning specified in Section 3.03(c).

“ Lien ” means (i) any lien (statutory or other), mortgage, deed of trust, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease or license in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing and (ii) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities.

“ Limited Condition Acquisition ” means any Permitted Acquisition which the Company or one or more of its Subsidiaries has contractually committed to consummate, the terms of which do not condition the Company’s or such Subsidiary’s, as applicable, obligation to close such Permitted Acquisition on the availability of third-party financing.

“ Loan ” means an extension of credit by a Lender to a Borrower under Article 2 in the form of a Term Loan, a Revolving Credit Loan or a Swing Line Loan.

“ Loan Document Obligations ” means all obligations of any Loan Party from time to time owed to any Agent (including any former Agent), Lenders or any of them, to the extent arising under any Loan Document, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to any Loan Party, would have accrued on any Obligation, whether or not a claim is allowed against such Loan Party for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit, fees, expenses, indemnification or otherwise.

“ Loan Documents ” means, collectively, this Agreement, each Designated Borrower Request and Assumption Agreement, each Note, each Issuer Document, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.17, the Collateral Documents, the Fee Letter and all other documents, certificates, instruments or agreements executed and delivered by or on behalf of a Loan Party for the benefit of any Agent, the L/C Issuer or any Lender in connection herewith on or after the Closing Date.

“ Loan Parties ” means, collectively, the Borrowers and the Guarantors.

“ London Banking Day ” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

 

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“ Material Acquisition ” means a Permitted Acquisition (or any other merger or acquisition permitted hereunder) with respect to which the aggregate amount of consideration for such Permitted Acquisition (or such other merger or acquisition) is at least $250,000,000 and the Company has designated such Permitted Acquisition (or such other merger or acquisition) as a “Material Acquisition” by written notice to the Administrative Agent.

“ Material Adverse Effect ” means a material adverse effect on and/or material adverse developments with respect to (i) the business, operations, properties, assets or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole; (ii) the ability of the Loan Parties, taken as a whole, to fully and timely perform their Obligations; or (iii) the rights, remedies and benefits available to, or conferred upon, any Agent and any Lender or any Secured Party under any Loan Document.

“ Material Contract ” means any contract or other arrangement to which the Company or any of its Subsidiaries is a party (other than the Loan Documents) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to have a Material Adverse Effect.

“ Material Real Estate Asset ” means any fee-owned Domestic Real Estate Asset having a book value in excess of $25,000,000 as of the date of (x) the acquisition thereof by a U.S. Loan Party or (y) the substantial completion of any improvements thereon by a U.S. Loan Party.

“ Maturity Date ” means, with respect to the Revolving Credit Facility and the Term Facility, the Stated Maturity Date ; provided that if the Senior Notes have not been refinanced in full to a date that is at least 91 days after the Stated Maturity Date (such refinancing, a “ Qualified Refinancing ”) or repaid, redeemed or defeased on or prior to the Springing Maturity Date, the Maturity Date with respect to the 2017 Term Facility and the 2017 Revolving Credit Facility shall be the Springing Maturity Date unless (i) as of the Springing Maturity Date, the Borrower has sufficient Qualified Cash and availability under the Revolving Credit Facility (or any other committed credit facility) to redeem the Senior Notes in full on the Senior Notes Maturity Date and (ii) at all times during the period from the Springing Maturity Date until the Senior Notes Maturity Date, the Borrower shall comply with the requirements of Section 6.15; provided, further, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day. .

“ Minimum Collateral Amount ” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 101% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.17(a)(i), (a)(ii) or (a)(iii), an amount equal to 101% of the Outstanding Amount of all LC Obligations, and (iii) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion but not exceeding 103% of the Outstanding Amount of the applicable L/C Obligations.

“ MLPFS ” means Merrill Lynch, Pierce, Fenner & Smith Incorporated.

 

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“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

“ Multicurrency Letter of Credit ” has the meaning specified in Section 2.03(a).

“ Multicurrency Revolving Credit Borrowing ” means a borrowing consisting of simultaneous Multicurrency Revolving Credit Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by the Multicurrency Revolving Credit Lenders pursuant to Section 2.01(b).

“ Multicurrency Revolving Credit Commitment ” means, as to each Lender, its obligation to (a) make Multicurrency Revolving Credit Loans to the Borrowers pursuant to Section 2.01(b) and (b) (i) from the Closing Date until this Agreement became effective, purchase participations in L/C Obligations with respect to Multicurrency Letters of Credit, in an aggregate principal amount at any one time outstanding not to exceed the Dollar Equivalent of the amount set forth opposite such Lender’s name on Schedule 2.01 (in effect immediately prior to this Agreement becoming effective) under the caption “Multicurrency Revolving Credit Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto (prior to this Agreement becoming effective), as applicable, as such amount may be adjusted from time to time in accordance with this Agreement and (ii) after this Agreement became effective, purchase participations in L/C Obligations with respect to Multicurrency Letters of Credit, in an aggregate principal amount at any one time outstanding not to exceed the Dollar Equivalent of the amount set forth opposite such Lender’s name on Schedule 2.01 (in effect upon this Agreement becoming effective) under the caption “Multicurrency Revolving Credit Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto (after this Agreement became effective), as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

“ Multicurrency Revolving Credit Commitment Termination Date ” means the earliest to occur of (i) the Maturity Date in respect of the Multicurrency Revolving Credit Facility, (ii) the date the Multicurrency Revolving Credit Commitments are permanently reduced to zero pursuant to Section 2.05, and (iii) the date of the termination of the Multicurrency Revolving Credit Commitments pursuant to Section 8.02.

“ Multicurrency Revolving Credit Exposure ” means, as to any Lender at any time, the aggregate Outstanding Amount at such time of its Multicurrency Revolving Credit Loans and the aggregate Outstanding Amount of such Lender’s participation in L/C Obligations with respect to Multicurrency Letters of Credit.

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

“ Multicurrency Revolving Credit Lender ” means, at any time, any Lender that has a Multicurrency Revolving Credit Commitment or a Multicurrency Revolving Credit Loan at such time.

 

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“ Multicurrency Revolving Credit Loan ” has the meaning specified in Section 2.01(b).

“ Multicurrency Revolving Credit Note ” means a promissory note in the form of Exhibit C-1.1, C-1.2 or C-1.3, as applicable, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“ Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

“ Multiple Employer Plan ” means a Plan which has two or more contributing sponsors (including the Company or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

“ Net Asset Sale Proceeds ” means, with respect to any Asset Sale, an amount equal to: (i) Cash payments actually received (including any Cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or pursuant to a purchase price adjustment, earn-out or any contingent payment obligation to which the applicable seller is entitled or otherwise, but only as and when such deferred Cash payment is so received or when released from an escrow or holdback) by the Company or any of its Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Asset Sale, including (a) any applicable transfer taxes or recording charges and any income or gains taxes payable by the seller as a result of any gain recognized in connection with such Asset Sale and, without duplication of any reduction pursuant to Section 2.05(c)(ix), any repatriation costs associated with receipt by the applicable taxpayer of such proceeds, (b) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans, Credit Agreement Refinancing Indebtedness, Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt or any Permitted Incremental Equivalent Debt to the extent secured) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale, (c) any professional fees actually incurred in connection therewith, including, without limitation, advisers, brokers, investment bankers, attorneys and accountants fees, (d) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser undertaken by the Company or any of its Subsidiaries in connection with such Asset Sale or any purchase price adjustment, deferred payment obligation, earn-out, contingent payment obligation of the Company or any Subsidiary in respect of any such Asset Sale and (e) reasonable reserves under GAAP for any facilities closings, severance or other restructuring expenses in connection with such Asset Sale; provided that the amount of any subsequent release or reduction of the reserves specified in clauses (d) and (e) above (other than in connection with a payment in respect of the applicable obligation or expense) shall be deemed to be Net Asset Sale Proceeds on the date of such release or reduction).

 

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“ Net Equity Proceeds ” means an amount equal to any Cash proceeds from a capital contribution to, or the issuance of any Equity Interests of, the Company or any of its Subsidiaries, in each case net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses and underwriter, arranger and placement agent fees and expenses .

“ Net Insurance/Condemnation Proceeds ” means an amount equal to: (i) any Cash payments or proceeds received by the Company or any of its Subsidiaries (a) under any casualty insurance policy in respect of a covered loss thereunder or (b) as a result of the taking of any assets of the Company or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (a) any actual and reasonable costs incurred by the Company or any of its Subsidiaries in connection with the adjustment or settlement of any claims of the Company or such Subsidiary in respect thereof, (b) any professional fees actually incurred in connection therewith, including, without limitation, advisers, brokers, investment bankers, attorneys and accountants, (c) any bona fide direct costs incurred in connection with any sale of such assets as referred to in clause (i)(b) of this definition, including income taxes payable as a result of any gain recognized in connection therewith and (d) reasonable reserves under GAAP for any facilities closings, severance or other restructuring expenses in connection with any such sale or insurance claim; provided that (1) the amount of any subsequent release or reduction of the reserves specified in clause (d) above (other than in connection with a payment in respect of the applicable obligation or expense) shall be deemed to be Net Insurance/Condemnation Proceeds on the date of such release or reduction and (2) Net Insurance/Condemnation Proceeds shall not include any payments, proceeds or any other amounts received by the Company or any of its Subsidiaries from any business interruption insurance policies.

“ Net Mark-to-Market Exposure ” of a Person means, as of any date of determination, the excess (if any) of all unrealized losses over all unrealized profits of such Person arising from Hedge Agreements or other Indebtedness of the type described in clause (xi) of the definition thereof. As used in this definition, “ unrealized losses ” means the fair market value of the cost to such Person of replacing such Hedge Agreement or such other Indebtedness as of the date of determination (assuming the Hedge Agreement or such other Indebtedness were to be terminated as of that date), and “ unrealized profits ” means the fair market value of the gain to such Person of replacing such Hedge Agreement or such other Indebtedness as of the date of determination (assuming such Hedge Agreement or such other Indebtedness were to be terminated as of that date).

“ Net Senior Secured Leverage Ratio ” means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated Senior Secured Net Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four (4)-Fiscal Quarter period ending on such date.

“ New Multicurrency Revolving Credit Commitments ” has the meaning specified in Section 2.16.

 

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“ New Multicurrency Revolving Credit Lender ” has the meaning specified in Section 2.16.

“ New Multicurrency Revolving Credit Loan ” has the meaning specified in Section 2.16.

“ New Revolving Credit Commitments ” means the New Multicurrency Revolving Credit Commitment and/or the New USD Revolving Credit Commitments, as the context may require.

“ New Revolving Credit Lender ” means a New Multicurrency Revolving Credit Lender and/or a New USD Revolving Credit Lender, as the context may require.

“ New Revolving Credit Loan ” means a New Multicurrency Revolving Credit Loan and/or a New USD Revolving Credit Loan, as the context may require.

“ New Term Loan ” has the meaning specified in Section 2.16.

“ New Term Loan Commitments ” has the meaning specified in Section 2.16.

“ New Term Loan Exposure ” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the New Term Loans of such Lender.

“ New Term Loan Lender ” has the meaning specified in Section 2.16.

“ New Term Loan Maturity Date ” means the date on which New Term Loans of a Series shall become due and payable in full hereunder, as specified in the applicable Joinder Agreement, including by acceleration or otherwise.

“ New USD Revolving Credit Commitments ” has the meaning specified in Section 2.16.

“ New USD Revolving Credit Lender ” has the meaning specified in Section 2.16.

“ New USD Revolving Credit Loan ” has the meaning specified in Section 2.16.

“ Non-Consenting Lender ” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 10.01 and (ii) has been approved by the Required Lenders.

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

“ Non-Extension Notice Date ” has the meaning specified in Section 2.03(b),

 

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“ Non-LIBOR Quoted Currency ” means any currency other than a LIBOR Quoted Currency.

“ Non-Institutional Incremental Term Facility ” means an Incremental Facility other than an Institutional Incremental Term Facility.

“ Non-Public Information ” means material non-public information (within the meaning of United States federal, state or other applicable securities laws) with respect to the Company or its Affiliates or their respective Securities.

“ Non-Reinstatement Deadline ” has the meaning specified in Section 2.03(b).

“ Not Otherwise Applied ” means, with reference to Consolidated Excess Cash Flow, Available ECF Amount or the Available Amount that is proposed to be applied to a particular use or transaction, that such amount has not previously been (and is not simultaneously being) applied to anything other than such particular use or transaction (including, without limitation, Investments permitted under Section 7.06(h) or Restricted Junior Payments permitted under Section 7.04(k)).

“ Note ” means a Term Loan Note, a Revolving Credit Note or a Swing Line Note, as the context may require.

“ Notes Escrow Account ” has the meaning set forth in the definition of “Permitted Escrow Notes”.

“ Notes Escrow Arrangements ” has the meaning set forth in the definition of “Permitted Escrow Notes”.

“ Notes Proceeds ” has the meaning set forth in the definition of “Permitted Escrow Notes”.

“ Notice of Loan Prepayment ” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit F or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer.

“ Obligations ” means (i) all Loan Document Obligations, (ii) all Hedge Obligations and (iii) all Cash Management Obligations (excluding, in the case of clauses (ii) and (iii), the Excluded Swap Obligations).

“ Obligee Guarantor ” has the meaning specified in Section 11.07.

“ OECD ” has the meaning specified in the definition of Cash Equivalents.

“ Organizational Documents ” means (i) with respect to any corporation or company, its certificate, memorandum or articles of incorporation, organization or association, as amended, and its bylaws, as amended, (ii) with respect to any limited partnership, its certificate or declaration of limited partnership, as amended, and its

 

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partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, (iv) with respect to any limited liability company, its articles of organization, as amended, and its operating agreement, as amended and (v) with respect to any company incorporated in the United Kingdom, its memorandum of association, articles of association, certificate of incorporation, any certificates of change of name and any other constitutional documents, as amended. In the event any term or condition of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.

“ Original Credit Agreement ” means that certain Credit and Guaranty Agreement, dated as of May 29, 2015, among the Company, the U.K. Borrower, the Designated Borrowers from time to time party thereto, the Guarantors, the lenders party thereto and Bank of America, N.A. as administrative agent, as in effect immediately prior to this Agreement becoming effective.

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

“ Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).

“ Outstanding Amoun t” means (i) with respect to Multicurrency Revolving Credit Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Multicurrency Revolving Credit Loans occurring on such date; (ii) with respect to USD Revolving Credit Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such USD Revolving Credit Loans occurring on such date; (iii) with respect to Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Swing Line Loans occurring on such date; (iv) with respect to Term Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Term Loans occurring on such date; and (v) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Company of Unreimbursed Amounts.

 

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

“ Participant ” has the meaning specified in Section 10.06(d).

“ Participant Register ” has the meaning specified in Section 10.06(d).

“ Participating Member State ” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

“ Patriot Act ” has the meaning specified in Section 10.18

“ PBGC ” means the Pension Benefit Guaranty Corporation or any successor thereto.

“ Pension Plan ” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Sections 412 and 430 of the Code or Sections 302 and 303 of ERISA.

“ Perfection Certificate ” means that certain Perfection Certificate dated as of the Closing Date by and among the Administrative Agent and Loan Parties.

“ Permitted Acquisition ” means any acquisition, directly or indirectly, by the Company or any of its wholly owned Subsidiaries, whether by purchase, merger, purchase followed by merger, or otherwise, of all or substantially all of the assets of, all of the Equity Interests (except for any Equity Interests in the nature of directors’ qualifying shares required pursuant to applicable law) of, or a business line or unit or a division of, any Person; provided ,

(a) immediately prior to, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom;

(b) all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws and in conformity with all applicable Governmental Authorizations;

 

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(c) in the case of the acquisition of Equity Interests, after giving effect to such Permitted Acquisition, all of the Equity Interests (except for any such Securities in the nature of directors’ qualifying shares required pursuant to applicable law) acquired or otherwise issued, directly or indirectly, by such Person or any newly formed Subsidiary of the Company in connection with such acquisition shall be owned, directly or indirectly, 100% by the Company, and the Company shall have taken, caused to be taken, will take or will cause to be taken, each of the actions set forth in Section 6.10 in accordance with provisions thereof and solely to the extent required by this Agreement; provided that the aggregate Investments made during any Fiscal Year of the Company (commencing with the Company’s Fiscal Year ending in September 2018) by U.S. Loan Parties in Persons that will not be a U.S. Loan Party (or assets that will not be owned by U.S. Loan Parties), in each case, after giving effect to such Permitted Acquisition, together with the aggregate amount of Investments made in such Fiscal Year following the Restatement Date by U.S. Loan Parties in Subsidiaries that are not U.S. Loan Parties pursuant to Section 7.06(l), shall not exceed the greater of (x) $300,000,000 and (y) 3.5% of the Total Assets as of the date of such Investment (after giving effect to such Investment); provided that such amount shall be unlimited if (I)(A) the Company and the Guarantors comprise at least 80% of the Total Assets and Consolidated Adjusted EBITDA of the Company and its Subsidiaries (after giving effect to such acquisition) and (B) the Net Senior Secured Leverage Ratio does not exceed 4.00:1.00 on a pro forma basis or (II)(A) the Company and the Guarantors comprise less than 80% of the Total Assets and Consolidated Adjusted EBITDA of the Company and its Subsidiaries (after giving effect to such acquisition) and (B) the Net Senior Secured Leverage Ratio does not exceed 3.50:1.00 on a pro forma basis; provided , further , that with respect to the Company’s Fiscal Year ending in September 2018 , only such Investments made after the Restatement Date shall be included in the basket in this clause (c) for such Fiscal Year;

(d) the Company and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 7.07 on a pro forma basis after giving effect to such acquisition as of the last day of the Fiscal Quarter for which financial statements have been delivered;

(e) in the event the purchase price of such Permitted Acquisition is greater than $250,000,000, the Company shall have delivered to the Administrative Agent (i) a Compliance Certificate evidencing compliance with Section 7.07 as required under clause (d) above, (ii)(A) all other relevant financial information with respect to such acquired assets reasonably requested by Administrative Agent, including the aggregate consideration for such acquisition and any other information required to demonstrate compliance with Section 7.07 and (B) promptly upon request by the Administrative Agent, to the extent available, quarterly and annual financial statements of the Person whose Equity Interests or assets are being acquired for the twelve (12)-month period immediately prior to such proposed Permitted Acquisition, including any audited financial statements that are available and (iii) to the extent filed with the SEC, a copy of the purchase agreement related to the proposed Permitted Acquisition (in which case, the filing of such purchase agreement with the SEC shall be deemed to satisfy such requirement); and

 

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(f) any Person or assets or division as acquired in accordance herewith shall be in a same business or lines of business in which the Company and/or its Subsidiaries are engaged as of the Restatement Date, including, without limitation, any medical pharmaceutical, diagnostic, medical device, medical aesthetics, medical technology or other health or well-being oriented business and any businesses similar, related, ancillary or incidental thereto, or that is an adjunct thereto ( provided that the Administrative Agent consents to such adjunct if material), or a reasonable extension, development or expansion thereof.

“ Permitted Business Realignment Transaction ” means (i) a Permitted Inter-Company License Transaction and/or (ii) a Permitted R&D Cost Sharing Agreement.

“ Permitted Escrow Notes ” means Indebtedness of the Company incurred in connection with a Permitted Refinancing of any Indebtedness permitted hereunder, including without limitation, the Senior Notes, (a) 100% of the net proceeds of the issuance of which (together with any interest earned on such proceeds, the “ Notes Proceeds ”) either (x) are and remain deposited to an account (the “ Notes Escrow Account ”) of the Company or the applicable escrow agent (i) into which no other funds (other than interest earned on the Notes Proceeds) are deposited and (ii) that is subject to escrow arrangements (the “ Notes Escrow Arrangements ”) reasonably satisfactory to the Administrative Agent or (y) are deposited as trust funds with the trustee, administrative agent, collateral agent, lender or other such applicable person in regards to such Indebtedness permitted hereunder, including without limitation, the Senior Notes , in accordance with the satisfaction, discharge and/or defeasance provisions set forth in such Indebtedness (and/or the Indenture, note purchase agreement or other agreement pursuant to which such Indebtedness was issued) and (b) that is secured, if at all, solely by Liens on such Notes Escrow Account and the Notes Proceeds held therein permitted under Sections 7.02(z)(i) and 7.02(dd).

“ Permitted First Priority Refinancing Debt ” means any secured Indebtedness (including any Registered Equivalent Notes) incurred by the Company in the form of one or more series of senior secured notes; provided that (i) such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations and under security documents substantially similar to the Collateral Documents and is not secured by any property or assets of the Company or any Subsidiary other than the Collateral, (ii) such Indebtedness satisfies the requirements of clauses (a) through (c) of the definition of “Refinancing Indebtedness,” (iii) the maturity date of such Indebtedness shall be no earlier than the Latest Maturity Date, (iv) such Indebtedness is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (except customary asset sale or change-of-control provisions that provide for the prior repayment in full of the Loans and all other Obligations), in each case prior to the Latest Maturity Date at the time such Indebtedness is incurred, (v) such Indebtedness is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors and the terms of such guarantee shall be no more favorable to the secured parties in respect of such Indebtedness than the terms of the Guaranty provided hereunder, (vi) the holders of such Indebtedness (or their Senior Representative) and the Administrative Agent shall be party to an intercreditor agreement reasonably satisfactory

 

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to the Administrative Agent and (vii) such Indebtedness shall have covenants, default and remedy provisions and other terms and conditions (other than interest, fees, premiums, funding discounts or optional prepayment provisions) that are substantially identical to, or less favorable to the investors providing such Permitted First Priority Refinancing Debt than, those set forth in this Agreement.

“ Permitted Foreign Subsidiary Realignment Transaction ” means any transaction or series of transactions by and among the Company and or any of its Subsidiaries in connection with the realignment of the Company’s Foreign Subsidiaries, including without limitation to reduce the number of the Company’s Foreign Subsidiaries, and in particular its First-Tier Foreign Subsidiaries, with the ultimate goal of creating one First-Tier Foreign Subsidiary to serve as a holding company for most if not all of the Company’s Foreign Subsidiaries. In connection therewith:

(a) the Company or any of its Subsidiaries may cause the formation of one or more new Foreign Subsidiaries, it being understood that it is currently envisioned that the Company may form a new Foreign Subsidiary to serve as a holding company for some or all of the Company’s Foreign Subsidiaries;

(b) the Company or any other Subsidiary may transfer or otherwise dispose of a First-Tier Foreign Subsidiary and/or any Equity Interest therein to the Company or any another Subsidiary, including without limitation in connection with a sale, merger, consolidation, amalgamation, capital contribution, distribution or dividend, redemption, incurrence or forgiveness of indebtedness, or any similar transaction (a “ First-Tier Drop Down ”), with any consideration, if any, issued, paid or received in connection with such a transaction referred to herein as “ Drop-Down Consideration ”, it being understood that there may be multiple transfers of First-Tier Foreign Subsidiaries and/or any Equity Interest therein between and among the Company and its Subsidiaries;

(c) the Company or any of its Subsidiaries may transfer or otherwise dispose of Drop-Down Consideration to the Company or any other Subsidiary, including without limitation in connection with a sale, merger, consolidation, amalgamation, capital contribution, distribution or dividend, redemption, incurrence, amendment or forgiveness of indebtedness, or any similar transaction, it being understood that there may be multiple transfers of Drop-Down Consideration between and among the Company and its Subsidiaries;

(d) one or more Foreign Subsidiaries, including First-Tier Foreign Subsidiaries may be liquidated, dissolved or wound down;

(e) there may be one or more conversions, changes in form of, or tax election by, any Foreign Subsidiary, and the issuance of any new form of Equity Interests in connection with such change in form or election;

(f) a Foreign Subsidiary may transfer, sell, lease, license, distribute or otherwise Dispose of any or all of its assets to the Company or any of its Subsidiaries, or contribute any or all of its assets to any Subsidiary of such Foreign Subsidiary or merge with any other Foreign Subsidiary; or

 

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(g) any transaction or series of transactions substantially equivalent with any of the foregoing.

“ Permitted Gen-Probe Asset Sale ” means the sale and/or Sale and Leaseback Transaction involving the Real Estate Assets of Gen-Probe located in San Diego, California with Net Asset Sale Proceeds less than or equal to $250,000,000, and occurring within thirty six (36) months following the date hereof Restatement Date .

“ Permitted Incremental Equivalent Debt ” means any Indebtedness denominated in Dollars incurred by the Company in the form of one or more series of secured or unsecured notes or loans; provided that (i) such Indebtedness shall either be (A) in the case of notes only, secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations and shall not be secured by any property or assets of the Company or any Subsidiary other than Collateral or (B) secured by the Collateral on a junior basis (including with respect to the control of remedies) with the Obligations and shall not be secured by any property or assets of the Company or any Subsidiary other than Collateral; provided that for the purpose of testing compliance with the Incremental Cap at any time, all Permitted Incremental Equivalent Debt shall be deemed at all times to constitute Consolidated Senior Secured Debt, (ii) such Indebtedness shall not be at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors and the terms of such guarantee shall be no more favorable to the secured parties in respect of such Indebtedness than the terms of the Guaranty, (iii) the holders of such Indebtedness (or their Senior Representative) and the Administrative Agent shall be party to an intercreditor agreement reasonably satisfactory to the Administrative Agent, (iv) such Indebtedness shall have covenants, default and remedy provisions and other terms and conditions (other than interest, fees, premiums, funding discounts or optional prepayment or redemption provisions) that are substantially identical to, or less favorable to the investors providing such Permitted Incremental Equivalent Debt than, those set forth in this Agreement (it being understood and agreed that any Permitted Incremental Equivalent Debt in the form of notes that are subject to terms comparable to the existing Senior Notes shall be deemed less favorable to the applicable investors providing such Permitted Incremental Equivalent Debt than those set forth in this Agreement), (v) there shall be no scheduled amortization of such Indebtedness, and such Indebtedness shall not be subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (except customary asset sale or change-of-control provisions that provide for the prior repayment in full of the Loans and all other Obligations), in each case prior to the Latest Maturity Date at the time such Indebtedness is incurred, (vi) the maturity date of such Indebtedness shall be no earlier than the Latest Maturity Date and (vii) with respect to any notes or loans secured on a junior basis or any unsecured notes or loans, such Indebtedness shall also satisfy clauses (i), (ii), (iv) and (v) of the Permitted Junior Debt Conditions. For the avoidance of doubt, Loans and Commitments incurred pursuant to Section 2.16 shall not constitute Permitted Incremental Equivalent Debt.

 

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“ Permitted Inter-Company License Transaction ” means one or more agreements providing for the license of rights to Intellectual Property or any other intangible property (collectively, the “ Intangible Property ”) by the Company or any Domestic Subsidiary to one or more Foreign Subsidiaries and the related obligation, such as royalty or other payment liabilities, that are determined in good faith by the Company to be at an arm’s length rate in exchange for such license, as determined in accordance with applicable Tax Laws; provided that (i) such license is expressly subject to the Liens in favor of the Collateral Agent granted under this Agreement, (ii) (x) in the case of registered Intangible Property, such license does not allocate any Foreign Subsidiary as the record owner of such Intangible Property or any improvements thereto and (y) in the case of unregistered Intangible Property, such license does not allocate any Foreign Subsidiary as the owner of such Intangible Property or any improvements thereto, (iii) in the event that any such Foreign Subsidiary ceases to be a Subsidiary of the Company, such license to such Foreign Subsidiary shall no longer constitute a Permitted Inter-Company License Transaction and (iv) such license does not materially interfere with the conduct of the business of the Company and its Subsidiaries, taken as a whole, as conducted on the Restatement Date (or as permitted by Section 7.11) or materially detract from the value of the Intangible Property of the Company and its Subsidiaries, taken as a whole.

“ Permitted Junior Debt Conditions ” means that such applicable debt (i) is not scheduled to mature prior to the date that is 180 days after the Latest Maturity Date, (ii) does not have scheduled amortization payments of principal or payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (except customary asset sale or change-of-control provisions that provide for the prior repayment in full of the Loans and all other Obligations), in each case prior to the Latest Maturity Date at the time such Indebtedness is incurred, (iii) is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors, and the terms of such guarantee shall be no more favorable to the secured parties in respect of such Indebtedness than the terms of the Guaranty, (iv) has no financial maintenance covenants, other than, in the case of any Indebtedness secured by a Lien on the Collateral that is junior to the Liens securing the Obligations (in which event the financial maintenance covenants in the documentation governing such Indebtedness shall not be more restrictive than those set forth in this Agreement), (v) does not contain any provisions that cross-default to any Default or Event of Default hereunder, other than a cross-default to an Event of Default pursuant to Section 8.01(a) at maturity (it being understood and agreed that such debt may contain cross-acceleration provisions with respect to the Loans and Commitments hereunder) and (vi) has covenants, default and remedy provisions and other terms and conditions (other than interest, fees, premiums and funding discounts or optional prepayment or redemption provisions) that are substantially identical to, or less favorable to the investors providing such debt than, those set forth in this Agreement.

“ Permitted Licenses ” means (i) any licenses granted by the Company or a Subsidiary to third parties or by a third party to the Company or any of its Subsidiaries in the ordinary course of business; (ii) any licenses granted by the Company or a Subsidiary to third parties in settlement of any dispute or litigation with third parties; (iii) any licenses granted by the Company or a Subsidiary in settlement of any dispute or litigation with governmental regulatory authorities or otherwise necessary to comply with any legal or regulatory requirement; (iv) any licenses entered into with a third party in connection with any strategic collaboration, including, without limitation, in connection with any Co-

 

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Development Agreement or any marketing, co-marketing, distribution, manufacturing, outsourcing, supply or joint venture agreement or any similar arrangement; (v) the licensing of any non-core Intellectual Property; (vi) the licensing of any Intellectual Property for an application other than an application for which the Company or any of its Subsidiaries uses such Intellectual Property, which, in the case of each of clauses (i), (ii), (iv), (v) and (vi) above, does not materially interfere with the conduct of the Company’s or any of its Subsidiaries’ business as conducted on the Restatement Date (or as permitted by Section 7.11) or materially detract from the value thereof, (vii) any license of Intellectual Property to effect or in furtherance of the Reorganization and (viii) any license of Intellectual Property by the Company and/or any of its Subsidiaries to the Company and/or any of its Subsidiaries provided that such license is made in the ordinary course of business; provided that, with respect to any such exclusive license to any Foreign Subsidiary, such license qualifies as a Permitted Inter-Company License Transaction.

“ Permitted Liens ” means each of the Liens permitted pursuant to Section 7.02.

“ Permitted R&D Cost Sharing Agreement ” means one or more agreements between and among the Company and one or more of its Subsidiaries to share in the costs and risks of developing Intangible Property (the “ Cost Shared Intangibles ”) in consideration of each party’s future benefits of such Intangible Property, as estimated by the Company in good faith, which agreements may allocate to the Foreign Subsidiaries a party thereto the fully paid-up license to use (which may or may not be exclusive) such Cost Shared Intangibles in one or more territories or, in the case of any Cost Shared Intangibles or any improvements thereto not included in the Collateral as of the Restatement Date, allocate to the Foreign Subsidiary as record owner of such Cost Shared Intangibles or any improvements thereto; provided that (i) such license is expressly subject to the Liens in favor of the Collateral Agent granted under this Agreement, (ii) in the event that any such Foreign Subsidiary ceases to be a Subsidiary of the Company, such license to such Foreign Subsidiary shall no longer constitute a Permitted R&D Cost Sharing Agreement and (iii) such license does not materially interfere with the conduct of the business of the Company and its Subsidiaries, taken as a whole, as conducted on the Restatement Date (or as permitted by Section 7.11) or materially detract from the value of the Cost Shared Intangibles of the Company and its Subsidiaries, taken as a whole.

“ Permitted Refinancing ” means, with respect to any Person, Indebtedness issued, incurred or otherwise obtained in exchange for, or to extend, renew, replace or refinance, in whole or part, any Indebtedness of such Person (solely for purposes of this definition, “ Refinanced Debt ”); provided that (a) such Indebtedness has a later maturity than and a weighted average life to maturity equal to or greater than the Refinanced Debt, (b) except as otherwise permitted hereunder (subject to dollar-for-dollar reduction of any applicable basket) such Indebtedness shall not have a greater principal amount than the principal amount of the Refinanced Debt plus accrued interest, fees and premiums (if any) thereon and reasonable fees and expenses associated with the refinancing (provided that the principal amount of such Indebtedness shall not include any principal constituting interest paid in kind), (c) such Refinanced Debt shall be repaid, defeased or satisfied and discharged on a dollar-for-dollar basis, and all accrued interest, fees and premiums (if

 

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any) in connection therewith shall be paid (by way of defeasance, discharge or otherwise), substantially concurrently with the incurrence of such Permitted Refinancing (for the avoidance of doubt, this subsection (c) shall be deemed satisfied if the proceeds of the Permitted Refinancing are deposited in the Notes Escrow Account in accordance with the Notes Escrow Arrangements), (d) such Indebtedness shall not at any time be guaranteed by any Persons other than Persons that are guarantors of the Refinanced Debt, and the terms of such guarantee, taken as a whole, shall be no more favorable to the secured parties in respect of such Indebtedness than the terms of the guarantee of the Refinanced Debt, taken as a whole, (e) if the Refinanced Debt is secured, the terms and conditions relating to collateral for such Indebtedness, taken as a whole, shall be no more favorable to the secured parties in respect of such Indebtedness than the terms and conditions with respect to the collateral for the Refinanced Debt (and the Liens on any Collateral securing such Indebtedness shall have the same (or lesser) priority as the Refinanced Debt relative to the Liens on the Collateral securing the Obligations), (f) if the Refinanced Debt is subordinated in right of payment to the Obligations, such Indebtedness shall be subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as the subordination terms applicable to the Refinanced Debt, (g) the terms and conditions of any such modified, refinanced, refunded, renewed, replaced, exchanged or Indebtedness (other than interest, fees, premiums, funding discounts, optional prepayment/redemption provisions (including any premiums related thereto), guarantees, collateral, subordination and, with respect to the Convertible Notes, conversion rates, conversion prices and, solely to conform to market terms in effect at the time of such Permitted Refinancing, the conditions to conversion) are, either (i) substantially identical to or less favorable to the investors providing such Permitted Refinancing, taken as a whole, than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended or (ii) when taken as a whole, not more restrictive to the Company and/or its Subsidiaries, as applicable, than those set forth in this Agreement (after giving effect to the addition of the Previously Absent Covenant pursuant to the immediately following proviso in this clause (g)) or are customary for similar Indebtedness in light of the then current market conditions; provided that to the extent the documentation governing such Indebtedness includes a Previously Absent Covenant, the Administrative Agent shall be given prompt written notice thereof and this Agreement shall be amended to include such Previously Absent Covenant for the benefit of each Facility; provided further that a certificate of a Responsible Officer of the Company delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Company has determined in good faith that such terms and conditions satisfy the requirement set out in this clause (g), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Company of its objection within five Business Days after receiving such notice (including a reasonable description of the basis upon which it objects) and (h) at the time thereof, no Default or Event of Default shall have occurred and be continuing.

 

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“ Permitted Second Priority Refinancing Debt ” means secured Indebtedness (including any Registered Equivalent Notes) incurred by the Company in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans; provided that (i) such Indebtedness shall be secured by the Collateral on a second priority (or other junior priority) basis to the Liens securing the Obligations and under security documents substantially similar to (or less favorable to the investors providing such Permitted Second Priority Refinancing Debt than) the Collateral Documents and the obligations in respect of any Permitted First Priority Refinancing Debt and not secured by any property or assets of the Company or any Subsidiary other than the Collateral, (ii) such Indebtedness shall satisfy the requirements of clauses (a) through (c) of the definition of “Refinancing Indebtedness,” (iii) the holders of such Indebtedness (or their Senior Representative) and Administrative Agent shall be party to an intercreditor agreement reasonably satisfactory to the Administrative Agent and (iv) such Indebtedness shall otherwise meet the Permitted Junior Debt Conditions.

“ Permitted Unsecured Refinancing Debt ” means unsecured Indebtedness (including any Registered Equivalent Notes) incurred by the Company in the form of one or more series of senior or subordinated unsecured notes or loans; provided that such Indebtedness (i) satisfies the requirements of clauses (a) through (c) of the definition of “Refinancing Indebtedness” and (ii) meets the Permitted Junior Debt Conditions.

“ Person ” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.

“ Personal Property Collateral ” means all Collateral other than Real Estate Assets.

“ Platform ” has the meaning specified in Section 6.01(m).

“ Pledge and Security Agreement ” means the Pledge and Security Agreement executed by the Company and each Subsidiary Guarantor substantially in the form of Exhibit J, as it may be amended, restated, supplemented or otherwise modified from time to time.

“ Pledged Collateral ” means any certificates evidencing any Certificated Securities and Pledged Equity Interests, and any Instruments or Tangible Chattel Paper (each as defined in the Pledge and Security Agreement), described in Section 4.01 of the Pledge and Security Agreement.

“ Previously Absent Covenant ” shall mean, at any time (x) any negative or financial covenant that is not included in this Agreement at such time and (y) any negative or financial covenant in any other Indebtedness that is included in this Agreement at such time but with covenant levels that are more restrictive to the Company and its Subsidiaries than the covenant levels included in this Agreement at such time.

 

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“ Prior Acquisition ” means any acquisition, directly or indirectly, by the Company or any of its wholly owned Subsidiaries, whether by purchase, merger or otherwise, of all or substantially all of the Equity Interests of, or a business unit, line of business or division of, any Person, which was consummated prior to the Restatement Date (including, for the avoidance of doubt, the Gen-Probe Acquisition).

“ Priority Debt Cap ” means, at any time of determination, an amount equal to the greater of (x) $750,000,000 and (y) 30% of the aggregate value of Consolidated Tangible Assets of the Company and its Subsidiaries set forth in the then-most recent financial statements delivered (or required to have been delivered) pursuant to Section 6.01(a) or (b).

“ Priority Incremental Obligations ” has the meaning specified in Section 2.16(a) hereof.

“ Pro Forma Transaction ” means any Investment that results in a Person becoming a Subsidiary, any Permitted Acquisition, any Asset Sale that results in a Subsidiary ceasing to be a Subsidiary of the Company, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person or a Disposition of a business unit, line of business or division of the Company or a Subsidiary, in each case whether by merger, consolidation, amalgamation or otherwise, and any other transaction that by the terms of this Agreement requires a financial ratio test to be determined on a “pro forma basis” or to be given “pro forma effect.”

“ Projections ” has the meaning specified in Section 5.25.

“ Public Lenders ” means Lenders that do not wish to receive Non-Public Information with respect to the Company, its Affiliates or its or their respective Securities.

“ Qualified Cash ” means (i) unrestricted Cash or Cash Equivalents (including Cash or Cash Equivalents representing a Convertible Note Repayment Reserve) of the U.S. Loan Parties which Cash and Cash Equivalents are held in deposit and/or security accounts subject to a control agreement in favor of the Collateral Agent to the extent required by the Pledge and Security Agreement and not subject to any other Lien, claim or interest (other than Liens permitted pursuant to Section 7.02(a), 7.02(n)(i) (to the extent such Indebtedness is permitted by Section 7.01(d)), Section 7.02(n)(iii)) or 7.02(z)) and (ii) all Cash or Cash Equivalents held in the Servicer Account and/or the Servicer Lockbox.

“ Qualified ECP Guarantor ” means, in respect of any Swap Obligation, each Guarantor that constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell, support or other agreement under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

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“ Qualified Intercompany Note Transaction ” means a repurchase transaction or similar financing transaction in which the obligations of certain of the Loan Parties (constituting originators under a Qualified Receivables Transaction, provided that for the avoidance of doubt the Qualified Intercompany Note Transaction is not required to be a Qualified Receivables Transaction) thereunder are secured or otherwise supported (including as “purchased securities” thereunder) by a lien on or sale of Securitization Intercompany Note(s) (and a lien on certain cash collateral if so required thereunder and permitted hereunder).

“ Qualified Receivables Transaction ” means any transaction or series of transactions that may be entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer to: (1) a Receivables Entity (in the case of a transfer by the Company or any of its Subsidiaries) or (2) any other Person (in the case of a transfer by a Receivables Entity), or may grant a security interest in any accounts receivable (whether now existing or arising in the future) of the Company or any of its Subsidiaries, and any assets related thereto, including all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable; provided that the financing terms, covenants, termination events and other provisions thereof shall be market terms at the time that such transaction is consummated (as determined in good faith by the chief financial officer of the Company); provided further that the grant of a security interest in any accounts receivable of the Company or any of its Subsidiaries to secure Indebtedness permitted pursuant to Section 7.01(a), (o) or (p) shall not be deemed a Qualified Receivables Transaction.

“Qualifying Lender” means (a) a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is a Lender: (1) which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Loan Document 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 payment apart from section 18A of the CTA; or (2) in respect of an advance made under a Loan Document 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 within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or (b) a Treaty Lender

“Real Estate Asset ” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any Loan Party in any real property.

“Real Estate Loan Borrower ” means any Subsidiary of Company that incurs Indebtedness permitted to be incurred pursuant to Section 7.01(z), provided that, (a) such entity does not own any material assets other than the Specified Owned Properties and (b) no portion of the Indebtedness or any other obligations (contingent or otherwise) of such entity (A) is guaranteed by any Subsidiary (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness)), (B) is recourse to or obligates any Subsidiary (other than Real Estate Loan Borrower) in any way or (C) subjects any property or asset of the Company or any Subsidiary (other than Real Estate Loan Borrower), directly or indirectly, contingently or otherwise, to the satisfaction thereof.

 

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“ Real Property Facility ” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by the Company or any of its Subsidiaries or any of their respective predecessors or Affiliates.

“ Receivables Entity ” means (a) a Subsidiary of the Company that is designated by the board of directors of the Company in resolutions certified by the secretary of the Company as a Receivables Entity, with an officers’ certificate certifying that such designation complies with the following conditions or (b) another Person engaging in a Qualified Receivables Transaction with the Company, which Person engages in the business of the financing of accounts receivable, and: (1) in either of clause (a) or (b) above, no portion of the Indebtedness or any other obligations (contingent or otherwise) of such entity (A) is guaranteed by the Company or any Subsidiary (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (B) is recourse to or obligates the Company or any Subsidiary in any way (other than pursuant to Standard Securitization Undertakings) or (C) subjects any property or asset of the Company or any Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof (other than pursuant to Standard Securitization Undertakings); and (2) in the case of clause (b), (A) the entity is not an Affiliate of the Company or is an entity with which neither the Company nor any Subsidiary has any material contract, agreement, arrangement or understanding other than on terms that the Company reasonably believes to be no less favorable to the Company or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Company and (B) is an entity to which neither the Company nor any Subsidiary has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.

“ Receiving Party ” has the meaning specified in Section 3.01(g).

“ Recipient ” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.

“ Refinancing ” has the meaning specified in Section 4.01(a)(viii).

“ Refinancing Amendment ” means an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Company executed by each of (a) the Company and each other Loan Party, (b) the Administrative Agent and (c) each Additional Lender and Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.19.

“ Refinancing Indebtedness ” means (i) Permitted First Priority Refinancing Debt, (ii) Permitted Second Priority Refinancing Debt or (iii) Permitted Unsecured Refinancing Debt, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or in part, existing Term Loans, or any then-existing Refinancing Indebtedness (solely for purposes of this definition, “ Refinanced Debt ”);

 

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provided that (a) there shall be no scheduled amortization of such Indebtedness, (b) such Indebtedness shall not have a greater principal amount than the principal amount of the Refinanced Debt plus accrued interest, fees and premiums (if any) thereon and reasonable fees and expenses associated with the refinancing ( provided that the principal amount of such Indebtedness shall not include any principal constituting interest paid in kind) and (c) such Refinanced Debt shall be repaid, defeased or satisfied and discharged on a dollar-for-dollar basis, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, substantially concurrently with the incurrence of such Refinancing Indebtedness in accordance with the provisions of Section 2.05.

“ Refinancing Multicurrency Revolving Credit Commitments ” means Multicurrency Revolving Credit Commitments established pursuant to a Refinancing Amendment.

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

“ Refinancing Multicurrency Revolving Credit Loans ” means the Multicurrency Revolving Credit Loans made pursuant to the Refinancing Multicurrency Revolving Credit Commitments.

“ Refinancing Revolving Credit Commitments ” means the Refinancing Multicurrency Revolving Credit Commitments and/or the Refinancing USD Revolving Credit Commitments, as the context may require.

“ Refinancing Revolving Credit Lender ” means a Refinancing Multicurrency Revolving Credit Lender and/or a Refinancing USD Revolving Credit Lender, as the context may require.

“ Refinancing Revolving Credit Loans ” means the Refinancing Multicurrency Revolving Credit Loans and/or the Refinancing USD Revolving Credit Loans, as the context may require.

“ Refinancing Term Loan Commitment ” means the commitment of any Lender to make Refinancing Term Loans pursuant to Section 2.19 to the applicable Borrower.

“ Refinancing Term Loan Lender ” means a Lender with an outstanding Refinancing Term Loan.

“ Refinancing Term Loans ” means Term Loans that result from a Refinancing Amendment.

“ Refinancing USD Revolving Credit Commitments ” means USD Revolving Credit Commitments established pursuant to a Refinancing Amendment.

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

 

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“ Refinancing USD Revolving Credit Loans ” means the USD Revolving Credit Loans made pursuant to the Refinancing USD Revolving Credit Commitments.

“ Register ” has the meaning specified in Section 10.06(c).

“ Registered Equivalent Notes ” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (having the same Guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.

“ Regulation T ” means Regulation T of the FRB, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“ Regulation U ” means Regulation U of the FRB, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“ Regulation X ” means Regulation X of the FRB, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

“ Rejection Notice ” has the meaning specified in Section 2.05(c)(x).

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

“ Release ” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into or through the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other receptacles containing any Hazardous Material).

“ Relevant Party ” has the meaning specified in Section 3.01(g).

“ Removal Effective Date ” has the meaning specified in Section 9.06(b).

“ Reorganization ” means any Permitted Business Realignment Transaction and/or Permitted Foreign Subsidiary Realignment Transaction, so long as, in the case of a Permitted Foreign Subsidiary Realignment Transaction, after giving effect thereto, (A) taken as a whole, the value of the Collateral securing the Obligations and the Guaranty by the Guarantors of the Obligations are not materially reduced and (B) the Liens in favor of the Collateral Agent for the benefit of the Secured Parties under the Collateral Documents are not materially impaired (for the avoidance of doubt, the contribution of stock in any First-Tier Foreign Subsidiary to any other Foreign Subsidiary, the contribution of Drop Down Consideration to any Foreign Subsidiary and the forgiveness and/or extinguishment of any Indebtedness constituting Drop Down Consideration, individually or in the aggregate, shall not violate clause (A) or (B) above notwithstanding that the stock of such First-Tier Foreign Subsidiary and/or such Drop Down Consideration shall thereafter not constitute part of the Collateral).

 

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“ Request for Credit Extension ” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

“ Required Multicurrency Revolving Credit Lenders ” means, at any time, Multicurrency Revolving Credit Lenders holding more than 50% of the sum of the (a) Total Multicurrency Revolving Credit Outstandings (with the aggregate amount of each Multicurrency Revolving Credit Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Multicurrency Revolving Credit Lender for purposes of this definition) at such time and (b) aggregate unused portion of the Multicurrency Revolving Credit Commitments at such time. The unused portion of the Multicurrency Revolving Credit Commitment of, and the portion of the Total Multicurrency Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be disregarded in determining Required Multicurrency Revolving Credit Lenders at any time; provided that the amount of any Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the L/C Issuer in making such determination.

“ Required Lenders ” means, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that, the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or L/C Issuer, as the case may be, in making such determination.

“ Required Revolving Credit Lenders ” means, at any time, Revolving Credit Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for purposes of this definition) at such time and (b) aggregate unused portion of the Revolving Credit Commitments at such time. The unused portion of the Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be disregarded in determining Required Revolving Credit Lenders at any time; provided that the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or L/C Issuer, as the case may be, in making such determination.

“ Required USD Revolving Credit Lenders ” means, at any time, USD Revolving Credit Lenders holding more than 50% of the sum of the (a) Total USD Revolving Credit Outstandings (with the aggregate amount of each USD Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such USD Revolving Credit Lender for purposes of

 

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this definition) at such time and (b) aggregate unused portion of the USD Revolving Credit Commitments at such time. The unused portion of the USD Revolving Credit Commitment of, and the portion of the Total USD Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be disregarded in determining Required USD Revolving Credit Lenders at any time; provided that the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or L/C Issuer in making such determination.

“ Resignation Effective Date ” has the meaning specified in Section 9.06(a).

“ Responsible Officer ” means the chief executive officer, president, chief financial officer, chief accounting officer, treasurer, general counsel, deputy general counsel, assistant general counsel, assistant treasurer or corporate controller (or, in each such case, the equivalent position however titled) of a Loan Party , solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01 and 4.03, the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article 2, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

“ Restatement Date ” means the first date all of the conditions precedent in Section 4.03 are satisfied or waived in accordance with Section 10.01 and on which date the 2017 Incremental Term Loans and the 2017 Refinancing Term Loans are funded.

“ Restricted Junior Payment ” means (i) any dividend or other distribution by the Company or any of its Subsidiaries, direct or indirect, on account of any shares of any class of stock, respectively, of the Company or such Subsidiary (or on account of any shares of any class of stock of any direct or indirect parent of the Company), now or hereafter outstanding, except a dividend or distribution payable solely in Equity Interests (other than Disqualified Equity Interests) of the Company; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, by the Company or any of its Subsidiaries, of any shares of any class of stock, respectively, of the Company or such Subsidiary (or on account of any shares of any class of stock of any direct or indirect parent thereof) now or hereafter outstanding, except to the extent in exchange for Equity Interests (other than Disqualified Equity Interests) of the Company; (iii) any payment made by the Company or any of its Subsidiaries to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of stock, respectively, of the Company or such Subsidiary (or any direct or indirect parent of the Company) now or hereafter outstanding, except to the extent such payment is made by the delivery of Equity Interests (other than Disqualified Equity Interests) of the Company; (iv) any payment or

 

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prepayment of principal (other than regularly scheduled principal payments) or redemption, purchase or repurchase, retirement, defeasance (including in substance or legal defeasance), sinking fund, cash settlement or similar payment with respect to Junior Financing prior to the scheduled maturity thereof, except to the extent such payment, repayment, redemption, purchase or repurchase is made by the delivery of Equity Interests (other than Disqualified Equity Interests) of the Company and (v) payments with respect to restricted stock units.

“ Revaluation Date ” means (a) with respect to any Multicurrency Revolving Credit Loan, each of the following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to Section 2.02, and (iii) such additional dates as the Administrative Agent shall reasonably determine or the Required Multicurrency Revolving Credit Lenders shall require; and (b) with respect to any Multicurrency Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (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 L/C Issuer under any Letter of Credit denominated in an Alternative Currency, and (iv) such additional dates as the Administrative Agent or the L/C Issuer shall reasonably determine or the Required Multicurrency Revolving Credit Lenders shall require.

“ Revolving Credit Borrowing ” means a Multicurrency Revolving Credit Borrowing and/or a USD Revolving Credit Borrowing, as the context may require.

“ Revolving Credit Commitment ” means a Multicurrency Revolving Credit Commitment and/or a USD Revolving Credit Commitment, as the context may require.

“ Revolving Credit Facility ” means, collectively, the Multicurrency Revolving Credit Facility and the USD Revolving Credit Facility.

“ Revolving Credit Lender ” means a Multicurrency Revolving Credit Lender and/or a USD Revolving Credit Lender, as the context may require.

“ Revolving Credit Loan ” means a Multicurrency Revolving Credit Loan and/or a USD Revolving Credit Loan, as the context may require (for the avoidance of doubt, upon this Agreement becoming effective, (i) prior to the First Amendment Effective Date, all Loans under the 2017 Revolving Credit Facility shall constitute Revolving Credit Loans and (ii) thereafter, all Loans under the 2018 Revolving Credit Facility shall constitute Revolving Credit Loans ).

“ Revolving Credit Note ” means a Multicurrency Revolving Credit Note and/or a USD Revolving Credit Note, as the context may require.

“ S&P ” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc. and any successor thereto.

“ Sale and Leaseback Transaction ” has the meaning specified in Section 7.09.

 

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“ Sanctions ” has the meaning specified in Section 5.27(b).

“ Same Day Funds ” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be reasonably determined by the Administrative Agent or the L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.

“ Scheduled Unavailability Date ” has the meaning specified in Section 3.03(c).

“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“ Securitization Intercompany Note ” means an intercompany note issued by a Receivables Entity to an originator in connection with a (i) Qualified Receivables Transaction and/or a (ii) Qualified Intercompany Note Transaction.

“ Secured Parties ” has the meaning assigned to that term in the Pledge and Security Agreement.

“ Securities ” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

“ Securities Act ” means the Securities Act of 1933, as amended from time to time, and any successor statute.

“ Senior Notes ” means (1) the $950,000,000 4.375% Senior Notes due 2025 issued under the Indenture dated as of October 10, 2017 (as amended by the First Supplemental Indenture, dated January 19, 2018, the Second Supplemental Indenture, dated May 8, 2018, and the Third Supplemental Indenture, dated November 9, 2018, and as it may be further amended or supplemented from time to time) by and among the Company, the Subsidiaries party thereto and Wells Fargo Bank, National Association, as trustee (the “ 2025 Notes ”) and (2) the $400,000,000 4.625% Senior Notes due 2028 issued under the Indenture dated January 19, 2018 (as amended by the First Supplemental Indenture, dated May 8, 2018 and the Second Supplemental Indenture, dated November 9, 2018, and as it may be further amended or supplemented from time to time) by and among the Company, the Subsidiaries party thereto and Wells Fargo Bank, National Association, as trustee (the “ 2028 Notes ”).

“ Senior Notes ” means the $1,000,000,000 5.250% Senior Notes due 2022 issued under the indenture dated as of July 2, 2015 by and among the Company, the Subsidiaries party thereto and Wells Fargo Bank, National Association, as trustee .

 

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“ Senior Notes Maturity Date ” means July 15, 2022.

“ Senior Representative ” means, with respect to any series of Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt or secured Permitted Incremental Equivalent Debt, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or other agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.

“ Series ” has the meaning specified in Section 2.16(a).

“ Servicer Account ” has the meaning assigned to that term in the Pledge and Security Agreement.

“ Servicer Lockbox ” has the meaning assigned to that term in the Pledge and Security Agreement.

“ Solvency Certificate ” means a Solvency Certificate of the chief financial officer of the Company substantially in the form of Exhibit M.

“ Solvent ” means, with respect to the Company and its Subsidiaries on a consolidated basis, that as of the date of determination, both (i) (a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Parties’ present assets on a consolidated basis; (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Restatement Date or with respect to any transaction contemplated to be undertaken after the Restatement Date on a consolidated basis; and (c) such Persons have not incurred and do not intend to incur, or believe (nor should they reasonably believe) that they will incur, debts beyond their ability to pay such debts as they become due (whether at maturity or otherwise) on a consolidated basis; and (ii) such Persons on a consolidated basis are not “insolvent” within the meaning given that term and similar terms under the Bankruptcy Code and other applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that would reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Accounting Standards Codification 450 (previously referred to as Statement of Financial Accounting Standards No. 5)).

“ Special Notice Currency ” means at any time an Alternative Currency, other than the currency of a country that is a member of the Organization for Economic Cooperation and Development at such time located in North America or Europe.

“ Specified Owned Properties” means any Real Estate Asset (and any other property or assets directly related thereto) identified to the Administrative Agent prior to the date hereof.

 

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“ Spot Rate ” for a currency means the rate determined by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person 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 or the L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that the L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Multicurrency Letter of Credit denominated in an Alternative Currency.

“ Spread Overlay Agreements ” means one or more bond hedges, warrants or other similar derivative transactions entered into by the Company in connection with its issuance of Convertible Notes.

“ Springing Maturity Date ” means April 15, 2022.

“ Standard Securitization Undertakings ” means representations, warranties, covenants and indemnities entered into by the Company or any Subsidiary or another Receivables Entity that, taken as a whole, are customary in an accounts receivable transaction.

“ Stated Maturity Date ” means October 3 December 17 , 2022 2023 .

“ Sterling ” and “ £ ” mean the lawful currency of the United Kingdom.

“ Subordinated Indebtedness ” means any Indebtedness subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent.

“ Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.

“ Subsidiary Guarantor ” means each Domestic Subsidiary of the Company that has in effect an enforceable Guarantee pursuant to Article 11.

“ Supplier ” has the meaning specified in Section 3.01(g).

“ Swap Obligation ” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act (including without limitation any Hedge Agreement).

 

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“ SWIFT ” has the meaning specified in Section 2.03(f).

“ Swing Line Borrowing ” means a borrowing of a Swing Line Loan pursuant to Section 2.04.

“ Swing Line Lender ” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

“ Swing Line Loan ” has the meaning specified in Section 2.04(a).

“ Swing Line Loan Notice ” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which shall be substantially in the form of Exhibit B or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the applicable Borrower.

“ Swing Line Note ” means a promissory note in the form of Exhibit C-2.1, C-2.2 or C-2.3, as applicable, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“ Swing Line Sublimit ” means an amount equal to the lesser of (a) $50,000,000 and (b) the Aggregate USD Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate USD Revolving Commitments.

“ TARGET2 ” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.

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

“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto, including without limitation, the U.S. medical device excise tax.

“ Term Borrowing ” means a borrowing consisting of simultaneous Term Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(a).

“ Term Commitment ” means, as to each Term Lender, (i) its obligation to make Term Loans to the Company on the Closing Date pursuant to Section 2.01(a) (in effect immediately prior to this Agreement becoming effective) in an aggregate principal

 

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amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 (in effect immediately prior to this Agreement becoming effective) under the caption “Term Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto (prior to this Agreement becoming effective), as applicable, as such amount may be adjusted from time to time in accordance with this Agreement and , (ii) immediately after this Agreement became effective, its obligation to make Term Loans to the Company on the Restatement Date pursuant to Section 2.01(a) (in effect immediately after this Agreement became effective) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 (in effect immediately after this Agreement became effective) under the caption “Term Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto (after this Agreement became effective), as applicable, as such amount may be adjusted from time to time in accordance with this Agreement . and (iii) as to any 2018 Refinancing Term Lender, its obligation to make 2018 Refinancing Term Loans to the Company on the First Amendment Effective Date pursuant to Section 2.01(a) in the amount set forth opposite such 2018 Refinancing Term Lender’s name on Schedule 1 of the First Amendment (in effect on the First Amendment Effective Date).

“ Term Facility ” means, at any time, the aggregate amount of the Term Lenders’ Term Commitments at such time and, for the avoidance of doubt, shall mean (x)  the 2017 Term Facility upon this Agreement becoming effective until the First Amendment Effective Date and (y) from and after the First Amendment Effective Date, the 2018 Term Facility .

“ Term Lender ” means, at any time, any Lender that has a Term Commitment and/or Term Loan at such time and, upon this Agreement becoming effective until the First Amendment Effective Date , shall include each 2017 Incremental Term Lender and each 2017 Refinancing Term Lender and from and after the First Amendment Effective Date, shall include the 2018 Refinancing Term Lenders .

“ Term Loan ” means (i) in regards to the Original Credit Agreement, those “Term Loans” outstanding under the Original Credit Agreement prior to this Agreement becoming effective and , (ii) after this Agreement became effective until the First Amendment Effective Date , the 2017 Incremental Term Loans and , the 2017 Refinancing Term Loans and the 2018 Refinancing Term Loans and (iii) from and after the First Amendment Effective Date, the 2018 Refinancing Term Loans .

“ Term Note ” means a promissory note made by any Borrower in favor of a Term Lender evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit C-3.

“ Term Loan Exposure ” means, as to any Lender at any time, the aggregate Outstanding Amount at such time of its Terms Loans; provided that at any time prior to the making of the Term Loans, the Term Loan Exposure of any Lender shall be equal to such Lender’s Term Loan Commitment.

“ Term Loan Installment ” has the meaning specified in Section 2.07.

 

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“ Term Loan Maturity Date ” means the Maturity Date with regard to the Term Facility or the New Term Loan Maturity Date of any Series of New Term Loans, as applicable.

“ Test Period ” has the meaning specified in Section 1.10.

“ Total Assets ” means the total amount of all assets of the Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP as shown on the then-most recent balance sheet of the Company.

“ Total Credit Exposure ” means, as to any Lender at any time, (a) in respect of the Term Facility, the Term Loan Exposure of such Lender outstanding at such time, (b) in respect of the Multicurrency Revolving Credit Facility, the unused Multicurrency Revolving Credit Commitments and Multicurrency Revolving Credit Exposure of such Lender at such time and (c) in respect of the USD Revolving Credit Facility, the unused USD Revolving Credit Commitments and USD Revolving Credit Exposure of such Lender at such time.

“ Total Multicurrency Revolving Credit Outstandings ” means the aggregate Outstanding Amount of all Multicurrency Revolving Credit Loans and L/C Obligations with respect to Multicurrency Letters of Credit.

“ Total Net Leverage Ratio ” means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated Net Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four (4)-Fiscal Quarter period ending on such date.

“ Total Revolving Credit Outstandings ” means, collectively, the Total Multicurrency Revolving Credit Outstandings and the Total USD Revolving Credit Outstandings.

“ Total USD Revolving Credit Outstandings ” means the aggregate Outstanding Amount of all USD Revolving Credit Loans. Swing Line Loans and L/C Obligations with respect to USD Letters of Credit.

“ Treaty Lender ” means a Lender which is treated as a resident of a Treaty State for the purposes of the Treaty and does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is connected.

“ Treaty State ” means a jurisdiction having a double taxation agreement (a “ Treaty ”) with the United Kingdom which makes provision for full exemption from Tax imposed by the United Kingdom on interest.

“ Type ” means, with respect to a Loan, its character as a LIBOR Daily Floating Rate Loan, Base Rate Loan or a Eurocurrency Rate Loan.

“ UCC ” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any applicable jurisdiction.

 

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“ UCP ” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

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

“ Unreimbursed Amount ” has the meaning specified in Section 2.03(c)(i).

“ U.K. Borrower ” has the meaning specified in the introductory paragraph hereto.

“ U.K. Borrower Sublimit ” means an amount equal to the lesser of (a) the Aggregate Revolving Commitments and (b) $200,000,000. The U.K. Borrower Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

“ USD Letter of Credit ” has the meaning specified in Section 2.03(a).

“ USD Revolving Credit Borrowing ” means a borrowing consisting of simultaneous USD Revolving Credit Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the USD Revolving Credit Lenders pursuant to Section 2.01(b).

“ USD Revolving Credit Commitment ” means, as to each Lender, its obligation to make (a) USD Revolving Credit Loans to the Borrowers pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations with respect to USD Letters of Credit and (c) (x) from the Closing Date until this Agreement became effective, purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 (as in effect immediately before this Agreement became effective) under the caption “USD Revolving Credit Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto (prior to this Agreement becoming effective), as applicable, as such amount may be adjusted from time to time in accordance with this Agreement and (y) immediately after this Agreement became effective, purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 (as in effect immediately after this Agreement became effective) under the caption “USD Revolving Credit Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto (after this Agreement became effective), as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

“ USD Revolving Credit Commitment Termination Date ” means the earliest to occur of (i) the Maturity Date in respect of the USD Revolving Credit Facility, (ii) the date the USD Revolving Credit Commitments are permanently reduced to zero pursuant to Section 2.05, and (iii) the date of the termination of the USD Revolving Credit Commitments pursuant to Section 8.02.

 

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“ USD Revolving Credit Exposure ” means, as to any Lender at any time, the aggregate Outstanding Amount at such time of its USD Revolving Credit Loans and the aggregate Outstanding Amount of such Lender’s participation in L/C Obligations in respect of USD Letters of Credit and Swing Line Loans at such time.

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

“ USD Revolving Credit Lender ” means, at any time, any Lender that has a USD Revolving Credit Commitment or a USD Revolving Credit Loan at such time.

“ USD Revolving Credit Loan ” has the meaning specified in Section 2.01(b).

“ USD Revolving Credit Note ” means a promissory note in the form of Exhibit C-4.1, C-4.2 or C-4.3, as applicable, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“ U.S. Loan Party ” means any Loan Party that is not a Foreign Obligor.

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

“ U.S. Tax Compliance Certificate ” has the meaning specified in Section 3.01(e)(ii)(B)(3).

“ VAT ” means:

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

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

“ Weighted Average Yield ” means with respect to any Indebtedness, on any date of determination, the weighted average yield to maturity, in each case, based on the interest rate applicable to such Indebtedness on such date and giving effect to all upfront or similar fees or original issue discount payable with respect to such Loan, as calculated by the Administrative Agent.

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

Section 1.02. Other Interpretive Provisions . With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

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(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights (but, for the avoidance of doubt, shall not include, in respect of a Person, the Equity Interests of, or other securities issued by, the same Person (which, for the avoidance of doubt, shall be the asset of the holder of such Equity Interests)).

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

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

(d) If any item is required to be delivered, or any action is required to be taken, on a day other than a Business Day, such item shall be required to be delivered, and such action shall be required to be taken, on the next following Business Day.

(e) For purposes of determining compliance with any of the covenants set forth in Article VII, in the event that any Lien, Investment, Indebtedness, Asset Sale, Restricted Junior Payment, transaction with Affiliates, or prepayment of Indebtedness meets the criteria of one or more of the categories of transactions or exceptions permitted pursuant to the same Section, the Borrower may classify such Lien, Investment, Indebtedness, Asset Sale, Restricted Junior Payment, transaction with Affiliates, or prepayment of Indebtedness (as applicable) (or portion thereof) at the time made or incurred, to one or more of such categories as determined by the Borrower in its sole discretion.

 

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(f) Immediately following the First Amendment Effective Date, all amounts attributed to, outstanding under, invested, paid or disposed of pursuant to each dollar basket in Section 2.05(c) and Article 7 shall be deemed to be zero (and such dollar baskets shall be restored to the applicable amount stated therein) and any such amounts previously attributed to, incurred, invested, disposed of or paid in reliance thereon shall be deemed to have been in place, outstanding or invested, disposed of or paid as of the Closing Date (and appropriately scheduled) for all purposes hereunder provided that all amounts referenced in the definition of Available Amount and available for use as part of the Available Amount immediately before the First Amendment Effective Date shall be left unchanged and available for use on and after the First Amendment Effective Date.

(g) Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term involving a Delaware limited liability company, shall also be deemed to apply to a division of or by a Delaware limited liability company under Delaware law or an allocation of assets to a series of a Delaware limited liability company under Delaware law (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a Delaware limited liability company under Delaware law shall constitute a separate Person hereunder (and each division of any Delaware limited liability company under Delaware law that is a Subsidiary, Excluded Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

Section 1.03. Accounting Terms . (a)  Generally . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Company and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded.

(b) Changes in GAAP . If at any time any change in GAAP (including the adoption of IFRS), from that in effect for preparing the Company’s consolidated financial statements for the Fiscal Year ended September 30, 2017, would affect any covenant or other provision of this Agreement, including without limitation, the computation of any financial ratio or requirement set forth in any Loan Document, and either the Company or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to amend such covenant or other provision to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, such covenant or other provision shall continue to be computed in accordance with GAAP prior to such change therein. Notwithstanding any other provisions set forth herein, leases shall

 

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continue to be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.

(c) Consolidation of Variable Interest Entities. All references herein to consolidated financial statements of the Company and its Subsidiaries or to the determination of any amount for the Company and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Company is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.

Section 1.04. Rounding . Any financial ratios required to be maintained by the Company pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

Section 1.05. Exchange Rates; Currency Equivalents . (a) The Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so calculated by the Administrative Agent or the L/C Issuer, as applicable.

(b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as calculated by the Administrative Agent or the L/C Issuer, as the case may be.

(c) The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurocurrency Rate” or with respect to any comparable or successor rate thereto.

Section 1.06. Additional Alternative Currencies . (a) The Borrowers may from time to time after the Closing Date request that Multicurrency Revolving Credit Loans that are Eurocurrency Rate Loans be made and/or Multicurrency Letters of Credit be issued in a currency other than those specifically listed in the definition of

 

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“Alternative Currency;” provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request with respect to the making of Multicurrency Revolving Credit Loans that are Eurocurrency Rate Loans, such request shall be subject to the approval of the Administrative Agent and the Multicurrency Revolving Credit Lenders; and in the case of any such request with respect to the issuance of Multicurrency Letters of Credit, such request shall be subject to the approval of the Administrative Agent and the L/C Issuer.

(b) Any such request referenced in Section 1.06(a) shall be made to the Administrative Agent not later than 11:00 a.m., six (6) Business Days prior to the date of the desired Credit Extension (or such other time or date requested by the Company and as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Multicurrency Letters of Credit, the L/C Issuer, in its or their sole discretion). In the case of any such request pertaining to Multicurrency Revolving Credit Loans that are Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Multicurrency Revolving Credit Lender thereof; and in the case of any such request pertaining to Multicurrency Letters of Credit, the Administrative Agent shall promptly notify the L/C Issuer thereof. Each Multicurrency Revolving Credit Lender (in the case of any such request pertaining to Multicurrency Revolving Credit Loans that are Eurocurrency Rate Loans) or the L/C Issuer (in the case of a request pertaining to Multicurrency Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., two (2) Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Multicurrency Revolving Credit Loans that are Eurocurrency Rate Loans, or the issuance of Multicurrency Letters of Credit, as the case may be, in such requested currency.

(c) Any failure by a Multicurrency Revolving Credit Lender or the L/C Issuer, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Multicurrency Revolving Credit Lender or the L/C Issuer, as the case may be, to permit Multicurrency Revolving Credit Loans that are Eurocurrency Rate Loans to be made or Multicurrency Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the Multicurrency Revolving Credit Lenders consent to making Multicurrency Revolving Credit Loans that are Eurocurrency Rate Loans in such requested currency, the Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Multicurrency Revolving Credit Borrowings of Eurocurrency Rate Loans; and if the Administrative Agent and the L/C Issuer consent to the issuance of Multicurrency Letters of Credit in such requested currency, the Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Multicurrency Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.06, the Administrative Agent shall promptly so notify the Company.

 

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Section 1.07. Change of Currency . (a) Each obligation of the Borrowers to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the Closing Date shall be redenominated into Euro at the time of such adoption. If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Committed Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Committed Borrowing, at the end of the then current Interest Period.

(b) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

(c) Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.

Section 1.08. Times of Day . Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

Section 1.09. Letter of Credit Amounts . Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit 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.

Section 1.10. Pro Forma Calculations .

(a) Notwithstanding anything to the contrary herein, the Net Senior Secured Leverage Ratio, the Total Net Leverage Ratio and the Interest Coverage Ratio shall be calculated in the manner prescribed by this Section 1.10; provided that, notwithstanding anything to the contrary herein, when calculating any such ratio for the purpose of the definition of Applicable Rate, any mandatory prepayment provision hereunder or compliance with Section 7.07, the events set forth in clauses (b), (c) and (d) below that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.

 

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(b) For purposes of calculating the Net Senior Secured Leverage Ratio, the Total Net Leverage Ratio and the Interest Coverage Ratio, Pro Forma Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been consummated (i) during the applicable period of four (4) consecutive Fiscal Quarters for which such financial ratio is being determined (the “ Test Period ”) or (ii) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, shall be calculated on a pro forma basis assuming that all such Pro Forma Transactions (and any increase or decrease in Consolidated Adjusted EBITDA and the component financial definitions used therein attributable to any Pro Forma Transaction) had occurred on the first day of the applicable Test Period.

(c) Whenever pro forma effect is to be given to a Pro Forma Transaction, the pro forma calculations shall be made in good faith by a financial or accounting Responsible Officer of the Company and may include, for the avoidance of doubt, the amount of synergies and cost savings projected by the Company from actions taken or expected to be taken during the 12-month period following the date of such Pro Forma Transaction, net of the amount of actual benefits theretofore realized during such period from such actions; provided that (i) such amounts are reasonably identifiable, quantifiable and factually supportable in the good faith judgment of the Company, (ii) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated Adjusted EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period and (iii) the aggregate amount of cost savings and synergies added pursuant to this clause (c) for any such period, together with any addback to Consolidated Adjusted EBITDA pursuant to paragraph (f) thereof, during any such period, shall not exceed 15% of Consolidated Adjusted EBITDA for such period, calculated without giving effect to any adjustment pursuant to this clause (c) or paragraph (f) of the definition of Consolidated Adjusted EBITDA. Nothing in this clause (c) shall limit any adjustment to Consolidated Adjusted EBITDA permitted pursuant to clause (y) of the proviso to paragraph (f) of the definition of Consolidated Adjusted EBITDA.

(d) In the event that the Company or any Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of the Net Senior Secured Leverage Ratio or the Total Net Leverage Ratio (other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Net Senior Secured Leverage Ratio or the Total Net Leverage Ratio, as applicable, shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.

(e) All ratios and other financial metrics, including, without limitation, “Total Assets”, “Consolidated Tangible Assets”, “Total Net Leverage Ratio”, and “Net Senior Secured Leverage Ratio”, shall be calculated based on the then-most recent financial statements delivered (or required to have been delivered) pursuant to Section 6.01(a) or (b).

 

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ARTICLE 2

THE COMMITMENTS AND CREDIT EXTENSIONS

Section 2.01. The Loans .

(a) The Term Borrowing . (i) Subject to the terms and conditions set forth herein, each Term Lender severally agrees to make a single loan (each such loan, a “ Term Loan ”) to the Company in Dollars on the Closing Date in an aggregate amount not to exceed at any time outstanding the amount of such Term Lender’s Term Commitment (in effect prior to this Agreement becoming effective) and , (ii) subject to the terms and conditions set forth herein, (x) each 2017 Incremental Term Lender with a 2017 Incremental Term Commitment severally agrees to make its portion of the 2017 Incremental Term Loan on the Restatement Date in accordance with the provisions set forth herein and (y) each 2017 Refinancing Term Lender with a 2017 Refinancing Term Commitment severally agrees to make its portion of the 2017 Refinancing Term Loan on the Restatement Date in accordance with the provisions set forth herein and (iii) subject to the terms and conditions set forth herein and in the First Amendment, each 2018 Refinancing Term Lender with a 2018 Refinancing Term Commitment severally agrees to make its portion of the 2018 Refinancing Term Loan on the First Amendment Effective Date in accordance with the provisions set forth herein and in the First Amendment (each such loans in this sentence, a “ Term Loan ”) . For all purposes hereof, (i)  the 2017 Term Loans shall constitute Term Loans until the First Amendment Effective Date and (ii) the 2018 Refinancing Term Loans shall constitute Term Loans on and after the First Amendment Effective Date . The 2017 Refinancing Term Loans shall refinance and repay in full the Existing Terms A Loan outstanding immediately prior to this Agreement becoming effective. The Term Borrowing on (i) the Closing Date shall consist of Term Loans made simultaneously by the Term Lenders in accordance with their respective Term Commitments (as in effect on the Closing Date immediately prior to the making of the Term Loans on the Closing Date) and , (ii) the Restatement Date shall consist of 2017 Term Loans made simultaneously by the Term Lenders in accordance with their respective Term Commitments (as in effect on the Restatement Date immediately prior to the making of the 2017 Term Loans on the Restatement Date ) and (iii) the First Amendment Effective Date shall consist of 2018 Refinancing Term Loans made simultaneously by the 2018 Refinancing Term Lenders in accordance with their respective 2018 Refinancing Term Commitments (as in effect on the First Amendment Effective Date immediately prior to the making of the 2018 Refinancing Term Loans on the First Amendment Effective Date ). Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans, LIBOR Daily Floating Rate Loans or Eurocurrency Rate Loans, as further provided herein. For the avoidance of doubt, (i) the 2017 Incremental Term Loan shall not be subject to Section 2.16 of this Agreement or of the Original Credit Agreement (and shall not constitute a New Term Loan for any purpose hereunder or under the Original Credit Agreement) and (ii) the 2017 Refinancing Term Loan shall not be subject to Section 2.19 of this Agreement or of the Original Credit Agreement (and shall not constitute a Refinancing Term Loan for any purpose hereunder or under the Original Credit Agreement).

 

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(b) The Revolving Credit Borrowings . Subject to the terms and conditions set forth herein, (i) each Multicurrency Revolving Credit Lender severally agrees to make loans (each such loan, a “ Multicurrency Revolving Credit Loan ”) to the applicable Borrower(s) in Dollars or in one or more Alternative Currencies from time to time, on any Business Day during the Availability Period , with respect to each Class of Revolving Credit Facility, (x) in the case of the Revolving Credit Facility in effect prior to the Restatement Date, such Revolving Credit Facility from the Closing Date until the Restatement Date, (y) in the case of the 2017 Revolving Credit Facility, from the Restatement Date until the First Amendment Effective Date and (z) in the case of the 2018 Revolving Credit Facility, from and after the First Amendment Effective Date, for the Multicurrency Revolving Credit Facility, in an aggregate amount not to exceed at any time outstanding the amount of such Multicurrency Revolving Credit Lender’s Multicurrency Revolving Credit Commitment and (ii) each USD Revolving Credit Lender severally agrees to make loans (each such loan, a “ USD Revolving Credit Loan ”) to the applicable Borrower(s) in Dollars from time to time, on any Business Day during the Availability Period with respect to each Class of Revolving Credit Facility, (x) in the case of the Revolving Credit Facility in effect prior to the Restatement Date, such Revolving Credit Facility from the Closing Date until the Restatement Date, (y) in the case of the 2017 Revolving Credit Facility, from the Restatement Date until the First Amendment Effective Date and (z) in the case of the 2018 Revolving Credit Facility, from and after the First Amendment Effective Date, for the USD Revolving Credit Facility, in an aggregate amount not to exceed at any time outstanding the amount of such USD Revolving Credit Lender’s USD Revolving Credit Commitment; provided, however , that after giving effect to any Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the Multicurrency Revolving Credit Exposure of any Multicurrency Revolving Credit Lender shall not exceed such Multicurrency Revolving Credit Lender’s Multicurrency Revolving Credit Commitment, (iii) the USD Revolving Credit Exposure of any USD Revolving Credit Lender shall not exceed such USD Revolving Credit Lender’s USD Revolving Credit Commitment, (iv) the aggregate Outstanding Amount of all Revolving Credit Loans made to the Designated Borrowers shall not exceed the Designated Borrower Sublimit, (v) the aggregate Outstanding Amount of all Multicurrency Revolving Credit Loans denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit and (vi) the aggregate Outstanding Amount of all Revolving Credit Loans made to the U.K. Borrower shall not exceed the U.K. Borrower Sublimit. Within the limits of each Revolving Credit Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01(b), prepay under Section 2.05, and reborrow under this Section 2.01(b). Revolving Credit Loans denominated in Dollars may be Base Rate Loans, LIBOR Daily Floating Rate Loans or Eurocurrency Rate Loans, as further provided herein. Revolving Credit Loans denominated in an Alternative Currency must be Eurocurrency Rate Loans.

 

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Section 2.02. Borrowings, Conversions and Continuations of Loans .

(a) Each Revolving Credit Borrowing, each Term Borrowing, each conversion of Term Loans and Revolving Credit Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon any Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone or (B) a Committed Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Administrative Agent of a Committed Loan Notice. Each such Committed Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans denominated in Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate Loans or LIBOR Daily Floating Rate Loans, (ii) four Business Days (or five Business Days in the case of a Special Notice Currency) prior to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans denominated in Alternative Currencies, and (iii) on the requested date of any Borrowing of Base Rate Loans or LIBOR Daily Floating Rate Loans; provided, however , that if any Borrower wishes to request Eurocurrency Rate Loans having an Interest Period other than one week or one, two, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. (i) four Business Days prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Dollars, or (ii) five Business Days (or six Business days in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Alternative Currencies, whereupon the Administrative Agent shall give prompt notice to the Appropriate Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m., (i) three Business Days before the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Dollars, or (ii) four Business Days (or five Business days in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Alternative Currencies, the Administrative Agent shall notify the applicable Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Appropriate Lenders. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans or LIBOR Daily Floating Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice shall specify (i) whether the applicable Borrower is requesting a Term Borrowing, a Multicurrency Revolving Credit Borrowing, a USD Revolving Credit Borrowing, a conversion of Term Loans or Revolving Credit Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto, (vi) in the case of a Multicurrency Revolving Credit Borrowing, the currency of the Loans to be borrowed, and (vii) in the case of a Revolving Credit Borrowing, the applicable Borrower. If the Company fails to specify a currency in a Committed Loan Notice requesting a Multicurrency Revolving Credit Borrowing, then the Multicurrency Revolving Credit Loans so requested shall be made in Dollars.

 

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If the Company fails to specify whether a Revolving Credit Borrowing denominated in Dollars is a Multicurrency Revolving Credit Borrowing or a USD Revolving Credit Borrowing, the applicable Revolving Credit Loans shall be allocated first , to the USD Revolving Credit Facility to the full extent of the then unused USD Revolving Credit Commitments and second, to the Multicurrency Revolving Credit Facility to the full extent of the then unused Multicurrency Revolving Credit Commitments. If the Company fails to specify a Type of Loan in a Committed Loan Notice or if the Company fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans; provided, however , that in the case of a failure to timely request a continuation of Multicurrency Revolving Credit Loans denominated in an Alternative Currency, such Multicurrency Revolving Credit Loans shall be continued as Eurocurrency Rate Loans in their original currency with an Interest Period of one month. Any automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If any Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Notwithstanding anything to the contrary contained herein, (x) a Swing Line Loan may not be converted to a Eurocurrency Rate Loan , (y) no Multicurrency Revolving Credit Loan may be converted into or continued as a Multicurrency Revolving Credit Loan denominated in a different currency, but instead must be prepaid in the original currency of such Multicurrency Revolving Credit Loan and reborrowed in the other currency and (z) no Term Loan or USD Revolving Credit Loan may be converted into or continued as a Loan denominated in an Alternative Currency.

(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Appropriate Lender of the amount (and currency) of its Applicable Percentage of the applicable Term Loans or Revolving Credit Loans, and if no timely notice of a conversion or continuation is provided by the applicable Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation of Multicurrency Revolving Credit Loans denominated in a currency other than Dollars, in each case as described in Section 2.02(a). In the case of a Term Borrowing or a Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office for the applicable currency not later than 1:00 p.m., in the case of any Loan denominated in Dollars, and not later than the Applicable Time specified by the Administrative Agent in the case of any Multicurrency Revolving Credit Loan denominated in an Alternative Currency, in each case on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension on the Closing Date, Section 4.01 and if such Borrowing is a Credit Extension on the Restatement Date, Section 4.03), the Administrative Agent shall make all funds so received available to the Company or the other applicable Borrowers in like funds as received by the Administrative Agent by the date requested in the Committed Loan Notice either by (i) crediting the account of such Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably

 

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acceptable to) the Administrative Agent by the applicable Borrower; provided, however , that if, on the date a Committed Loan Notice with respect to a Revolving Credit Borrowing denominated in Dollars is given by the applicable Borrower, there are L/C Borrowings outstanding, then the proceeds of such Revolving Credit Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and, second, shall be made available to the applicable Borrower as provided above.

(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans (whether in Dollars or any Alternative Currency) without the consent of the Required Lenders, and the Required Multicurrency Revolving Credit Lenders may demand that any or all of the then outstanding Eurocurrency Rate Loans denominated in an Alternative Currency be, as determined by the applicable Borrower, prepaid, or redenominated into Dollars in the amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with respect thereto. For the avoidance of doubt, the Company shall be permitted to set the last day of each Interest Period.

(d) The Administrative Agent shall promptly notify the Company and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Company and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

(e) After giving effect to all Term Borrowings, all conversions of Term Loans from one Type to the other, and all continuations of Term Loans as the same Type, there shall not be more than ten Interest Periods in effect with respect to the Term Facility. After giving effect to all Revolving Credit Borrowings, all conversions of Revolving Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the same Type, there shall not be more than ten Interest Periods in effect with respect to the Revolving Credit Facility.

(f) Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all of the portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Company, the Administrative Agent, and such Lender.

Section 2.03. Letters of Credit .

(a) The Letter of Credit Commitment.

(i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue

 

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(a) Letters of Credit denominated in Dollars or in one or more Alternative Currencies (each, a “ Multicurrency Letter of Credit ”) or (b) Letters of Credit denominated in Dollars (each, a “ USD Letter of Credit ”), in each case for the account of the Company or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; (B) the Multicurrency Revolving Credit Lenders severally agree to participate in Multicurrency Letters of Credit issued for the account any Borrower or any of its Subsidiaries and any drawings thereunder; and (C) the USD Revolving Credit Lenders severally agree to participate in USD Letters of Credit issued for the account of the Company or any of its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving Commitments, (x) the Multicurrency Revolving Credit Exposure of any Multicurrency Revolving Credit Lender shall not exceed such Multicurrency Revolving Credit Lender’s Multicurrency Revolving Credit Commitment, (y) the USD Revolving Credit Exposure of any USD Revolving Credit Lender shall not exceed such USD Revolving Credit Lender’s USD Revolving Credit Commitment and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by a Borrower for the issuance or amendment of a Letter of Credit (1) shall state whether such Letter of Credit shall constitute a Multicurrency Letter of Credit or a USD Letter of Credit (and, in the case of any Multicurrency Letter of Credit, the currency in which such Letter of Credit is to be denominated) and (2) shall be deemed to be a representation by such Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof. All Letters of Credit outstanding under the Original Credit Agreement immediately prior to the Restatement Date shall remain outstanding upon this Agreement becoming effective and thereafter shall be subject to and governed by the terms and conditions hereof.

(ii) The L/C Issuer shall not issue any Letter of Credit, if:

(A) subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Multicurrency Revolving Credit Lenders (in the case of any Multicurrency Letter of Credit) or the Required USD Revolving Credit Lenders (in the case of any USD Letter of Credit) have approved such expiry date; or

 

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(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) the Administrative Agent, the applicable L/C Issuer and (1) in the case of any Multicurrency Letter of Credit, all of the Multicurrency Revolving Credit Lenders or (2) in the case of any USD Letter of Credit, all of the USD Revolving Credit Lenders, have approved such expiry date or (y) such Letter of Credit is cash collateralized on terms and pursuant to arrangements reasonably satisfactory to the applicable L/C Issuer.

(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:

(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Restatement Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Restatement Date and which the L/C Issuer in good faith deems material to it;

(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;

(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $100,000, in the case of a standby Letter of Credit;

(D) such Letter of Credit is to be denominated in a currency other than (x) Dollars or (y) an Alternative Currency;

(E) the L/C Issuer does not, as of the issuance date of such requested Letter of Credit, issue Letters of Credit in the requested currency;

(F) (1) in the case of any Multicurrency Letter of Credit, any Multicurrency Revolving Credit Lender or (2) in the case of any USD Letter of Credit, any USD Revolving Credit Lender, is at that time a Defaulting Lender, unless the L/C Issuer has received Cash Collateral or entered into other arrangements satisfactory to the L/C Issuer (in its sole discretion) with the applicable Borrower or such Revolving Credit Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after

 

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giving effect to any reallocation pursuant to Section 2.18(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or

(G) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.

(iv) The L/C Issuer shall not, at the request of the applicable Borrower, amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.

(v) The L/C Issuer shall be under no obligation to, at the request of the applicable Borrower, amend any Letter of Credit if the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

(vi) The L/C Issuer shall act on behalf of the Appropriate Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article 9 with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and the Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article 9 included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.

(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.

(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of any Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of such Borrower. Such Letter of Credit Application may be sent by email, facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the L/C Issuer, by personal delivery or by any other means acceptable to the L/C Issuer. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof;

 

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(D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature (i.e., standby or commercial) of the requested Letter of Credit; (H) such other matters as the L/C Issuer may reasonably require and (I) whether such Letter of Credit is a Multicurrency Letter of Credit or a USD Letter of Credit. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably require. Additionally, the applicable Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.

(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Appropriate Revolving Credit Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article 4 shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Multicurrency Letter of Credit, each Multicurrency Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Multicurrency Revolving Credit Lender’s Applicable Revolving Credit Percentage times the amount of such Letter of Credit. Immediately upon the issuance of each USD Letter of Credit, each USD Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such USD Revolving Credit Lender’s Applicable Revolving Credit Percentage times the amount of such Letter of Credit.

(iii) If any Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month

 

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period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, no Borrower shall be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Multicurrency Revolving Credit Lenders (in the case of a Multicurrency Letter of Credit) and the USD Revolving Credit Lenders (in the case of a USD Letter of Credit) shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however , that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Multicurrency Revolving Credit Lenders (in the case of any Multicurrency Letter of Credit) or the Required USD Revolving Credit Lenders (in the case of any USD Letter of Credit) have elected not to permit such extension or (2) from the Administrative Agent, any Appropriate Lender or any Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.

(iv) If any Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “ Auto-Reinstatement Letter of Credit ”). Unless otherwise directed by the L/C Issuer, no Borrower shall be required to make a specific request to the L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Multicurrency Revolving Credit Lenders (in the case of a Multicurrency Letter of Credit) and the USD Revolving Credit Lenders (in the case of a USD Letter of Credit) shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “ Non-Reinstatement Deadline ”), the L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Reinstatement Deadline (A) from the Administrative Agent that the Required Multicurrency Revolving Credit Lenders (in the case of any Multicurrency Letter of Credit) or the Required USD Revolving Credit Lenders (in the case of any USD Letter of Credit) have elected

 

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not to permit such reinstatement or (B) from the Administrative Agent, any Appropriate Lender or any Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the L/C Issuer not to permit such reinstatement.

(v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the applicable Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

(c) Drawings and Reimbursements; Funding of Participations.

(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the applicable Borrower and the Administrative Agent thereof. In the case of a Multicurrency Letter of Credit denominated in an Alternative Currency, the applicable Borrower shall reimburse the L/C Issuer in such Alternative Currency, unless (A) the L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the applicable Borrower shall have notified the L/C Issuer promptly following receipt of the notice of drawing that the applicable Borrower will reimburse the L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Multicurrency Letter of Credit denominated in an Alternative Currency, the L/C Issuer shall notify the applicable Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an “ Honor Date ”), the applicable Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency. In the event that (A) a drawing denominated in an Alternative Currency is to be reimbursed in Dollars pursuant to the second sentence in this Section 2.03(c)(i) and (B) the Dollar amount paid by the applicable Borrower, whether on or after the Honor Date, shall not be adequate on the date of that payment to purchase in accordance with normal banking procedures a sum denominated in the Alternative Currency equal to the drawing, the applicable Borrower agrees, as a separate and independent obligation, to indemnify the L/C Issuer for the loss resulting from its inability on that date to purchase the Alternative Currency in the full amount of the drawing. If the applicable Borrower fails to timely reimburse the L/C Issuer on the Honor Date, the Administrative Agent shall promptly notify each Appropriate Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Multicurrency Letter of Credit denominated in an Alternative Currency)

 

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(the “ Unreimbursed Amount ”), and the amount of such Lender’s Applicable Revolving Credit Percentage thereof. In such event, the applicable Borrower shall be deemed to have requested a Multicurrency Revolving Credit Borrowing (in the case of any Multicurrency Letter of Credit) or a USD Borrowing (in the case of any USD Letter of Credit) of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the applicable Class of Revolving Credit Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

(ii) Each Multicurrency Revolving Credit Lender (in the case of a Multicurrency Letter of Credit) and each USD Revolving Credit Lenders (in the case of a USD Letter of Credit) shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office for Dollar-denominated payments in an amount equal to its Applicable Revolving Credit Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Multicurrency Revolving Credit Lender that so makes funds available shall be deemed to have made a Multicurrency Revolving Credit Loan that is a Base Rate Loan to the applicable Borrower in such amount and each USD Revolving Credit Lender that so makes funds available shall be deemed to have made a USD Revolving Credit Loan that is a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.

(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each applicable Revolving Credit Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Revolving Credit Lender in satisfaction of its participation obligation under this Section 2.03.

 

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(iv) Until each applicable Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Revolving Credit Lender’s Applicable Revolving Credit Percentage of such amount shall be solely for the account of the L/C Issuer.

(v) Each applicable Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, any Borrower, any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however , that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the applicable Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the applicable Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.

(vi) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Revolving Credit Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), then, without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Revolving Credit Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Revolving Credit Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Credit Lender’s Multicurrency Revolving Credit Loan or USD Revolving Credit Loan, as applicable, included in the relevant Revolving Credit Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive absent manifest error. Nothing in this Section 2.03 shall be deemed to relieve any Lender with a Revolving Credit Commitment from its obligation to make Revolving Credit Loans on the terms and conditions set forth herein, and the Borrowers shall retain any and all rights they may have against any such Revolving Credit Lender resulting from the failure of such Lender to make such Revolving Credit Loans pursuant to this Section 2.03(c).

(d) Repayment of Participations.

 

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(i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Credit Lender such Revolving Credit Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the applicable Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Revolving Credit Lender its Applicable Revolving Credit Percentage thereof in Dollars and in the same funds as those received by the Administrative Agent.

(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Multicurrency Revolving Credit Lender (in the case of any Multicurrency Letter of Credit) and each USD Revolving Credit Lender (in the case of any USD Letter of Credit) shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Revolving Credit Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Revolving Credit Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Loan Document Obligations and the termination of this Agreement.

(e) Obligations Absolute . The obligation of the applicable Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;

(ii) the existence of any claim, counterclaim, setoff, defense or other right that any Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

 

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(iv) waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of the Borrowers or any waiver by the L/C Issuer which does not in fact materially prejudice the Borrowers;

(v) honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;

(vi) any payment made by the L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under, such Letter of Credit if presentation after such date is authorized by the UCC or the ISP, as applicable;

(vii) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;

(viii) any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Borrowers or any Subsidiary or in the relevant currency markets generally; or

(ix) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Borrower or any of its respective Subsidiaries.

The applicable Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with any of the applicable Borrower’s instructions or other irregularity, the applicable Borrower will promptly notify the L/C Issuer. The Borrowers shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.

(f) Role of L/C Issuer . Each Lender and each Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of all of the Required Multicurrency Revolving Credit Lenders, Required USD Revolving Credit Lenders, Revolving Credit Lenders or the Required Revolving Credit Lenders, as applicable; (ii) any action taken or omitted in the

 

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absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The applicable Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however , that this assumption is not intended to, and shall not, preclude any applicable Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (ix) of Section 2.03(e); provided, however , that anything in such clauses to the contrary notwithstanding, the applicable Borrower or its Subsidiaries may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the applicable Borrower or its Subsidiaries, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the applicable Borrower or its Subsidiaries which such Borrower or such Subsidiaries proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit . In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“ SWIFT ”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

(g) Applicability of ISP and UCP; Limitation of Liability . Unless otherwise expressly agreed by the L/C Issuer and the applicable Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit and (ii) the rules of UCP shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, the L/C Issuer shall not be responsible to the applicable Borrower for, and the L/C Issuer’s rights and remedies against the applicable Borrower shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

 

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(h) Letter of Credit Fees . The applicable Borrower shall pay to the Administrative Agent (A) for the account of each Multicurrency Revolving Credit Lender in accordance, subject to adjustment as provided in Section 2.18, with its Applicable Revolving Credit Percentage, in Dollars, a Letter of Credit fee (the “ Multicurrency Letter of Credit Fee ”) for each Multicurrency Letter of Credit equal to the Applicable Rate for Revolving Credit Loans that are Eurocurrency Rate Loans times the Dollar Equivalent of the daily amount available to be drawn under such Multicurrency Letter of Credit and (B) for the account of each USD Revolving Credit Lender in accordance, subject to adjustment as provided in Section 2.18, with its Applicable Revolving Credit Percentage, in Dollars, a Letter of Credit fee (the “ USD Letter of Credit Fee ”, and together with the Multicurrency Letter of Credit Fee, the “ Letter of Credit Fee ”) for each USD Letter of Credit equal to the Applicable Rate for Revolving Credit Loans that are Eurocurrency Rate Loans times the Dollar Equivalent of the daily amount available to be drawn under such USD Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. Letter of Credit Fees shall be (i) due and payable on the fifth Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears on the last day of such quarter. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, (1) upon the request of the Required Multicurrency Revolving Credit Lenders, while any Event of Default exists, all Multicurrency Letter of Credit Fees shall accrue at the Default Rate and (2) upon the request of the Required USD Revolving Credit Lenders, while any Event of Default exists, all USD Letter of Credit Fees shall accrue at the Default Rate.

(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer . The Company shall pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee , with respect to each Letter of Credit, at the rate per annum equal to 0.125%, computed on the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the fifth Business Day after the end of each March, June, September and December in respect of the then-most recently-ended quarterly period (or portion thereof, in the case of the first payment), computed as of the end of such quarter and commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. In addition, the Company shall pay directly to the L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

 

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(j) Conflict with Issuer Documents . In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

(k) Letters of Credit Issued for Subsidiaries . Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Company shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Company hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Company, and that the Company’s business derives substantial benefits from the businesses of such Subsidiaries.

(l) Additional L/C Issuers . The Company may, at any time and from time to time with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) and such Multicurrency Revolving Credit Lender, designate one or more additional Multicurrency Revolving Credit Lenders to act as an L/C Issuer under the terms of this Agreement (provided that there shall not be more than three (3) L/C Issuers at any one time), subject to Section 2.03(m). Any Lender designated as an L/C Issuer pursuant to this clause (l) shall be deemed to be an “L/C Issuer” (in addition to being a Lender) in respect of Letters of Credit issued or to be issued by such Lender, and, with respect to such Letters of Credit, such term shall thereafter apply to the other L/C Issuer(s) and such Lender.

(m) L/C Issuer Reports to the Administrative Agent . Unless otherwise agreed by the Administrative Agent, each L/C Issuer shall, in addition to its notification obligations set forth elsewhere in this Section 2.03, provide the Administrative Agent a Letter of Credit Report, as set forth below:

(i) reasonably prior to the time that such L/C Issuer issues, amends, renews, increases or extends a Letter of Credit, the date of such issuance, amendment, renewal, increase or extension and the stated amount of the applicable Letters of Credit after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed);

(ii) on each Business Day on which such L/C Issuer makes a payment pursuant to a Letter of Credit, the date and amount of such payment;

(iii) on any Business Day on which a Borrower fails to reimburse a payment made pursuant to a Letter of Credit required to be reimbursed to such L/C Issuer on such day, the date of such failure and the amount of such payment;

(iv) on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such L/C Issuer; and

(v) for so long as any Letter of Credit issued by an L/C Issuer is outstanding, such L/C Issuer shall deliver to the Administrative Agent (A) on the last Business Day of each calendar month, (B) at all other times a Letter of Credit Report is required to be delivered pursuant to this Agreement, and

 

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(C) on each date that (1) an L/C Credit Extension occurs or (2) there is any expiration, cancellation and/or disbursement, in each case, with respect to any such Letter of Credit, a Letter of Credit Report appropriately completed with the information for every outstanding Letter of Credit issued by such L/C Issuer.

Section 2.04. Swing Line Loans .

(a) The Swing Line . Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make loans in Dollars (each such loan, a “ Swing Line Loan ”) to the Borrowers from time to time on any Business Day during the Availability Period with respect to the USD Revolving Credit Facility in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Revolving Credit Percentage of the Outstanding Amount of USD Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s USD Revolving Credit Commitment; provided , however , that (x) after giving effect to any Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving Commitments and (ii) the USD Revolving Credit Exposure of any USD Revolving Credit Lender shall not exceed such USD Revolving Credit Lender’s USD Revolving Credit Commitment, (y) the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and (z) the Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. For the avoidance of doubt, Swing Line Loans made to the U.K. Borrower shall be made under the U.K. Borrower Sublimit, Swing Line Loans made to the Designated Borrowers shall be made under the Designated Borrower Sublimit and Swing Line Loans made to the Company shall be made under the Revolving Credit Facility. Each Swing Line Loan shall bear interest only at a rate based on the Base Rate. Immediately upon the making of a Swing Line Loan, each USD Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such USD Revolving Credit Lender’s Applicable Revolving Credit Percentage times the amount of such Swing Line Loan.

(b) Borrowing Procedures . Each Swing Line Borrowing shall be made upon any Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by (A) telephone or (B) by a Swing line Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a Swing Line Loan Notice. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum principal amount of $100,000, (ii) the requested borrowing date, which shall be a Business Day and (iii) the applicable Borrower.

 

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Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any USD Revolving Credit Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article 4 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrowers at its office by crediting the account of the applicable Borrower on the books of the Swing Line Lender in Same Day Funds.

(c) Refinancing of Swing Line Loans.

(i) The Swing Line Lender at any time in its sole discretion may request, on behalf of the applicable Borrower (each of which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each USD Revolving Credit Lender make a USD Revolving Credit Loan that is a Base Rate Loan in an amount equal to such USD Revolving Credit Lender’s Applicable Revolving Credit Percentage of the amount of Swing Line Loans then outstanding for the account of such Borrower. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02. The Swing Line Lender shall furnish the applicable Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent. Each USD Revolving Credit Lender shall make an amount equal to its Applicable Revolving Credit Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in Same Day Funds (and the Administrative Agent may apply Cash Collateral of the applicable Borrower available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each USD Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.

 

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(ii) If for any reason any Swing Line Loan cannot be refinanced by such a USD Revolving Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the USD Revolving Credit Lenders fund its risk participation in the relevant Swing Line Loan and each USD Revolving Credit Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.

(iii) If any USD Revolving Credit Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such USD Revolving Credit Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such USD Revolving Credit Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such USD Revolving Credit Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such USD Revolving Credit Lender’s USD Revolving Credit Loan included in the relevant USD Revolving Credit Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any USD Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

(iv) Each USD Revolving Credit Lender’s obligation to make USD Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such USD Revolving Credit Lender may have against the Swing Line Lender, any Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however , that each USD Revolving Credit Lender’s obligation to make USD Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of any Borrower to repay Swing Line Loans made for such Borrower’s account, together with interest as provided herein.

(d) Repayment of Participations.

(i) At any time after any USD Revolving Credit Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such USD Revolving Credit Lender its Applicable Revolving Credit Percentage thereof in the same funds as those received by the Swing Line Lender.

 

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(ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each USD Revolving Credit Lender shall pay to the Swing Line Lender its Applicable Revolving Credit Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the USD Revolving Credit Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

(e) Interest for Account of Swing Line Lender . The Swing Line Lender shall be responsible for invoicing the applicable Borrower for interest on the Swing Line Loans. Until each USD Revolving Credit Lender funds its USD Revolving Credit Loans that are Base Rate Loans or risk participation pursuant to this Section 2.04 to refinance such USD Revolving Credit Lender’s Applicable Revolving Credit Percentage of any Swing Line Loan, interest in respect of such Applicable Revolving Credit Percentage shall be solely for the account of the Swing Line Lender.

(f) Payments Directly to Swing Line Lender . The applicable Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.

Section 2.05. Prepayments/Commitment Reductions .

(a) Voluntary Prepayments.

(i) At any time and from time to time:

(A) with respect to Base Rate Loans or LIBOR Daily Floating Rate Loans, the Borrowers may prepay any such Loans on any Business Day in whole or in part in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount (or, if less, the aggregate principal amount of Base Rate Loans or LIBOR Daily Floating Rate Loans then outstanding, as applicable);

(B) with respect to Eurocurrency Rate Loans, the Borrowers may prepay any such Loans on any Business Day in whole or in part in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount (or, if less, the aggregate principal amount of Eurocurrency Rate Loans then outstanding); and

(C) with respect to Swing Line Loans, the Borrowers may prepay any such Loans on any Business Day in whole or in part in an aggregate minimum amount of $500,000, and in integral multiples of $100,000 in excess of that amount.

 

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(ii) All such prepayments shall be made:

(A) upon written or telephonic notice on the date of prepayment, in the case of Base Rate Loans or LIBOR Daily Floating Rate Loans;

(B) upon not less than three (3) Business Days’ prior written or telephonic notice in the case of Eurocurrency Rate Loans denominated in Dollars;

(C) upon not less than four (4) Business Days’ (or five, in the case of prepayment of Loans denominated in Special Notice Currencies) prior written or telephonic notice in the case of Eurocurrency Rate Loans denominated an Alternative Currencies; and

(D) upon written or telephonic notice on the date of prepayment, in the case of Swing Line Loans;

in each case given to the Administrative Agent or the Swing Line Lender, as the case may be, by 2:00 p.m. (New York City time) on the date required pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment and, if given by telephone, promptly confirmed in writing to the Administrative Agent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment (and the Administrative Agent will promptly transmit such telephonic or original notice for Term Loans or Revolving Credit Loans, as the case may be, by electronic mail or telephone to each Appropriate Lender) or the Swing Line Lender, as the case may be. Upon the giving of any such notice, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified in Section 2.06(a).

(b) Voluntary Commitment Reductions.

(i) The Company may, upon not less than three (3) Business Days’ prior written notice pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment or telephonic notice confirmed in writing to the Administrative Agent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment (which original written or telephonic notice the Administrative Agent will promptly transmit by electronic mail or telephone to each applicable Lender), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Revolving Credit Commitments of each Class or any Class, in the Company’s discretion, in an amount up to the amount by which the Revolving Credit Commitments exceed the Total Revolving Credit Outstandings at the time of such proposed termination or reduction; provided , any such partial reduction of the Revolving Credit Commitments shall be in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount.

 

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(ii) The Company’s notice to the Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Credit Commitments shall be effective on the date specified in the Company’s notice and shall reduce the Applicable Revolving Credit Percentage of each Revolving Credit Lender of the applicable Class on a pro rata basis.

(c) Mandatory Prepayments/Commitment Reductions.

(i) Asset Sales. Subject to Sections 2.06(e) and 2.20, no later than the fifth Business Day following the date of receipt by the Company or any of its Subsidiaries of any Net Asset Sale Proceeds in excess of the greater of (x) $300,000,000 and (y) 15.0% of Consolidated Tangible Assets in the aggregate (for the avoidance of doubt such basket shall be fully available as of the Restatement Date) arising from an Asset Sale pursuant to Section 7.08(c) (other than any such Net Asset Sale Proceeds that are used to repay, prepay or redeem (I) the 2.00% Convertible Senior Notes due 2042, issued by the Company pursuant to the Base Indenture and that certain Third Supplemental Indenture dated as of March 5, 2012, by and between Wilmington Trust Company, as trustee, and the Company or (II) the 2.00% Convertible Senior Notes due 2043 issued by the Company pursuant to the Base Indenture and that certain Fourth Supplemental Indenture dated as of February 21, 2013, by and between Wilmington Trust Company, as trustee, and the Company) (including, in the case of the immediately preceding clauses (I) and (II), all principal, interest, fees, recapture taxes in regards to such Indebtedness, costs, expenses and/or premiums related thereto), the Company shall prepay the Loans as set forth in Section 2.06(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided so long as no Default or Event of Default shall have occurred and be continuing, the Company shall have the option, directly or through one or more of its Subsidiaries, to invest or commit to invest such Net Asset Sale Proceeds within one year of receipt thereof in productive assets of the general type used in the business of the Company and its Subsidiaries, including, without limitation, through a Permitted Acquisition and/or any other acquisition constituting a permitted Investment; provided that if any amount is so committed to be reinvested within such one-year period, but is not reinvested within the later to occur of (x) six months of the date of such commitment and (y) the end of such one year period, the Company shall prepay the Loans in accordance with this Section 2.05(c)(i) without giving further effect to such reinvestment right.

(ii) Insurance/Condemnation Proceeds. Subject to Sections 2.06(e) and 2.20, no later than the fifth Business Day following the date of receipt by the Company or any of its Subsidiaries, or the Administrative Agent as loss payee, of any Net Insurance/Condemnation Proceeds, the Company shall prepay the Loans as set forth in Section 2.06(b) in an aggregate amount equal to such Net Insurance/Condemnation Proceeds (in excess of $25,000,000 in the aggregate (for the avoidance of doubt such basket shall be fully available as of the Restatement Date)); provided , so long as no Default or Event of Default shall have occurred

 

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and be continuing, the Company shall have the option, directly or through one or more of its Subsidiaries, to invest or commit to invest such Net Insurance/Condemnation Proceeds within one year of receipt thereof in long-term productive assets of the general type used in the business of the Company and its Subsidiaries, including through a Permitted Acquisition, which investment may include the repair, restoration or replacement of the applicable assets thereof; provided that if any amount is so committed to be reinvested within such one-year period, but is not reinvested within the later to occur of (x) six months of the date of such commitment and (y) the end of such one year period, the Company shall prepay the Loans in accordance with this Section 2.05(c)(ii) without giving further effect to such reinvestment right.

(iii) [Reserved].

(iv) Issuance of Debt. Subject to Sections 2.06(e) and 2.20, no later than the fifth Business Day following the date of receipt by the Company or any of its Subsidiaries of any net Cash proceeds from the incurrence of any Indebtedness of the Company or any of its Subsidiaries, the Company shall prepay the Loans as set forth in Section 2.06(b) in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions, and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses; provided , however , that the net Cash proceeds of any Indebtedness permitted to be incurred pursuant to Section 7.01 shall be excluded from the application hereof.

(v) Reserved.

(vi) Revolving Credit Loans and Swing Line Loans. The Company shall from time to time prepay first, the Swing Line Loans without reductions in USD Revolving Credit Commitments and second, the Revolving Credit Loans of each and/or any Class without reductions in Revolving Credit Commitments, in each case to the extent necessary so that the Total Revolving Credit Outstandings shall not at any time exceed the Revolving Credit Commitments then in effect.

(vii) Letter of Credit Sublimit. If at any time the L/C Obligations shall exceed the Letter of Credit Sublimit, the Company shall immediately Cash Collateralize Letters of Credit in an amount equal to such excess .

(viii) Prepayment Certificate. Concurrently with any prepayment of the Loans pursuant to Sections 2.05(c)(i) through 2.05(c)(iv), the Company shall deliver to the Administrative Agent a certificate of a Responsible Officer demonstrating the calculation of the amount of the applicable net proceeds. In the event that the Company shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate by more than $1,000,000, the Company shall promptly make an additional prepayment of the Loans in an amount equal to such excess, and the Company shall concurrently therewith deliver to the Administrative Agent a certificate of a Responsible Officer demonstrating the derivation of such excess .

 

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