Exhibit 10.1

[Execution Version]

AMENDMENT NO. 2

AMENDMENT NO. 2, dated as of March 26, 2019 (together with all exhibits and schedules hereto, this “ Amendment No.  2 ” or this “ Agreement ”), among SYNEOS HEALTH, INC. (f/k/a INC Research Holdings, Inc.), a Delaware corporation (the “ Administrative Borrower ”), the other Borrowers identified on the signature pages hereto (together with the Administrative Borrower, the “ Borrowers ”), the Subsidiaries of the Administrative Borrower party hereto, JPMORGAN CHASE BANK, N.A. (as successor agent to CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH), as administrative agent and collateral agent for the Lenders (in such capacities, the “ Agent ”), and the other parties hereto, relating to the Credit Agreement, dated as of August 1, 2017 (as amended by Amendment No. 1 and as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “ Credit Agreement ” and the Credit Agreement as amended by this Amendment No. 2, the “ Amended Credit Agreement ”), among the Borrowers, the Lenders from time to time party thereto and the Agent.

RECITALS:

WHEREAS, pursuant to Section  9.02(c)(i) of the Credit Agreement, the Administrative Borrower wishes to obtain Replacement Term Loans (the “ Replacement Term A Loans ”), on the same terms as the Incremental Term A Loans referred to and as defined below to (x) replace all Term A Loans outstanding immediately prior to the effectiveness of this Amendment No. 2, respectively, and (y) pay fees and expenses in connection with the foregoing, and the Replacement Term A Lenders (as defined below) are willing to provide the Replacement Term A Loans on and subject to the terms and conditions set forth herein.

WHEREAS, pursuant to Section  9.02(c)(ii) of the Credit Agreement, the Administrative Borrower wishes to obtain a Replacement Revolving Facility (the “ Replacement Revolving Facility ” and the Revolving Loans thereunder, the “ Replacement Revolving Loans ”), on the same terms as the Incremental Revolving Loans referred to and as defined below to (x) replace all Revolving Credit Commitments outstanding immediately prior to the effectiveness of this Amendment No. 2, and (y) pay fees and expenses in connection with the foregoing, and the Replacement Revolving Lenders (as defined below) are willing to provide the Replacement Revolving Credit Commitments (as defined below) on and subject to the terms and conditions set forth herein.

WHEREAS, (x) each of the financial institutions listed on Schedule 1-A hereto (each, a “ Replacement Term A Lender ”) is willing to provide the Replacement Term A Loans the proceeds of which will be used by the Borrowers to prepay all the Term A Loans outstanding immediately prior to the Amendment No. 2 Closing Date, (the Term A Lenders holding such existing Term A Loans, the “ Existing Term A Lenders ”), and (y) each of the financial institutions listed on Schedule 1-B hereto (each, a “ Replacement Revolving Lender ”) is willing to provide the Revolving Credit Commitments under the Replacement Revolving Facility (the “ Replacement Revolving Credit Commitments ”) which will replace all Revolving Credit Commitments outstanding immediately prior to the Amendment No. 2 Closing Date (the “ Existing Revolving Credit Commitments ”).

WHEREAS, pursuant to Section  2.22 of the Credit Agreement, the Borrowers have also requested that the Credit Agreement be amended as set forth herein to provide for, among other things, (a) an increase in the principal amount of Replacement Term A Loans in an aggregate principal amount of $587,500,000 (the “ Incremental Term A Facility ”), which shall be on the same terms as the Replacement Term A Loans, which Incremental Term A Facility shall be established substantially concurrently with, but immediately following, the Replacement Term A Facility and comprise (x) Term A Loans in an

aggregate amount equal to $187,500,000 to be funded on the Amendment No. 2 Closing Date (the “ Amendment No.  2 Date Incremental Term A Loans ”) and (y) delayed draw Term A Loans to be made available to the Borrowers from time to time during the Delayed Draw Term A Loan Availability Period (as defined in the Amended Credit Agreement) in an aggregate amount equal to $400,000,000 (the “ Delayed Draw Term A Loans ” and together with Amendment No. 2 Date Incremental Term A Loans, the “ Incremental Term A Loans ”) from the Term Lenders party to this Amendment No. 2 providing Incremental Term A Loans (collectively, the “ Incremental Term A Loan Lenders ”) in an aggregate principal amount not to exceed the amount set forth opposite such Incremental Term A Loan Lender’s name under the heading “Amendment No. 2 Date Incremental Term A Loan Commitment” on Schedule 2-A hereto and/or under the heading “Delayed Draw Term A Commitment” on Schedule 2-B , as applicable, (each an “ Amendment No.  2 Date Incremental Term A Loan Lender ” and “ Delayed Draw Term A Loan Lender ”, respectively, and together with the Replacement Term A Lenders, the “ Term A Loan Lenders ”), and (b) an increase in the aggregate amount of Replacement Revolving Commitments in an aggregate principal amount of $100,000,000 (the “ Incremental Revolving Credit Commitment ” and the Revolving Loans and Revolving Facility thereunder, the “ Incremental Revolving Loans ” and the “ Incremental Revolving Facility ”, respectively, and the Incremental Revolving Facility together with the Replacement Revolving Facility, the “ Amendment No.  2 Revolving Facility ”), which shall be on the same terms as the Replacement Revolving Facility, be established substantially concurrently with, but immediately following, the Replacement Revolving Commitments, and be provided by the Revolving Lenders party to this Amendment No. 2 in an aggregate principal amount not to exceed the amount set forth opposite such Revolving Lender’s name under the heading “Incremental Revolving Credit Commitment” on Schedule 2-C hereto (each an “ Incremental Revolving Lender ”, and together with the Replacement Revolving Lenders, the “ Revolving Lenders ”).

WHEREAS, pursuant to a successor agency agreement in substantially the form set forth in Exhibit B hereto (the “ Successor Agency Agreement ”) and each other document required or contemplated thereby in accordance with the terms and conditions set forth therein, the Administrative Borrower has requested that (A)(i) Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent for the Lenders (in such capacities, the “ Resigning Agent ”), resign in each such capacity in connection with and under the Credit Agreement and (ii) JPMorgan Chase Bank, N.A. succeed to the Resigning Agent’s duties in each such capacity (in such capacities, the “ New Agent ”) (each succession as described in this clause (A), the “ Agency Transfer ”) and (B) Credit Suisse AG, Cayman Islands Branch, as Issuing Bank (in such capacity, the “ Resigning Issuing Bank ”) resign in such capacity in connection with and under the Credit Agreement (such resignation as described in this clause (B), the “ Issuing Bank Resignation ”).

WHEREAS, (i) each of JPMorgan Chase Bank, N.A., Wells Fargo Securities, LLC, PNC Capital Markets LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, SunTrust Robinson Humphrey, Inc., ING Capital LLC, Fifth Third Bank, Regions Capital Markets, a division of Regions Bank, Keybank National Association, MUFG Bank, Ltd, Barclays Bank PLC, Goldman Sachs Bank USA, TD Securities (USA) LLC, Morgan Stanley Senior Funding, Inc. and CitiBank N.A., will act as joint lead arrangers (collectively, the “ Lead Arrangers ”), (ii) JPMorgan Chase Bank, N.A., Wells Fargo Securities, LLC, PNC Capital Markets LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and SunTrust Robinson Humphrey, Inc., will act as joint bookrunners, (iii) Wells Fargo Securities, LLC, PNC Capital Markets LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, SunTrust Robinson Humphrey, Inc. and ING Capital LLC, will act as co-syndication agent, (iv) Fifth Third Bank, Regions Capital Markets, a division of Regions Bank, Keybank National Association, MUFG Bank, Ltd, Barclays Bank PLC, Goldman Sachs Bank USA, TD Bank, N.A., Morgan Stanley Senior Funding, Inc. and CitiBank N.A. will asct as co-documentation agents, in each case, for this Agreement, the Replacement Term A Loans, Replacement Revolving Commitment, Incremental Term A Loans, the Incremental Revolving Credit Commitments and the other transactions contemplated under this Amendment No. 2.

 

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WHEREAS, the Lenders whose signatures appear below, constituting (a) all of the Term A Loan Lenders, (b) all of the Revolving Lenders, (c) the Required Lenders and (d) each Issuing Bank other than the Resigning Issuing Bank (in each case, under the Amended Credit Agreement), are willing to amend the Credit Agreement on the terms and subject to the conditions set forth herein.

NOW THEREFORE, the parties hereto hereby agree as follows:

SECTION 1 . Defined Terms . Unless otherwise specifically defined herein, each term used herein that is defined in the Credit Agreement has the meaning assigned to such term in the Credit Agreement. Each reference in the Credit Agreement to “this Agreement”, “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference, and each reference in any other Loan Document to “the Credit Agreement”, “thereof”, “thereunder”, “therein” or “thereby” or any other similar reference to the Credit Agreement shall, on and from the Amendment No. 2 Closing Date, refer to the Credit Agreement as amended hereby.

SECTION 2 . Replacement Term A Loans and Replacement Revolving Facility .

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

(i)    each Replacement Term A Lender hereby severally agrees, on the Amendment No. 2 Closing Date, (i) to commit to provide Replacement Term A Loans in Dollars to the Borrowers in an amount equal to the commitment amount set forth next to such Replacement Term A Lender’s name in Schedule 1-A hereto under the caption “Replacement Term A Commitment” and (ii) to fund Replacement Term A Loans to the Borrowers in the amount of its Replacement Term A Commitment, and such Replacement Term A Commitment will terminate in full upon the funding of the related Replacement Term A Loans. Replacement Term A Loans borrowed under this Section 2 and subsequently repaid or prepaid may not be re-borrowed. On the Amendment No. 2 Closing Date, after giving effect to the Replacement Term A Loans hereunder, (x) each Replacement Term A Lender shall be deemed to be an “Initial Term A Lender” for all purposes under the Credit Agreement and the other Loan Documents and (y) each Replacement Term A Loan shall constitute a “Loan” and shall be deemed to be an “Initial Term A Loan” for all purposes of the Credit Agreement and the other Loan Documents. The aggregate amount of the Replacement Term A Commitments on the Amendment No. 2 Closing Date is $962,500,000.

(ii)    each Replacement Revolving Lender hereby severally agrees, on the Amendment No. 2 Closing Date, (i) to commit to provide Replacement Revolving Credit Commitments to the Borrowers in an amount equal to the commitment amount set forth next to such Replacement Revolving Lender’s name in Schedule 1-B hereto under the caption “Replacement Revolving Credit Commitment” and (ii) agrees, on the terms and subject to the conditions set forth in the Amended Credit Agreement, from the Amendment No. 2 Closing Date and from time to time thereafter until the applicable Maturity Date (or such earlier date as the commitments shall be terminated in accordance with the Amended Credit Agreement), to fund Revolving Loans to the Borrowers up to the amount of its Replacement Revolving Credit Commitment (as such amount may be modified from time to time in accordance with the Amended Credit Agreement). On and from the Amendment No. 2 Closing Date, after giving effect to the Replacement Revolving Commitments hereunder, (x) each Replacement Revolving Lender shall be deemed to be an “Initial Revolving Lender” for all purposes under the Credit Agreement and the other Loan Documents and (y) the Replacement Revolving Credit Commitments and the Replacement Revolving Loans thereunder shall be deemed to be “Initial Revolving Credit Commitments” and the Loans thereunder shall constitute a “Loan” and an “Initial Revolving Loan” for all purposes of the Credit Agreement and the other Loan Documents. The aggregate amount of the Replacement Revolving Credit Commitments on the Amendment No. 2 Closing Date is $500,000,000.

 

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(b)    Substantially simultaneously with the Borrowing of Replacement Term A Loans, the Borrowers shall apply the proceeds thereof to, among other things, prepay Term A Loans of the Existing Term A Lenders outstanding immediately prior to the Amendment No. 2 Closing Date together with accrued and unpaid interest thereon to the Amendment No. 2 Closing Date.

(c)    Substantially simultaneously with the Borrowing of any Replacement Revolving Loans on the Amendment No. 2 Closing Date, the Borrowers shall apply the proceeds thereof to, among other things, prepay any Revolving Loans (and replace and cancel the Existing Revolving Credit Commitments) outstanding immediately prior to the Amendment No. 2 Closing Date, together with accrued and unpaid interest thereon to the Amendment No. 2 Closing Date.

(d)    The Replacement Term A Loans shall have terms identical to the Incremental Term A Loans (including as to maturity) and will constitute Term A Loans (as defined in the Amended Credit Agreement) for all purposes under the Credit Agreement and the other Loan Documents, and the Replacement Term A Loans, the Amendment No. 2 Date Incremental Term A Loans and the Delayed Draw Term A Loans will collectively comprise a single Class of Term A Loans.

(e)    The Replacement Revolving Facility shall have terms identical to the Incremental Revolving A Facility (including as to maturity) and will constitute a Revolving Facility (as defined in the Amended Credit Agreement) for all purposes under the Credit Agreement and the other Loan Documents, and the Replacement Revolving Loans and the Incremental Revolving Loans under the applicable Revolving Credit Commitments will collectively comprise a single Class of Revolving Loans (as defined in Amended Credit Agreement).

SECTION 3 . Incremental Loans .

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

(i)    each of the Incremental Term A Loan Lenders, as applicable, hereby severally (i) commits to provide Amendment No. 2 Date Incremental Term A Loans and Delayed Draw Term A Loans to the Borrowers in Dollars in an amount equal to its “Amendment No. 2 Date Incremental Term A Loan Commitment” and/or to its “Delayed Draw Term A Commitment” set forth next to such Incremental Term A Loan Lender’s name in Schedules 2-A and 2-B hereto, respectively, and (ii) agrees (x) on the Amendment No. 2 Closing Date, to fund Amendment No. 2 Date Incremental Term A Loans to the Borrowers in the amount of its Amendment No. 2 Date Incremental Term A Loan Commitment, which Amendment No. 2 Date Incremental Term A Loan Commitment shall terminate in full upon the making of the Amendment No. 2 Date Incremental Term A Loans on the Amendment No. 2 Closing Date and (y) during the Delayed Draw Term A Loan Availability Period, to fund Delayed Draw Term A Loans to the Borrowers in the amount of its Delayed Draw Term A Commitment (as such amount may be modified from time to time in accordance with the Amended Credit Agreement) on the terms and subject to the conditions set forth in the Amended Credit Agreement. Amendment No. 2 Date Incremental Term A Loans and Delayed Draw Term A Loans borrowed under this Section 3 and subsequently repaid or prepaid may not be re-borrowed. On the Amendment No. 2 Closing Date, after giving effect to the Amendment No. 2 Date Incremental Term A Loans hereunder, (x) each of the Incremental Term A Loan Lenders shall be deemed to be an “Initial Term A Lender” for all purposes under the Credit Agreement and the other Loan Documents and (y) each Amendment No. 2 Date Incremental Term A Loan shall constitute a “Loan” and shall be deemed to be an “Initial Term A Loan” for all purposes of the Credit Agreement and the other Loan Documents.

 

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The aggregate amount of the Amendment No. 2 Date Incremental Term A Loan Commitment and the Delayed Draw Term A Loan Commitments on the Amendment No. 2 Closing Date is $187,500,000 and $400,000,000, respectively.

(ii)    each of the Incremental Revolving Lenders hereby severally (i) commits to provide Incremental Revolving Credit Commitments to the Borrowers in the amount equal to its Incremental Revolving Credit Commitment set forth next to such Incremental Revolving Lender’s name in Schedule 2-C hereto under the caption “Incremental Revolving Credit Commitment” and (ii) agrees, on the terms and subject to the conditions set forth in the Amended Credit Agreement, from the Amendment No. 2 Closing Date and from time to time thereafter until the applicable Maturity Date (or such earlier date as the commitments shall be terminated in accordance with the Amended Credit Agreement) to fund Incremental Revolving Loans to the Borrowers up to the amount of its Revolving Credit Commitment (as such amount may be reduced from time to time in accordance with the Amended Credit Agreement). On and from the Amendment No. 2 Closing Date, after giving effect to the Incremental Revolving Commitments hereunder, (x) each Incremental Revolving Lender shall be deemed to be an “Initial Revolving Lender” for all purposes under the Credit Agreement and the other Loan Documents and (y) the Incremental Revolving Credit Commitments shall be deemed to be “Initial Revolving Credit Commitments” and the Incremental Revolving Loans thereunder shall constitute a “Loan” and an “Initial Revolving Loan” for all purposes of the Credit Agreement and the other Loan Documents. The aggregate amount of the Incremental Revolving Credit Commitments as of the Amendment No. 2 Closing Date is $100,000,000.

(b)    Substantially simultaneously with the Borrowing of Amendment No. 2 Date Incremental Term A Loans on the Amendment No. 2 Closing Date, the Borrowers shall apply the proceeds thereof to, among other things, prepay a portion of the Term B Loans outstanding immediately prior to the Amendment No. 2 Closing Date together with accrued and unpaid interest thereon to the Amendment No. 2 Closing Date.

(c)    Substantially simultaneously with the Borrowing of any Incremental Revolving Loans on the Amendment No. 2 Closing Date, the Borrowers shall apply the proceeds thereof to, among other things, prepay a portion of the Term B Loans outstanding immediately prior to the Amendment No. 2 Closing Date together with accrued and unpaid interest thereon to the Amendment No. 2 Closing Date.

(d)    Substantially simultaneously with the Borrowing of Delayed Draw Term A Loans, the Borrowers shall (i) prepay any Term B Loans outstanding immediately prior to such date of funding and/or (ii) redeem, repay, defease or discharge all or a portion of the Senior Unsecured Notes.

(e)    Each Incremental Term A Loan and each Incremental Revolving Loan constitutes an “Incremental Loan” incurred in accordance with Section  2.22 of the Amended Credit Agreement, and with respect to such Incremental Loans:

(i)    the Incremental Term A Loans shall have terms identical to the Replacement Term A Loans (including as to maturity) and will constitute Term A Loans for all purposes under the Credit Agreement, and the Incremental Term A Loans and the Replacement Term A Loans will collectively comprise a single Class of Term A Loans; and

(ii)    the Incremental Revolving Facility shall have terms identical to the Replacement Revolving Facility (including as to maturity) and will constitute a Revolving Facility for all purposes under the Credit Agreement, and the Incremental Revolving Loans and the Replacement Revolving Loans will collectively comprise a single Class of Revolving Loans (as defined in Amended Credit Agreement).

 

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(f)    Effective on and at all times after the Amendment No. 2 Closing Date, the parties hereto intend to treat (i) all Replacement Term A Loans, Amendment No. 2 Date Incremental Term A Loans and Delayed Draw Term A Loans as a single class and tranche of Term A Loans and (ii) all Revolving Loans under the Replacement Revolving Facility and Incremental Revolving Facility Loans as a single class and tranche of Revolving Loans.

(g)    The Lenders party hereto constituting the Required Lenders (immediately prior to giving effect to the Amendment No. 2 Date Incremental Term A Loans, Incremental Term A Facility, Delayed Draw Term A Loans and the Incremental Revolving Facility) hereby acknowledge and agree that the aggregate principal amount of Incremental Facilities, including, for the avoidance of doubt, the Delayed Draw Term A Commitments (as defined in the Amended Credit Agreement), incurred or established pursuant to this Amendment No. 2 shall be deemed to have been incurred in compliance with the definition of ‘Incremental Cap’ and shall not reduce the amount available under clause (a)(i) of the definition of ‘Incremental Amount’ referred to in clause (a) of the definition of ‘Incremental Cap’ after giving effect to this Amendment No. 2. Notwithstanding anything to the contrary contained herein or in the Amended Credit Agreement or any other Loan Document, the Borrowers agree that on and from the Amendment No. 2 Closing Date, solely for the purpose of calculating any applicable ratio in connection with the incurrence of an Incremental Facility or other Indebtedness, the Delayed Draw Term A Loans shall be deemed to be fully drawn as of the date of such incurrence (to the extent there are any commitments with respect to the Delayed Draw Term A Loans outstanding under the Amended Credit Agreement as of such date).

SECTION 4 . Amendments to Credit Agreement; Agency Transfer .

(a)    On the Amendment No. 2 Closing Date, the Borrowers, the Administrative Agent and the Lenders party hereto agree that the Credit Agreement (excluding the schedules (except as set forth in Section 4(b) and Section 4(c) below) and exhibits thereto, each of which shall remain as in effect immediately prior to the Amendment No. 2 Closing Date) is, effective as of the Amendment No. 2 Closing Date, hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text ) as set forth in the Credit Agreement attached as Exhibit A hereto.

(b)    On the Amendment No. 2 Closing Date, the Borrowers, the Administrative Agent and the Lenders party hereto agree that Schedule 1.01(d) of the Credit Agreement shall be deleted in its entirety and replaced with Schedule 1.01(d) as set forth in Exhibit C attached hereto.

(c)    On the Amendment No. 2 Closing Date, the Borrowers, the Administrative Agent and the Lenders party hereto agree that Schedule 1.01(e) of the Credit Agreement shall be deleted in its entirety and replaced with Schedule 1.01(e) as set forth in Exhibit D attached hereto.

(d)    The Lenders party hereto constituting the Required Lenders (immediately prior to giving effect to the Amendment No. 2 Date Incremental Term A Loans, Incremental Term A Facility, Delayed Draw Term A Loans and the Incremental Revolving Facility) and the Administrative Borrower hereby acknowledge and consent to the appointment of the New Agent as the administrative agent and collateral agent under the Credit Agreement and the other Loan Documents and the other transactions contemplated by the Agency Transfer upon the effectiveness of and on the terms and conditions set forth in the Successor Agency Agreement, which shall occur substantially concurrently with, but immediately prior to, the other transactions contemplated under this Agreement. Each Loan Party and Lender party hereto hereby waives any notice period under any Loan Document applicable to the resignation of the Resigning Agent.

 

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(e)    Subject to Section 2.05(i)(iii) of the Credit Agreement and the terms and conditions of the Successor Agency Agreement, the Revolving Lenders, each Issuing Bank (other than the Resigning Issuing Bank) (in each case, immediately prior to giving effect to the Amendment No. 2 Revolving Facility) and the Administrative Borrower hereby acknowledge the resignation of the Resigning Issuing Bank under the Credit Agreement and the other Loan Documents and the other transactions contemplated by the Issuing Bank Resignation upon the effectiveness of the Successor Agency Agreement, which shall occur substantially concurrently with, but immediately prior to, the other transactions contemplated under this Agreement. Each Loan Party, Revolving Lender and Issuing Bank other than the Resigning Issuing Bank hereby waives any notice period under any Loan Document applicable to the resignation of the Resigning Issuing Bank.

SECTION 5 . Prepayment Waiver; Interest Periods .

(a)    Each Existing Term A Lender party hereto hereby waives any break funding payments owing to such Lender pursuant to Section 2.16 of the Credit Agreement as a result of the prepayment or repayment of its Term A Loans with the proceeds of the Replacement Term A Loans.

(b)    Each applicable Revolving Lender party hereto hereby waives any break funding payments owing to such Lender pursuant to Section 2.16 of the Credit Agreement as a result of the prepayment or repayment of its applicable Loans with the proceeds of any Replacement Revolving Loans.

SECTION 6 . Representations o f t he Administrative Borrower . After giving effect to this Agreement, the Administrative Borrower represents and warrants that (i) the representations and warranties of the Administrative Borrower set forth in Article 3 of the Credit Agreement will be true in all material respects on and as of the Amendment No. 2 Closing Date; provided that (A) to the extent that any such representation or warranty expressly relates to an earlier date such representation or warranty will be true as of such earlier date (other than any representation or warranty made pursuant to Section 3.11 of the Credit Agreement ( Disclosure ) and Section 3.12 of the Credit Agreement ( Solvency ), which shall be deemed to be made as of the date hereof, in each case as if each reference therein to the Closing Date were a reference to the Amendment No. 2 Closing Date) and (B) if such representation or warranty is qualified by or subject to a “material respects”, “material adverse effect”, “material adverse change” or similar term or qualification, such representation and warranty will be true in all respects and (ii) no Default or Event of Default shall have occurred and be continuing on such date.

SECTION 7 . Conditions to the Amendment No.  2 Closing Date . This Amendment No. 2 shall become a binding agreement of the parties hereto and the agreements set forth herein, the obligations of the Replacement Term A Lenders and Incremental Term A Loan Lenders to make, as applicable, Replacement Term A Loans and/or Amendment No. 2 Date Incremental Term A Loans, the obligations of Revolving Lenders hereto to make, as applicable, any Replacement Revolving Loans and/or Incremental Revolving Loans, the establishment by the Delayed Draw Term A Loan Lenders of the Delayed Draw Term A Facility, and the amendments set forth in Section  4(a) shall each become effective on the date (the “ Amendment No.  2 Closing Date ”) on which each of the following conditions is satisfied or waived (in addition, for the avoidance of doubt, to the satisfaction or waiver of the conditions set forth in Section 4.02 and Section 4.03 of the Amended Credit Agreement, if applicable):

(a)    The Agent shall have received from the Administrative Borrower, each other Loan Party, each Replacement Term A Lender, Replacement Revolving Lenders, Incremental Term A Loan Lenders and Incremental Revolving Lenders (which such lenders, taken together, shall constitute the Required Lenders), the Agent, each Revolving Lender and each Issuing Bank other than the Resigning Issuing Bank, an executed counterpart hereof or other written confirmation (in form satisfactory to the Agent) that such party has signed a counterpart hereof;

 

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(b)    The Agent shall have received a Borrowing Request with respect to the Replacement Term A Loans, Amendment No. 2 Date Incremental Term A Loans and/or (if any) Revolving Loans, as applicable, not later than 2:00 p.m. (New York Time) three Business Days prior to the Amendment No. 2 Closing Date (or such later time as is reasonably acceptable to the Agent); it is understood and agreed that any Revolving Loans made on and from the Amendment No. 2 Closing Date shall be made pro rata as between the Revolving Lenders under the Amendment No. 2 Revolving Facility which, for the avoidance of doubt, shall be made pro rata as between Revolving Lenders holding Replacement Revolving Credit Commitments and the Incremental Revolving Credit Commitments;

(c)    The Agent shall have received a customary legal opinion of (i) Latham & Watkins LLP, in its capacity as special counsel to the Administrative Borrower regarding matters of New York and Delaware law, (ii) Dickinson Wright PLLC, in its capacity as special Ohio counsel to the Ohio Loan Parties, (iii) DLA Piper LLP (US), in its capacity as special New Jersey counsel to the New Jersey Loan Parties and (iv) K&L Gates LLP, in its capacity as special North Carolina counsel to the North Carolina Loan Parties, in each case, dated the Amendment No. 2 Closing Date, and addressed to the Administrative Agent and the Lenders.

(d)    The Agent shall have received (i) a certificate of each Loan Party, dated the Amendment No. 2 Closing Date, and executed by a secretary, assistant secretary or other Responsible Officer thereof, which shall (A) certify that (x) either (I) attached thereto are a true and complete copy of the certificate or articles of incorporation, formation or organization of such Loan Party certified by the relevant authority of its jurisdiction of organization, which certificate or articles of incorporation, formation or organization have not been amended (except as attached thereto) since the date reflected thereon or (II) there have been no changes to the certificate or articles of incorporation, formation or organization of such Loan Party since the Closing Date (or date of joinder with respect to any Loan Party joined to Loan Documents after the Closing Date), (y) either (I) attached thereto are a true and correct copy of the bylaws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Amendment No. 2 Closing Date, which by-laws or operating, management, partnership or similar agreement are in full force and effect or (II) there have been no changes to the by-laws or operating, management, partnership or similar agreement of such Loan Party since the Closing Date (or date of joinder with respect to any Loan Party joined to Loan Documents after the Closing Date), and (z) attached thereto are a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member or other applicable governing body authorizing the execution and delivery of this Agreement, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and (B) either (I) identify by name and title and bear the signatures of the officers, managers, directors or other authorized signatories of such Loan Party authorized to sign this Agreement or (II) certify that there have been no changes to the officers, managers, directors or other authorized signatories of such Loan Party since the Closing Date (or date of joinder with respect to any Loan Party joined to Loan Documents after the Closing Date) and (ii) a good standing (or equivalent) certificate for such Loan Party from the relevant authority of its jurisdiction of organization, dated as of a recent date.

(e)    The Lead Arrangers and the Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Amendment No. 2 Closing Date, including, pursuant to that certain agency fee letter between the Administrative Borrower and JPMorgan Chase Bank, N.A., dated as of February 14, 2019, and to the extent invoiced, all reasonable out-of-pocket costs and expenses of the Administrative Agent required in connection with this Amendment No. 2 pursuant to Section  9.03(a) of the Credit Agreement and the reasonable and documented fees, disbursements and other charges of one firm of counsel, Davis Polk & Wardwell LLP, plus one local counsel in each appropriate jurisdiction;

 

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(f)    The representations and warranties made pursuant to Section 6 hereof are true and correct on and as of the Amendment No. 2 Closing Date;

(g)    The Agent shall have received a certificate, duly executed by a Responsible Officer of the Administrative Borrower, certifying this to the satisfaction of the conditions referred to in Section 7(f) above on the Amendment No. 2 Closing Date;

(h)    All accrued interest and any fees pursuant to Section 2.12 of the Credit Agreement owing by the Borrowers to the Administrative Agent and the applicable Lenders as a result of the consummation of the transactions contemplated by this Agreement shall have been paid in full in accordance with Section 2.12 thereof on the Amendment No. 2 Closing Date.

(i)    No later than three Business Days in advance of the Amendment No. 2 Closing Date, the Administrative Agent and each Lender shall have received all documentation and other information reasonably requested with respect to any Loan Party in writing by any Lender at least ten Business Days in advance of the Amendment No. 2 Closing Date, which documentation or other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.

(j)    The Administrative Agent and any Lender (to the extent applicable and requested at least ten Business Days in advance of the Amendment No. 2 Closing Date) shall have received, at least five days prior to the Amendment No. 2 Closing Date, a certification regarding beneficial ownership as required by 31 C.F.R. § 1010.230 (the “ Beneficial Ownership Regulation ”) in relation to any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation.

SECTION 8 . Governing Law . This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York.

SECTION 9 . Confirmation of Guarantees and Security Interests . By signing this Agreement, each Loan Party hereby confirms that (a) the obligations of the Loan Parties under the Credit Agreement as modified or supplemented hereby (including with respect to the Term A Loans and Revolving Credit Commitments) and the other Loan Documents (i) are entitled to the benefits of the guarantees and the security interests set forth or created in the Credit Agreement, the Collateral Documents and the other Loan Documents, (ii) constitute “Obligations” as such term is defined in the Credit Agreement, subject to the qualifications and exceptions described therein, (iii) notwithstanding the effectiveness of the terms hereof, the Collateral Documents and the other Loan Documents, are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects and (b) each Replacement Term A Lender, Incremental Term A Loan Lender, Incremental Revolving Lender and Replacement Revolving Lender shall be a “Secured Party” and a “Lender” (including without limitation for purposes of the definition of “Required Lenders” contained in Section 1.01 of the Credit Agreement) for all purposes of the Credit Agreement and the other Loan Documents. Each Loan Party ratifies and confirms that all Liens granted, conveyed, or assigned to the Agent by such Person pursuant to any Loan Document to which it is a party remain in full force and effect, are not released or reduced, and continue to secure full payment and performance of the Secured Obligations as increased hereby, as contemplated by this Agreement.

SECTION 10 . Credit Agreement Governs . Except as expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of any Lender or the Agent under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend, novate or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to

 

9

entitle any Loan Party to a future consent to, or 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.

SECTION 11 . Waiver . Neither the Agent nor any of its Affiliates shall be liable to the Borrowers, any other Loan Party, any Term Lender and Revolving Lender under the applicable Term Facilities and Revolving Facilities incurred and contemplated hereunder or any of their respective Affiliates, equity holders or debt holders for any losses, costs, damages or liabilities incurred, directly or indirectly, as a result of the Agent, or any of their respective Affiliates, taking any action in accordance with any election form executed by any Replacement Term A Lender and/or any Replacement Revolving Lender to convert its Replacement Term A Loans and/or Revolving Credit Commitments as set forth herein.

SECTION 12 . Counterparts . This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or electronic (i.e., “pdf” or “tif”) transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

SECTION 13 . Miscellaneous . This Agreement shall constitute a “Refinancing Amendment” with respect to the Replacement Term A Loans and the Replacement Revolving Credit Commitments established hereunder, an “Incremental Facility Amendment” with respect to the Incremental Term A Facility and Incremental Revolving Facility established hereunder and a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents. The provisions of this Agreement are deemed incorporated into the Credit Agreement as if fully set forth therein. To the extent required by the Credit Agreement, each of the Administrative Borrower and the Agent hereby consent to each Replacement Term A Lender and/or Replacement Revolving Lender that is not a Lender as of the date hereof becoming a Lender under the Credit Agreement. On the Amendment No. 2 Closing Date, each Revolving Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under any Letter of Credit (in respect of any Letter of Credit issued in any Alternate Currency, expressed in the Dollar Equivalent thereof) shall be re-determined giving effect to the adjustments to the Commitments referred to in this Agreement, and the participations of the Revolving Lenders shall be reallocated to reflect such re-determined amounts.

[Remainder of page intentionally left blank]

 

10

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

 

[ Signature Page – Amendment No. 2 to Credit Agreement ]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

 

[ Signature Page – Amendment No.2 to Credit Agreement ]

 

 

[ Signature Page – Amendment No. 2 to Credit Agreement ]

 

 

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EXHIBIT A

[See attached.]

Table of Contents

Page

 

 

CREDIT AGREEMENT

Dated as of August 1, 2017 among

SYNEOS HEALTH, INC. ( F/K/A f/k/a INC RESEARCH HOLDINGS, INC.),

as the Administrative Borrower,

the other BORROWERS party hereto,

THE FINANCIAL INSTITUTIONS PARTY HERETO,

as Lenders,

JPMORGAN CHASE BANK, N.A. (as successor agent to CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH )

as Administrative Agent, and

JPMORGAN CHASE BANK, N.A., SUNTRUST ROBINSON HUMPHREY, INC.

each as a Joint Lead Arranger and a Joint Bookrunner

CREDIT SUISSE WELLS FARGO SECURITIES (USA) , LLC,

ING CAPITAL LLC,

GOLDMAN SACHS BANK USA,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

MORGAN STANLEY SENIOR FUNDING, INC., BARCLAYS

BANK PLC,

CITIGROUP GLOBAL MARKETS INC.,

FIFTH THIRD BANK, JPMORGAN

CHASE BANK, N.A.,

PNC CAPITAL MARKETS LLC,

each as a Joint Lead Arranger, Joint Bookrunner and Co-Syndication Agent

SUNTRUST BANK,

as a Co-Syndication Agent

ING CAPITAL LLC,

as a Joint Lead Arranger and Co-Syndication Agent

FIFTH THIRD BANK,

REGIONS CAPITAL MARKETS, A DIVISION OF REGIONS BANK,

SUNTRUST ROBINSON HUMPHREY, INC. , KEYBANK

NATIONAL ASSOCIATION,

THE MUFG BANK OF TOYKO-MITSUBISHI UFJ , LTD.

and BARCLAYS

BANK PLC,

GOLDMAN SACHS BANK USA, WELLS

FARGO TD SECURITIES , (USA) LLC,

MORGAN STANLEY SENIOR FUNDING, INC.,

 

 

 

ii

Table of Contents

Page

 

 

CITIBANK, N.A.,

each as a Joint Lead Arrangers and Joint Bookrunners Arranger and a Co-Documentation Agent

 

 

 

iii

Table of Contents

 

		Page
ARTICLE 1 DEFINITIONS			2 7
Section 1.01. Defined Terms			2 7
Section 1.02. Classification of Loans and Borrowings			64 71
Section 1.03. Terms Generally			64 71
Section 1.04. Accounting Terms; GAAP			65 72
Section 1.05. Effectuation of Transactions			66 73
Section 1.06. Timing of Payment or Performance			66 73
Section 1.07. Times of Day			66 73
Section 1.08. Currency Equivalents Generally			66 73
Section 1.09. Cashless Rollovers			67 74
Section 1.10. Certain Calculations and Tests			67 75
Section 1.11. Additional Alternate Currencies			69 76
Section 1.12. Divisions			77
ARTICLE 2 THE CREDITS			70 77
Section 2.01. Commitments			70 77
Section 2.02. Loans and Borrowings			70 78
Section 2.03. Requests for Borrowings			71 78
Section 2.04. [Reserved]			72 79
Section 2.05. Letters of Credit			72 79
Section 2.06. [Reserved]			76 84
Section 2.07. Funding of Borrowings			76 84
Section 2.08. Type; Interest Elections			77 85
Section 2.09. Termination and Reduction of Commitments			78 86
Section 2.10. Repayment of Loans; Evidence of Debt			79 86
Section 2.11. Prepayment of Loans			81 89
Section 2.12. Fees			86 94
Section 2.13. Interest			87 96
Section 2.14. Alternate Rate of Interest			88 97
Section 2.15. Increased Costs			89 98
Section 2.16. Break Funding Payments			90 99
Section 2.17. Taxes			90 99
Section 2.18. Payments Generally; Allocation of Proceeds; Sharing of Payments			94 103
Section 2.19. Mitigation Obligations; Replacement of Lenders			96 105
Section 2.20. Illegality			97 106

 

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Table of Contents

(Cont.)

 

		Page
Section 2.21. Defaulting Lenders			98 107
Section 2.22. Incremental Credit Extensions			100 109
Section 2.23. Extensions of Loans and Revolving Commitments			104 113
Section 2.24. Co-Borrowers			107 116
ARTICLE 3 REPRESENTATIONS AND WARRANTIES			108 117
Section 3.01. Organization; Powers			108 117
Section 3.02. Authorization; Enforceability			108 117
Section 3.03. Governmental Approvals; No Conflicts			108 117
Section 3.04. Financial Condition; No Material Adverse Effect			109 118
Section 3.05. Properties			109 118
Section 3.06. Litigation and Environmental Matters			109 118
Section 3.07. Compliance with Laws			110 119
Section 3.08. Investment Company Status			110 119
Section 3.09. Taxes			110 119
Section 3.10. ERISA			110 119
Section 3.11. Disclosure			110 119
Section 3.12. Solvency			110 120
Section 3.13. Capitalization and Subsidiaries			111 120
Section 3.14. Security Interest in Collateral			111 120
Section 3.15. Labor Disputes			111 120
Section 3.16. Federal Reserve Regulations			111 121
Section 3.17. OFAC; USA PATRIOT Act and FCPA			112 121
ARTICLE 4 CONDITIONS			112 121
Section 4.01. Closing Date			112 121
Section 4.02. Each Credit Extension			115 125
Section 4.03. Conditions to Delayed Draw Term A Loans			125
ARTICLE 5 AFFIRMATIVE COVENANTS			116 126
Section 5.01. Financial Statements and Other Reports			116 126
Section 5.02. Existence			119 128
Section 5.03. Payment of Taxes			119 129
Section 5.04. Maintenance of Properties			119 129
Section 5.05. Insurance			119 129
Section 5.06. Inspections			120 129
Section 5.07. Maintenance of Book and Records			120 130
Section 5.08. Compliance with Laws			120 130

 

ii

Table of Contents

(Cont.)

 

		Page
Section 5.09. Environmental			120 130
Section 5.10. Designation of Subsidiaries			121 131
Section 5.11. Use of Proceeds			121 131
Section 5.12. Covenant to Guarantee Obligations and Provide Security			122 132
Section 5.13. Maintenance of Ratings			124 134
Section 5.14. Further Assurances			124 134
Section 5.15. Post-Closing Covenant			125 135
ARTICLE 6 NEGATIVE COVENANTS			125 135
Section 6.01. Indebtedness			125 135
Section 6.02. Liens			131 141
Section 6.03. Reserved			135 145
Section 6.04. Restricted Payments; Restricted Debt Payments			135 145
Section 6.05. Burdensome Agreements			139 149
Section 6.06. Investments			140 151
Section 6.07. Fundamental Changes; Disposition of Assets			143 154
Section 6.08. Sale and Lease-Back Transactions			147 157
Section 6.09. Transactions with Affiliates			147 158
Section 6.10. Conduct of Business			149 160
Section 6.11. Amendments of or Waivers with Respect to Restricted Debt			149 160
Section 6.12. Fiscal Year			149 160
Section 6.13. Financial Covenant			149 160
ARTICLE 7 EVENTS OF DEFAULT			150 161
Section 7.01. Events of Default			150 161
ARTICLE 8 THE ADMINISTRATIVE AGENT			154 164
ARTICLE 9 MISCELLANEOUS			161 171
Section 9.01. Notices			161 171
Section 9.02. Waivers; Amendments			164 175
Section 9.03. Expenses; Indemnity			170 181
Section 9.04. Waiver of Claim			171 182
Section 9.05. Successors and Assigns			171 182
Section 9.06. Survival			180 191
Section 9.07. Counterparts; Integration; Effectiveness			180 191
Section 9.08. Severability			181 191
Section 9.09. Right of Setoff			181 191
Section 9.10. Governing Law; Jurisdiction; Consent to Service of Process			181 192

 

iii

Table of Contents

(Cont.)

 

		Page
Section 9.11. Waiver of Jury Trial			182 193
Section 9.12. Headings			183 193
Section 9.13. Confidentiality			183 193
Section 9.14. No Fiduciary Duty			184 194
Section 9.15. Electronic Execution of Assignments and Certain Other Documents			184 195
Section 9.16. Several Obligations			185 195
Section 9.17. USA PATRIOT Act			185 195
Section 9.18. Disclosure of Agent Conflicts			185 195
Section 9.19. Appointment for Perfection			185 195
Section 9.20. Interest Rate Limitation			185 196
Section 9.21. Intercreditor Agreements			185 196
Section 9.22. Conflicts			186 196
Section 9.23. Release of Guarantors			186 196
Section 9.24. Acknowledgement and Consent to Bail-In of EEA Financial Institutions			186 197
Section 9.25. Judgment Currency			187 197

 

iv

CREDIT AGREEMENT

CREDIT AGREEMENT, dated as of August 1, 2017 (this “ Agreement ”), by and among Syneos Health, Inc. (f/k/a INC Research Holdings, Inc.), a Delaware corporation (“ INC Holdings ” or the “ Administrative Borrower ”), the entities listed on Schedule I hereto (each a “ Borrower ” and collectively with the Administrative Borrower, the “ Borrowers ”), the Lenders from time to time party hereto, JPMorgan Chase Bank, N.A. (as successor to Credit Suisse AG, Cayman Islands Branch (“ Credit Suisse ”)), as administrative agent and collateral agent for the Lenders (in such capacities, the “ Administrative Agent ”), and Credit Suisse Securities (USA) LLC (“ CS Securities ”), ING Capital LLC (“ ING ”), Goldman Sachs Bank USA, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Citigroup Global Markets Inc., Citibank, N.A., Fifth Third Bank, JPMorgan Chase Bank, N.A., PNC Capital Markets LLC and Regions Capital Markets, a Division of Regions Bank, SunTrust Robinson Humphrey, Inc., The MUFG Bank of Tokyo-Mitsubishi UFJ , Ltd. and Wells Fargo Securities, LLC, as joint lead arrangers and joint bookrunners (in such capacity, the “ Arrangers ”).

RECITALS

A. The Administrative Borrower requested on the Closing Date that the Lenders extend credit under this Agreement in the form of (i) Initial Term A Loans in an original aggregate principal amount equal to $1,000,000,000, (ii) Initial Term B Loans in an original aggregate principal amount equal to $1,600,000,000 and (iii) an Initial Revolving Facility with an available amount of $500,000,000, in each case, subject to increase as provided herein.

B. In a series of substantially contemporaneous transactions:

 

(i)

pursuant to the terms of the Merger Agreement, Double Eagle Parent merged (the “ Closing Date Merger ”) with and into Syneos Health, Inc. (f/k/a INC Research Holdings, Inc.), with Syneos Health, Inc. as the survivor of the Closing Date Merger,

 

(ii)

Syneos Health, LLC (f/k/a INC Research, LLC ) , a Delaware limited liability company, borrowed $870,000,000 of Initial Term Loans and (A) applied $445,000,000 of the proceeds thereof to consummate the INC Refinancing and (B) loan $297,000,000 of the proceeds thereof to Syneos Health, Inc. (f/k/a INC Research Holdings, Inc.),

 

(iii)

Syneos Health, Inc. (f/k/a INC Research Holdings, Inc. ) (A) contributed (the “ INC Contribution ”) all of the issued and outstanding Capital Stock of INC Research to inVentiv Group Holdings and (B) purchased (the “ inVentiv Group Holdings Share Purchase ”), in exchange for $297,000,000, one or more shares of the issued and outstanding Capital Stock of inVentiv Group Holdings (the proceeds of which $297,000,000 consideration was applied by inVentiv Group Holdings to consummate the Senior Note Redemption),

 

(iv)

Syneos Health US, Inc. (f/k/a inVentiv Health, Inc. ) borrowed $1,420,000,000 of Initial Term Loans and applied the proceeds thereof to consummate a portion of the inVentiv Refinancing,

 

(v)

inVentiv Health Communications, Inc. borrowed $200,000,000 of Initial Term Loans and applied the proceeds thereof to consummate a portion of the inVentiv Refinancing and

(vi)

Syneos Health Clinical, Inc. (f/k/a inVentiv Health Clinical, Inc.) borrowed $110,000,000 of Initial Term Loans and applied the proceeds thereof to consummate a portion of the inVentiv Refinancing.

C. After the Closing Date, inVentiv Group Holdings merged (the “ IGH Merger ”) with and into Syneos Health, Inc. (f/k/a INC Research Holdings, Inc.), with Syneos Health, Inc. as the survivor of the IGH Merger (the transactions described in clauses B and C , the “ Closing Date Merger-Related Transactions ”).

D. Pursuant to Amendment No. 2 (as defined below) , the Administrative Borrower has requested, and the Administrative Agent, the lenders party thereto and the other agent party thereto have agreed, to amend the Credit Agreement (as defined in Amendment No. 2) on the terms and conditions contained herein and pursuant to Amendment No. 2.

D E . The Lenders are willing to extend such credit to the Borrowers on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:

ARTICLE 1 DEFINITIONS

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

“ 2018 Replacement Term A Closing Date ” means the Replacement Term A Closing Date (as defined in Amendment No. 1), which occurred on May 4, 2018.

“ 2018 Replacement Term B Closing Date ” means the Replacement Term B Closing Date (as defined in Amendment No. 1), which occurred on May 4, 2018.

“ ABR ” means, when used in reference to any Loan or Borrowing, whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base Rate.

“ ACH ” means automated clearing house transfers.

“ Additional Agreement ” has the meaning assigned to such term in Article 8 .

“ Additional Commitment ” means any commitment hereunder added pursuant to Sections 2.22 , 2.23 and/or 9.02(c) .

“ Additional Loans ” means any Additional Revolving Loans and any Additional Term Loans.

“ Additional Revolving Credit Commitments ” means any revolving credit commitment added pursuant to Sections 2.22 , 2.23 and/or 9.02(c)(ii) .

“ Additional Revolving Credit Exposure ” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of all Additional Revolving Loans of such Lender, plus the aggregate Outstanding Amount at such time of such Lender’s LC Exposure attributable to its Additional Revolving Credit Commitment.

“ Additional Revolving Lender ” means any Lender with an Additional Revolving Credit Commitment or any Additional Revolving Credit Exposure.

“ Additional Revolving Loans ” means any revolving loan added hereunder pursuant to Section 2.22 , 2.23 and/or 9.02(c)(ii) .

 

7

electronic documentation generated by use of an electronic platform) approved by the Administrative Agent and the Administrative Borrower.

“ Affiliated Lender Cap ” has the meaning assigned to such term in Section 9.05(g)(iv) .

“ Agent Parties ” has the meaning assigned to such term in Section 9.01(d) .

“ Agreement ” has the meaning assigned to such term in the preamble to this Credit Agreement.

“ Agreement Currency ” has the meaning assigned to such term in Section 9.25 .

“ Alternate Base Rate ” means, for any day, a rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on such day plus 0.50%, (b) to the extent ascertainable, the Eurocurrency Rate (which rate shall be calculated based upon an Interest Period of one month and shall be determined on a daily basis and, for the avoidance of doubt, the Eurocurrency Rate for any day shall be based on the rate determined on such day at 11:00 a.m. (London time)) plus 1.00%, (c) the Prime Rate and (d) 0.00%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency Rate, as the case may be, shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency Rate, as the case may be.

“ Alternate Currency ” means in the case of Revolving Loans and Letters of Credit, Canadian Dollars, Sterling, Euros, Japanese Yen and Singapore Dollars and each other currency that is approved in accordance with Section 1.11 .

“ Amendment No. 1 ” means the Amendment No. 1 to this Agreement , dated as of May 4, 2018 , to this Agreement .

“Amendment No. 2” means the Amendment No. 2 to this Agreement, dated as of March 26, 2019.

“Amendment No. 2 Closing Date” means March 26, 2019.

“ Applicable Country ” means any country or jurisdiction in which a Foreign Subsidiary designated as a Subsidiary Guarantor pursuant to the penultimate sentence of the definition of “Subsidiary Guarantor” is incorporated or organized.

“ Applicable Percentage ” means, (a) with respect to any Term Lender of any Class, a percentage equal to a fraction the numerator of which is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan Commitments of such Term Lender under the applicable Class and the denominator of which is the aggregate outstanding principal amount of the Term Loans and unused Term Commitments of all Term Lenders under the applicable Class and (b) with respect to any Revolving Lender of any Class, the percentage of the aggregate amount of the Revolving Credit Commitments of such Class represented by such Lender’s Revolving Credit Commitment of such Class; provided that for purposes of Section 2.21 and otherwise herein (except with respect to Section 2.11(a)(ii)) , when there is a Defaulting Lender, such Defaulting Lender’s Revolving Credit Commitment shall be disregarded for any relevant calculation. In the case of clause (b) , in the event that the Revolving Credit Commitments of any Class have expired or been terminated, the Applicable Percentage of any Revolving Lender of such Class shall be determined on the basis of the Revolving Credit Exposure of such Revolving Lender attributable to its Revolving Credit Commitment of such Class, giving effect to any assignment thereof.

 

9

“ Applicable Rate ” means:

(a) with respect to any Initial Term A Loan, any Delayed Draw Term A Loan and/or any Initial Revolving Loan, the rate per annum applicable to the relevant Class of Loans set forth below under the caption “ABR Spread” or “Adjusted Eurocurrency Rate Spread”, as applicable; provided that until the first Adjustment Date following the completion of at least one full Fiscal Quarter ended after the Amendment No. 2 Closing Date, the “Applicable Rate” for any Initial Term A Loan , any Delayed Draw Term A Loan or Initial Revolving Loan shall be the applicable rate per annum set forth in Category 1 of the applicable table set forth below:

(i) at any time prior to the Replacement Term A Closing Date:

 

First Lien Leverage Ratio		ABR Spread for Initial Term A Loans				Adjusted Eurocurrency Rate Spread for Initial Term A Loans
Category 1
Greater than 2.50 to 1.00			0.75	%			1.75	%
Category 2
Less than or equal to 2.50 to 1.00			0.50	%			1.50	%

(ii) from and after the Replacement Term A Closing Date:

 

First Lien Leverage Ratio		ABR Spread for Initial Term A Loans, Delayed Draw Term A Loans and Initial Revolving Loans				Adjusted Eurocurrency Rate Spread for Initial Term A Loans, Delayed Draw Term A Loans and Initial Revolving Loans
Category 1			0.50	%			1.50	%
Greater than 2.50 to 1.00
Category 2			0.25	%			1.25	%
Less than or equal to 2.50 to 1.00

(a) (b) with respect to any Initial Term B Loan, the rate per annum as set forth below under the caption “ABR Spread” or “Adjusted Eurocurrency Rate Spread”, as applicable; provided that until the first Adjustment Date following the completion of at least one full Fiscal Quarter ended after the Closing Date, the “Applicable Rate” for any Initial Term B Loan shall be the applicable rate per annum set forth in Category 1 of the applicable table set forth below,

 

10

(i) at any time prior to the Replacement Term B Closing Date:

 

Secured Leverage Ratio		ABR Spread for Initial Term B Loans				Adjusted Eurocurrency Rate Spread for Initial Term B Loans
Category 1			1.25	%			2.25	%
Greater than 3.00 to 1.00
Category 2
Less than or equal to 3.00 to 1.00			1.00	%			2.00	%

(ii) from and after the Replacement Term B Closing Date:

 

Secured Leverage Ratio		ABR Spread for Initial Term B Loans				Adjusted Eurocurrency Rate Spread for Initial Term B Loans
Category 1			1.00	%			2.00	%
Greater than 2.75 to 1.00
Category 2
Less than or equal to 2.75 to 1.00			0.75	%			1.75	%

(c) with respect to any Initial Revolving Loan, the rate per annum applicable to the relevant Class of Loans set forth below under the caption “ABR Spread” or “Adjusted Eurocurrency Rate Spread”, as applicable; provided that until the first Adjustment Date following the completion of at least one full Fiscal Quarter ended after the Closing Date, the “Applicable Rate” for any Initial Revolving Loan shall be the applicable rate per annum set forth in Category 1 of the applicable table set forth below

 

First Lien Leverage Ratio		ABR Spread for Initial      Revolving Loans				Adjusted Eurocurrency      Rate Spread for Initial Revolving Loans
Category1
Greater than 2.50 to 1.00			0.75%				1.75%
Category 2
Less than or equal to 2.50 to 1.00			0.50%				1.50%
Category 3
Less than or equal to 2.00 to 1.00			0.25%				1.25%

The Applicable Rate for Initial Term A Loans, Delayed Draw Term A Loans, Initial Term B Loans and Initial Revolving Loans shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the First Lien Leverage Ratio or Secured Leverage Ratio, as applicable, in accordance with the tables above; provided that if financial statements are not delivered when required pursuant to Section 5.01(a) or (b) , as applicable, the “Applicable Rate” for any Initial Term A Loan, Delayed Draw Term A Loans, Initial Term B Loan or Initial Revolving Loan shall be the rate per annum set forth above in Category 1 of the applicable table until such financial statements are delivered in compliance with Section 5.01(a) or (b) , as applicable.

 

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If (a) the corporate credit rating of the Administrative Borrower from Moody’s is Baa3 or better or (b) the corporate family rating of the Borrower from S&P is BBB- or better, the Applicable Rate in respect of the Initial Term A Loans , Delayed Draw Term A Loans and Revolving Loans shall be reduced by 0.25% per annum (at all levels of the grid) for so long as such rating is maintained. Each change in the Applicable Rate in respect of the Initial Term A Loans , Delayed Draw Term A Loans and Revolving Loans resulting from a publicly announced change in the rating of the Administrative Borrower shall be effective during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next change.

“ Applicable Revolving Credit Percentage ” means, with respect to any Revolving Lender at any time, the percentage of the Total Revolving Credit Commitment at such time represented by such Revolving Lender’s Revolving Credit Commitments at such time; provided that for purposes of Section 2.21 and otherwise herein (except with respect to Section 2.11(a)(ii) ), when there is a Defaulting Lender, any such Defaulting Lender’s Revolving Credit Commitment shall be disregarded in the relevant calculations. In the event that (a) the Revolving Credit Commitments of any Class have expired or been terminated in accordance with the terms hereof (other than pursuant to Article 7 ), the Applicable Revolving Credit Percentage shall be recalculated without giving effect to the Revolving Credit Commitments of such Class or (b) the Revolving Credit Commitments of all Classes have terminated (or the Revolving Credit Commitments of any Class have terminated pursuant to Article 7 ), the Applicable Revolving Credit Percentage shall be determined based upon the Revolving Credit Commitments (or the Revolving Credit Commitments of such Class) most recently in effect, giving effect to any assignments thereof.

“ Approved Fund ” means, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered, advised or managed by (a) such Lender, (b) any Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers, advises or manages such Lender.

“ Arrangers ” has the meaning assigned to such term in the preamble to this Agreement; provided that as this term relates to ( a) ( x) arranging the Amendment No. 1 and/or syndicating the Replacement Term A Loans (as defined in Amendment No. 1), “Arrangers” shall mean the 2018 Replacement Term A Loan Arrangers (as defined in Amendment No. 1) and (y) arranging the Amendment No. 1 and/or syndicating the Replacement Term B Loans (as defined in Amendment No. 1), “Arrangers” shall mean the 2018 Replacement Term B Loan Arrangers (as defined in Amendment No. 1) and (b) arranging Amendment No. 2 and syndicating the Term A Loans and Revolving Credit Commitments, “Arrangers” shall mean the ‘Lead Arrangers’ as such term is defined in Amendment No. 2 .

“ Assignment Agreement ” means, collectively, each Assignment and Assumption and each Affiliated Lender Assignment and Assumption.

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.05 ), and accepted by the Administrative Agent in the form of Exhibit A-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent and the Administrative Borrower.

“ Available Amount ” means, at any time, an amount equal to, without duplication:

(a) the sum of:

(i) the greater of $175,000,000 and 25% of Consolidated Adjusted EBITDA as of the end of the most recently ended Test Period; plus

 

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investment practices for cash management in Investments that are analogous to the Investments described in clauses (a)  through (g)  and in this paragraph.

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

“ CFC Holdco ” means any direct or indirect Domestic Subsidiary that has no material assets other than the Capital Stock or Indebtedness of one or more CFCs or CFC Holdcos.

“ Change in Law ” means (a) the adoption of any law, treaty, rule or regulation after the Closing Date, (b) any change in any law, treaty, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.15(b) , by any lending office of such Lender or such Issuing Bank or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date (other than any such request, guideline or directive to comply with any law, rule or regulation that was in effect on the Closing Date). For purposes of this definition and Section 2.15 , (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or U.S. or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case described in clauses (a) , (b)  and (c)  above, be deemed to be a Change in Law, regardless of the date enacted, adopted, issued or implemented.

“ Change of Control ” means the earliest to occur of:

(a) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of Securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act, but excluding any employee benefit plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor), other than one or more Permitted Holders, of Capital Stock representing more than the greater of (x) 35% of the total voting power of all of the outstanding voting Capital Stock of the Administrative Borrower and (y) the percentage of the total voting power of all of the outstanding voting Capital Stock of the Administrative Borrower owned, directly or indirectly, beneficially by the Permitted Holders; and

(b) the occurrence of a “change of control” (or similar event, however defined) under the Senior Unsecured Notes Indenture (or any refinancing thereof), if any amounts are outstanding thereunder.

Notwithstanding the foregoing, the right to acquire voting Capital Stock (so long as such Person does not have the right to direct the voting of the Capital Stock subject to such right) or any veto power in connection with the acquisition or disposition of voting Capital Stock will not cause a party to be a beneficial owner.

“ Charge ” means any charge, expense, cost, accrual, reserve or loss of any kind.

“ Charged Amounts ” has the meaning assigned to such term in Section 9.20.

“ Class ”, when used with respect to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial Term A Loans, Initial Term B Loans, Delayed Draw Term A Loans, Additional Term Loans of any series established as a separate “Class” pursuant to Section 2.22 , 2.23 or 9.02(c)(i) , Initial Revolving Loans or Additional Revolving Loans of any series established as a separate “Class” pursuant to Section 2.22 , 2.23 or 9.02(c)(ii) , (b) any Commitment, refers to whether such Commitment

 

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is an Initial Term A Loan Commitment, Initial Term B Loan Commitment, an Additional Term Loan Commitment of any series established as a separate “Class” pursuant to Section 2.22 , 2.23 or 9.02(c)(i) , an Initial Revolving Credit Commitment or an Additional Revolving Credit Commitment of any series established as a separate “Class” pursuant to Section 2.22 , 2.23 or 9.02(c)(ii) , (c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class and (d) any Revolving Credit Exposure, refers to whether such Revolving Credit Exposure is attributable to a Revolving Credit Commitment of a particular Class (it being understood and agreed that upon funding of the Delayed Draw Term A Loans, the Initial Term A Loans and the Delayed Draw Term A Loans shall constitute a single Class of Term Loans hereunder) .

“ Closing Date ” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02 ).

“ Closing Date Material Adverse Effect ” shall have the meaning assigned to the term “Material Adverse Effect” in the Merger Agreement.

“ Closing Date Merger ” has the meaning assigned to such term in the recitals hereto.

“ Closing Date Merger-Related Transactions ” has the meaning assigned to such term in the recitals hereto.

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

“ Collateral ” means any and all property of any Loan Party subject (or purported to be subject) to a Lien under any Collateral Document and any and all other property of any Loan Party, now existing or hereafter acquired, that is or becomes subject (or purported to be subject) to a Lien pursuant to any Collateral Document to secure the Secured Obligations. For the avoidance of doubt, in no event shall “Collateral” include any Excluded Asset.

“ Collateral and Guarantee Requirement ” means, at any time, subject to (x) the applicable limitations set forth in this Agreement and/or any other Loan Document, (y) the time periods (and extensions thereof) set forth in Section 5.12 and (z) the terms of any Intercreditor Agreement, the requirement that the Administrative Agent shall have received in the case of any Restricted Subsidiary that is required or elects pursuant to the penultimate sentence of the definition of “Subsidiary Guarantor” to become a Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), (a) a Joinder Agreement, (b) if the respective Restricted Subsidiary required to comply with the requirements set forth in this definition pursuant to Section 5.12(a) owns registrations of or applications for U.S. Patents, Trademarks and/or Copyrights that constitute Collateral, an Intellectual Property Security Agreement, (c) a completed Perfection Certificate, (d) UCC financing statements in appropriate form for filing in such jurisdictions as the Administrative Agent may reasonably request, (e) an executed joinder to any Intercreditor Agreement, (f) each item of Collateral that such Restricted Subsidiary is required to deliver under Section 4.02 of the Security Agreement (which, for the avoidance of doubt, shall be delivered within the applicable time period set forth in Section 5.12(a) ) and (g) with respect to any Material Real Estate Asset, evidence of the satisfaction of the Real Estate Collateral Requirements; provided that, with respect to any Foreign Subsidiary designated as a Subsidiary Guarantor pursuant to the penultimate sentence of the definition of “Subsidiary Guarantor”, the requirements set forth in clauses (a)  through (d) , (f) and (g)  above shall be deemed to refer to the requirements set forth in the parenthetical contained in such penultimate sentence.

“ Collateral Documents ” means, collectively, (i) the Security Agreement, (ii) each Mortgage, (iii) each Intellectual Property Security Agreement, (iv) any supplement to any of the foregoing delivered to the Administrative Agent pursuant to the definition of “Collateral and Guarantee Requirement” and (v) each other document and/or instrument pursuant to which any Loan Party grants (or purports to grant) a Lien on any Collateral as security for payment of the Secured Obligations.

 

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“ Commercial Letter of Credit ” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection with the purchase of any materials, goods or services by the Administrative Borrower or any of its subsidiaries in the ordinary course of business of such Person.

“ Commercial Tort Claim ” has the meaning set forth in Article 9 of the UCC.

“ Commitment ” means, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Delayed Draw Term A Commitment, Initial Revolving Credit Commitment, and Additional Commitment, as applicable, in effect as of such time.

“ Commitment Fee Rate ” means, on any date (a) with respect to the Initial Revolving Credit Commitments, the applicable rate per annum set forth below based upon the First Lien Leverage Ratio; provided that until the first Adjustment Date following the completion of at least one full Fiscal Quarter after the Closing Date, “Commitment Fee Rate” shall be the applicable rate per annum set forth below in Category 1 and (b) with respect to Additional Revolving Credit Commitments of any Class, the rate or rates per annum specified in the applicable Refinancing Amendment, Incremental Facility Amendment or Extension Amendment; provided that until the first Adjustment Date following the completion of at least one full Fiscal Quarter after the Closing Date, “Commitment Fee Rate” shall be the applicable rate per annum set forth in Category 1:

 

First Lien Leverage Ratio		Commitment Fee Rate
Category 1
Greater than 2.50 to 1.00			0.375	%
Category 2
Equal to or less than 2.50 to 1.00			0.25	%

The Commitment Fee Rate with respect to the Initial Revolving Credit Commitment shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the First Lien Leverage Ratio in accordance with the table set forth above; provided that if financial statements are not delivered when required pursuant to Section 5.01(a) or (b) , as applicable, the Commitment Fee Rate shall be the rate per annum set forth above in Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b) , as applicable.

“ Commitment Schedule ” means the Schedule attached hereto as Schedule 1.01(a) .

“ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

“ Company Competitor ” means any competitor of INC Holdings or inVentiv Group Holdings or any of their respective subsidiaries.

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

“ Confidential Information ” has the meaning assigned to such term in Section 9.13 .

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

“ Consolidated Adjusted EBITDA ” means, with respect to any Person on a consolidated basis for any period, the sum of:

(a) Consolidated Net Income for such period; plus

 

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severance Charge, any Charge relating to entry into a new market, any Charge relating to any strategic initiative, any signing Charge, any retention or completion bonus, any expansion and/or relocation Charge, any Charge associated with any modification to any pension and post-retirement employee benefit plan, any software development Charge, any Charge associated with new systems design, any implementation Charge, any project startup Charge, any Charge in connection with new operations, any Charge in connection with unused warehouse space, any Charge relating to a new contract, any consulting Charge and/or any corporate development Charge; plus

(xiii) the amount of any Charge incurred or accrued in connection with any single or one-time event, including in connection with (A) the Transactions and/or any acquisition consummated after the Closing Date (including legal, accounting and other professional fees and expenses incurred in connection with acquisitions and other similar Investments made prior to the Closing Date), (B) the closing, consolidation or reconfiguration of any facility during such period or (C) one-time consulting costs; plus

(d) to the extent not included in Consolidated Net Income for such period, cash actually received (or any netting arrangement resulting in reduced cash expenditures) during such period so long as the non-cash gain relating to the relevant cash receipt or netting arrangement was deducted in the calculation of Consolidated Adjusted EBITDA (including any component definition) pursuant to clause (h)  below for any previous period and not added back; plus

(e) the full pro forma “run rate” cost savings, operating expense reductions, operational improvements and synergies (collectively, “ Expected Cost Savings ”) (net of actual amounts realized) that are reasonably identifiable and factually supportable (in the good faith determination of such Person, as certified by a Responsible Officer of such Person in the Compliance Certificate required by Section 5.01(c) to be delivered in connection with the financial statements for such period) related to (A) the Transactions and (B) any permitted acquisition, Investment, Disposition, operating improvement, restructuring, cost savings initiative, any similar initiative (including the renegotiation of contracts and other arrangements) and/or specified transaction (any such operating improvement, restructuring, cost savings initiative or similar initiative or specified transaction, a “ Business Optimization Initiative ”); provided that such Expected Cost Savings under clause (B)  above are expected by the Administrative Borrower in good faith to result from actions that have been taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Administrative Borrower) prior to the Closing Date or within 24 months of the consummation of such transaction or the taking of such initiative; it being understood and agreed for the avoidance of doubt that no time limit shall apply in connection with any Expected Cost Savings related to the Transactions; provided , further , that the aggregate amounts added back pursuant to this clause (e)  in any period shall not exceed 35% of Consolidated Adjusted EBITDA for such period; it being understood and agreed that the 35% cap described in this further proviso shall not apply to (X) amounts that would be permitted to be included in pro forma financial statements prepared in accordance with Regulation S-X under the Securities Act or (Y) cost savings identified in the financial model delivered to the Lead Arrangers prior to the Closing Date; plus

(f) the amount of any revenue that is attributable to services performed during such period but is not included in Consolidated Net Income for such period; it being understood that if such revenue is added back in calculating Consolidated Adjusted EBITDA for such period, such revenue shall not be included in Consolidated Net Income in the period in which it is actually recognized; plus

(g) cash and non-cash losses, charges and other adjustments resulting from the application of FASB ASC Update No. 2014-09 (Revenue from Contracts with Customers (Topic 606)) effective January 1, 2018; plus

 

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(h)   (g) the amount of any loss or discount on any sale of any receivable and/or any related asset in connection with any Permitted Receivables Facility; minus

(i)   (h) any amount which, in the determination of Consolidated Net Income for such period, has been included for any non-cash income or non-cash gain, all as determined in accordance with GAAP ( provided that if any non-cash income or non-cash gain represents an accrual or deferred income in respect of potential cash items in any future period, such Person may determine not to deduct the relevant non-cash gain or income in the then-current period); minus

(j)   (i) the amount of any cash payment made during such period in respect of any non-cash accrual, reserve or other non-cash Charge that is accounted for in a prior period which was added to Consolidated Net Income to determine Consolidated Adjusted EBITDA for such prior period and which does not otherwise reduce Consolidated Net Income for the current period.

Notwithstanding anything to the contrary herein, it is agreed that for the purpose of calculating the Total Leverage Ratio, the First Lien Leverage Ratio, the Interest Coverage Ratio, the Secured Leverage Ratio and/or the amount of any “basket” based on a percentage of Consolidated Adjusted EBITDA for any period that includes the Fiscal Quarters ended June 30, 2017, March 31, 2017, December 31, 2016 and/or September 30, 2016, (i) Consolidated Adjusted EBITDA for the Fiscal Quarter ended June 30, 2017 shall be deemed to be $171,400,000, (ii) Consolidated Adjusted EBITDA for the Fiscal Quarter ended March 31, 2017 shall be deemed to be $178,500,000, (iii) Consolidated Adjusted EBITDA for the Fiscal Quarter ended December 31, 2016 shall be deemed to be $187,600,000 and (iv) Consolidated Adjusted EBITDA for the Fiscal Quarter ended September 30, 2016 shall be deemed to be $178,700,000, in each case, as adjusted on a Pro Forma Basis, as applicable.

“ Consolidated First Lien Debt ” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured by a Lien on the Collateral on a first priority basis. Consolidated Total Debt outstanding under this Agreement shall constitute Consolidated First Lien Debt.

“ Consolidated Interest Expense ” means, with respect to any Person for any period, the sum of (a) consolidated total interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including (without duplication), amortization of any debt issuance cost and/or original issue discount, any premium paid to obtain payment, financial assurance or similar bonds, any interest capitalized during construction, any non-cash interest payment, the interest component of any deferred payment obligation, the interest component of any payment under any Capital Lease (regardless of whether accounted for as interest expense under GAAP), any commission, discount and/or other fee or charge owed with respect to any letter of credit and/or bankers’ acceptance, any fee and/or expense paid to the Administrative Agent in connection with its services hereunder, any other bank, administrative agency (or trustee) and/or financing fee and any cost associated with any surety bond in connection with financing activities (whether amortized or immediately expensed)) plus (b) any cash dividend paid or payable in respect of Disqualified Capital Stock during such period other than to such Person or any Loan Party, plus (c) any net losses or obligations arising from any Hedge Agreement and/or other derivative financial instrument issued by such Person for the benefit of such Person or its subsidiaries, in each case determined on a consolidated basis for such period. For purposes of this definition, interest in respect of any Capital Lease shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capital Lease in accordance with GAAP.

 

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“ Consolidated Net Income ” means, with respect to any Person (the “ Subject Person ”) on a consolidated basis for any period, an amount equal to the net income (loss) of such Subject Person and its Restricted Subsidiaries, determined in accordance with GAAP, but excluding:

and (ii) to exclude any obligation, liability or indebtedness of such Person if, upon or prior to the maturity thereof, such Person has irrevocably deposited with the proper Person in trust or escrow the necessary funds (or evidences of indebtedness) for the payment, redemption or satisfaction of such obligation, liability or indebtedness, and thereafter such funds and evidences of such obligation, liability or indebtedness or other security so deposited are not included in the calculation of the Unrestricted Cash Amount.

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

“ 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.

“ Contribution Indebtedness Amount ” has the meaning assigned to such term in Section 6.01(r) .

“ 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.

“ Copyright ” means any and all copyrights throughout the world, including the following: (a) all rights and interests in copyrights, works protectable by copyright whether published or unpublished, copyright registrations, copyright applications and other rights in works of authorship (including all copyrights embodied in software); (b) all renewals of any of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due and/or payable under any of the foregoing, including damages or payments for past or future infringements for any of the foregoing; (d) the right to sue for past, present, and future infringements of any of the foregoing; and (e) all rights corresponding to any of the foregoing.

“ Credit Extension ” means each of (i) the making of a Revolving Loan (other than any Letter of Credit Reimbursement Loan) or Delayed Draw Term A Loans or (ii) the issuance, amendment, modification, renewal or extension of any Letter of Credit (other than any such amendment, modification, renewal or extension that does not increase the Stated Amount of the relevant Letter of Credit).

“ Credit Facilities ” means the Revolving Facility and the Term Facility.

“ Credit Suisse ” has the meaning assigned to such term in the preamble to this Agreement.

“ CS Securities ” has the meaning assigned to such term in the preamble to this Agreement.

“ Cure Amount ” has the meaning assigned to such term in Section 6.13(b) .

“ Cure Period ” has the meaning assigned to such term in Section 6.13(b) .

“ Cure Right ” has the meaning assigned to such term in Section 6.13(b) .

“ Current Assets ” means, at any date, all assets of the Administrative Borrower and its Restricted Subsidiaries which under GAAP would be classified as current assets (excluding any (i) cash or Cash Equivalents (including Cash and Cash Equivalents held on deposit for third parties by the Administrative Borrower and/or any Restricted Subsidiary), (ii) permitted loans to third parties, (iii) deferred bank fees and derivative financial instruments related to Indebtedness, (iv) the current portion of current and deferred Taxes and (v) management fees receivables).

 

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“ Defaulting Lender ” means any Person that has (a) defaulted in (or is otherwise unable to perform) its obligations under this Agreement, including its obligations (x) to make a Loan within two Business Days of the date required to be made by it hereunder or (y) to fund its participation in a Letter of Credit required to be funded by it hereunder within two Business Days of the date such obligation arose or such Loan or Letter of Credit was required to be made or funded, unless, in the case of subclause (x)  above, such Person notifies the Administrative Agent in writing that such failure is the result of such Person’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) notified the Administrative Agent, any Issuing Bank or the Administrative Borrower in writing that it does not intend to satisfy or perform any such obligation or has made a public statement to the effect that it does not intend to comply with its funding or other obligations under this Agreement or under agreements in which it commits to extend credit generally (unless such writing indicates that such position is based on such Person’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan cannot be satisfied), (c) failed, within two Business Days after the request of the Administrative Agent or the Administrative Borrower, to confirm in writing that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit; provided that such Person shall cease to be a Defaulting Lender pursuant to this clause (c)  upon receipt of such written confirmation by the Administrative Agent, (d) become (or any parent company thereof has become) insolvent or been determined by any Governmental Authority having regulatory authority over such Person or its assets, to be insolvent, or the assets or management of which has been taken over by any Governmental Authority or (e)(i) become (or any parent company thereof has become) either the subject of (A) a bankruptcy or insolvency proceeding or (B) a Bail-In Action, (ii) has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or (iii) has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment, unless in the case of any Person subject to this clause (e) , the Administrative Borrower and the Administrative Agent have each determined that such Person intends, and has all approvals required to enable it (in form and substance satisfactory to the Administrative Borrower and the Administrative Agent), to continue to perform its obligations hereunder; provided that no Person shall be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in such Person or its parent by any Governmental Authority; provided that such action does not result in or provide such Person with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contract or agreement to which such Person is a party.

“Delayed Draw Term A Commitment” means, as to each Delayed Draw Term A Lender, its obligation to make Delayed Draw Term A Loans to the Borrowers pursuant to Section 2.01(b) in an aggregate amount not to exceed the amount set forth opposite such Term Lender’s name on Schedule 2-B to Amendment No. 2 under the caption “Delayed Draw Term A Commitment” or in the applicable Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including Section 2.22). The aggregate amount of the Delayed Draw Term A Commitments as of the Amendment No. 2 Closing Date is $400,000,000.

“Delayed Draw Term A Commitment Termination Date” means the earliest to occur of (i) the nine- month anniversary of the Amendment No. 2 Closing Date, (ii) the date on which the Delayed Draw Term A Commitment are reduced to $0 pursuant to Section 2.09, and (iii) the date on which all Delayed Draw Term A Commitments then outstanding have been funded pursuant to Section 2.01(b).

“Delayed Draw Term A Loan Availability Period” has the meaning set forth in Section 2.01(b).

“Delayed Draw Term A Loan Commitment Fee” has the meaning set forth in Section 2.12(f).

 

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“Delayed Draw Term A Loan Funding Date” means each date on which the Delayed Draw Term A Lenders make Delayed Draw Term A Loans hereunder which, subject to the satisfaction of the conditions set forth in Section 4.03, shall be the date set forth in the notice delivered by the Borrowers pursuant to Section 4.03(d).

“Delayed Draw Term A Lender” means the Term Lenders providing Delayed Draw Term A Loans under the Delayed Draw Term A Commitment.

“Delayed Draw Term A Loans” means the Term A Loans made by the applicable Term Lenders on a Delayed Draw Term A Loan Funding Date to the Borrowers pursuant to Section 2.01(b).

“ Deposit Account ” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, excluding, for the avoidance of doubt, any investment property (within the meaning of the UCC) or any account evidenced by an instrument (within the meaning of the UCC).

“ Derivative Transaction ” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate agreement, interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives rise to similar credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction, including any cross-currency interest-rate swap, any forward foreign-exchange contract, any currency option, and any other instrument linked to exchange rates that gives rise to similar credit risks, (c) any equity derivative transaction, including any equity-linked swap, any equity-linked option, any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and (d) any commodity (including precious metal) derivative transaction, including any commodity-linked swap, any commodity-linked option, any forward commodity-linked contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided, that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees, members of management, managers or consultants of the Administrative Borrower or its subsidiaries shall constitute a Derivative Transaction.

“ Designated Non-Cash Consideration ” means the fair market value (as determined by the Administrative Borrower in good faith) of non-Cash consideration received by the Administrative Borrower or any Restricted Subsidiary in connection with any Disposition pursuant to Section 6.07(h) and/or Section 6.08 that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Administrative Borrower, setting forth the basis of such valuation (which amount will be reduced by the amount of Cash or Cash Equivalents received in connection with a subsequent sale or conversion of such Designated Non-Cash Consideration to Cash or Cash Equivalents).

“ Designated Operational FX Hedge ” means any Hedge Agreement entered into for the purpose of hedging currency-related risks in respect of the revenues, cash flows or other balance sheet items of the Administrative Borrower and/or any of its subsidiaries and designated at the time entered into (or on or prior to the Closing Date, with respect to any Hedge Agreement entered into on or prior to the Closing Date) as a Designated Operational FX Hedge by the Administrative Borrower in a writing delivered to the Administrative Agent.

“ Disposition ” or “ Dispose ” means the sale, lease, sublease, or other disposition of any property of any Person.

“ Disqualified Capital Stock ” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, on

 

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or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such redemption is in part, only such part coming into effect prior to 91 days following the Latest Maturity Date shall constitute Disqualified Capital Stock), (b) is or becomes convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Capital Stock that would constitute Disqualified Capital Stock, in each case at any time on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued, (c) contains any mandatory repurchase obligation or any other repurchase obligation at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, which may come into effect prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such repurchase obligation is in part, only such part coming into effect prior to 91 days following the Latest Maturity Date shall constitute Disqualified Capital Stock) or (d) provides for the scheduled payments of dividends in Cash on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided that any Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Capital Stock upon the occurrence of any change of control or any Disposition occurring prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued shall not constitute Disqualified Capital Stock if such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior to the Termination Date.

Notwithstanding the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees, members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or consultants, in each case in the ordinary course of business of the Administrative Borrower or any Restricted Subsidiary, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Capital Stock held by any future, present or former employee, director, officer, manager, member of management or consultant (or their respective Affiliates or Immediate Family Members) of the Administrative Borrower (or any Parent Company or any subsidiary) shall be considered Disqualified Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time.

“ Disqualified Institution ” means:

(a) (i) any Person identified in writing to the Arrangers on or prior to May 10, 2017 the Amendment No. 2 Closing Date , (ii) any Person identified by INC Holdings the Administrative Borrower or Double Eagle Parent in writing and , by email to JPMDQ_Contact@jpmorgan.com, and reasonably acceptable to CS Securities and ING after May 10, 2017, and prior to the the Administrative Agent after the Amendment No. 2 Closing Date (the Persons described in clauses (a)(i) through (a)(ii) above, the “ Identified Disqualified Lenders ”) and (iii) any Affiliate of any Identified Disqualified Lender that is identified in writing , by email to JPMDQ_Contact@jpmorgan.com, to the Administrative Agent as such,

(b) any Affiliate of any Arranger (or any director (or equivalent manager), officer or employee of any Arranger or any Affiliate thereof) that is engaged as a principal primarily in private equity or venture capital,

(c) (i) any Person that is or becomes a Company Competitor and is (A) identified in writing to the Arrangers on or prior to May 10, 2017 the Amendment No. 2 Closing Date , (B) identified by INC Holdings the Administrative Borrower or Double Eagle Parent in writing to CS Securities and ING after May 10, 2017, and prior to the JPMorgan after the Amendment No. 2 Closing Date and (C) identified in writing to the Administrative Agent on or after the Closing Date, and (ii)

 

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Restricted Subsidiary or any ERISA Affiliate as described in Section 4062(e) of ERISA, in each case, resulting in liability pursuant to Section 4063 of ERISA; (c) a complete or partial withdrawal by the Administrative Borrower or any Restricted Subsidiary or any ERISA Affiliate from a Multiemployer Plan resulting in the imposition of Withdrawal Liability on the Administrative Borrower or any Restricted Subsidiary, notification of the Administrative Borrower or any Restricted Subsidiary or any ERISA Affiliate concerning the imposition of Withdrawal Liability or notification that a Multiemployer Plan is “insolvent” within the meaning of Section 4245 of ERISA or is in “reorganization” within the meaning of Section 4241 of ERISA; (d) the filing of a notice of intent to terminate a Pension Plan under Section 4041(c) of ERISA, the treatment of a Pension Plan amendment as a termination under Section 4041(c) of ERISA, the commencement of proceedings by the PBGC to terminate a Pension Plan or the receipt by the Administrative Borrower or any Restricted Subsidiary or any ERISA Affiliate of notice of the treatment of a Multiemployer Plan amendment as a termination under Section 4041A of ERISA or of notice of the commencement of proceedings by the PBGC to terminate a Multiemployer Plan; (e) the occurrence of an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Administrative Borrower or any Restricted Subsidiary or ERISA Affiliates, with respect to the termination of any Pension Plan; or (g) the conditions for imposition of a Lien under Section 303(k) of ERISA have been met with respect to any Pension Plan.

“ 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 ” or “ € ” means the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the EMU Legislation.

“ Eurocurrency Rate ” means:

(a) with respect to any Interest Period applicable to an Adjusted Eurocurrency Rate Loan (other than a Eurocurrency Rate Loan denominated in Canadian Dollars or a Eurocurrency Rate Loan denominated in Singaporean Dollars ), (i) the rate of interest in the applicable currency appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to such service as determined by Administrative Agent) as the London interbank offered rate for deposits in Dollars or such Alternate Currency for a term comparable to such Interest Period, at approximately 11:00 a.m. (London time) on the date which is two Business Days prior to the commencement of such Interest Period (but if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates) or (ii) if the rate described in clause (i)  above does not appear on such page or service or such page or service is not available, the rate per annum equal to the rate reasonably determined by the Administrative Agent to be the offered rate on such other page or service that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars offered in the London interbank market (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period; and

(b) with respect to any Eurocurrency Rate Loan denominated in Canadian Dollars, the rate of interest equal to the Canadian Dollar bankers’ acceptance rate, or comparable or successor rate approved by the Administrative Agent, determined by it at or about 10:00 a.m. (Toronto time) on the applicable day (or the preceding Business Day, if the applicable day is not a Business Day) for a term comparable to the Revolving Loan, as published on the CDOR or other applicable Reuters screen page (or other commercially available source designated by the Administrative Agent from time to time).

 

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(c) with respect to any Eurocurrency Rate Loan denominated in Singaporean Dollars, the rate of interest equal to the Association of Banks in Singapore, or comparable or successor rate approved by the Administrative Agent, determined by it at or about 12:00 p.m. (London time) two Business Days prior to the commencement of the applicable Interest Period (or the preceding Business Day, if the applicable day is not a Business Day) for a term comparable to the Revolving Loan, as published on the ABSFIX01 or other applicable Reuters screen page (or other commercially available source designated by the Administrative Agent from time to time).

In no event shall the Eurocurrency Rate be less than zero.

“ Event of Default ” has the meaning assigned to such term in Article 7 .

“ Excess Cash Flow ” means, for any Excess Cash Flow Period, any amount (if positive) equal to (without duplication):

(a) Consolidated Adjusted EBITDA for such Excess Cash Flow Period (without giving effect to clauses (b)  or (e)  of the definition thereof, the amounts added back in reliance on which shall be deducted in determining Excess Cash Flow); plus

(b) any extraordinary, unusual or non-recurring cash gain during such Excess Cash Flow Period (whether or not accrued in such Excess Cash Flow Period), to the extent not otherwise included in Consolidated Adjusted EBITDA; plus

(c) net foreign currency translation gains received in cash related to currency remeasurements of Indebtedness (including any net gain resulting from any Hedge Agreement for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency translation or transaction or any other currency-related risk), to the extent not otherwise included in calculating Consolidated Adjusted EBITDA; plus

(d) the decrease, if any, in Consolidated Working Capital from the first day to the last day of such Excess Cash Flow Period, excluding any such decrease in Consolidated Working Capital arising from (i) the acquisition or Disposition of any Person by the Administrative Borrower or any Restricted Subsidiary, (ii) the reclassification during such period of current assets to long term assets and current liabilities to long term liabilities, (iii) the application of purchase and/or recapitalization accounting and/or (iv) the effect of any fluctuation in the amount of accrued and contingent obligations under any Hedge Agreement; minus

(e) the amount, if any, which, in the determination of Consolidated Adjusted EBITDA for such Excess Cash Flow Period, has been included in respect of income or gain from any Disposition outside of the ordinary course of business (including Dispositions constituting covered losses or taking of assets referred to in the definition of “Net Insurance/Condemnation Proceeds”) of the Administrative Borrower and/or any Restricted Subsidiary; minus

(f) cash payments actually made in respect of the following (without duplication):

(i) any Investment permitted by Section 6.06 (other than Investments (i) in Cash or Cash Equivalents or (ii) in any Loan Party and/or any Restricted Payment permitted by Section 6.04(a)) and actually made in cash during such Excess Cash Flow Period or, at the option of the Administrative Borrower, made prior to the date the Administrative Borrower is required to make a payment of Excess Cash Flow in respect of such Excess Cash Flow Period, (A) except to the extent the relevant Investment and/or Restricted Payment is financed with long term Indebtedness (other than revolving Indebtedness) and (B) without

 

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extent such reserves or amounts are added back to, or not deducted from, Consolidated Net Income.; minus

(q) cash losses, charges and other adjustments resulting from the application of FASB ASC Update No. 2014-09 (Revenue from Contracts with Customers (Topic 606)) effective January 1, 2018.

“ Excess Cash Flow Period ” means each Fiscal Year of the Administrative Borrower, commencing with the Fiscal Year of the Administrative Borrower ending on December 31, 2018.

“ Exchange Act ” means the Securities Exchange Act of 1934 and the rules and regulations of the SEC promulgated thereunder.

“ Excluded Assets ” means each of the following:

(a) any asset the grant or perfection of a security interest in which would (i) be prohibited by any enforceable anti-assignment provision set forth in any contract that is permitted or otherwise not prohibited by the terms of this Agreement and is binding on such asset at the time of its acquisition and not incurred in contemplation thereof (other than assets subject to Capital Leases and purchase money financings), (ii) violate the terms of any contract relating to such asset that is permitted or otherwise not prohibited by the terms of this Agreement and is binding on such asset at the time of its acquisition and not incurred in contemplation thereof (other than in the case of Capital Leases and purchase money financings) (in the case of clause (i)  above and this clause (ii) , after giving effect to any applicable anti-assignment provision of the UCC or other applicable Requirements of Law) or (iii) trigger termination of any contract relating to such asset that is permitted or otherwise not prohibited by the terms of this Agreement pursuant to any “change of control” or similar provision (to the extent such contract is binding on such asset at the time of its acquisition and not incurred in contemplation thereof); it being understood that the term “Excluded Asset” shall not include proceeds or receivables arising out of any contract described in this clause (a)  to the extent that the assignment of such proceeds or receivables is expressly deemed to be effective under the UCC or any other applicable Requirement of Law notwithstanding the relevant prohibition, violation or termination right,

(b) the Capital Stock of any (i) Captive Insurance Subsidiary, (ii) Unrestricted Subsidiary, (iii) not-for-profit subsidiary and/or (iv) special purpose entity used for any permitted securitization facility (including any Permitted Receivables Facility),

(c) any intent-to-use Trademark application prior to the filing and acceptance of a “Statement of Use”, “Declaration of Use”, “Amendment to Allege Use” or similar notice and/or filing with respect thereto, only to the extent, if any, that, and solely during the period if any, in which, the grant of a security interest therein may impair the validity or enforceability, or result in the voiding, of such intent-to-use Trademark application or any registration issuing therefrom under applicable Requirements of Law,

(d) any asset, the grant or perfection of a security interest in which would (i) require any governmental or regulatory consent, approval, license or authorization that has not been obtained, (ii) be prohibited by applicable Requirements of Law (including, without limitation, rules and regulations of any governmental authority or agency), except, in each case of clause (i)  above and this clause (ii) , to the extent such requirement or prohibition would be rendered ineffective under the UCC or any other applicable Requirement of Law notwithstanding such requirement or prohibition; it being understood that the term “Excluded Asset” shall not include proceeds or receivables arising out of any asset described in clause (d)(i) or clause (d)(ii) to the extent that the assignment of such proceeds or receivables is expressly deemed to be effective under the UCC or any other applicable Requirement of

 

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Guaranty of such Loan Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation or (b) in the case of any Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act, because such Loan Guarantor is a “financial entity,” as defined in section 2(h)(7)(C) of the Commodity Exchange Act, at the time the guarantee provided by (or grant of such security interest by, as applicable) such Loan Guarantor becomes or would become effective with respect to such Swap Obligation. If any Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Loan Guaranty or security interest is or becomes illegal.

“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender or Issuing Bank or any other recipient (in each case, a “ Recipient ”) of any payment to be made by or on account of any obligation of any Loan Party under any Loan Document, (a) Taxes imposed on (or measured by) its net or overall gross income or franchise Taxes (i) imposed as a result of such Recipient being organized or having its principal office located in or, in the case of any Lender, having its applicable lending office located in, the taxing jurisdiction or (ii) that are Other Connection Taxes, (b) any branch profits Taxes imposed under Section 884(a) of the Code or any similar Tax imposed by any jurisdiction described in clause (a) , (c) any U.S. federal withholding tax that is imposed on amounts payable to the relevant Recipient pursuant to a Requirement of Law in effect at the time the relevant Recipient becomes a party to this Agreement (or designates a new lending office), except (i) in the case of a Recipient that became a recipient pursuant to an assignment under Section 2.19 or a Recipient that designates a new lending office under Section 2.19 and (ii) to the extent that the relevant Recipient (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive additional amounts from any Loan Party with respect to such withholding tax pursuant to Section 2.17 , (d) any tax imposed as a result of a failure by such Recipient to comply with Section 2.17(f) and (e) any U.S. federal withholding tax under FATCA.

“Existing Bank of America Amendment No. 2 Closing Date Letters of Credit” means any letter of credit previously issued that is listed on Schedule 1.01(e)(ii) hereto.

“Existing Bank of America Closing Date Letters of Credit” means any letter of credit previously issued that (a) will remain outstanding on and after the Closing Date and (b) is listed on Schedule 1.01(e) (i) hereto.

“Existing Credit Suisse Amendment No. 2 Closing Date Letters of Credit” means any letter of credit previously issued that is listed on Schedule 1.01(e)(iii) hereto.

“Existing ING Amendment No. 2 Closing Date Letters of Credit” means any letter of credit previously issued that is listed on Schedule 1.01(e)(iv) hereto.

“Existing Letters of Credit” means, collectively, the Existing Bank of America Closing Date Letters of Credit, the Existing Bank of America Amendment No. 2 Closing Date Letters of Credit, the Existing Credit Suisse Amendment No. 2 Closing Date Letters of Credit and the Existing ING Amendment No. 2 Closing Date Letters of Credit, listed on Schedule 1.01(e) hereto.

“ Expected Cost Savings ” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.

“ Extended Revolving Credit Commitment ” has the meaning assigned to such term in Section 2.23(a)(i) .

“ Extended Revolving Facility ” has the meaning assigned to such term in Section 2.23(a)(i) .

“ Extended Revolving Loans ” has the meaning assigned to such term in Section 2.23(a)(i) .

 

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“ Extended Term Loans ” has the meaning assigned to such term in Section 2.23(a)(ii) .

“ Extension ” has the meaning assigned to such term in Section 2.23(a) .

“ Extension Amendment ” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (for purposes of giving effect to Section 2.23 ) and the Administrative Borrower executed by each of (a) the Administrative Borrower and the Subsidiary Guarantors, (b) the Administrative Agent and (c) each Lender that has accepted the applicable Extension Offer pursuant hereto and in accordance with Section 2.23 .

“ Extension Offer ” has the meaning assigned to such term in Section 2.23(a).

“ Facility ” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or, except with respect to Articles 5 and 6 , hereof owned, leased, operated or used by the Administrative Borrower or any of its Restricted Subsidiaries or any of their respective predecessors or Affiliates.

“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above) and any intergovernmental agreements implementing any of the foregoing and related fiscal or regulatory legislation or official administrative , rules or practices with respect thereto adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code .

“ FCPA ” has the meaning assigned to such term in Section 3.17(c) .

“ Federal Funds Effective Rate ” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York sets forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate.

“ Fee Letters Letter ” means that certain fee letters letter dated June as of February  14, 2017, by and 2019 among , inter alios, the Administrative Borrower , the applicable Arrangers and the Administrative Agent.

“ Financial Covenant Standstill ” has the meaning assigned to such term in Section 7.01(c) .

“ First Lien Intercreditor Agreement ” means an intercreditor agreement substantially in the form of Exhibit K-1 hereto, with any changes thereto as the Administrative Borrower and the Administrative Agent may agree in their respective reasonable discretion.

“ First Lien Leverage Ratio ” means the ratio, as of any date of determination, of (a) Consolidated First Lien Debt as of the last day of the Test Period then most recently ended to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended, in each case of the Administrative Borrower and its Restricted Subsidiaries on a consolidated basis.

“ First Priority ” means, with respect to any Lien purported to be created on any Collateral pursuant to any Collateral Document, that, subject to any applicable Intercreditor Agreement, such Lien is senior in priority to any other Lien to which such Collateral is subject, other than any Permitted Lien.

 

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

“ Fiscal Year ” means the fiscal year of the Administrative Borrower ending December 31 of each calendar year.

“ Fixed Amount ” has the meaning assigned to such term in Section 1.10(d) .

“ Flood Hazard Property ” means any parcel of any Material Real Estate Asset located in the U.S. that is subject to a Mortgage that has Improvements (as defined in the Flood Insurance Laws) in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.

“ Flood Insurance Laws ” means, collectively, (a) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973), (b) the Flood Insurance Reform Act of 2004 and (c) the Biggert-Waters Flood Insurance Reform Act of 2012.

“ Florida Loan Party ” means South Florida Kinetics, Inc., a Florida corporation .

“ Foreign Lender ” means any Lender or Issuing Bank that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.

“ Foreign Subsidiary ” means any Restricted Subsidiary that is not a Domestic Subsidiary.

“ GAAP ” means generally accepted accounting principles in the U.S. in effect and applicable to the accounting period in respect of which reference to GAAP is made.

“ Governmental Authority ” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the US, a foreign government or any political subdivision thereof.

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

“ Granting Lender ” has the meaning assigned to such term in Section 9.05(f) .

“ Guarantee ” of or by any Person (the “ Guarantor ”) means any obligation, contingent or otherwise, of the Guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation of any other Person (the “ Primary Obligor ”) in any manner and including any obligation of the Guarantor (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other monetary obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or monetary obligation, (e) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part) or (f) secured by any Lien on any assets of such Guarantor securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or monetary other obligation is assumed by such Guarantor (or any right, contingent or otherwise, of any holder of such Indebtedness or other monetary obligation to obtain any such Lien); provided that the term

 

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“ INC Contribution ” has the meaning assigned to such term in the recitals hereto.

“ INC Holdings ” has the meaning assigned to such term in the preamble to this Agreement.

“ INC Refinancing ” means the termination of the revolving commitments and refinancing of the outstanding Indebtedness under the Credit Agreement, dated as of May 14, 2015, by and among, inter alios , INC Holdings, as holdings, INC Research, as borrower, the lenders from time to time party thereto and Wells Fargo Bank, National Association, as administrative agent and collateral agent.

“ INC Research ” means Syneos Health, LLC (f/k/a INC Research, LLC), a Delaware limited liability company.

“ Incremental Amount ” means (a) the greater of (i) $725,000,000 and (ii) 100% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period minus (b) the aggregate outstanding principal amount of all Incremental Facilities and/or Incremental Equivalent Debt incurred or issued in reliance on the Incremental Amount . ; provided that, the Incremental Term A Loans (including, for the avoidance of doubt, any Delayed Draw Term A Loans) and Incremental Revolving Credit Commitments (each as defined in Amendment No. 2) shall not reduce the amount available to the Borrowers pursuant to clause (a)(i) above (such that, for the avoidance of doubt, $725,000,000 remains available for use by the Borrowers under clause (a)(i) of this definition after giving effect to Amendment No. 2).

“ Incremental Cap ” means (without duplication):

(a) the Incremental Amount, plus

(b) in the case of any Incremental Facility incurred using the Incremental Amount that effectively extends the Maturity Date with respect to any Class of Loans and/or Commitments hereunder, an amount equal to the portion of the relevant Class of Loans or Commitments that will be replaced by such Incremental Facility, plus

(c) in the case of any Incremental Facility incurred using the Incremental Amount that effectively replaces any Revolving Credit Commitment terminated in accordance with Section 2.19 hereof, an amount equal to the relevant terminated Revolving Credit Commitment, plus

(d) (i) the amount of any optional prepayment of any Term Loan in accordance with Section 2.11(a) and/or the amount of any permanent reduction of any Revolving Credit Commitment and/or the amount of any permanent prepayment of any Incremental Equivalent Debt, in each case that is secured on a pari passu basis with the Initial Term Loans, (ii) the amount of any optional prepayment, redemption or repurchase of any Replacement Term Loan or Loans under any Replacement Revolving Facility (to the extent accompanied by a permanent reduction in commitments) or any borrowing or issuance of Replacement Debt, in each case that is secured on a pari passu basis with the Initial Term Loans, previously applied to the permanent prepayment of any Loan hereunder, so long as no Incremental Facility was previously incurred in reliance on clause (d)(i) above as a result of such prepayment and (iii) the amount paid in Cash in respect of any reduction in the outstanding amount of any Term Loan that is secured on a pari passu basis with the Initial Term Loans resulting from any assignment of such Term Loan to (and/or assignment and/or purchase of such Term Loan by) the Administrative Borrower and/or any Restricted Subsidiary, for each of clauses (i) , (ii)  and (iii)  so long as the relevant prepayment, redemption, repurchase, assignment and/or purchase was not funded with the proceeds of any long-term Indebtedness (other than revolving Indebtedness), plus

(e) an unlimited amount so long as, in the case of this clause (e) , after giving effect to the relevant Incremental Facility, (i) if such Incremental Facility is secured by a lien on the Collateral

 

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Leverage Ratio, the Interest Coverage Ratio or any other financial ratio under this Agreement, (ii) the amount of Indebtedness of any Person for purposes of clause (e)  shall be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the fair market value of the property encumbered thereby as determined by such Person in good faith and (iii) the term “Indebtedness” shall exclude (A) any obligation under or in respect of any Permitted Receivables Facility, (B) any obligations incurred under ERISA, (C) accrued expenses and trade accounts payable in the ordinary course of business (including on an inter-company basis) and (D) liabilities associated with customer prepayments and deposits.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any third person (including any partnership in which such Person is a general partner and any unincorporated joint venture in which such Person is a joint venturer) to the extent such Person would be liable therefor under applicable Requirements of Law or any agreement or instrument by virtue of such Person’s ownership interest in such Person, (A) except to the extent the terms of such Indebtedness provided that such Person is not liable therefor and (B) only to the extent the relevant Indebtedness is of the type that would be included in the calculation of Consolidated Total Debt; provided that notwithstanding anything herein to the contrary, the term “Indebtedness” shall not include, and shall be calculated without giving effect to, (x) the effects of Accounting Standards Codification Topic 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivatives created by the terms of such Indebtedness (it being understood that any such amounts that would have constituted Indebtedness hereunder but for the application of this proviso shall not be deemed an incurrence of Indebtedness hereunder) and (y) the effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivative created by the terms of such Indebtedness (it being understood that any such amounts that would have constituted Indebtedness hereunder but for the application of this proviso shall not be deemed to be an incurrence of Indebtedness hereunder).

“ Indemnified Taxes ” means (a) all Taxes, other than Excluded Taxes or Other 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.

“ Indemnitee ” has the meaning assigned to such term in Section 9.03(b) .

“ Information Memorandum ” means the Confidential Information Memorandum dated June 2017 relating to the Administrative Borrower and its subsidiaries and the Transactions.

“ ING ” has the meaning assigned to such term in the preamble to this Agreement.

“ Initial Lenders ” means the Arrangers and the affiliates of the Arrangers who are party to this Agreement as Lenders on the Closing Date.

“ Initial Revolving Credit Commitment ” means, with respect to each Lender, the commitment of such Lender to make Initial Revolving Loans (and acquire participations in Letters of Credit) hereunder as set forth on the Commitment Schedule opposite such Lender’s name on Schedules 1-B and 2-C to Amendment No. 2) , or in the Assignment Agreement pursuant to which such Lender assumed its Initial Revolving Credit Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.09 or 2.19 , (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.05 or (c) increased pursuant to Section 2.22 . The aggregate amount of the Initial Revolving Credit Commitments as of the Amendment No. 2 Closing Date is $ 500,000,000 600,000,000 .

 

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“ Initial Revolving Credit Exposure ” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of all Initial Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC Exposure, in each case, attributable to its Initial Revolving Credit Commitment.

“ Initial Revolving Credit Maturity Date ” means the date that is five years after the Amendment No. 2 Closing Date.

“ Initial Revolving Facility ” means the Initial Revolving Credit Commitments and the Initial Revolving Loans and other extensions of credit thereunder.

“ Initial Revolving Lender ” means any Lender with an Initial Revolving Credit Commitment or any Initial Revolving Credit Exposure.

“ Initial Revolving Loan” means any revolving loan made by the Initial Revolving Lenders to the Borrowers pursuant to Section 2.01(a)(iii) .

“ Initial Term A Lender ” means any Lender with an Initial Term A Loan Commitment or an outstanding Initial Term A Loan.

“ Initial Term A Loan Commitment ” means, with respect to each Term Lender, the commitment of such Term Lender to make Initial Term A Loans hereunder in an aggregate amount not to exceed the amount set forth opposite such Term Lender’s name on the Commitment Schedule Schedules 1-A and 2-A to Amendment No. 2 , as the same may be (a) reduced from time to time pursuant to Section 2.09 , (b) reduced or increased from time to time pursuant to assignments by or to such Term A Lender pursuant to Section 9.05 or (c) increased from time to time pursuant to Section 2.22 . The aggregate amount of the Term Lenders’ Initial Term A Loan Commitments on the Amendment No. 2 Closing Date is $ 1,000,000,000 1,150,000,000 .

“ Initial Term A Loans ” means the term loans made by the Initial Term A Lenders to the Borrowers pursuant to Section 2.01(a)(i) and the Replacement Term A Loans (as defined in Amendment No.  1) . .

“ Initial Term A Loan Maturity Date ” means the date that is five years after the Amendment No. 2 Closing Date.

“ Initial Term B Lender ” means any Lender with an Initial Term B Loan Commitment or an outstanding Initial Term B Loan.

“ Initial Term B Loan Commitment ” means, with respect to each Term Lender, the commitment of such Term Lender to make Initial Term B Loans hereunder in an aggregate amount not to exceed the amount set forth opposite such Term Lender’s name on the Commitment Schedule 1-B to Amendment No. 1 , as the same may be (a) reduced from time to time pursuant to Section 2.09 , (b) reduced or increased from time to time pursuant to assignments by or to such Term Lender pursuant to Section 9.05 or (c) increased from time to time pursuant to Section 2.22 . The aggregate amount of the Term Lenders’ Initial Term B Loan Commitments on the Closing Date is $1,600,000,000.

“ Initial Term B Loans ” means the term loans made by the Initial Term B Lenders to the Borrowers pursuant to Section 2.01(a)(ii) and the Replacement Term B Loans (as defined in Amendment No. 1).

“ Initial Term B Loan Maturity Date ” means the date that is seven years after the Closing Date.

 

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month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

“ inVentiv Group Holdings ” means inVentiv Group Holdings, Inc., a Delaware corporation.

“ inVentiv Group Holdings Share Purchase ” has the meaning assigned to such term in the recitals hereto.

“ inVentiv Refinancing ” means (a) the refinancing of the Indebtedness outstanding under the First Lien Term Loan Agreement, dated as of November 9, 2016, by and among, inter alios , inVentiv Group Holdings, as administrative borrower, the lenders from time to time party thereto and Goldman Sachs Bank USA, as administrative agent and collateral agent and (b) the termination of the commitments and refinancing of the Indebtedness outstanding under the ABL Credit Agreement, dated as of November 9, 2016, by and among, inter alios , inVentiv Group Holdings, as a borrower, the lenders from time to time party thereto and Bank of America, N.A., as administrative agent and collateral agent (other than with respect to the Existing Bank of America Closing Date Letters of Credit).

“ Investment ” means (a) any purchase or other acquisition by the Administrative Borrower or any of its Restricted Subsidiaries of any of the Securities of any other Person (other than any Loan Party), (b) the acquisition by purchase or otherwise (other than any purchase or other acquisition of inventory, materials, supplies and/or equipment in the ordinary course of business) of all or a substantial portion of the business, property or fixed assets of any other Person or any division or line of business or other business unit of any other Person and (c) any loan, advance (other than any advance to any current or former employee, officer, director, member of management, manager, consultant or independent contractor of the Administrative Borrower, any Restricted Subsidiary, or any Parent Company for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contribution by the Administrative Borrower or any of its Restricted Subsidiaries to any other Person. Subject to Section 5.10 , the amount of any Investment shall be the original cost of such Investment, plus the cost of any addition thereto that otherwise constitutes an Investment, without any adjustments for increases or decreases in value, or write- ups, write-downs or write-offs with respect thereto, but giving effect to any repayments of principal in the case of any Investment in the form of a loan and any return of capital or return on Investment in the case of any equity Investment (whether as a distribution, dividend, redemption or sale but not in excess of the amount of the relevant initial Investment).

“ Investors ” means (a) the Sponsors and (b) the Management Investors.

“ IP Rights ” has the meaning assigned to such term in Section 3.05(c).

“ IRS ” means the United States Internal Revenue Service.

“ Issuing Bank ” means, as the context may require, (a)  Credit Suisse, (b) ING, (c JPMorgan Chase Bank, N.A., (b) Wells Fargo Bank, N.A., (c) PNC Bank, N.A., (d) Bank of America, N.A., (e) ING Capital LLC, (f ) with respect to the Existing Bank of America Closing Date Letters of Credit and the Existing Bank of America Amendment No. 2 Closing Date Letters of Credit, Bank of America, N.A. , (g) with respect to the Existing Credit Suisse Amendment No. 2 Closing Date Letters of Credit, Credit Suisse, (h) with respect to the Existing ING Amendment No. 2 Closing Date Letters of Credit, ING Capital LLC and ( d i) any other Revolving Lender that is appointed as an Issuing Bank in accordance with Section 2.05(i) hereof. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by any branch or Affiliate of such Issuing Bank, in which case the term “Issuing Bank” shall include any such branch or Affiliate with respect to Letters of Credit issued by such branch or Affiliate.

 

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“ Joinder Agreement ” means a Joinder Agreement substantially in the form of Exhibit F or such other form that is reasonably satisfactory to the Administrative Agent and the Administrative Borrower.

“ Judgment Currency ” has the meaning assigned to such term in Section 9.25 .

“ Junior Indebtedness ” means any Indebtedness of the types described in clauses (a)  and (c)  of the definition of “Indebtedness” (other than Indebtedness among the Administrative Borrower and/or any Restricted Subsidiary) of any Loan Party that is expressly subordinated in right of payment to the Obligations.

“ Junior Lien Indebtedness ” means any Indebtedness of the types described in clauses (a)  and (c)  of the definition of “Indebtedness” that is secured by a security interest on the Collateral of any Loan Party (other than Indebtedness among the Administrative Borrower and/or any Restricted Subsidiary) that is expressly junior or subordinated to the Lien securing the Credit Facilities.

“ Latest Maturity Date ” means, as of 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 Term Loan, Term Commitment, Revolving Loan or Revolving Credit Commitment.

“ Latest Revolving Credit Maturity Date ” means, as of any date of determination, the latest maturity or expiration date applicable to any Revolving Loan or Revolving Credit Commitment hereunder at such time.

“ Latest Term Loan Maturity Date ” means, as of any date of determination, the latest maturity or expiration date applicable to any Term Loan hereunder at such time.

“ LC Collateral Account ” has the meaning assigned to such term in Section 2.05(j) .

“ LC Disbursement ” means any payment or disbursement made by any Issuing Bank pursuant to any Letter of Credit.

“ LC Exposure ” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time and (b) the aggregate principal amount of all LC Disbursements that have not yet been reimbursed at such time. The LC Exposure of any Revolving Lender at any time shall equal its Applicable Percentage of the aggregate LC Exposure at such time.

“ Legal Reservations ” means the application of relevant Debtor Relief Laws, general principles of equity and/or principles of good faith and fair dealing.

“ Lenders ” means the Term Lenders, the Revolving Lenders and any other Person that becomes a party hereto pursuant to an Assignment Agreement, other than any such Person that ceases to be a party hereto pursuant to an Assignment Agreement.

“ Letter of Credit ” means any Standby Letter of Credit or Commercial Letter of Credit issued (or, in the case of any Existing Bank of America Closing Date Letter of Credit Letter of Credit, deemed to be issued) pursuant to this Agreement.

“ Letter of Credit Reimbursement Loan ” has the meaning assigned to such term in Section 2.05(e) .

“ Letter-of-Credit Right ” has the meaning set forth in Article 9 of the UCC.

 

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“ Letter of Credit Request ” means a request by the Administrative Borrower for a new Letter of Credit or an amendment to any existing Letter of Credit in accordance with Section 2.05 and substantially in the form of Exhibit N hereto or such other form that is reasonably satisfactory to the relevant Issuing Bank and the Administrative Borrower.

“ Letter of Credit Sublimit ” means $150,000,000, subject to increase in accordance with Section 2.22 hereof.

“ Liberty Lane ” means Liberty Lane IH LLC and its Affiliates.

“ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capital Lease having substantially the same economic effect as any of the foregoing), in each case, in the nature of security; provided that in no event shall an operating lease in and of itself be deemed to constitute a Lien.

“ Limited Condition Acquisition ” means any acquisition or similar Investment, including by way of merger, by the Administrative Borrower or one or more of its Restricted Subsidiaries permitted pursuant to this Agreement whose consummation is not conditioned upon the availability of, or on obtaining, third party financing.

“ Loan Documents ” means this Agreement, Amendment No. 1, Amendment No. 2, any Promissory Note, the Loan Guaranty, the Collateral Documents, any Intercreditor Agreement to which any Loan Party is a party, each Refinancing Amendment, each Incremental Facility Amendment, each Extension Amendment and any other document or instrument designated by the Administrative Borrower and the Administrative Agent as a “Loan Document.” Any reference in this Agreement or any other Loan Document to any Loan Document shall include all appendices, exhibits or schedules thereto.

“ Loan Guarantor ” means any Subsidiary Guarantor and, as to the Secured Obligations of all other Borrowers, each Borrower.

“ Loan Guaranty ” means (a) the Guaranty Agreement, substantially in the form of Exhibit I , executed by each Loan Party party thereto and the Administrative Agent for the benefit of the Secured Parties, as supplemented in accordance with the terms of Section 5.12 and (b) solely with respect to any Foreign Subsidiary designated as a Subsidiary Guarantor pursuant to the penultimate sentence of the definition of “Subsidiary Guarantor”, any local law guaranty that may have been executed by such Foreign Subsidiary.

“ Loan Installment Date ” means a Term A Loan Installment Date and/or a Term B Loan Installment Date, as applicable.

“ Loan Parties ” means each Borrower and each Subsidiary Guarantor.

“ Loans ” means any Initial Term Loan, any Delayed Draw Term A Loan, any Additional Term Loan, any Revolving Loan or any Additional Revolving Loan.

“ London Banking Day ” means any day on which dealings in Dollar or the relevant Alternate Currency, as applicable, deposits are conducted by and between banks in the London interbank market.

“ Management Investors ” means the officers, directors, managers, employees and members of management of the Administrative Borrower, any Parent Company and/or any subsidiary of the Administrative Borrower.

 

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“ Margin Stock ” has the meaning assigned to such term in Regulation U.

“ Material Acquisition ” means any Permitted Acquisition or similar Investment (including any Investment in a Similar Business) the aggregate consideration for which exceeds $225,000,000.

“ Material Adverse Effect ” means (a) on the Closing Date, a Closing Date Material Adverse Effect and (b) after the Closing Date, a material adverse effect on (i) the business, assets, financial condition or results of operations, in each case, of the Administrative Borrower and its Restricted Subsidiaries, taken as a whole, (ii) the rights and remedies (taken as a whole) of the Administrative Agent under the applicable Loan Documents or (iii) the ability of the Loan Parties (taken as a whole) to perform their payment obligations under the applicable Loan Documents.

“ Material Debt Instrument ” means any physical instrument evidencing any Indebtedness for borrowed money which is required to be pledged and delivered to the Administrative Agent (or its bailee) pursuant to the Security Agreement.

“ Material Real Estate Asset ” means (a) on the Closing Date, each “fee-owned” Real Estate Asset having a fair market value (as reasonably determined by the Administrative Borrower after taking into account any liabilities with respect thereto that impact such fair market value) in excess of $20,000,000, as listed on Schedule 1.01(c) and (b) any “fee-owned” Real Estate Asset acquired by any Loan Party after the Closing Date having a fair market value (as reasonably determined by the Administrative Borrower after taking into account any liabilities with respect thereto that impact such fair market value) in excess of $20,000,000 as of the date of acquisition thereof.

“ Maturity Date ” means (a) with respect to the Initial Revolving Facility, the Initial Revolving Credit Maturity Date, (b) with respect to the Initial Term A Loans and the Delayed Draw Term A Loans, the Initial Term A Loan Maturity Date, (c) with respect to the Initial Term B Loans, the Initial Term B Loan Maturity Date, (d) with respect to any Replacement Term Loans or Replacement Revolving Facility, the final maturity date for such Replacement Term Loans or Replacement Revolving Facility, as the case may be, as set forth in the applicable Refinancing Amendment, (e) with respect to any Incremental Facility, the final maturity date set forth in the applicable Incremental Facility Amendment, and (f) with respect to any Extended Revolving Credit Commitment or Extended Term Loans, the final maturity date set forth in the applicable Extension Amendment.

“ Maximum Rate ” has the meaning assigned to such term in Section 9.20 .

“ Merger Agreement ” means that certain Agreement and Plan of Merger, dated as of May 10, 2017, by and between Double Eagle Parent and INC Holdings.

“ Minimum Extension Condition ” has the meaning assigned to such term in Section 2.23(b) .

“ Moody’s ” means Moody’s Investors Service, Inc.

“ Mortgage ” means any mortgage, deed of trust, deeds to secure debt or other agreement which conveys or evidences a Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the relevant Secured Parties, on any Material Real Estate Asset constituting Collateral.

“ Mortgage Policy ” has the meaning assigned to such term in the definition of “Real Estate Collateral Requirements”.

“ Multiemployer Plan ” means any employee benefit plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA that is subject to the provisions of Title IV of ERISA, and in respect of which the Administrative Borrower or any of its Restricted Subsidiaries, or any of their respective ERISA Affiliates,

 

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distribution to or for the account of the Administrative Borrower or a Wholly-Owned Subsidiary as a result thereof; and (b) with respect to any issuance or incurrence of Indebtedness or Capital Stock, the Cash proceeds thereof, net of all Taxes and customary fees, commissions, costs, underwriting discounts and other fees and expenses incurred in connection therewith.

“ New Jersey Loan Parties ” means, collectively, inVentiv Commercial Services, LLC, a New Jersey limited liability company, inVentiv Health Clinical Lab, Inc., a New Jersey corporation and Patient Marketing Group, LLC, a New Jersey limited liability company.

“ Non-Debt Fund Affiliate ” means any Sponsor and any Affiliate of any such Sponsor, other than any Debt Fund Affiliate.

“ Non-Defaulting Revolving Lenders ” has the meaning assigned to such term in Section 2.21(d)(i) .

“ Non-Loan Party Cap ” means the greater of $245,000,000 and 34% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period.

“ North Carolina Loan Parties ” means, collectively, Addison Whitney LLC, a North Carolina limited liability company, inVentiv Health Consulting, Inc., a North Carolina corporation and Pharmaceutical Institute, LLC, a North Carolina limited liability company.

“ Obligations ” means all unpaid principal of and accrued and unpaid interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding (or that would accrue but for the operation of applicable bankruptcy or insolvency laws), regardless of whether allowed or allowable in such proceeding) on the Loans, all LC Exposure, all accrued and unpaid fees, premiums and all expenses (including fees, premiums and expenses accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding (or that would accrue but for the operation of applicable bankruptcy or insolvency laws), regardless of whether allowed or allowable in such proceeding), reimbursements, indemnities and all other advances to, debts, liabilities and obligations of any Loan Party to the Lenders or to any Lender, the Administrative Agent, any Issuing Bank or any indemnified party arising under the Loan Documents in respect of any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute, contingent, due or to become due, now existing or hereafter arising.

“ ” Obligations Derivative Instrument ” has the meaning specified in Section 9.05(e)(ii).

“ OFAC ” has the meaning assigned to such term in Section 3.17(a) .

“ Ohio Loan Parties ” means, collectively, inVentiv Communications Inc., an Ohio corporation, Blue Diesel, LLC, an Ohio limited liability company, Cadent Medical Communications, LLC, an Ohio limited liability company, Gerbig, Snell/Weisheimer Advertising, LLC, an Ohio limited liability company, inVentiv Medical Communications, LLC, an Ohio limited liability company, Navicor Group LLC, an Ohio limited liability company, Palio + Ignite, LLC, an Ohio limited liability company, The Selva Group, LLC, an Ohio limited liability company, Kendle Americas Investment, Inc., an Ohio corporation, and Kendle Americas Management Inc., an Ohio corporation.

“ Organizational Documents ” means (a) with respect to any corporation, its certificate or articles of incorporation or organization and its by-laws, (b) with respect to any limited partnership, its certificate of limited partnership and its partnership agreement, (c) with respect to any general partnership, its partnership agreement, (d) with respect to any limited liability company, its articles of organization or certificate of formation, and its operating agreement, and (e) with respect to any other form of entity, such other organizational documents required by local Requirements of Law or customary under such jurisdiction to document the formation and governance principles of such type of entity. In the event that any term or condition of this Agreement or any other Loan Document requires any Organizational Document to be

 

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“ Prepayment Asset Sale ” means any Disposition by the Administrative Borrower or its Restricted Subsidiaries made pursuant to Section 6.07(h) .

“ Prepayment Notice ” means a notice from the Administrative Borrower of any prepayment of any Borrowing of Term Loans pursuant to Section 2.11(a) substantially in the form attached hereto as Exhibit M or such other form that is reasonably acceptable to the Administrative Agent.

“ Primary Obligor ” has the meaning assigned to such term in the definition of “Guarantee”.

“ Prime Rate ” means (a)  the rate of interest per annum publically announced from time to time by the Administrative Agent as its prime commercial lending rate in effect at its principal office in New York City or (b) if the Administrative Agent has no “prime rate,” the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Board (as reasonably determined by the Administrative Agent). The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Any change in the prime rate determined by the Administrative Agent shall take effect at the opening of business on the date of such determination Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective .

“ Pro Forma Basis ” or “pro forma effect” means, with respect to any determination of the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured Leverage Ratio, the Interest Coverage Ratio, Consolidated Adjusted EBITDA or Consolidated Total Assets (including component definitions thereof), that:

(a) (i) in the case of (A) any Disposition of all or substantially all of the Capital Stock of any Restricted Subsidiary or any division and/or product line of the Administrative Borrower and/or any Restricted Subsidiary, (B) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary and (C) the implementation of any Business Optimization Initiative, income statement items (whether positive or negative and including any Expected Cost Savings) attributable to the property or Person subject to such Subject Transaction shall be excluded as of the first day of the Test Period applicable to any test or covenant for which the relevant determination is being made and (ii) in the case of any Permitted Acquisition, Investment and/or designation of an Unrestricted Subsidiary as a Restricted Subsidiary described in the definition of the term “Subject Transaction,” income statement items (whether positive or negative) attributable to the property or Person subject to such Subject Transaction shall be included as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being made; it being understood that any pro forma adjustment described in this Agreement may be applied to any such test or covenant solely to the extent that such adjustment is consistent with the definition of “Consolidated Adjusted EBITDA,”

(b) any retirement or repayment of Indebtedness shall be deemed to have occurred as of the first day of the Test Period applicable to any test or covenant for which the relevant determination is being made,

(c) any Indebtedness incurred by the Administrative Borrower or any of its Restricted Subsidiaries in connection therewith shall be deemed to have occurred as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being made; provided that, (i) if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable Test Period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness at the relevant date of determination (taking into account any interest hedging arrangements applicable to

 

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Applicable Country in which such Foreign Subsidiary is incorporated or organized) and all documents, financing statements, agreements, instruments, certificates, notices and acknowledgements and filings which the Administrative Agent may reasonably request to ensure the creation, perfection and priority of the Liens on the assets of such Foreign Subsidiary, in each case (i) in a form reasonably acceptable to the Administrative Agent, (ii) governed by the laws of the Applicable Country in which such Foreign Subsidiary is incorporated or organized and (iii) subject to customary exceptions for transactions of this type in such Applicable Country), and any such Restricted Subsidiary shall be a Loan Party and Subsidiary Guarantor for all purposes hereunder. In the event that the Administrative Borrower elects to cause a Foreign Subsidiary to be a Subsidiary Guarantor in accordance with the foregoing, such Foreign Subsidiary shall cease to be an Excluded Subsidiary for purposes of the Loan Documents and shall be deemed not to constitute a Foreign Subsidiary for purposes of clause (h)  of the definition of “Excluded Assets”, clause (h)  of the definition of “Excluded Subsidiary” and the second paragraph of Section 3.14 .

“ Successor Administrative Agent ” has the meaning assigned to such term in Section 2.17(f)(iii) .

“ Successor Borrower ” has the meaning assigned to such term in Section 6.07(a) .

“ Swap Obligations ” means, with respect to any Loan 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.

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

“ Term A Loan ” means the Initial Term A Loans and any Additional Term Loans that are Customary Term A Loans.

“ Term A Loan Installment Date ” has the meaning assigned to such term in Section 2.10(a)(i) .

“ Term B Loan ” means the Initial Term B Loans and any Additional Term Loans that are Customary Term B Loans.

“ Term B Loan Installment Date ” has the meaning assigned to such term in Section 2.10(a)(ii) .

“ Term Commitment ” means any Initial Term Loan Commitment , any Delayed Draw Term A Commitments and any Additional Term Loan Commitment.

“ Term Facility ” means the Term Loans provided to or for the benefit of the Borrowers pursuant to the terms of this Agreement.

“ Term Lender ” means any Initial Term Lender and any Additional Term Lender.

“ Term Loan ” means the Initial Term Loans , Delayed Draw Term A Loans and, if applicable, any Additional Term Loans.

“ Termination Date ” has the meaning assigned to such term in the lead-in to Article 5 .

“ Test Period ” means, as of any date, (a) for purposes of determining actual compliance with Section 6.13(a) , the period of four consecutive Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b) , as applicable, have been delivered (or are required to have been delivered) and (b) for any other purpose, the period of four consecutive Fiscal Quarters then most recently ended for which financial statements of the type described in Section 5.01(a) or Section 5.01(b) , as

 

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Section 1.12. Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

ARTICLE 2 THE CREDITS

Section 2.01. Commitments .

(a) Subject to the terms and conditions set forth herein and in Amendment No. 2 , (i) each Initial Term A Lender severally, and not jointly, agrees to make initial term A loans to the Borrowers (the proceeds of which may be allocated between the Borrowers) on the Amendment No. 2 Closing Date in Dollars in a principal amount not to exceed its Initial Term A Loan Commitment, (ii) each Initial Term B Lender severally, and not jointly, agrees to make initial term B loans Replacement Term B Loans (as defined in Amendment No. 1) to the Borrowers (the proceeds of which may be allocated between the Borrowers) on the 2018 Replacement Term B Closing Date in Dollars in a principal amount not to exceed its Initial Term B Loan Commitment and (iii) each Initial Revolving Lender severally, and not jointly, agrees to make Initial Revolving Loans to the Borrowers (or any Borrower) in Dollars or any applicable Alternate Currency at any time and from time to time on and after the Amendment No. 2 Closing Date, and until the earlier of the Initial Revolving Credit Maturity Date and the termination of the Initial Revolving Credit Commitment of such Initial Revolving Lender in accordance with the terms hereof; provided that, after giving effect to any Borrowing of Initial Revolving Loans, the Outstanding Amount of such Initial Revolving Lender’s Initial Revolving Credit Exposure shall not exceed such Initial Revolving Lender’s Initial Revolving Credit Commitment. Within the foregoing limits and subject to the terms, conditions and limitations set forth herein, the Borrowers may borrow, pay or prepay and re-borrow Revolving Loans. Amounts paid or prepaid in respect of the Term A Loans and Initial Term B Loans may not be re-borrowed.

(b) Subject to the terms and conditions expressly set forth herein and in Amendment No. 2, each Delayed Draw Term A Lender severally agrees to make to the Borrowers on any Business Day during the period from the Business Day immediately following the Amendment No. 2 Closing Date through the Delayed Draw Term A Commitment Termination Date (such period, the “ Delayed Draw Term Loan Availability Period ”) one or more Borrowings denominated in Dollars in an aggregate amount not to exceed at any time outstanding the amount of such Delayed Draw Term A Lender’s Delayed Draw Term A Commitment. Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be re-borrowed. Each Borrowing consisting of a Borrowing of Delayed Draw Term A Loans made on the applicable Delayed Draw Term A Loan Funding Date shall be in a minimum principal amount of $5,000,000 and in increments of $1,000,000 in excess thereof.

(c)   (b) Subject to the terms and conditions of this Agreement and any applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment, each Lender with an Additional Commitment of a given Class, severally and not jointly, agrees to make Additional Loans of such Class to the Borrowers, which Loans shall not exceed for any such Lender at the time of any incurrence thereof the Additional Commitment of such Class of such Lender as set forth in the applicable Refinancing Amendment, Extension Amendment or Incremental Facility Amendment. (it being understood and agreed, as described in the definition of the term “Class” set forth herein that, upon the funding of any Delayed Draw Term A Loans hereunder, such Delayed Draw Term A Loans and the other Term A Loans shall constitute a single Class of Term A Loans hereunder).

 

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received by the Administrative Agent (by hand delivery, fax or other electronic transmission (including “.pdf” or “.tiff”)) not later than (i) 1:00 p.m. three Business Days prior to the requested date of any Borrowing of or continuation of Adjusted Eurocurrency Rate Loans (or (x) two Business Days in the case of any Adjusted Eurocurrency Rate Borrowing to be made on the Closing Date and (y) four Business Days in the case of any Adjusted Eurocurrency Rate Borrowing in any Alternate Currency other than Sterling or Euros) or any conversion of ABR Loans to Adjusted Eurocurrency Rate Loans and (ii) 12:00 p.m. on the requested date of any Borrowing of or conversion to ABR Loans (or, in each case, such later time as is reasonably acceptable to the Administrative Agent); provided that, if the Administrative Borrower wishes to request Adjusted Eurocurrency Rate Loans having an Interest Period of other than one, two, three or six months in duration as provided in the definition of “Interest Period” (A) the applicable notice from the Administrative Borrower must be received by the Administrative Agent not later than 1:00 p.m. four Business Days prior to the requested date of the relevant Borrowing (or such later time as is reasonably acceptable to the Administrative Agent), conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the appropriate Lenders of such request and determine whether the requested Interest Period is available to them and (B) not later than 12:00 p.m. three Business Days before the requested date of the relevant Borrowing, conversion or continuation, the Administrative Agent shall notify the Administrative Borrower whether or not the requested Interest Period is available to and has been approved by the appropriate Lenders (such approval not to be unreasonably withheld or delayed).

(b) Each Borrowing Request will specify the currency in which the relevant Loan will be made. If, with respect to any Loan denominated in Dollars, no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Adjusted Eurocurrency Rate Borrowing, then the Borrowers shall be deemed to have selected an Interest Period of one month’s duration. The Administrative Agent shall advise each Lender of the details and amount of any Loan to be made as part of the requested Borrowing (x) in the case of any ABR Borrowing, on the same Business Day of receipt of a Borrowing Request in accordance with this Section or (y) in the case of any Adjusted Eurocurrency Rate Borrowing, no later than one Business Day following receipt of a Borrowing Request in accordance with this Section. No Revolving Loan may be converted into or continued as a Revolving Loan denominated in a different currency, but instead must be repaid in the currency in which such Revolving Loan was originally denominated and re-borrowed in the relevant other currency.

Section 2.04. [ Reserved ].

Section 2.05. Letters of Credit .

(a) General . Subject to the terms and conditions set forth herein, (i) each Issuing Bank agrees, in each case in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.05 , (A) from time to time on any Business Day during the period from the Closing Date to the fifth Business Day prior to the Latest Revolving Credit Maturity Date, upon the request of the Administrative Borrower, to issue Letters of Credit issued on sight basis only for the account of the Administrative Borrower and/or any of its subsidiaries ( provided that one or more Borrowers will be a co-applicant) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.05(b) , and (B) to honor drafts under the Letters of Credit, and (ii) the Revolving Lenders severally agree to participate in the Letters of Credit issued pursuant to Section 2.05(d). On and after the Closing Date, each Existing Bank of America Closing Date Letter of Credit shall be deemed to be a Letter of Credit issued hereunder on the Closing Date for all purposes under this Agreement and the other Loan Documents. On and after the Amendment No. 2 Closing Date, each Letter of Credit issued on and from the Closing Date that remains outstanding immediately prior to the Amendment No. 2 Closing Date shall be deemed to be a Letter of Credit issued hereunder on the Amendment No. 2 Closing Date for all purposes under this Agreement and the other Loan Documents. No Issuing Bank shall be required to issue Commercial Letters of Credit without its consent.

 

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(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions . To request the issuance of any Letter of Credit, the Administrative Borrower shall deliver to the applicable Issuing Bank and the Administrative Agent, at least three Business Days in advance of the requested date of issuance (or such shorter period as is acceptable to the applicable Issuing Bank or, in the case of any issuance to be made on the Closing Date, one Business Day prior to the Closing Date), a Letter of Credit Request. To request an amendment, extension or renewal of an outstanding Letter of Credit (other than any automatic extension of a Letter of Credit permitted under Section 2.05(c) ) the Administrative Borrower shall submit a Letter of Credit Request to the applicable Issuing Bank selected by the Administrative Borrower (with a copy to the Administrative Agent) at least three Business Days in advance of the requested date of amendment, extension or renewal (or such shorter period as is acceptable to the applicable Issuing Bank), identifying the Letter of Credit to be amended, extended or renewed, and specifying the proposed date (which shall be a Business Day) and other details of the amendment, extension or renewal. If requested by the applicable Issuing Bank in connection with any request for any Letter of Credit, the Administrative Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Administrative Borrower to, or entered into by the Administrative Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. No Letter of Credit, letter of credit application or other document entered into by any Borrower with any Issuing Bank relating to any Letter of Credit shall contain any representation or warranty, covenant or event of default not set forth in this Agreement (and to the extent inconsistent herewith shall be rendered null and void (or reformed automatically without further action by any Person to conform to the terms of this Agreement), and all representations and warranties, covenants and events of default set forth therein shall contain standards, qualifications, thresholds and exceptions for materiality or otherwise consistent with those set forth in this Agreement (and, to the extent inconsistent herewith, shall be deemed to automatically incorporate the applicable standards, qualifications, thresholds and exceptions set forth herein without action by any Person). No Letter of Credit may be issued, amended, extended or renewed unless (and on the issuance, amendment, extension or renewal of each Letter of Credit the Administrative Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, extension, or renewal (i) (A) the LC Exposure does not exceed the Letter of Credit Sublimit (taking the Dollar Equivalent of the amount of any Letter of Credit denominated in an Alternate Currency), (B) with respect to any Letter of Credit to be issued by Credit Suisse JPMorgan Chase Bank, N.A., Wells Fargo Bank, N.A., PNC Bank, N.A., Bank of America, N.A. or ING Capital LLC , the aggregate undrawn amount (plus unpaid LC Disbursements) of all outstanding Letters of Credit issued by Credit Suisse does not exceed $100,000,000 and (C) with respect to any Letter of Credit to be issued by ING, the aggregate undrawn amount (plus unpaid LC Disbursements) of all outstanding Letters of Credit issued by ING does not exceed $50,000,000 and JPMorgan Chase Bank, N.A., Wells Fargo Bank, N.A., PNC Bank, N.A., Bank of America, N.A. or ING Capital LLC does not exceed $30,000,000 in each case and (ii) (A) the aggregate amount of the Initial Revolving Credit Exposure shall not exceed the aggregate amount of the Initial Revolving Credit Commitments then in effect, (B) the aggregate amount of the Additional Revolving Credit Exposure attributable to any Class of Additional Revolving Credit Commitments does not exceed the aggregate amount of the Additional Revolving Credit Commitments of such Class then in effect and (C) if such Letter of Credit has a term that extends beyond the Maturity Date applicable to the Revolving Credit Commitments of any Class, the aggregate amount of the LC Exposure attributable to Letters of Credit expiring after such Maturity Date does not exceed the aggregate amount of the Revolving Credit Commitments then in effect that are scheduled to remain in effect after such Maturity Date.

 

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(f) It is understood and agreed that (i) only a Borrowing denominated in Dollars may be made in the form of, or converted into, an ABR Loan and (ii) a Borrowing denominated in an Alternate Currency may only be made in the form of, or converted into, or continued as, an Adjusted Eurocurrency Rate Loan (or such other type of Revolving Loan as may be agreed by the Administrative Agent and the Administrative Borrower pursuant to Section 1.11 ). No Revolving Loan may be converted into or continued as a Revolving Loan denominated in a different currency, but instead must be prepaid in the original currency of such Revolving Loan and reborrowed in the other currency.

Section 2.09. Termination and Reduction of Commitments .

(a) Unless previously terminated, (i) the Initial Term Loan Commitments on the Closing Date shall automatically terminate upon the making of the Initial Term Loans on the Closing Date, (ii) the Initial Term A Loan Commitments shall automatically terminate upon the making of the Initial Term A Loans on the Amendment No. 2 Closing Date, (iii) the Initial Revolving Credit Commitments shall automatically terminate on the Initial Revolving Credit Maturity Date, ( iii) iv) the Delayed Draw Term A Loan Commitments shall automatically terminate upon the earlier of making of the Delayed Draw Term A Loans and the Delayed Draw Term A Commitment Termination Date, (v)  the Additional Term Loan Commitments of any Class shall automatically terminate upon the making of the Additional Term Loans of such Class and, if any such Additional Term Loan Commitment is not drawn on the date that such Additional Term Loan Commitment is required to be drawn pursuant to the applicable Incremental Facility Amendment, Extension Amendment or Refinancing Amendment, as applicable, the undrawn amount thereof shall automatically terminate and ( iv v ) the Additional Revolving Credit Commitments of any Class shall automatically terminate on the Maturity Date specified therefor in the applicable Incremental Facility Amendment, Extension Amendment or Refinancing Amendment, as applicable.

(b) Upon delivery of the notice required by Section 2.09(c) , the Administrative Borrower may at any time terminate or from time to time reduce, the Delayed Draw Term A Loan Commitment and/or the Revolving Credit Commitments of any Class; provided that (i) each reduction of the Delayed Draw Term A Loan Commitment and/or the Revolving Credit Commitments of any Class shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the Administrative Borrower shall not terminate or reduce the Revolving Credit Commitments of any Class if, after giving effect to any concurrent prepayment of Revolving Loans, the aggregate amount of the Revolving Credit Exposure attributable to the Revolving Credit Commitments of such Class would exceed the aggregate amount of the Revolving Credit Commitments of such Class; provided that, after the establishment of any Additional Revolving Credit Commitment, any such termination or reduction of the Revolving Credit Commitments of any Class shall be subject to the provisions set forth in Section 2.22 , 2.23 and/or 9.02 , as applicable.

(c) The Administrative Borrower shall notify the Administrative Agent of any election to terminate or reduce the Delayed Draw Term A Loan Commitment and/or any Revolving Credit Commitment under paragraph (b)  of this Section in writing at least three Business Days prior to the effective date of such termination or reduction (or such later date to which the Administrative Agent may agree), specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the Delayed Draw Term A Lenders and/or the Revolving Lenders of each applicable Class of the contents thereof. Each notice delivered by the Administrative Borrower pursuant to this Section shall be irrevocable; provided that any such notice may state that it is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked or its effectiveness deferred by the Administrative Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Delayed Draw Term A Loan Commitment and/or any Revolving Credit Commitment pursuant to this Section 2.09 shall be permanent. Upon any reduction of the Delayed Draw Term A Loan Commitment and/or any Revolving Credit Commitment, the Delayed Draw Term A Loan Commitment of each Delayed Draw Term A Lender and/or Revolving Credit Commitment of each Revolving Lender of the relevant Class shall be reduced by such Revolving Lender’s Applicable Percentage of such reduction amount.

 

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Section 2.10. Repayment of Loans; Evidence of Debt .

(a) (i) The Borrowers hereby jointly and severally unconditionally promise to repay the outstanding principal amount of the Initial Term A Loans funded on the Amendment No. 2 Closing Date and any Delayed Draw Term A Loans to the Administrative Agent for the account of each Initial applicable Term A Lender (i) on the last Business Day of each April, July, October and January prior to the Initial Term A Loan Maturity Date (each such date being referred to as a “ Term A Loan Installment Date ”), in the principal amount set forth below for such Term A Loan Installment Date (as such payment may be reduced from time to time as a result of the application of prepayments in accordance with Section 2.11 and/or any repurchase in accordance with Section 9.05(f) or increased as a result of any increase in the amount of such Initial Term A Loans pursuant to Section 2.22(a) or in connection with the funding of any Delayed Draw Term A Loans), and (ii) on the Initial Term A Loan Maturity Date, in an amount equal to the remainder of the principal amount of the Initial Term A Loans outstanding on such date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment. Notwithstanding the foregoing, from the date of funding any Delayed Draw Term A Loans, the amount set forth above in clause (i) shall be increased to an amount necessary to cause the relevant Delayed Draw Term A Loans to be entitled to scheduled amortization payments representing the same percentage of the principal amount of such Delayed Draw Term A Loans as the amortization percentage that is applicable to then outstanding Term A Loans prior to the Borrowing of the relevant Delayed Draw Term A Loan, it being understood that (A) such amendment will be effected immediately upon written notice thereof by the Administrative Agent to the Administrative Borrower and (B) no such amendment shall result in the decrease of the amortization applicable to any Initial Term Loans outstanding prior to the Borrowing of the relevant Delayed Draw Term A Loan.

 

TERM A LOAN INSTALLMENT DATE		PRINCIPAL AMOUNT
Last Business Day of April 2019		$	0
Last Business Day of July 2019		$	0
Last Business Day of October 2019		$	0
Last Business Day of January 2018 2020		$	6,250,000 0
Last Business Day of April 2018 2020		$	6,250,000 14,375,000
Last Business Day of July 2018 2020		$	6,250,000 14,375,000
Last Business Day of October 2018 2020		$	6,250,000 14,375,000
Last Business Day of January 2019 2021		$	12,500,000 14,375,000
Last Business Day of April 2019 2021		$	12,500,000 21,562,500
Last Business Day of July 2019 2021		$	12,500,000 21,562,500
Last Business Day of October 2019 2021		$	12,500,000 21,562,500

 

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