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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM 10-K
 
(Mark One)
☒ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2021
- OR -
☐TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from                      to                     
Commission file number 001-37470


 
TransUnion
(Exact name of registrant as specified in its charter)
 
Delaware 61-1678417
(State or other jurisdiction of
incorporation or organization)		 (I.R.S. Employer
Identification Number)
555 West Adams,Chicago,Illinois 60661
(Address of principal executive offices) (Zip Code)
312-985-2000
(Registrant’s telephone number, including area code)

Securities Registered Pursuant to Section 12(b) of the Act:
Title of each class Trading Symbol(s)  Name of each exchange on which registered
Common Stock, par value $0.01 per shareTRUNew York Stock Exchange

Securities Registered Pursuant to Section 12(g) of the Act:
None
 
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
☒Yes☐No

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.
☐Yes☒No

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
☒Yes☐No

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232-405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
☒Yes☐No



Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer”, “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.


☒Large accelerated filer☐Accelerated filer
☐Non-accelerated filer☐Smaller reporting company
☐Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report.
☒Yes☐No

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
☐Yes☒No

The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant was approximately $21.0 billion as of June 30, 2021 (based on the closing stock price of such stock as quoted on the New York Stock Exchange).

As of January 31, 2022, there were 191.9 million shares of TransUnion common stock outstanding, par value $0.01 per share.

DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Proxy Statement of TransUnion for the Annual Meeting of Stockholders to be held May 11, 2022 are incorporated by reference to the extent specified in Part III of this Form 10-K.



TRANSUNION
ANNUAL REPORT ON FORM 10-K
YEAR ENDED DECEMBER 31, 2021
TABLE OF CONTENTS
 
PART I
ITEM 1. BUSINESS
ITEM 1A. RISK FACTORS
ITEM 1B. UNRESOLVED STAFF COMMENTS
ITEM 2. PROPERTIES
ITEM 3. LEGAL PROCEEDINGS
ITEM 4. MINE SAFETY DISCLOSURES
INFORMATION ABOUT OUR EXECUTIVE OFFICERS
PART II
ITEM 5. MARKET FOR THE REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
ITEM 6. RESERVED
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Consolidated Balance Sheets
Consolidated Statements of Income
Consolidated Statements of Comprehensive Income
Consolidated Statements of Cash Flows
Consolidated Statements of Stockholders’ Equity
Notes to Consolidated Financial Statements
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
ITEM 9A. CONTROLS AND PROCEDURES
ITEM 9B. OTHER INFORMATION
ITEM 9C. DISCLOSURES REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
ITEM 11. EXECUTIVE COMPENSATION
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
PART IV
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
ITEM 16. FORM 10-K SUMMARY



Cautionary Notice Regarding Forward-Looking Statements
This Annual Report on Form 10-K, including the exhibits hereto, contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These statements are based on the current beliefs and expectations of TransUnion’s management and are subject to significant risks and uncertainties. Actual results may differ materially from those described in the forward-looking statements. Any statements made in this report that are not statements of historical fact, including statements about our beliefs and expectations, are forward-looking statements. Forward-looking statements include information concerning possible or assumed future results of operations, including descriptions of our business plans and strategies. These statements often include words such as “anticipate,” “expect,” “guidance,” “suggest,” “plan,” “believe,” “intend,” “estimate,” “target,” “project,” “should,” “could,” “would,” “may,” “will,” “forecast,” “outlook,” “potential,” “continues,” “seeks,” “predicts,” or the negatives of these words and other similar expressions.
Factors that could cause actual results to differ materially from those described in the forward-looking statements, or that could materially affect our financial results or such forward-looking statements include:
•the effects of the COVID-19 pandemic;
•the duration of the COVID-19 pandemic and the timing of the economic recovery following the COVID-19 pandemic;
•the prevalence and severity of variants of the COVID-19 virus and the effectiveness of vaccines against those variants;
•macroeconomic and industry trends and adverse developments in the debt, consumer credit and financial services markets;
•our ability to provide competitive services and prices;
•our ability to retain or renew existing agreements with large or long-term customers;
•our ability to maintain the security and integrity of our data;
•our ability to deliver services timely without interruption;
•our ability to maintain our access to data sources;
•government regulation and changes in the regulatory environment;
•litigation or regulatory proceedings;
•regulatory oversight of “critical activities”;
•our ability to effectively manage our costs;
•economic and political stability in the United States and international markets where we operate;
•our ability to effectively develop and maintain strategic alliances and joint ventures;
•our ability to timely develop new services and the market’s willingness to adopt our new services;
•our ability to manage and expand our operations and keep up with rapidly changing technologies;
•our ability to acquire businesses, successfully secure financing for our acquisitions and timely consummate such acquisitions;
•the possibility that we will not successfully integrate the operations of our acquisitions, control the costs of integrating our acquisitions or realize the intended benefits of such acquisitions;
•our ability to protect and enforce our intellectual property, trade secrets and other forms of unpatented intellectual property;
•our ability to defend our intellectual property from infringement claims by third parties;
•the ability of our outside service providers and key vendors to fulfill their obligations to us;
•further consolidation in our end-customer markets;
•the increased availability of free or inexpensive consumer information;
•losses against which we do not insure;
•our ability to make timely payments of principal and interest on our indebtedness;
•our ability to satisfy covenants in the agreements governing our indebtedness;
•our ability to maintain our liquidity;
•share repurchase plans; and
•our reliance on key management personnel.


There may be other factors, many of which are beyond our control, that may cause our actual results to differ materially from the forward-looking statements, including factors disclosed under the sections entitled “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in this report. You should evaluate all forward-looking statements made in this report in the context of these risks and uncertainties.
The forward-looking statements contained in this report speak only as of the date of this report. We undertake no obligation to publicly release the result of any revisions to these forward-looking statements, to reflect the impact of events or circumstances that may arise after the date of this report.


PART I
Unless the context indicates otherwise, any reference to the “Company,” “we,” “us,” and “our” refers to TransUnion and its direct and indirect subsidiaries.

ITEM 1 BUSINESS
Overview
TransUnion is a leading global information and insights company that makes trust possible between businesses and consumers, working to help people around the world access opportunities that can lead to a higher quality of life. That trust is built on TransUnion’s ability to deliver safe, innovative solutions with credibility and consistency. We call this Information for Good.
Grounded in our heritage as a credit reporting agency, we have built robust and accurate databases of information for a large portion of the adult population in the markets we serve. We use our data fusion methodology to link and match an increasing set of disparate data to further enrich our database. We use this enriched data, combined with our expertise, to continuously develop more insightful solutions for our customers, all in accordance with global laws and regulations. Because of our work, organizations can better understand consumers in order to make more informed decisions, and earn consumer trust through great, personalized experiences, and the proactive extension of the right opportunities, tools and offers. In turn, we believe consumers can be confident that their data identities will result in better offers and opportunities.
We provide solutions that enable businesses to manage and measure credit risk, market to new and existing customers, verify consumer identities, mitigate fraud, and effectively manage call center operations. Businesses embed our solutions into their process workflows to deliver critical insights and enable effective actions. Consumers use our solutions to view their credit profiles and access analytical tools that help them understand and manage their personal financial information and take precautions against identity theft. We have deep domain expertise across a number of attractive industries, which we also refer to as verticals, including Financial Services and Emerging Verticals, which consists of Insurance, Services and Collections, Tenant and Employment, Technology, Commerce & Communications, Public Sector, Media, and other emerging verticals we serve, as well as our Neustar business. We have a global presence in over 30 countries and territories across North America, Latin America, Europe, Africa, India, and Asia Pacific.
Our addressable market includes the global data and analytics market, which continues to grow as companies around the world increasingly recognize the benefits of data and analytics-based decision making, and as consumers recognize the important role that their data identities play in their ability to procure goods and services. There are several underlying trends supporting this market growth, including the proliferation of data, advances in technology and analytics that enable data to be processed more quickly and efficiently to provide business insights, and growing demand for these business insights across industries and geographies. Leveraging our established position as a leading provider of information and insights, we have grown our business by expanding the breadth and depth of our data, strengthening our analytics capabilities to deliver innovative solutions, expanding into complementary adjacencies and vertical markets, investing in technology infrastructure to leverage capabilities to best serve our customers, and enhancing our global operating model. As a result, we believe we are well positioned to expand our share within the markets we currently serve and capitalize on the larger data and analytics opportunity.
Our solutions are based on a foundation of data assets across financial, credit, alternative credit, identity, phone activity, digital device information, marketing, bankruptcy, lien, judgment, insurance claims, automotive and other relevant information obtained from thousands of sources including financial institutions, private databases and public records repositories. We refine, standardize and enhance this data using sophisticated algorithms to create proprietary databases. Our acquisition of Neustar, Inc. (“Neustar”), and particularly its OneID platform, will further enhance our ability to deliver real-time, persistent identity resolution of disparate data fragments and attributes in a privacy compliant manner. Our technology infrastructure allows us to efficiently integrate our data with our analytics and technology capabilities to create and deliver innovative solutions to our customers and to quickly adapt to changing customer needs. Our deep analytics resources, including our people and tools driving predictive modeling and scoring, customer segmentation, benchmarking and forecasting, enable us to provide businesses and consumers with better insights.
We leverage our differentiated capabilities in order to serve a global customer base across multiple geographies and industry verticals. We offer our solutions to business customers in Financial Services, Insurance and other industries, and our customer base includes many of the largest companies in the industries we serve. We sell our solutions to leading consumer lending banks, credit card issuers, alternative lenders, online-only lenders (“FinTechs”), Point of Sale (“POS”)/Buy Now Pay Later (“BNPL”) lenders, auto lenders, auto insurance carriers, cable and telecom operators, retailers, and federal, state and local government agencies. We have been successful in leveraging our brand, our expertise and our solutions and have a leading presence in several high-growth international markets. Millions of consumers across the globe also use our data to help manage their personal finances and take precautions against identity theft.
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We believe we have an attractive business model that has recurring and diversified revenue streams, low capital requirements, significant operating leverage and strong and stable cash flows. The proprietary and embedded nature of our solutions and the integral role that we play in our customers’ decision-making processes have historically translated into high customer retention and revenue visibility. We continue to deliver organic growth by increasing our sales to existing customers, developing new solutions and gaining new customers. We have a diversified portfolio of businesses across our segments, reducing our exposure to cyclical trends in any particular industry vertical or geography. We operate primarily on contributory data models in which we typically obtain updated information including a growing set of public record and alternative data at little or no cost, as we develop new solutions and expand into new industries and geographies. We are evolving our hybrid public-private cloud technology infrastructure to ensure that our systems remain highly secure, reliable, scalable, and performant by design. We are focused on processes and foundational technology that allows us to leverage demand-led consumption from public cloud providers and from our high performance privately owned infrastructure.
During 2020, the economic effect of the COVID-19 pandemic had a material and adverse impact on numerous aspects of our business, including our results of operations in all of the markets where we operate. During 2021, we saw ongoing improvements in our results of operations in all the markets where we operate. However, given ongoing uncertainty and the unpredictable nature of the pandemic, including the rise of variants of the virus and the effectiveness of vaccines against those variants, COVID-19 may have a material and adverse impact on various aspects of our business in the future, including our results of operations.
Total revenues increased to $2,960.2 million for the year ended December 31, 2021 from $2,530.6 million for the year ended December 31, 2020, representing a year-over-year increase of 17.0%. Our income from continuing operations increased to $370.5 million for the year ended December 31, 2021 from $305.7 million for the year ended December 31, 2020, representing a year-over-year increase of 21.2%.
Adjusted EBITDA increased to $1,156.9 million for the year ended December 31, 2021 from $953.6 million for the year ended December 31, 2020, representing a year-over-year increase of 21.3%. As of December 31, 2021, the book value of our debt was $6,365.9 million. See Part II, Item 7, “Management’s Discussion and Analysis of Financial Conditions and Results of Operations - Key Performance Measures,” for our definition of Adjusted EBITDA and the reconciliation to net income attributable to TransUnion.
Our Evolution
We are dedicated to building upon our foundation as a global information and insights company that makes trust possible, so people around the world can access the opportunities that can lead to a higher quality of life. We have been in business for over 50 years and have established a long track record of providing innovative solutions to businesses and consumers. Since our founding as a provider of regional credit reporting services, we have built a comprehensive, valuable, and unique database of U.S. consumer information to build products that span many industry verticals. We have also strengthened our data, analytics and technology delivery capabilities and acquired complementary businesses enabling us to enhance our solutions. Leveraging our foundational strength in credit risk oriented products, we have also expanded our solution sets into complementary competencies such as fraud mitigation and digital marketing, which are further strengthened by our acquisition of Neustar and several acquisitions in our Media vertical.
Globally, we continue to grow our presence, building and acquiring credit reporting agencies in new geographies, establishing strong international footholds to expand into other emerging markets, and expanding the verticals served and solutions offered in local markets. We have also expanded the reach of our consumer solutions both directly and by partnering with other market leaders and innovators.
As part of our continued evolution, we have invested in a number of strategic initiatives that we believe will allow us to cater to the growing demand for data and analytics, provide differentiated solutions and better serve our customers. These initiatives include:
•Growing our Data: We continue to invest in the breadth and depth of our data. We introduced the concept of trended data to provide the trajectory of a consumer’s risk profile, used public records data to enhance the scope of business issues we can address, incorporated alternative data into our databases to allow for a more comprehensive risk assessment of banked and unbanked consumers, and have made several recent acquisitions in our Media vertical to add yet another dimension to our ability to match data in a digital world. Our acquisition of Neustar adds new digital identifier datasets, most notably phone activity data, as well as improved capabilities to link and match certain of our datasets. We believe we are the largest provider in the United States of both nationwide consumer credit data and comprehensive, diverse public records data. We continue to improve the quality of our data, provide deeper insights and create differentiated solutions for our customers.
•Expanding into New Verticals and Geographic Markets: We have established and grown our presence in diversified verticals such as Insurance, Public Sector, and Media, as well as expanded our reach into the
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communications market with our acquisition of Neustar and the reach of our consumer offerings by partnering with traditional and emerging providers in new verticals. We have also diversified geographically by establishing a presence in attractive high-growth and strategic international markets such as the United Kingdom, India, Colombia and the Philippines.
•Broadening our Solution Sets: From our foundation in the credit risk space, we have expanded into adjacent solution areas that can leverage our datasets and competencies, most notably fraud and marketing. Our Neustar acquisition adds scale and broadens the scope of our fraud and marketing solutions, which can be sold across verticals.
•Strengthening our Analytics Capabilities: We have strengthened our analytics capabilities by leveraging modern technology and differentiated data assets, strategic acquisitions, utilizing more advanced tools and growing our analytics team. This has allowed us to create solutions that produce greater insights and more predictive results, which help our customers make better decisions. Our strengthened analytics capabilities have also shortened our time-to-market to create and deliver these solutions to our customers.
•Investing in our Technology: Technology is at the core of the solutions we provide to our customers. We continue to make significant investments to evolve our technology infrastructure by leveraging both internal and external resources. We also leverage the latest data and analytics technologies, enabling us to be quicker and increase our operational efficiency. Our significant ongoing investments allow us to organize and handle high volumes of disparate data, improve delivery speeds, provide better availability, strengthen product development capabilities and continuously enhance our information security measures. With the acquisition of Neustar, we have bolstered our identity resolution capabilities through its OneID platform. Our technology also allows us to build and leverage capabilities across multiple geographies and industry verticals.
•Enhancing our Global Operating Model: We continue to enhance our business processes and capabilities to support our growth. We have structured our Global Solutions organization around key capabilities such as credit, fraud, marketing, analytics, decisioning, and others, and staffed the teams with experienced leaders to develop and diffuse configurable platform solutions across our geographies and vertical markets. Our Global Operations organization has centralized previously disparate functions, focusing on high-volume, repeatable activities that deliver consistent and predictable outcomes at speed. Our Global Technology organization has invested to further streamline our application ecosystem and optimize to more modern and services oriented architecture. To address our customers’ needs, we have hired additional industry experts, which has allowed us to create and sell new vertical-specific solutions. Our global sales force structure includes dedicated teams for our largest customers, shared sales teams for our mid-sized customers, and call center support teams for our smaller customers, which increases our sales team’s effectiveness across our target markets.
We believe that our ongoing focus on evolving with the market and with our customers’ needs ensures continued improvement in our overall services to businesses and consumers. Leveraging our trusted brand, global scale and strong market position in the verticals we serve will allow us to capitalize on business opportunities worldwide and contribute to our long-term growth.
Our Market Opportunity
We believe we are well-positioned to capitalize on the long-term trend of businesses and consumers using data and analytics to make more informed decisions and manage risk more effectively. As worldwide spending on data and analytics increases, we believe there are several key trends in the global macroeconomic environment affecting the geographies and industry verticals we serve that will create increasing demand for our solutions:
•Rapid Growth in Data Creation and Application: Larger and more diversified datasets are now assembled faster while the breadth of analytical applications and solutions has expanded. Companies are increasingly relying on business analytics and data technologies to help process this data in a cost-efficient manner. Non-traditional sources of data have become important in deriving alternative metrics.
•Proliferation of Digital Commerce: Increases in online purchasing activity, particularly since the start of the COVID-19 pandemic, is creating new challenges and opportunities for businesses and consumers. Businesses are looking for solutions to improve targeting precision and identity verification in these digital environments, in order to enable better consumer experiences. We believe there is ample demand for data and insights to help businesses make better decisions, leveraging digital identity information and advanced analytics. Additionally, consumers are seeking more frictionless digital experiences, while also gaining a heightened awareness of and concern about the risks of identity theft.
•Advances in Technology and Analytics Unlocking the Value of Data: Ongoing advances in data collection, storage and analytics technology have contributed to the greater use and value of data and analytics in decision making. As businesses have gained the ability to rapidly aggregate and analyze data, they increasingly expect access to real-time data and analytics from their information providers as well as solutions that fully integrate into their workflows. We
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believe this has made sophisticated technology critical for gaining and retaining business in the risk and information services industry.
•Greater Adoption of Data Solutions Across New and Existing Industry Verticals: With the proliferation of data, we believe companies across new and existing industry verticals recognize the value of risk information and analytical tools, particularly when tailored to their specific needs.
▪Financial Services Industry: There is strong competition in the financial services space, with traditional financial services companies and consumer lenders competing against an increasing number of new FinTechs and POS/BNPL lenders. FinTechs and POS/BNPL lenders provide access to credit in a fast and efficient manner by utilizing sophisticated risk assessment tools that leverage data, such as behavioral data, transactional data and employment and credit information. Traditional lenders are also increasing their use of these new applications and data in order to grow their businesses while addressing regulatory requirements, lowering operating costs and better serving their customers.
▪Insurance Industry: As consumers increasingly obtain quotes from multiple insurers in an effort to lower their costs, insurers are trying to improve the accuracy of their risk assessments and initial quotes. For example, insurance carriers are using driver violation data to uncover offenses that will impact pricing earlier in the quoting process so consumers have a more accurate view of the premiums they will be charged.
▪Other Emerging Verticals: In addition to insurance, we offer solutions in a diversified portfolio of other emerging verticals, which now includes our recent acquisition of Neustar, as well as Tenant and Employment, Services and Collections, Public Sector, Media and others. Neustar provides solutions across marketing, risk and communications, with strong customer relationships across financial services, telecommunications, and media verticals, among others. Our Tenant and Employment business provides data and insights to make informed investment, hiring, and rental decisions. In Services and Collections, our solutions improve third party collectors’ bottom line and help provide a quality customer experience by delivering actionable consumer insights and services. Within the Media vertical, our highly accurate consumer data helps companies improve their marketing investments, providing identity and audience solutions to reach the right consumers across digital channels. Our suite of solutions in the Public Sector gives government agencies the superior data assets, analytics, and security they need to manage compliance and boost services for the constituents they serve. We also offer data-driven solutions in other verticals that address the entire customer lifecycle in industries such as technology, commerce and communications, services, and retail.
•Increasing Lending Activity in Emerging International Markets: As economies in emerging markets continue to develop and mature, we believe there will continue to be favorable socio-economic trends, such as an increase in the size of the middle class and a significant increase in the use of financial services by under-served and under-banked consumers. In addition, credit penetration, as measured by the proportion of credit active adults, is relatively low in emerging markets, such as India. Furthermore, the widespread adoption and use of mobile phones in emerging markets have enabled greater levels of financial inclusion and access to banking and credit. We expect the populations in emerging markets to continue to become more credit active, resulting in increased demand for our services.
•Increased Management and Monitoring of Personal Financial Information and Identity Protection by Consumers: We expect demand for consumer solutions to continue to rise with greater consumer awareness of the importance and usage of their credit information, increased risk of identity theft due to data breaches and increasingly available free credit information. The proliferation of mobile devices has also made data much more accessible, enabling consumers to manage their finances and monitor their information in real-time. We believe these trends will continue to drive growth for our consumer business. Our acquisition of Sontiq, Inc. (“Sontiq”) in particular expands our value proposition in the identity protection space.
Our Competitive Strengths
Comprehensive and Unique Datasets
Our long operating history and thought leadership in the industry have allowed us to build comprehensive and unique data assets that would be difficult for a new market entrant to replicate. Our solutions are based on a foundation of financial, credit, alternative credit, fraud, marketing, identity, bankruptcy, lien, judgment, automotive and other relevant information obtained from thousands of sources including financial institutions, private databases, public records repositories, and other alternative data sources. We refine, standardize and enhance this data using sophisticated algorithms to create proprietary databases. We are constantly updating our data to keep it current, and we continue to identify opportunities to acquire additional data. We believe that our data is unique and differentiates us from our competitors. We own several proprietary datasets such as consumer credit information, driver violation history, phone activity, digital device identifiers, business data and rental payment history. Our global data assets encompass alternative data, such as the voter registry in India, a vehicle information database in
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South Africa, and a mobile device database from our acquisition of iovation, Inc. (“iovation”). We believe we are the largest provider of scale in the United States to possess both nationwide consumer credit data and comprehensive, diverse public records data, which allows us to better predict behaviors, assess risk and address a broader set of business issues for our customers.
Innovative and Differentiated Solutions
We consistently focus on innovation to develop new and enhanced solutions that meet the evolving needs of our customers. We believe our specialized data, analytics and solution service, as well as our collaborative approach with our customers, differentiates us from our competitors. Our solutions are often scalable across different customers, geographies and verticals. Several examples of our innovative and differentiated solutions include:
•CreditVision: We continue to enhance our credit data by including new data fields, enriching values in existing data fields and expanding account history. Our enhanced credit data has been combined with hundreds of algorithms to produce CreditVision and CreditVision Link, the market-leading trended data and alternative data solutions that provide greater granularity and evaluate consumer behavior patterns over time. This results in a more predictive view of the consumer, increases the total population of consumers who can effectively be scored, and helps consumers gain improved pricing.
•Marketing: Our Marketing Solutions offer advanced depth, breadth, and sophistication of the marketing identity graph, leveraging new identity signals, such as in-home connected devices, and new matching models/algorithms that deepen the configurability of matched outcomes, and expanding always-on points of distribution to connect to more technology and media end-points. We have continued the expansion of audience creation tools and data availability, including an expanded set of available attributes and tools available to marketers for the rapid development and deployment of highly targeted audience segments. Our Advanced Automation for Analytics suite includes ongoing development of scenario planning and automated allocation tools that enable rapid marketing investment optimization based on detailed performance analysis.
•TruValidate: Our TruValidate solutions secure trust across channels and deliver friction-right experiences that empower businesses and consumers to safely and seamlessly transact in a digital world. TruValidate provides an enhanced suite of identity management, authentication, and fraud analytics solutions that protect businesses from fraud, increase acquisition rates and consumer loyalty, and optimize business operations. We continue to invest in innovative identity proofing and authentication services and to expand our comprehensive consumer identity graph to translate the connections between personal and digital data into consumer trust decisions across their omni-channel journey. Further, we expanded our capabilities in the fraud space with our acquisition of Neustar. Neustar’s capabilities enhances our ability to provide superior consumer identity insights and make trust possible between businesses and consumers.
•TLOxp: TLOxp leverages proprietary data linking and matching capabilities across thousands of data sources to identify and provide insights on relationships among specific people, assets, locations, and businesses. This allows us to offer enhanced due diligence, investigation, risk management, threat assessment, identity authentication, and fraud prevention and detection solutions. Our ongoing investment in data, analytics, and innovation allows us to continue to help our customers improve critical aspects of their business and to expand our value proposition to serve additional use cases and verticals such as government, law enforcement, insurance, and healthcare.
•CreditView: CreditView is an interactive, customer-branded dashboard that empowers consumers to take control of their credit health by providing them with credit information, insights, and educational tools in a comprehensive, user-friendly format. Consumers are able to easily view their credit profiles, see how they have changed over time, receive alerts on key credit changes, simulate the impact of financial decisions on their credit score, understand recommended actions to attain a desired score range, and receive relevant offers for financial products.
With our acquisitions of Neustar and Sontiq, we enhanced our innovative suite of solutions, including the following notable solutions:
•Caller Name Services (“CNAM”): Caller Name Services (CNAM) is a Neustar solution that manages the CallerID ecosystem for the majority of U.S. communication services providers. CNAM applies proprietary methodologies to aggregate, build, cleanse, and manage data to clearly and efficiently display a caller’s identity.
•Trusted Call Solutions: Trusted Call Solutions is a Neustar solution that helps enterprises and communications providers reduce robocalling and spoofing, promote their brand, and improve call answer rates. Solutions include caller name optimization, robocall mitigation, certified caller, and branded call display.
•IdentityForce: IdentityForce is a Sontiq solution that provides identity protection services to consumers, including credit report monitoring, dark web monitoring, identity restoration services, and stolen fund disbursement, all in a
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flexible and user-friendly interface. Additional premium services include credit score simulators, bank monitoring, and reputation monitoring, among other features.
Technology Infrastructure
While technology advances never cease, we continue to evolve our infrastructure and our capabilities to efficiently interface with our clients in the business ecosystems in which we participate. The need to further expand and evolve our enterprise approach to technology has become more significant as TransUnion has become an increasingly global company. Our technology infrastructure allows us to continually improve our overall services to businesses and consumers and ensures that we are well positioned to differentiate our datasets and capabilities. We believe our technology infrastructure capabilities have resulted in increased throughput, improved data matching, greater efficiency, advanced platform flexibility, better information security, and lower operating costs.
•Powerful Data Capabilities: Our technology gives us the ability to process, organize and analyze high volumes of data across multiple operating systems, databases and file types as well as to deal with both structured and unstructured data that changes frequently. We process billions of transactions on a daily basis.
•Enhanced Linking and Matching: Because our data matching technology is able to interrelate data across disparate sources, industries and time periods, we believe that we are able to create differentiated datasets and provide our customers with comprehensive insights that allow them to better evaluate risk. Neustar’s OneID platform will further enhance our ability to deliver real-time, persistent identity resolution of disparate data fragments and attributes in a privacy compliant manner.
•Continuing Evolution of Our Hybrid Public-Private Cloud Infrastructure: At the beginning of 2020, we announced an initiative to further enhance our technology infrastructure through a multi-year investment that we refer to as Project Rise. This investment is a continuing evolution of our hybrid public-private cloud infrastructure, and is a significant upgrade to our existing infrastructure. Project Rise is an initiative designed to ensure that our technology is even more effective, efficient, secure and reliable, which we believe will enable us to perform at our highest level across all of TransUnion. Our investment will be concentrated in streamlining processes, increasing automation, and rapidly adopting a hybrid public and private cloud approach globally for a state-of-the-art technology infrastructure. We are focused on building new capabilities and developing our talent internally, to create an efficient cloud-native workforce that will provide us long-term, sustained benefits.
The benefits we expect to realize under Project Rise include:
▪refactoring and optimizing our applications into a more modern API-based and microservices-oriented architecture.
▪simplifying the delivery of our intellectual property on a global basis, further increasing our speed-to-market. We will more easily push our intellectual property into the public cloud and then pull it down for use in a given market. This approach will help us continue our rapid international expansion and more effortlessly deploy solutions across our markets.
▪creating meaningful scaled economies around company-driven consumption of our infrastructure using cloud-based technology. We will consume and pay for only needed infrastructure as we develop new applications. Using this infrastructure-as-code approach eliminates the time-consuming manual provisioning process and replaces it with auto-provisioning from either the private cloud or a public cloud provider.
▪utilizing readily available innovative tools from cloud-service providers instead of developing them ourselves. This shift will enable faster product development through new compliance tools, model training, machine learning and other cutting-edge technologies. By employing more highly automated tools with auto-provisioning infrastructure, our developers will focus on value-added, revenue generating work, freeing them from traditional preparation and enablement activities.
▪accessing the new public cloud business models. For example, public cloud providers have been building application and data marketplaces. This move will help ensure that no matter how data and applications are delivered to customers, whether through a public cloud marketplace or our own Prama DataHub, we will be able to participate.
We have made considerable progress with Project Rise, including the development of a global credit reporting platform to enable consistently higher performance across all global markets. The platform is already deployed locally in Brazil, where we recently received approval to operate as a credit bureau.
With the acquisition of Neustar, we have a unique opportunity to expand the scope of Project Rise, leveraging Neustar’s OneID platform and their established cloud competence to power our non-credit products. We believe this will result in a more scalable, secure, efficient and effective environment, with an upskilled technology workforce, while being cloud provider
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agnostic. This set of capabilities and customer solutions will help us pursue the objectives of Project Rise in a more comprehensive way.
Deep and Specialized Industry Expertise
We have deep expertise in a number of attractive industry verticals including Financial Services, Insurance and other verticals. Our expertise has allowed us to develop sophisticated vertical-specific solutions within these targeted industries that play an integral role in our customers’ decision-making processes and are often embedded into their workflows. Our team includes industry experts with significant experience in the verticals that we target and relationships with leading companies in those verticals. We also have regulatory compliance expertise across the industries that we serve. Together, this expertise provides us with a comprehensive understanding of business trends and insights for customers in these verticals, allowing us to build solutions that cater to these customers’ specific requirements. We have been able to apply our industry knowledge, data assets, technology and analytics capabilities to develop new solutions and revenue opportunities within key verticals. For example, in Financial Services, our differentiated position allowed us to anticipate the increased demand from alternative consumer lending providers, including the prevalence of POS/BNPL lending, to create solutions that catered to these emerging providers. In Insurance, we partnered with a vehicle history data provider to launch a vehicle history score that helps insurance carriers further segment risk based on the attributes of a specific automobile. In Marketing, we recognized that we already had the foundational datasets we needed to compete in audience segmentation and identity resolution, made strategic bolt-on acquisitions, and acquired Neustar to broaden our customer base and deepen our solution capabilities.
Leading Presence in Attractive International Markets
We have been operating internationally for over 30 years and have strong global brand recognition. We have strategically targeted attractive international markets in both developed and emerging economies and have a diversified global presence, including a strong presence in Canada, Latin America, the United Kingdom, Africa, India, and Asia Pacific. Local senior management in our International markets provide us with deeper insights into these markets and stronger relationships with our customers. We have leveraged our brand, operating history, global footprint and technology infrastructure to establish new credit bureaus in several international markets, such as Canada in 1989, India in 2001 and the Philippines in 2011. Once we establish a foothold in a region, our model is to expand the services we offer within these markets and then move into adjacent emerging markets. For example, we have used our operations in Hong Kong to expand into other Asia Pacific countries and provide analytic scoring models in the Philippines, Singapore, Malaysia and Thailand. We have used our operations in South Africa to expand into neighboring African countries. We have also entered new markets through strategic acquisitions, including Brazil in 2011, Colombia in 2016, and the United Kingdom in 2018.
Proven and Experienced Management Team
Our senior management team has a proven track record of strong performance and significant expertise in the markets we serve, with decades of industry experience. We continue to attract and retain experienced management talent for our businesses. Our team has deep knowledge of the data and analytics sector and expertise across the various industries that we serve. Our team has overseen our expansion into new industries and geographies, while managing ongoing strategic initiatives including our significant technology investments. As a result of the sustained focus of our management team, we have been successful in consistently driving growth, both organically and through acquiring and integrating businesses.
Our Growth Strategy
Enhance Underlying Data, Technology and Analytics Capabilities to Develop Innovative Solutions
As the demand for data and analytics solutions grows across industries and geographies, we will continue to expand the scope of our underlying data, improve our tools and technology and enhance our analytics and technology solutions capabilities to provide innovative solutions that address this demand. As the needs of businesses and consumers continue to evolve, we continue to help them meet their challenges, which our ongoing investments in data, technology and analytics enable us to do more quickly and efficiently, for example with machine learning, artificial intelligence and deep learning. With our insights and information, our customers can explore connections between people, businesses, assets and locations; identify assets, uncover inconsistencies and identify misrepresentations; and uncover evidence of financial distress.
Our continuous technology investments have also reduced the time to market for new solutions, which allow us to react quickly to customer requirements. In addition, these investments also improve efficiency, reliability, security, and performance. We also continue to take advantage of strategic partnerships that differentiate us from our competitors. For example, by leveraging our fast, available, and secure technology infrastructure and working together with one of our strategic partners we were able to provide real-time credit decisions in a matter of seconds, enabling the use of a new virtual credit card through consumers’ digital wallets.

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Further Penetrate Existing Industry Verticals with Current and New Solutions
We are a leading provider of risk and information solutions in several industry verticals today, including Financial Services and Insurance. We believe there is significant opportunity for further growth within these industries by expanding the number of customers to whom we sell our current solutions as well as by creating innovative new solutions that we can use to grow our presence in these industries. We focus on developing new solutions that address evolving customer needs within our industry verticals. In order to more effectively address these opportunities, we have redeployed and reallocated our sales resources to focus either on new customer opportunities or on selling additional services and solutions to existing customers. With our leading market positions, existing strong relationships in the Financial Services and Insurance verticals, and with our consumer partners, we believe we have the opportunity to further penetrate our existing customer base and capture a strong proportion of their spending across the consumer lifecycle.
Establish Positions in New, Adjacent Industry Verticals
In addition to increasing penetration in industries where we have a substantial presence, we continue to create solutions that address customer needs in attractive new industries. Our strategy is to identify new solutions that can then be deployed to other markets where they may be applicable. We believe that our capabilities allow us to quickly create and deliver solutions to new industries and geographies where information-based analytics and technology solutions capabilities are currently underutilized. We continue to target other verticals such as Public Sector, Tenant and Employment, and Media, where we see opportunities to leverage our existing data, analytics and technology solutions capabilities. Our Neustar acquisition is highly complementary from a vertical perspective, with strong positions in Financial Services, Retail, Telecom, and Media. Neustar’s heritage strength with Telecom providers represents an expanded growth opportunity for TransUnion.
Extend Further Into Fraud and Marketing Solutions
From our heritage in the credit risk space, we have expanded into adjacent solution areas that can leverage our datasets and competencies, most notably fraud and marketing. These solutions have broad applicability across the customers that we serve, including in key verticals such as financial services, insurance and public sector. We have broadened these capabilities through acquisitions, most notably iovation in 2018 and three subsequent acquisitions in 2019 and 2020, to build out our Media vertical. In addition, our 2021 acquisition of Neustar adds scale and broadens the scope of our fraud and marketing solutions, which can be sold across verticals.
Expand our Presence in Attractive International Markets
We believe international markets present a significant opportunity for growth. We have significant scale in some of the world’s fastest growing markets, such as India and Latin America, which positions us to take advantage of the favorable dynamics in these regions as their populations become more credit active. We leverage solutions developed in the United States and deploy them to international markets, after localizing them to individual market requirements. For example, after launching CreditVision in the United States, we have expanded our offerings with similar solutions globally. In markets where we have established a presence, we will expand further into adjacent verticals, such as Insurance and Consumer Solutions, as well as complementary solutions, such as marketing and fraud. We intend to continue to expand into new geographic markets by forming alliances with financial services institutions, industry associations and other local partners, and by pursuing strategic acquisitions. Across all our international expansion initiatives, we will continue to leverage our technology infrastructure to drive speed to market, scale and differentiation.
Broaden Our Reach in Consumer Market through Direct and Indirect Channels
Our consumer business continues to deliver growth with strong margins, driven by our innovative solutions and flexible and collaborative partnership model that has expanded the market for consumer services, along with greater consumer awareness of the value of their credit information and increased risk of identity theft. With our acquisition of Sontiq, we have added to our foundational credit monitoring solutions with a comprehensive set of identity protection offerings. Our strategy is to grow our own member base in the direct channel as well as expand our reach through partnerships in the indirect channel. Across both channels, our focus is on delivering value-added solutions and features while continuing to improve the consumer experience with more user-friendly interfaces and better customer service and educational tools. Within our indirect channel, we will continue to leverage and enhance our flexible technology platform to expand our relationship with existing partners as well as develop relationships with new partners and enter new verticals. We believe that partnerships not only enable us to grow our own business, but also expand the overall market and provide us access to new consumer segments. We will also continue to leverage our approach in the U.S. consumer market to further expand our consumer operations globally.
Pursue Strategic Acquisitions
We will continue to pursue acquisitions to accelerate growth within our existing businesses and diversify into new businesses. We are focused primarily on opportunities that expand our geographic footprint, increase the breadth and depth of our datasets,
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enhance our services, provide us with industry expertise in our key verticals and deepen our presence in our international markets.
On December 1, 2021, we completed two of our largest investments in the history of the company with the acquisitions of Neustar and Sontiq. Neustar, a premier identity resolution company with leading solutions in Marketing, Risk and Communications, enables customers to build connected consumer experiences by combining decision analytics with real-time identity resolution services driven by its OneID platform. We believe the acquisition of Neustar provides immediate scale to our identity resolution services through Neustar’s large, well-established customer base, accelerates the future growth of our identity-based solutions and expands our powerful digital identity capabilities through the addition of Neustar’s distinctive data and analytics, enabling consumers and businesses to transact online with greater confidence.
Sontiq provides solutions including identity monitoring, restoration, and response products and services to empower consumers and businesses to help proactively protect against identity theft and cyber threats. The acquisition of Sontiq enables access to an attractive new base of customers and consumers through a recurring subscription-based revenue model and also complements and expands our Consumer Interactive solutions portfolio by providing valuable identity protection services for consumers. Sontiq’s identity security monitoring products incorporate our credit data, are highly complementary to our capabilities and are expected to significantly increase our opportunities for growth.
In our Media vertical, we have made three recent acquisitions, Tru Optik Data Corp. (“TruOptik”), Signal Digital, Inc. (“Signal”) and TruSignal, Inc. (TruSignal”), which provide us with an industry-leading position within a clearly defined part of the Media industry. These acquisitions allow us to deliver more real-time targeted data across online streaming services to improve our customers’ digital marketing campaigns. Together with TransUnion’s complementary capabilities, we believe these acquisitions allow us to enhance the customer base with higher accuracy and transparency that is missing in current identity and audience development products in the digital marketing space.
We enhanced our fraud and identity management service offerings when we acquired iovation in June 2018, one of the most advanced providers of device-based information in the world. We launched IDVision with iovation, which combines our extensive personal data with iovation’s digital data to offer an enhanced suite of identity management, authentication and fraud prevention solutions that protect businesses from fraud while improving the online user experience. This results in a global network of fraud and risk insights that help businesses to quickly and accurately determine authentic customers from fraudulent ones.
We continue to seek opportunities to expand our geographic footprint and further accelerate our growth. In June 2018, we entered the world’s second largest credit market in the U.K. Our U.K. business provides data, analytics and technology solutions to help businesses and consumers make informed decisions across a diverse group of industries. With a strong record of growth and innovation in both core credit and emerging solutions we have achieved strong market success.
In addition to the above, over the years we have completed a number of other acquisitions. We have also made a number of minority investments in businesses, which typically include strategic partnership arrangements that allow us to develop, expand, and deepen relationships with innovative companies with promising technologies and capabilities. We have a strong track record of integrating our acquisitions and driving long-term value creation, and we will continue to maintain a disciplined approach to pursuing acquisitions.
Segment Overview
We manage our business and report our financial results in three reportable segments: U.S. Markets, International and Consumer Interactive. We also report expenses for Corporate, which provides shared services and conducts enterprise functions. See Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” Part II, Item 8 “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” and Note 20, “Reportable Segments,” for further information about our reportable segments.
U.S. Markets
Our U.S. Markets segment provides consumer reports, actionable insights and analytics to businesses. These businesses use our services to acquire customers, assess consumer ability to pay for services, identify cross-selling opportunities, measure and manage debt portfolio risk, collect debt, verify consumer identities and mitigate fraud risk.
We deliver our solutions across multiple industry vertical markets and report disaggregated revenue as follows:
Financial Services: The Financial Services vertical, which accounts for approximately 60.2% of our 2021 U.S. Markets revenue, consists of our consumer lending, mortgage, auto and cards and payments lines of business. Our financial services customers consist of most banks, credit unions, finance companies, auto lenders, mortgage lenders, FinTechs, and other consumer lenders in the United States. We also distribute our solutions through most major resellers, secondary market players and sales agents. Beyond traditional lenders, we work with a variety of credit arrangers, such as auto dealers and peer-to-peer lenders. We provide solutions across every aspect of the lending lifecycle; customer acquisition and engagement, fraud and ID
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management, retention and recovery. Our products are focused on mitigating risk and include credit reporting, credit marketing, analytics and consulting, identity verification and authentication and debt recovery solutions.
Emerging Verticals: Emerging Verticals include Insurance, Services and Collections, Tenant and Employment, Technology, Commerce & Communications, Public Sector, Media, and other emerging verticals we serve, as well as our Neustar business. Our solutions in these verticals are also data-driven and address the entire customer lifecycle. We offer onboarding and transaction processing products, scoring and analytic products, marketing solutions, fraud and identity management solutions and customer retention solutions.
Within U.S. Markets, we leverage our comprehensive data assets, data matching expertise and predictive analytics to develop solutions:
•Comprehensive Data Assets: Our credit database contains the name and address of substantially all of the U.S. credit-active population, a listing of their existing credit relationships and their timeliness in repaying debt obligations. The information in our database is voluntarily provided by thousands of credit-granting institutions and other data furnishers. We enhance our data assets with alternative credit sources. We also actively source information from courts, government agencies and other public records including suits, liens, judgments, bankruptcies, professional licenses, real property, vehicle ownership, other assets, driver violations, criminal records and contact information for certain databases. We also have proprietary datasets including device-based information and phone activity data, and continue to look for opportunities to gain access to new datasets. Our databases are updated, reviewed and monitored on a regular basis.
•Predictive Analytics: Our predictive analytics capabilities allow us to analyze our proprietary datasets and provide insights to our customers to allow them to drive better business decisions. Our tools allow customers to investigate past behavior, reasonably predict the likelihood of future events and strategize actions based on those predictions. We have numerous tools such as predictive modeling and scoring, customer segmentation, benchmarking, forecasting, fraud modeling and campaign optimization, all of which cater to specific customer requirements. Our predictive analytics capabilities are developed by an analytics team with deep industry experience and a broad array of specialized qualifications.
International
The International segment provides services similar to our U.S. Markets segment to businesses in select regions outside the United States. Depending on the maturity of the credit economy in each country, services may include credit reports, analytics and technology solutions services and other value-added risk management services. We also have insurance, business and automotive databases in select geographies. These services are offered to customers in a number of industries including financial services, retail credit, insurance, automotive, collections, public sector and communications, and are delivered through both direct and indirect channels. The International segment also provides consumer solutions similar to those offered by our Consumer Interactive segment to help consumers proactively manage their personal finances. We report disaggregated revenue of our International segment for the following regions:
Canada: We have operated in Canada since 1989 and are one of only two nationwide consumer reporting agencies in the Canadian market. We operate across multiple verticals in Canada with leading positions in insurance and automotive with a strong and growing presence in Financial Services. Our Canadian customer base encompasses some of the largest companies in their verticals, including many of the top banks, credit card issuers, insurance companies and auto manufacturer lenders.
Latin America: We have been active in Latin America since 1985 when we entered the Puerto Rican market, and now operate in numerous Central and South American countries, including a strong presence in two major markets - Colombia and Brazil. We also have significant credit bureau businesses in the Dominican Republic and Chile, and a 25.69% ownership interest in Trans Union de México, S.A., the primary credit reporting agency in Mexico. In Guatemala, we maintain a centralized database that services Guatemala, Nicaragua and Costa Rica.
United Kingdom: In June 2018, we entered the world’s second largest credit market, the United Kingdom, when we acquired Callcredit, the second largest consumer credit bureau in the U.K. Our U.K. business provides data, analytics and technology solutions to help businesses and consumers make informed decisions across a diverse group of industries, and serves a broad set of customers including leading financial institutions and customers in other attractive, high-growth segments.
Africa: We launched our operations in Africa by entering South Africa in 1993, and have since expanded into many surrounding countries. We are highly diversified and serve a variety of industries through traditional consumer credit reporting services, insurance solutions, auto information solutions, and commercial credit information services. We provide risk and information solutions in Africa to many of the leading banks, retailers, auto dealer groups, and insurance companies.
India: In 2001, we partnered with prominent Indian financial institutions to create CIBIL, the first consumer and business credit reporting agency in India. We have since launched the country’s first generic credit score, which is the most widely used credit
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score across the financial services industry in India. In the absence of a comprehensive national ID, we created an innovative matching algorithm that allowed us to create the most extensive consumer credit database in India. We also own or have access to several non-credit data sources that we use to enhance our solutions, including the national voters’ registry, the confirmed and suspected fraud registry, property registry and tax ID database. We offer a suite of risk and information solutions across the credit lifecycle for banks, telecommunication companies and insurance companies, as well as consumer solutions such as online credit reports and scores. India has become our second largest and our fastest growing region.
Asia Pacific: Our operations in Asia Pacific include markets such as Hong Kong, the Philippines, Thailand, Singapore, and China. Asia Pacific is a growing market with increasing demand for credit driven by a rising middle class that offers significant growth potential in analytics and technology solutions. We do business with many of the top financial institutions in the countries we serve. We have had a majority ownership interest in the principal consumer credit reporting company in Hong Kong since 1998. In partnership with leading credit card issuers in the Philippines, we launched the first consumer credit reporting agency in that market in 2011. We have also built credit risk scores for the National Credit Bureau of Thailand, in which we have a 12.25% ownership interest, the Credit Bureau of Singapore and the Credit Bureau of Malaysia.
Consumer Interactive
The Consumer Interactive segment offers solutions that help consumers manage their personal finances and take precautions against identity theft. Services in this segment include credit reports and scores, credit monitoring, identity protection and resolution, and financial management for consumers. The segment also provides solutions that help businesses respond to data breach events. Our products are provided through user-friendly online and mobile interfaces and are supported by educational content and customer support. With our acquisition of Sontiq in 2021, we have added to our foundational credit monitoring solutions with a comprehensive set of identity protection offerings. Our Consumer Interactive segment serves consumers through both direct and indirect channels.
Direct: We provide services directly to consumers, primarily on a subscription basis through websites and mobile applications. Product features include credit reports, credit scores and analysis, alerts to changes in credit information, debt analysis, debt and retirement calculators, identity protection services, and the ability to restrict third-party access to a consumer’s TransUnion and Equifax credit reports, commonly known as a “credit freeze,” through our paid subscription offering, and free credit freezes and credit reports. We complement these features with educational content that explains how credit and financial data is used in various industries to evaluate consumers and how a consumer’s financial choices impact this evaluation. Our integrated, data-driven marketing strategy spans multiple channels including paid search, online display and email, which allows us to efficiently acquire and retain high quality consumers.
Indirect: We also provide our services to partners who may offer them on a stand-alone basis or with their own or other branded services as a bundle to consumers, governmental agencies and businesses in support of fraud or credit protection, credit monitoring, identity protections, and data breach services. We offer a broad suite of solutions that include many of the features, educational content and customer support available in our direct channel. We have taken a proactive and flexible partnership approach, which has resulted in long-term strategic relationships with some of the largest providers of credit information or identity protection services in the U.S. consumer market as well as with several large financial institutions. Through these partnerships, we have significantly expanded the overall market as well as our ability to provide consumers with the information and tools they want.
Corporate
Corporate provides support services to each segment, holds investments and conducts enterprise functions. Certain costs incurred in Corporate that are not directly attributable to one or more of the segments remain in Corporate. These costs are typically enterprise-level costs and are primarily administrative in nature.
Markets and Customers
We have a highly diversified customer base that includes companies across multiple industries, including Financial Services and Insurance. A substantial portion of our revenue is derived from companies in the financial services industry and from sales in the United States.
We leverage our comprehensive data assets, industry expertise and our technology infrastructure, allowing us to build solutions once and deploy them multiple times across the different verticals and regions. Our evolution to a hybrid public-private cloud infrastructure augments this capability. We provide services to our customers through real-time, online delivery for services such as credit reports and predictive scores, in batch form for services that help our customers proactively acquire new customers, cross-sell to existing customers and help them monitor and manage risk, and through our software-as-a-service offerings, which include a number of solutions that help businesses interpret data, maximize reimbursements, visualize insights, predict model results and apply their customer-specific criteria to facilitate real-time automated decisions at the time of customer interaction, and through our websites to consumers, for various subscription-based and transaction-based products in the United States and in other regions we serve.
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We market our services globally, primarily through our own sales force. We have dedicated sales teams for our largest customers focused by industry group and geography. These dedicated sales teams provide strategic account management and direct support to customers. We use shared sales teams to sell our services to mid-size customers. Smaller customers’ sales needs are serviced primarily through call centers. We also market our services through indirect channels such as resellers, who sell directly to businesses and consumers. Our interactive direct-to-consumer services are sold primarily through our website.
Seasonality
Seasonality in the U.S. Markets segment is correlated to volumes of online credit data purchased by our financial services and mortgage customers, and our sales have generally been higher during the second and third quarters. Seasonality in our International segment is driven by local economic conditions and relevant macroeconomic market trends. In our Consumer Interactive segment, demand for our products is usually higher in the first half of the year, impacted by seasonality and our advertising spend.
Competition
The market for our services is highly competitive. We compete primarily on the basis of differentiated solutions, datasets, analytics capabilities, ease of integration with our customers’ technology, stability of services, customer relationships, innovation and price. We believe that we compete favorably in each of these categories. Our competitors vary based on the business segment, industry vertical and geographical market that our solutions address.
In our U.S. Markets segment, our competition generally includes Equifax, Experian and LexisNexis, in addition to certain competitors with whom we only compete in specific industry verticals. For example, we compete with FICO in the Financial Services vertical and with Verisk Analytics, Inc. in the Insurance vertical. In marketing solutions, we compete with Experian and LiveRamp.
In our International segment, we generally compete with Equifax and Experian directly or indirectly through their subsidiaries or investments. We also compete with other competitors that may focus on a particular vertical, country or region.
In our Consumer Interactive segment, we generally compete with Equifax, Experian, FICO and LifeLock as well as personal finance websites, some of whom offer free credit information.
In addition to these competitors, we also compete with a number of other companies that may offer niche solutions catering to more specific customer requirements.
We believe the services we provide to our customers reflect our understanding of our customers’ businesses, the depth and breadth of our data and the quality of our analytics and technology solutions capabilities. By integrating our services into our customers’ workflows, we ensure efficiency, continuous improvement and long-lasting relationships.
Information Technology
Technology
The continuous operation of our information technology systems is fundamental to our business. Our information technology systems collect, refine, access, process, deliver and store the data that is used to provide our solutions. Our technology relies on several third-party best-of-breed solutions as well as proprietary software and tools which we integrate into our platforms. Our control of our technology and infrastructure allows us to prioritize any changes and manage the roll-out of any upgrades or changes. We contract with various third-party providers to help us maintain and support our systems.
We have established technology Centers-of-Excellence that utilize similar tools and technology in order to provide scale and efficiency in modifying existing applications and developing new applications for our businesses. We deploy new development methodologies globally to enable rapid delivery of solutions and increase our speed-to-market. Our technology team includes both our own employees as well as additional resources from third-party providers.
We believe that our technology is at the core of our innovative solutions, and we continually invest in our technology and thought leaders to be a market leader. We continue to make significant investments in our infrastructure to leverage the latest data and analytics technologies.
We believe that our technology platform enables us to be quicker, more efficient and more cost-effective across each step of our process chain, including receiving, consolidating and updating data, implementing analytics and technology solutions capabilities, creating innovative solutions, delivering those solutions to our customers and incorporating customer feedback. Our platform has significant scale and capacity and enables us to deliver actionable information immediately to our customers as well as expand customer segments and develop solutions to meet new needs. Our technology infrastructure gives us the ability to organize and handle high volumes of disparate data, maintain and improve our delivery speeds, increase availability and enhance our product development capabilities, while at the same time lowering our overall cost structure. We are also
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investing in our digital employee experience; we believe that to attract and retain talent we need to ensure an efficient and productive environment.
Data Centers and Business Continuity
In order to create redundancy and increase resiliency, we utilize multiple data centers in all of our major markets. We generally employ similar technologies and infrastructures in each data center to enable the optimal sharing of technical resources across geographies.
We maintain a framework for business continuity that includes written policies requiring each business and operating unit to identify critical functions. Our businesses and operating units have processes in place that are designed to maintain such functions in case there is a disruptive event. We also have a specific disaster recovery plan that will take effect if critical infrastructure or systems fail or become disabled.
As part of our program, each business unit’s continuity plan is periodically updated and stored in a centralized database. These plans are monitored and reviewed by our compliance team. From time to time, our compliance team tests one or more of these plans using desktop exercises or in connection with actual events. We also periodically confirm the state of preparedness of our most critical disaster recovery procedures. We maintain systems redundancy plans for our primary U.S. data centers that allow for the transfer of capacity between geographically disbursed environments in the event there is a failure of computer hardware or a loss of our primary telecommunications lines or power sources. On an enterprise basis, our systems are designed to recover most of our operational capacity in a scenario where our primary data centers become inoperable.
Since the beginning of the COVID-19 pandemic, our business continuity plans have kept us well positioned to continue to successfully operate our business. In each of the markets we serve, we quickly and effectively moved to a work-from-home model that we generally continue to adhere to today. This has allowed us to protect our associates and the broader population while continuing to operate our businesses and provide services and solutions to customers and consumers.
Security
The security and protection of personal data is TransUnion’s highest priority. TransUnion’s written information security program focuses on managing risk and fulfilling global information security regulations and standards, including ISO/IEC 27001:2013, NIST CSF, PCI-DSS, HIPAA, and other international regulatory expectations in locations where we operate. Our information security program follows a risk-based approach that continuously evaluates threats, industry events and asset values to introduce enhancements when necessary. We deploy a wide range of physical and technical safeguards that provide security around the collection, storage, use, access and delivery of information we have in our possession or with our partners. These safeguards include firewalls, intrusion protection and monitoring, anti-virus and malware protection, vulnerability threat analysis, management and testing, advanced persistent threat monitoring, forensic tools, encryption technologies, data transmission standards, contractual provisions, customer and partner credentialing, identity and access management, data loss, access and anomaly reports and training programs for associates. We, with other global financial services organizations, including U.S. nationwide consumer credit reporting companies, share cyber threat and attack information through our participation in the Financial Information Sharing and Analysis Council and other forums that may be targeted at our industry to better understand and monitor our systems and our connectivity to our customers and partners, as well as how specific solutions that were implemented to protect against such attacks are performing. We undergo SSAE 18 reviews annually, and many of our major customers routinely audit our security controls. We conduct an annual Payment Card Industry Data Security Standard (PCI-DSS) compliance program and remain PCI certified. We regularly engage independent third-party organizations to evaluate TransUnion’s security program via testing and assessments. Additionally, we hire third parties to conduct independent information security assessments.
Intellectual Property and Licensing Agreements
Our intellectual property is a strategic advantage and protecting it is critical to our business. Because of the importance of our intellectual property, we treat our brand, software, technology, know-how, concepts and databases as proprietary. We attempt to protect our intellectual property rights under the trademark, copyright, patent, trade secret and other intellectual property laws of the United States and other countries, as well as through the use of licenses and contractual agreements, such as nondisclosure agreements. While we hold various patents, we do not rely primarily on patents to protect our core intellectual property. Through contractual arrangements, disclosure controls and continual associate training programs, our principal focus is to treat our key proprietary information and databases as trade secrets. Also, we have registered certain trademarks, trade names, service marks, logos, internet URLs and other marks of distinction in the United States and foreign countries, the most important of which is the trademark TransUnion name and logo. This trademark is used in connection with most of the services we sell and we believe it is a known mark in the industry.
We own proprietary software that we use to maintain our databases and to develop and deliver our services. We develop and maintain business-critical software that transforms data furnished by various sources into databases upon which our services are
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built. We also develop and maintain software to manage our consumer interactions, including providing disclosures and resolving disputes. In all business segments, we develop and maintain software applications that we use to deliver services to our customers, through a software-as-a-service model. In particular, we develop and maintain analytics and technology solutions infrastructure that we host and make available for our customers to develop and deploy analytics to improve business performance.
We license certain data and other intellectual property to other companies on arms-length terms that are designed to protect our rights to our intellectual property. We generally use standard licensing agreements and do not provide our intellectual property to third parties without a nondisclosure and license agreement in place.
We also license certain intellectual property that is important for our business from third parties. For example, we license credit-scoring algorithms and the right to sell credit scores derived from those algorithms from third parties for a fee.
Legal and Regulatory Matters
Compliance with legal and regulatory requirements is a top priority. We are subject to numerous laws governing the collection, protection, dissemination and use of non-public personal information, credit information and other types of information. These laws are enforced by U.S. federal, state and local regulatory agencies, foreign regulatory authorities and, in some instances, through private civil litigation. Our failure to comply with applicable legal and regulatory requirements could have a negative impact on our financial condition or overall operations.
We proactively manage our compliance with laws and regulations through a global legal, risk and compliance department that ensures enterprise standards are followed. Through the legal, risk and compliance functions, we provide training to our associates, monitor all material laws and regulations, establish compliance policies, routinely review internal processes to determine whether business practice changes are warranted, assist in the development of new products and services, and regularly meet with principal regulators and legislators to ensure transparent engagement regarding our operations.
U.S. Data and Privacy Protection
Our U.S. operations are subject to numerous laws and regulations governing privacy, data security, consumer protection and the use of consumer credit information. Certain of these laws provide for civil and criminal penalties for the unauthorized release of, or access to, this protected information. The laws and regulations that affect our U.S. business include, but are not limited to, the following:
•Fair Credit Reporting Act (“FCRA”): FCRA applies to consumer credit reporting agencies, including us, as well as data furnishers and users of consumer reports. FCRA promotes the accuracy, fairness and privacy of information in the files of consumer reporting agencies that engage in the practice of assembling or evaluating information relating to consumers for certain specified purposes. FCRA limits what information may be reported by consumer reporting agencies, limits the distribution and use of consumer reports, establishes consumer rights to access and dispute their own credit files, includes provisions designed to prevent identity theft and assist fraud victims, requires consumer reporting agencies to make a free annual credit report available to consumers and imposes many other requirements on consumer reporting agencies, data furnishers and users of consumer report information. Violation of FCRA can result in civil and criminal penalties. Regulatory enforcement of FCRA is under the purview of the Federal Trade Commission (the “FTC”), the Consumer Financial Protection Bureau (the “CFPB”) and state attorneys general, acting alone or in concert with one another.
•The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”): The Dodd-Frank Act prohibits unfair, deceptive or abusive acts or practices (“UDAAP”) with respect to consumer financial products and provides the CFPB with authority to enforce those provisions. The CFPB has stated that its UDAAP authority may allow it to find statutory violations even where a specific regulation does not prohibit the relevant conduct, or prior published regulatory guidance or judicial interpretation has found the activity to be in accordance with law.
•The Economic Growth, Regulatory Relief, and Consumer Protection Act (the “EGRRCPA”): The EGRRCPA amended certain parts of the Dodd-Frank Act, FCRA and other U.S. federal laws applicable to us. Among other things, the EGRRCPA requires that credit reporting agencies provide consumers with at least one year to submit a fraud alert, establishes a national security freeze that prevents credit reporting agencies from disclosing the content of a consumer report and must be provided free of charge upon formal request, and mandates that credit reporting agencies notify consumers of their right to a credit freeze and provide instructions on how to implement and lift a freeze. The EGRRCPA also requires credit reporting agencies to provide additional credit protections and services to veterans and active duty U.S. military consumers.
•State unfair and deceptive practices acts and practices laws: Many states have enacted statutes that prohibit unfair and deceptive acts and practices, relating to, among other things, marketing, disclosures and billing practices within the state or directed to consumers within the state. The Company and others in the industry may be subject to these laws with respect to the marketing of consumer credit information products.
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•Gramm-Leach Bliley Act (the “GLBA”): The GLBA regulates, among other things, the receipt, use and disclosure of non-public personal information of consumers held by financial institutions, including us. Several of our datasets are subject to GLBA provisions, including limitations on the use or disclosure of the underlying data and rules relating to the technological, physical and administrative safeguarding of non-public personal information. Violation of the GLBA can result in civil and criminal liability.
•Drivers’ Privacy Protection Act (the “DPPA”):  The DPPA requires all states to safeguard certain personal information included in licensed drivers’ motor vehicle records from improper use or disclosure. The DPPA limits the use of this information sourced from State departments of motor vehicles to certain specified purposes, and does not apply if a driver has consented to the release of their data. The DPPA imposes criminal fines for non-compliance and grants individuals a private right of action, including actual and punitive damages and attorneys’ fees. The DPPA provides a federal baseline of protections for individuals, and is only partially preemptive, meaning that except in a few narrow circumstances, state legislatures may pass laws to supplement the protections made by the DPPA. Many states’ laws are more restrictive than the federal law.
•Data security breach laws:  All states and some territories have adopted data security breach laws that may require notice be given to affected consumers in the event of a breach of personal information, and in some cases the provision of additional benefits such as free credit monitoring to affected individuals. Some of these laws require additional data protection measures over and above the GLBA data safeguarding requirements. If data within our system is compromised, we may be subject to provisions of various state security breach laws, including regulatory investigations or enforcement actions from state attorneys general, who enforce state data breach or unfair and deceptive practices laws.
•Identity theft laws: Under the federal EGRRCPA, consumers can place a security freeze on their credit reports o and obtain one-year of fraud alerts free of charge. In addition, all states and the District of Columbia have passed laws that give consumers the right to place a security freeze on their credit report. Generally, these state laws require us to respond to requests for a freeze within a certain period of time, to send certain notices or confirmations to consumers in connection with a security freeze and to unfreeze files upon request within a specified time period.
•Federal Trade Commission Act (the “FTC Act”):  The FTC Act prohibits unfair methods of competition and unfair or deceptive acts or practices. We must comply with the FTC Act when we market our services, such as consumer credit monitoring services. Our data collection, use and disclosure practices and the security measures we employ to safeguard the personal data of consumers could also be subject to the FTC Act, and our data practices or our failure to safeguard data adequately may subject us to regulatory scrutiny or enforcement action.
•The Credit Repair Organizations Act (“CROA”):  CROA regulates companies that claim to be able to assist consumers in improving their credit standing. Some courts have applied CROA to credit monitoring services offered by consumer reporting agencies and others. CROA allows for a private right of action and permits consumers to recover all money paid for alleged “credit repair” services in the event of violation.
•The Health Insurance Portability and Accountability Act of 1996, as amended by the American Recovery and Reinvestment Act of 2009 (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (“HITECH”):  HIPAA and HITECH require companies to implement reasonable safeguards to prevent intentional or unintentional misuse or wrongful disclosure of protected health information. We obtain protected health information from healthcare providers and payors of healthcare claims under a “business associate” agreement that is subject to the privacy, security and transactional requirements imposed by HIPAA and HITECH. As a business associate, we are obligated to limit our use and disclosure of health-related data to certain statutorily permitted purposes, HIPAA regulations, as outlined in our business associate agreements, and to preserve the confidentiality, integrity and availability of this data. HIPAA and HITECH also require, in certain circumstances, the reporting of breaches of protected health information to affected individuals and to the United States Department of Health and Human Services. A violation of any of the terms of a business associate agreement or noncompliance with HIPAA or HITECH data privacy or security requirements could result in administrative enforcement action and/or imposition of statutory penalties by the United States Department of Health and Human Services or a state attorney general. HIPAA and HITECH requirements supplement but do not preempt state laws regulating the use and disclosure of health-related information; state law remedies, which can include a private right of action, remain available to individuals affected by an impermissible use or disclosure of health-related data.
•California Consumer Privacy Act (“CCPA”), Virginia Consumer Data Protection Act (“VCDPA”) and the Colorado Privacy Act (“CPA”): The CCPA gives California consumers certain rights regarding the collection and disclosure of their personal information and requires businesses to make certain disclosures and take certain other acts in furtherance of those rights. The CCPA exempts much of the data whose use is covered by FCRA, GLBA, HIPAA and DPPA and therefore much of our data is not subject to the CCPA. The CCPA creates a private right of action for security breaches. In 2020, California adopted the California Privacy Rights Act (the “CPRA”), which amends and expands CCPA. Most of the substantive provisions of CPRA will go into effect in 2023. Two additional
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comprehensive state privacy laws, the VCDPA and the CPA, which apply to Virginia and Colorado consumers, respectively, will go into effect in 2023. These laws are similar to the CCPA, but provide additional rights and restrictions, such as the right to correction and restrictions on the use of sensitive personal information.
•Requirements for Government Contractors: Special requirements may apply to TransUnion when providing services to U.S. federal, state and local government agencies. For example and without limitation, TransUnion may need to abide by the Privacy Act of 1974, the Internal Revenue Service’s Publication 4812, and various Federal Acquisition Regulation and associated supplemental contract clauses. Each of these laws, regulations and contract clauses dictates particular measures for the protection of personal information or information that is otherwise categorized as sensitive by the government. Government agencies frequently modify or supplement these requirements, and consequences for violations of applicable requirements may include penalties, civil liability and for severe infractions, criminal liability.
We are also subject to U.S. federal and state laws that are generally applicable to any U.S. business with national or international operations, such as antitrust laws, the Foreign Corrupt Practices Act, the Americans with Disabilities Act and various employment laws. We continuously monitor U.S. federal and state legislative and regulatory activities that involve credit reporting, data privacy and security, and other relevant subjects to identify issues in order to remain in compliance with all applicable laws and regulations.
International Data and Privacy Protection
We are subject to data protection, privacy and consumer credit laws and regulations in other jurisdictions where we conduct business. These laws and regulations include, but are not limited to, the following:
•Canada: The Personal Information Protection and Electronic Documents Act of 2000 (“PIPEDA”) and substantially similar provincial laws govern how private sector organizations collect, use and disclose personal information in the course of commercial activities. The PIPEDA gives individuals the right to access and request correction of their personal information collected by such organizations. The PIPEDA requires compliance with the Canadian Standard Association Model Code for the Protection of Personal Information. Most Canadian provinces also have laws dealing with consumer reporting. These laws typically impose an obligation on credit reporting agencies to have reasonable processes in place to maintain the accuracy of the information, place limits on the disclosure of the information and give consumers the right to have access to, and challenge the accuracy of, the information.
•Colombia: The Colombian Financial Data Protection Regime (Law 1266 of 2008) regulates the collection, use and transfer of personal data pertaining to financial services, including credit reporting. The Colombian General Data Protection Regime (Law 1581 of 2012 and Decree 1377 of 2013) covers regulation of all other personal data. Both of these regimes have applicability to credit reporting services in Colombia and together address obligations of information furnishers, database owners, consumer right of access, consumer consent and permitted information disclosures.
•European Union: Our data management activities and the commercial solutions we make available to the European market are subject to the General Data Protection Regulation (“GDPR”). This law establishes significant data protection and privacy standards that empower European Union consumers to exercise significant control over their personal data. In addition to a litany of substantive provisions empowering consumers to limit how data may be used, GDPR also imposes operational, data processing, and other technical requirements with which we must comply. Failure to comply with any provision of GDPR could result in significant regulatory or other enforcement penalties.
•United Kingdom: Our UK operations are subject to GDPR and the Privacy and Electronic Communications Regulation (the “PECR”), which together govern the processing of personal data pertaining to UK citizens. Enforcement of data regulation and consumer privacy matters in the UK resides with the Information Commissioner’s Office, an independent body set up to uphold the rights of individuals in relation to the use of their personal data. The provision of credit referencing services in the UK is also a regulated activity that is authorized by the Financial Conduct Authority (the “FCA”). The FCA has regulated credit reference agencies since 2014 with the objectives of protecting consumers, protecting financial markets and promoting competition. TransUnion UK (previously Callcredit), Experian and Equifax were granted full FCA authorization in early 2016 and are therefore all required to follow the rules and principles issued by the FCA.
In 2018, the FCA introduced Open Banking which aims to improve customer experience and to increase competition in the banking sector. Consumers can share transaction data with third parties via application program interfaces (“APIs”) to identify best products and take up multi-bank products. As part of Open Banking, the Second Payment Services Directive allows merchants to retrieve a customer’s account data from their bank with their consent. The implementation of Open Banking platforms has increased the number of payment service providers available to consumers beyond traditional banks. TransUnion UK is an authorized information services provider under this regime.
•South Africa: The National Credit Act of 2005 (the “NCA”) and its implementing regulations govern credit bureaus and consumer credit information. The NCA sets standards for filing, retaining and reporting consumer credit
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information. The NCA also defines consumers’ rights with respect to accessing their own information and addresses the process for disputing information in a credit file. The NCA is enforced by The National Credit Regulator who has authority to supervise and examine credit bureaus. In addition, the Protection of Personal Information Act (“POPIA”), went into effect on July 1, 2020, with enforcement commencing on July 1, 2021. POPIA regulates the processing of personal information of legal and juristic persons, and imposes compliance obligations and sanctions.
•India: The Credit Information Companies Regulation Act of 2005 (“CICRA”) requires entities that collect and maintain personal credit information to ensure that it is complete, accurate and protected. Entities must adopt certain privacy principles in relation to collecting, processing, preserving, sharing and using credit information. Data protection is currently covered under provisions of the Information Technology Act of 2000 as well as regulations promulgated by the Reserve Bank of India. In addition, India has pending privacy legislation that proposes to cover personal and non-personal data and provides for penalties to be paid to the government, compensation to individuals, as well as criminal liability in certain cases.
•Hong Kong: Personal Data (Privacy) Ordinance (“PDPO”) and The Code of Practice on Consumer Credit Data regulate the operation of consumer credit reference agencies. They prescribe the methods and security controls under which credit providers and credit reference agencies may collect, access and manage credit data. The PDPO was amended in 2021 to provide new powers to the Privacy Commissioner and to make criminal the act of publicly releasing information identifying an individual or organization – a practice known as “doxxing.”
•Brazil: The Brazilian General Data Protection Law (“LGPD”), went into effect on September 18, 2020. LGPD regulates the processing of personal information and imposes compliance obligations and sanctions comparable to those of GDPR. The sanctions provisions of the LGPD went into effect on August 1, 2021.
Other International Laws
Credit information and credit information companies have also become subject to, directly or indirectly, further governance regulations, such as those historically reserved for banks. We are also subject to various laws and regulations generally applicable to all businesses in the other countries where we operate.
Sustainability
We are dedicated to making meaningful, positive contributions to the world and the communities we serve. We are making an impact through our commitments to advancing underrepresented people, enabling life-changing access to credit in mature and emerging markets, and using trended data to help consumers improve their access to credit.
We focus our environmental, social, and governance (“ESG”) efforts on issues that are important to our business and to our key stakeholders. In 2021, we conducted our first global ESG materiality assessment, which confirmed the importance of cybersecurity, privacy, and corporate governance to the continued success of our business. The assessment also confirmed the importance of TransUnion continuing to focus efforts on enhancing financial inclusion, employee wellness, diversity, equity, and inclusion (“DEI”), and climate change.
Climate Change
Climate change continues to be a key issue for companies worldwide. In 2021, in partnership with an external consultant, we completed a survey of our greenhouse gas emissions and designed new climate change commitments. We set two climate change targets: reaching net zero scope 1 and scope 2 greenhouse gas emissions by 2025; and 30 percent reductions on leased real estate scope 3 emissions by 2030, using a 2019 baseline. We plan to achieve these reduction targets through renewable energy purchases, an environmentally-friendly cloud migration, and our real estate consolidation strategy. For emissions that TransUnion is unable to reasonably avoid, we expect to mitigate our impact through annual offset purchases until we reach our target.
Human Capital Management
We employed approximately 10,200 employees at December 31, 2021. Central to our long-term strategy is attracting, developing and retaining the best talent globally with the right skills to drive our success. Our board of directors receives regular updates on human capital topics such as sustainability, employee retention, engagement and survey results, enterprise compliance, investigations and associate health and safety.
Other than certain employees in Brazil, none of our employees is currently represented by a labor union or has terms of employment that are subject to a collective bargaining agreement. We consider our relationships with our employees to be good and have not experienced any work stoppages.
Diversity Strategy
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We see diversity as a source of strength and know that it is essential to our mission, innovation and growth. At TransUnion, we know that diversity helps us win. We have a three-pronged approach to our diversity, equity and inclusion strategy consisting of the following:
•Hire: We seek to expand the diversity of our talent pool through a dedicated diversity recruiter, targeted sourcing methods and job postings.
•Develop: We cultivate diverse talent internally through development plans and customized programming for underrepresented groups.
•Promote: We continue to expand our rigorous pay and promotion practices designed to remove bias, including ongoing pay equity analysis and compensation review, and development opportunities designed to ensure fair and equitable treatment of all employees.
We believe that a critical component of continuing to deliver innovative products to consumers and customers is maintaining diverse and inclusive teams. Detailed below is our progress in advancing diversity in our leadership and associate population in alignment with Sustainability Accounting Standards Board reporting standards. Select workforce diversity statistics for 2021, 2020, and 2019 are as follows:
For the Year Ended December 31,
2021 5
2020
2019
Percent of TransUnion’s Worldwide Workforce Based in the United States
42%
51%
51%
Worldwide Gender
Women Senior Leaders (1)
32%
30%
27%
Women Overall (2)
40%
40%
41%
U.S. Race/Ethnicity (3)
Black Senior Leaders (1)
5%
3%
3%
Black Overall (2)
9%
9%
9%
Hispanic Senior Leaders (1)
7%
7%
6%
Hispanic Overall (2)
8%
8%
8%
Asian Senior Leaders (1)
12%
10%
9%
Asian Overall (2)
20%
20%
20%
Other Senior Leaders (1,4)
1%
2%
2%
Other Overall (2,4)
2%
2%
2%
1.Senior Leaders include all employees at a Vice President level or above.
2.Overall includes all employees, inclusive of the Senior Leader grouping.
3.U.S. race/ethnicity diversity demographic information includes only U.S. employees who chose to self-identify and excludes those who did not self-identify.
4.Other race/ethnicity includes American Indian or Alaska Native, Native Hawaiian or Other Pacific Islanders, and those employees who disclosed two or more categories.
5.Excludes employee populations from our recent acquisitions of Neustar and Sontiq that are predominately located in the United States. We will incorporate these employee populations in our Human Capital metrics in our Annual Report on Form 10-K for the year ended December 31, 2022, and our 2022 Sustainability Report. The employee population from our Healthcare business, which we divested on December 17, 2021, is included in 2019 and 2020 data, but excluded from 2021 data.
Talent Acquisition and Retention
Our talent acquisition and retention strategy is multi-faceted. We aim to recruit the most qualified candidates, and strive for a diverse and well-balanced workforce.
We reward and support employees through competitive pay, benefits, and perquisite programs that allow employees and their families to thrive. Our benefit offerings are designed to meet the varied and evolving needs of a diverse workforce tailored to the variety of businesses and geographies in which we operate.
We continue to support our employees and their families, especially in response to the COVID-19 pandemic. This includes child care benefits that provide access to onsite or community centers, enhanced back-up care choices that include personal caregivers, child care referral assistance and child care provider discounts, help with homework and a variety of parenting educational resources. We also provide our employees with access to free mental and behavioral health resources, including on-
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demand access to the Employee Assistance Program for employees and their dependents. We continue to look for new ways to support our employees and their families through the pandemic.
Employee Engagement, Training and Development
We prioritize and invest in helping our employees grow and build their careers through several training and development programs. These include online, instructor-led and on-the-job learning formats as well as executive talent and succession planning paired with an individualized development approach.
Safety and Wellness
We have heightened our focus on the health and safety of our associates, our customers, and the wider communities in which we operate. We quickly and effectively moved to a work-from-home model in the early days of the pandemic in every market we serve, and continue to generally adhere to that model. This has allowed us to protect our associates and the broader population while continuing to operate our businesses and provide services and solutions to customers and consumers. In addition, we have taken several actions to support those who are financially impacted by the COVID-19 pandemic in the locations where we operate.
See our upcoming 2021 Sustainability Report and 2021 Diversity Report for additional information on these topics. Information contained in such reports are not incorporated herein by reference and should not be considered part of this report.
Available Information
Through our corporate website under the heading “About Us - Investor Relations,” at http://www.transunion.com, you can access electronic copies of our governing documents free of charge, including our Corporate Governance Guidelines and the charters of the committees of our board of directors. In addition, through our website, you can access the documents we file with the U.S. Securities and Exchange Commission (SEC), including our annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, and all amendments thereto, as soon as reasonably practicable after we file or furnish them. You also may request printed copies of our SEC filings or governance documents, free of charge, by writing to our corporate secretary at the address on the cover of this report. Information contained on our website is not incorporated herein by reference and should not be considered part of this report.
In addition, the SEC maintains an Internet site (www.sec.gov) that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC.
Our corporate headquarters are located at 555 West Adams Street, Chicago, Illinois 60661, and our telephone number is (312) 985-2000.
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ITEM 1A. RISK FACTORS
You should carefully consider the following risks as well as the other information included in this report, including “Selected Financial Data,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our financial statements and related notes. Any of the following risks could materially and adversely affect our business, financial condition or results of operations. However, the selected risks described below are not the only risks facing us. Additional risks and uncertainties not currently known to us or those we currently view to be immaterial may also materially and adversely affect our business, financial condition or results of operations.
Risks Related to the COVID-19 Pandemic
Our results of operations have been materially and adversely impacted and could be materially and adversely impacted in the future by the COVID-19 global pandemic or the outbreak of other highly infectious diseases.
The global spread and unprecedented impact of COVID-19 has created significant volatility, uncertainty and economic disruption. The countries and territories in which our services and solutions are sold are in varying stages of restrictions and re-opening to address the COVID-19 pandemic. Certain jurisdictions have begun re-opening only to return to restrictions in the face of increases in new COVID-19 cases. The extent to which the COVID-19 pandemic continues to materially and adversely impact our business, operations, and consolidated financial statements remains highly uncertain and will depend on numerous evolving factors that we may not be able to accurately predict, including: the duration, scope, severity, and any resurgences of the pandemic; the emergence of new variants; the development, availability, distribution and effectiveness of vaccines; the public’s perception of the safety of the vaccines and their willingness to take the vaccines; the continued impact on worldwide macroeconomic conditions, including interest rates, employment rate, consumer confidence, and foreign exchange rates in each of the markets in which we operate; governmental, business, and individuals’ actions that have been, and continue to be, taken in response to the pandemic (which could include limitations on or changes to our operations or mandates to provide services); the effect on our customers; changes in customer and consumer demand for our services; the effect on consumer confidence and spending; our ability to sell and provide our services, including the impact of travel restrictions and people working from home; the ability of our customers to pay for our services; the health of, and the effect on, our workforce; and the potential effects on our internal controls, including those over financial reporting, as a result of changes in working environments for our employees and business partners.
During 2020, the economic effect of the COVID-19 pandemic had a material and adverse impact on numerous aspects of our business, including customer demand for our services and solutions, our consolidated financial statements and the price of our securities. During 2021, we saw ongoing improvements in our results of operations in all the markets where we operate. However, given ongoing uncertainty and the unpredictable nature of the pandemic, including the rise of variants of the virus and the effectiveness of vaccines against those variants, COVID-19 may have a material and adverse impact in the future on various aspects of our business, including our consolidated financial statements and the price of our securities. The impact of COVID-19 may also heighten other risks discussed in our Annual Report on Form 10-K, which could materially and adversely impact various aspects of our business, including our results of operations and financial condition.
Risks Related to Our Business
Our revenues are concentrated in the U.S. financial services and consumer credit industries. When these industries or the broader financial markets experience a downturn, demand for our services and revenues may be adversely affected.
Our largest customers, and therefore our business and revenues, depend on favorable macroeconomic conditions and are impacted by the availability of credit, the level and volatility of interest rates, inflation, employment levels, consumer confidence and housing demand. In addition, a significant amount of our revenues are concentrated among certain customers, industries, product offerings and in distinct geographic regions, primarily in the United States. In 2021 and 2020, 53% and 56% of our consolidated gross revenues, respectively, were concentrated in our U.S. Markets Financial Services vertical and our Consumer Interactive segment, collectively. Our customer base suffers when financial markets experience volatility, liquidity issues and disruption, which has occurred in the past and which could reoccur, and the potential for increased and continuing disruptions going forward, present considerable risks to our business and revenue. Changes in the economy have resulted, and may continue to result, in fluctuations in volumes, pricing and operating margins for our services. If businesses in these industries experience economic hardship, we cannot assure you that we will be able to generate future revenue growth. In addition, if consumer demand for financial services and products and the number of credit applications decrease, the demand for our services could also be materially reduced. These types of disruptions could lead to a decline in the volumes of services we provide our customers and could negatively impact our revenue and results of operations.
We are subject to significant competition in the markets in which we operate and we may face significant competition in the new markets that we plan to enter.
The markets for our services are highly competitive, and we may not be able to compete successfully against our competitors, which could impair our ability to sell our services. We compete on the basis of differentiated solutions, datasets, analytics
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capabilities, ease of integration with our customers’ technology, stability of services, customer relationships, innovation and price. Our regional and global competitors vary in size, financial and technical capability, and in the scope of the products and services they offer. Some of our competitors may be better positioned to develop, promote and sell their products. Larger competitors may benefit from greater cost efficiencies and may be able to win business simply based on pricing. We consistently face downward pressure on the pricing of our products, which could result in reduced prices for certain products, or a loss of market share. Our competitors may also be able to respond to opportunities before we do, by taking advantage of new technologies, changes in customer requirements or market trends.
Our Consumer Interactive segment experiences competition from emerging companies. For example, prior to 2008, Equifax and Experian were our top competitors for direct-to-consumer credit services, such as credit reports and identity theft protection services. In the past several years, there has been an influx of other companies offering similar services, some of whom leverage the free services mandated by law to be provided by nationwide credit reporting agencies. These developments have resulted in increased competition.
Many of our competitors have extensive customer relationships, including relationships with our current and potential customers. New competitors, or alliances among competitors, may emerge and gain significant market share. Existing or new competitors may develop products and services that are superior to ours or that achieve greater market acceptance. If we are unable to respond to changes in customer requirements as quickly and effectively as our competition, our ability to expand our business and sell our services may be adversely affected.
Our competitors may be able to sell services at lower prices than we do, individually or as part of integrated suites of several related services. This ability may cause our customers to purchase from our competitors rather than from us. Price reductions by our competitors could also negatively impact our operating margins or harm our ability to obtain new long-term contracts or renewals of existing contracts on favorable terms. Additionally, some of our customers may develop products of their own that replace the products they currently purchase from us, which would result in lower revenue.
We also expect that there will be significant competition in the new markets that we enter. We cannot assure you that we will be able to compete effectively against current and future competitors. If we fail to successfully compete, our business, financial condition and results of operations may be adversely affected.
To the extent the availability of free or relatively inexpensive consumer information increases, the demand for some of our services may decrease.
Public and commercial sources of free or relatively inexpensive consumer information have become increasingly available and this trend is expected to continue. Public and commercial sources of free or relatively inexpensive consumer information, including free credit information from lead generation companies and from banks, may reduce demand for our services. Beginning in April 2020, we began offering free credit reports on a weekly basis. To the extent that our customers choose not to obtain services from us and instead rely on information obtained at little or no cost from these public and commercial sources, our business, financial condition and results of operations may be adversely affected.
Our relationships with key long-term customers may be materially diminished or terminated.
We have long-standing relationships with a number of our customers, many of whom could unilaterally terminate their relationship with us or materially reduce the amount of business they conduct with us at any time. Our customer agreements relating to our core credit reporting service offered through our U.S. Markets segment are terminable upon advance written notice (typically ranging from 30 days to six months) by either us or the customer, which provides our customers with the opportunity to renegotiate their contracts with us or to award more business to our competitors.
We also provide our services to business partners who may combine them with their own or other branded services to be offered as a bundle to consumers, governmental agencies and businesses in support of fraud or credit protection, credit monitoring, identity authentication, insurance or credit underwriting, and collections. Some of these partners are the largest providers of credit information or identity protection services to the U.S. consumer market.
Market competition, business requirements, financial condition and consolidation through mergers or acquisitions, could adversely affect our ability to continue or expand our relationships with our customers and business partners. There is no guarantee that we will be able to retain or renew existing agreements, maintain relationships with any of our customers or business partners on acceptable terms or at all, or collect amounts owed to us from insolvent customers or business partners. The loss of one or more of our major customers or business partners could adversely affect our business, financial condition and results of operations.
If we are unable to develop successful new services in a timely manner, or if the market does not adopt our new services, our ability to maintain or increase our revenue could be adversely affected.
In order to keep pace with customer demands for increasingly sophisticated service offerings, to sustain expansion into growth industries and to maintain our profitability, we must continue to innovate and introduce new services to the market. The process
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of developing new services is complex and uncertain. Our industry solutions require extensive experience and knowledge from within the relevant industry. We must commit significant resources to this effort before knowing whether the market will accept new service offerings. Additionally, our business strategy is dependent on our ability to expand into new markets and to bring new products to market. We may not successfully enter into new markets or execute on our new services because of challenges in planning or timing, technical hurdles, difficulty in predicting market demand, changes in regulation or a lack of appropriate resources. Additionally, even if we successfully develop new products, our existing customers might not accept these new products or new markets might not adopt our products due to operational constraints, high switching costs or general lack of market readiness. Failure to successfully introduce new services to the market could adversely affect our reputation, business, financial condition and results of operations.
If our outside service providers and key vendors are not able to or do not fulfill their service obligations, our operations could be disrupted and our operating results could be harmed.
We depend on a number of service providers and key vendors such as telecommunication companies, software engineers, data processors, software and hardware vendors and providers of credit score algorithms, who are critical to our operations. These service providers and vendors are involved with our service offerings, communications and networking equipment, computer hardware and software and related support and maintenance. Although we have implemented service-level agreements and have established monitoring controls, our operations could be disrupted if we do not successfully manage relationships with our service providers, if they do not perform or are unable to perform agreed-upon service levels, or if they are unwilling to make their services available to us at reasonable prices. If our service providers and vendors do not perform their service obligations, it could adversely affect our reputation, business, financial condition and results of operations.
There may be further consolidation in our end-customer markets, which may adversely affect our revenues.
There has been, and we expect there will continue to be, merger, acquisition and consolidation activity in our customer markets. If our customers merge with, or are acquired by, other entities that are not our customers, or that use fewer of our services, our revenue may be adversely impacted. In addition, industry consolidation could affect the base of recurring transaction-based revenue if consolidated customers combine their operations under one contract, since most of our contracts provide for volume discounts. In addition, our existing customers might leave certain geographic markets, which would no longer require them to purchase certain products from us and, consequently, we would generate less revenue than we currently expect.
Risks Related to Technology and Cybersecurity
Data security and integrity are critically important to our business, and cybersecurity incidents, including cyberattacks, breaches of security, unauthorized access to or disclosure of our intellectual property or confidential information, business disruption, or the perception that confidential information is not secure, could result in a material loss of business, regulatory enforcement, substantial legal liability and/or significant harm to our reputation.
As a global consumer credit reporting agency and provider of risk and information solutions, we collect, store and transmit a large amount of sensitive and confidential consumer information on over one billion consumers, including financial information, personally identifiable information and protected health information. We operate in an environment of significant risk of cybersecurity incidents resulting from unintentional events or deliberate attacks by third parties or insiders, which may involve exploiting highly obscure security vulnerabilities or sophisticated attack methods. These cyberattacks can take many forms, but they typically have one or more of the following objectives, among others:
•obtain unauthorized access to confidential consumer information;
•manipulate or destroy data; or
•disrupt, sabotage or degrade service on our systems.
We experience numerous attempts to access our computer systems, software, networks, data and other technology assets on a daily basis, none of which has resulted in a material data incident or otherwise had any material impact on our business, operations or financial results.
The security and protection of non-public consumer information is TransUnion’s top priority. We devote significant resources to maintain and regularly upgrade the wide array of physical, technical, and contractual safeguards we employ to provide security around the collection, storage, use, access and delivery of information we have in our possession. We cannot assure you that our systems, databases and services will not be compromised or disrupted in the future, whether as a result of deliberate attacks by malicious actors, breaches due to employee error or malfeasance, or other disruptions during the process of upgrading or replacing computer software or hardware, power outages, computer viruses, telecommunication or utility failures or natural disasters or other catastrophic events. We work to monitor and develop our information technology networks and infrastructure to prevent, detect, address and mitigate the risk of unauthorized access, misuse, computer viruses and other events that could have a security impact.
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Further, it is possible that we may acquire a company that has experienced a security incident that the acquired company has yet to discover, investigate and remediate. It is possible that neither the acquired company nor TransUnion may identify the issue in a timely manner and the event could spread more broadly to other parts of TransUnion during the integration effort.
Highly publicized cybersecurity incidents, including the data incident announced by Equifax on September 7, 2017, and more recently, the December 13, 2020 announcement by SolarWinds that its software supply chain was compromised, have heightened consumer, legislative and regulatory awareness of cybersecurity risks. These events continue to embolden individuals or groups to target our systems more aggressively.
The preventive actions we take to address cybersecurity risk, including protection of our systems and networks, may be insufficient to repel or mitigate the effects of cyberattacks in the future as it may not always be possible to anticipate, detect or recognize threats to our systems, or to implement effective preventive measures against all cybersecurity risks. This is because, among other things:
•the techniques used in cyberattacks change frequently and may not be recognized until after the attacks have succeeded;
•cyberattacks can originate from a wide variety of sources, including sophisticated threat actors involved in organized crime, sponsored by nation-states, or linked to terrorist or hacktivist organizations; and
•third parties may seek to gain access to our systems either directly or using equipment or security passwords belonging to employees, customers, third-party service providers or other users.
Unauthorized disclosure, loss or corruption of our data or inability of our customers to access our systems could disrupt our operations, subject us to substantial regulatory and legal proceedings and potential liability, result in a material loss of business and/or significantly harm our reputation.
We may not be able to immediately address the consequences of a cybersecurity incident because a successful breach of our computer systems, software, networks or other technology assets could occur and persist for an extended period of time before being detected due to, among other things:
•the breadth and complexity of our operations and the high volume of transactions that we process;
•the large number of customers, counterparties and third-party service providers with which we do business;
•the proliferation and increasing sophistication of cyberattacks;
•the possibility that a malicious third party compromises the software, hardware or services that we procure from a service provider unbeknownst to both the provider and to TransUnion; and
•the possibility that a third party, after establishing a foothold on an internal network without being detected, might obtain access to other networks and systems.
The extent of a particular cybersecurity incident and the steps that we may need to take to investigate it may not be immediately clear, and it may take a significant amount of time before such an investigation can be completed and full and reliable information about the incident is known. While such an investigation is ongoing, we may not necessarily know the extent of the harm or how best to remediate it, and certain errors or actions could be repeated or compounded before they are discovered and remediated, any or all of which could further increase the costs and consequences of a cybersecurity incident.
Due to concerns about data security and integrity, a growing number of legislative and regulatory bodies have adopted consumer notification and other requirements in the event that consumer information is accessed by unauthorized persons and additional regulations regarding the use, access, accuracy and security of such data are possible. In the United States, we are subject to federal and state laws that provide for more than 50 disparate notification regimes. In the event of unauthorized access, our failure to comply with the complexities of these various regulations could subject us to regulatory scrutiny and additional liability.
We may be unable to adequately anticipate, prevent or mitigate damage resulting from increasingly sophisticated methods of illegal or fraudulent activities committed against us, which could harm our business, financial condition and results of operations and could significantly harm our reputation.
The defensive measures that we take to manage threats, especially cyber-related threats, to our business may not adequately anticipate, prevent or mitigate harm we may suffer from such threats. Criminals use evolving and increasingly sophisticated methods of perpetrating illegal and fraudulent activities. For example, during the first week of September 2020, TransUnion experienced a series of Distributed Denial of Service (DDoS) attacks. While these attacks did not result in any unauthorized access to data or systems, there was disruption to TransUnion’s normal operations including degraded customer response time, intermittent timeouts and degraded internal information technology services utilized by TransUnion associates. TransUnion deploys a number of defensive measures to mitigate DDoS attacks, but persistent attackers can challenge these protections.
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Also, in July 2019 TransUnion Limited, a Hong Kong entity in which the Company holds a 56.25% interest, was the victim of criminal fraud involving employee impersonation and fraudulent requests that successfully targeted TransUnion Limited, which resulted in a series of fraudulently induced wire transfers totaling $17.8 million for which we recorded one-time pre-tax charge plus $3.0 million of administrative expense, for a total of $20.8 million, $17.3 million net of tax, in net income in 2019 ($10.0 million in net income attributable to TransUnion). Fraudulent activities committed against us could disrupt our operations, have an adverse effect on our financial results, subject us to substantial legal proceedings and potential liability, result in a material loss of business and/or significantly harm our reputation.
If we experience system failures, personnel disruptions or capacity constraints, or our customers do not modify their systems to accept new releases of our distribution programs, the delivery of our services to our customers could be delayed or interrupted, which could harm our business and reputation and result in the loss of revenues or customers.
Our ability to provide reliable service largely depends on our ability to maintain the efficient and uninterrupted operation of our computer network, systems and data centers, some of which have been outsourced to third-party providers. In addition, we generate a significant amount of our revenues through channels that are dependent on links to telecommunications providers. Our systems, personnel and operations could be exposed to damage or interruption from fire, natural disasters, pandemic illness, power loss, war, terrorist acts, civil disobedience, telecommunication failures, computer viruses, DDoS attacks or human error. We may not have sufficient redundant operations to cover a loss or failure of our systems in a timely manner. Any significant interruption could severely harm our business and reputation and result in a loss of revenue and customers. Additionally, from time to time we send our customers new releases of our distribution programs, some of which contain security updates. Any failure by our customers to install these new releases could expose our customers to computer security risks.
We could lose our access to data sources which could prevent us from providing our services.
Our services and products depend extensively upon continued access to and receipt of data from external sources, including data received from customers, strategic partners and various government and public records repositories. In some cases, we compete with our data providers. Our data providers could stop providing data, provide untimely data or increase the costs for their data for a variety of reasons, including a perception that our systems are insecure as a result of a data security incidents, budgetary constraints, a desire to generate additional revenue or for regulatory or competitive reasons. We could also become subject to increased legislative, regulatory or judicial restrictions or mandates on the collection, disclosure or use of such data, in particular if such data is not collected by our providers in a way that allows us to legally use the data. If we were to lose access to this external data or if our access or use were restricted or were to become less economical or desirable, our ability to provide services could be negatively impacted, which would adversely affect our reputation, business, financial condition and results of operations. We cannot provide assurance that we will be successful in maintaining our relationships with these external data source providers or that we will be able to continue to obtain data from them on acceptable terms or at all. Furthermore, we cannot provide assurance that we will be able to obtain data from alternative sources if our current sources become unavailable.
If we fail to maintain and improve our systems, our data matching technology, and our interfaces with data sources and customers, demand for our services could be adversely affected.
In our markets, there are continuous improvements in computer hardware, network operating systems, programming tools, programming languages, operating systems, data matching, data filtering and other database technologies and the use of the internet. These improvements, as well as changes in customer preferences or regulatory requirements, may require changes in the technology used to gather and process our data and deliver our services. Our future success will depend, in part, upon our ability to:
•internally develop and implement new and competitive technologies;
•use leading third-party technologies effectively;
•respond to changing customer needs and regulatory requirements, including being able to bring our new products to the market quickly; and
•transition customers and data sources successfully to new interfaces or other technologies.
We cannot provide assurance that we will successfully implement new technologies, cause customers or data furnishers to implement compatible technologies or adapt our technology to evolving customer, regulatory and competitive requirements. If we fail to respond, or fail to cause our customers or data furnishers to respond, to changes in technology, regulatory requirements or customer preferences, the demand for our services, the delivery of our services or our market reputation could be adversely affected. Additionally, our failure to implement important updates could affect our ability to successfully meet the timeline for us to generate cost savings resulting from our investments in improved technology. Failure to achieve any of these objectives would impede our ability to deliver strong financial results.

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Risks Related to Laws, Regulations and Government Oversight:
Our business is subject to various governmental regulations, laws and orders, compliance with which may cause us to incur significant expenses or reduce the availability or effectiveness of our solutions, and the failure to comply with which could subject us to civil or criminal penalties or other liabilities.
Our businesses are subject to regulation under the FCRA, the GLBA, the DPPA, HIPAA, HITECH, the Dodd-Frank Act, the FTC Act and various other international, federal, state and local laws and regulations. See “Business-Legal and Regulatory Matters” for a description of select regulatory regimes to which we are subject. These laws and regulations, which generally are designed to protect the privacy of the public and to prevent the misuse of personal information available in the marketplace, are complex, change frequently and have tended to become more stringent over time. We already incur significant expenses to ensure compliance with these laws.
Currently, public concern is high with regard to the operation of credit reporting agencies in the United States, as well as the collection, use, accuracy, correction and sharing of personal information, including Social Security numbers, dates of birth, financial information, medical information, department of motor vehicle data and other behavioral data. In addition, many consumer advocates, privacy advocates, legislatures and government regulators believe that existing laws and regulations do not adequately protect privacy and have become increasingly concerned with the collection and use of this type of personal information. As a result, several U.S. states have recently introduced and passed legislation to expand data security breach notification rules and to mirror some of the data use limitations required by laws and regulations in the European Union and the U.K. These state laws are intended to provide consumers with greater transparency and control over their personal data. For example, CCPA, which became effective on January 1, 2020, applies to certain businesses that collect personal information from California residents and establishes several consumer rights, including a right to know what personal information is being collected about them and whether and to whom it is sold, a right to access their personal information and have it deleted, a right to opt out of the sale of their personal information, and a right to equal service and price regardless of exercise of these rights. While the CCPA includes specific exemptions for practices and activities regulated by GLBA or FCRA, including our credit reporting and financial services business lines, it requires, among other things, new disclosures to California consumers, imposes new rules for collecting or using information about minors, and affords consumers new abilities to opt out of certain disclosures of personal information in other portions of our business that are not regulated by GLBA or FCRA. On November 3, 2020, California adopted the California Privacy Rights Act (the “CPRA”), which amends and expands CCPA. It is anticipated that most of the substantive provisions of CPRA will go into effect in 2023.
Public concern regarding identity theft also has led to more transparency for consumers as to what is in their credit reports. We provide credit reports and scores and monitoring services to consumers for a fee, and this income stream could be reduced or restricted by legislation that requires us to provide these services to consumers free of charge. For example, under U.S. federal law today, we are required to provide consumers with one credit report per year free of charge, and beginning in April 2020, we began offering consumers free weekly credit reports.
The following legal and regulatory developments also could have a material adverse effect on our business, financial condition or results of operations:
•amendment, enactment or interpretation of laws and regulations that restrict the access and use of personal information and reduce the availability or effectiveness of our solutions or the supply of data available to customers;
•changes in governmental, cultural and consumer attitudes in favor of further restrictions on information collection and sharing, which may lead to regulations that prevent full utilization of our solutions;
•failure of data suppliers or customers to comply with laws or regulations, where mutual compliance is required;
•failure of our solutions to comply with current laws and regulations; and
•failure of our solutions to adapt to changes in the regulatory environment in an efficient, cost-effective manner.
Changes in applicable legislation or regulations that restrict or dictate how we collect, maintain, combine and disseminate information, or that require us to provide services to consumers or a segment of consumers without charge, could adversely affect our business, financial condition or results of operations. In the future, we may be subject to significant additional expense to ensure continued compliance with applicable laws and regulations and to investigate, defend or remedy actual or alleged violations. Any failure by us to comply with applicable laws or regulations could also result in significant liability to us, including liability to private plaintiffs as a result of individual or class action litigation, or may result in the cessation of our operations or portions of our operations or impositions of fines and restrictions on our ability to carry on or expand our operations. Moreover, our compliance with privacy laws and regulations and our reputation depend in part on our customers’ adherence to privacy laws and regulations and their use of our services in ways consistent with consumer expectations and regulatory requirements. Certain of the laws and regulations governing our business are subject to interpretation by judges, juries and administrative entities, creating substantial uncertainty for our business. We cannot predict what effect the interpretation of existing or new laws or regulations may have on our business. See “Business-Legal and Regulatory Matters.”
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The Consumer Financial Protection Bureau has supervisory and examination authority over our business and may initiate enforcement actions with regard to our compliance with federal consumer financial laws.
The CFPB has broad authority over our business. This includes authority to issue regulations under federal consumer financial protection laws, such as under FCRA and other laws applicable to us and our financial customers. The CFPB is authorized to prevent “unfair, deceptive or abusive acts or practices” through its regulatory, supervisory and enforcement authority.
In 2012, credit reporting companies like us became subject to a federal supervision program for the first time under the CFPB’s authority to supervise and examine certain non-depository institutions that are “larger participants” of the consumer credit reporting market. The CFPB conducts examinations and investigations, and may issue subpoenas and bring civil actions in federal court for violations of the federal consumer financial laws including FCRA. In these proceedings, the CFPB can seek relief that includes: rescission or reformation of contracts, restitution, disgorgement of profits, payment of damages, limits on activities and civil money penalties of up to $1.0 million per day for knowing violations. The CFPB conducts periodic examinations of us and the consumer credit reporting industry, which could result in new regulations or enforcement actions or proceedings. Actions by the CFPB could result in requirements to alter or cease offering affected products and services, making them less attractive and restricting our ability to offer them.
For example, in January 2017, as part of an agreed settlement with the CFPB, we agreed among other things, to implement certain practice changes in the way we advertise, market and sell products and services offered directly to consumers. In June 2021, we received a Notice and Opportunity to Respond and Advise (“NORA”) letter from the CFPB, informing us that the CFPB’s Enforcement Division is considering whether to recommend that the CFPB take legal action against us and certain of our executive officers. The NORA letter alleges that we failed to comply with and timely implement the Consent Order issued by the CFPB in January 2017, and further alleges additional violations related to Consumer Interactive’s marketing practices. On September 27, 2021, the Enforcement Division advised us that it had obtained authority to pursue an enforcement action. We are currently engaged in active settlement discussions with the CFPB regarding this matter. If our ongoing discussions do not result in a negotiated resolution, we expect that the CFPB will pursue litigation against the Company and these executive officers, seeking restitution, civil money penalties, and injunctive relief. We cannot provide assurance that the CFPB will not ultimately commence litigation against us in this matter, nor are we able to predict the likely outcome of this matter. As of December 31, 2021, we have an accrual of $26.5 million recorded in connection with this matter and there is a reasonable possibility that a loss in excess of the amount accrued may be incurred, and such an outcome could have a material adverse effect on our results of operations and financial condition, however, any possible loss or range of loss in excess of the amount accrued is not reasonably estimable at this time. See “FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA - Notes to Consolidated Financial Statements,” Note 20, “Contingencies” for information regarding our legal proceedings.
Although we have committed resources to enhancing our risk and compliance programs, actions by the CFPB or other regulators against us could result in reputational harm, payment of damages and civil monetary penalties, injunctive relief and/or restitution, any of which could have a material adverse effect on our business, results of operations and financial condition. Our compliance costs and legal and regulatory exposure could increase materially if the CFPB or other regulators enact new regulations, change regulations that were previously adopted, modify through supervision or enforcement past regulatory guidance, or interpret existing regulations in a manner different or stricter than have been previously interpreted.
Regulatory oversight of our contractual relationships with certain of our customers may adversely affect our business.
The Office of the Comptroller of the Currency’s (the “OCC”) guidance to national banks and federal savings associations on assessing and managing risks associated with third-party relationships, which include all business arrangements between a bank and another entity, by contract or otherwise, requires banks to exercise comprehensive oversight throughout each phase of a bank’s business arrangement with third-party service providers, and instructs banks to adopt risk management processes commensurate with the level of risk and complexity of its third-party relationships. The OCC expects especially rigorous oversight of third-party relationships that involve certain “critical activities.” In light of this guidance, our existing or potential financial services customers subject to OCC regulation may continue to revise their third-party risk management policies and processes and the terms on which they do business with us, which may adversely affect our relationship with such customers.
The outcome of litigation, inquiries, investigations, examinations or other legal proceedings in which we are involved, in which we may become involved, or in which our customers or competitors are involved could subject us to significant monetary damages or restrictions on our ability to do business.
Legal proceedings arise frequently as part of the normal course of our business. These may include individual consumer cases, class action lawsuits and inquiries, investigations, examinations, regulatory proceedings or other actions brought by federal or state authorities or by consumers. The scope and outcome of these proceedings is often difficult to assess or quantify. Plaintiffs in lawsuits may seek recovery of large amounts and the cost to defend such litigation may be significant. There may also be adverse publicity and uncertainty associated with investigations, litigation and orders (whether pertaining to us, our customers or our competitors) that could decrease customer acceptance of our services or result in material discovery expenses. In addition, a court-ordered injunction or an administrative cease-and-desist order or settlement may require us to modify our
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business practices or may prohibit conduct that would otherwise be legal and in which our competitors may engage. Many of the technical and complex statutes to which we are subject, including state and federal credit reporting, medical privacy and financial privacy requirements, may provide for civil and criminal penalties and may permit consumers to maintain individual or class action lawsuits against us and obtain statutorily prescribed damages. Additionally, our customers might face similar proceedings, actions or inquiries, which could affect their business and, in turn, our ability to do business with those customers. While we do not believe that the outcome of any pending or threatened legal proceeding, investigation, examination or supervisory activity will have a material adverse effect on our financial position, such events are inherently uncertain and adverse outcomes could result in significant monetary damages, penalties or injunctive relief against us.
See “FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA - Notes to Consolidated Financial Statements,” Note 22, “Contingencies” for information regarding our legal proceedings.
Risks Related to Intellectual Property
We may be unable to protect our intellectual property adequately or cost-effectively, which may cause us to lose market share or force us to reduce our prices. We also rely on trade secrets and other forms of unpatented intellectual property that may be difficult to protect.
Our success depends, in part, on our ability to protect and preserve the proprietary aspects of our technology and services. If we are unable to protect our intellectual property, including trade secrets and other unpatented intellectual property, our competitors could use our intellectual property to market and deliver similar services, decreasing the demand for our services. We rely on the patent, copyright, trademark, trade secret and other intellectual property laws of the United States and other countries, as well as contractual restrictions, such as nondisclosure agreements, to protect and control access to our proprietary intellectual property. These measures afford limited protection, however, and may be inadequate. We may be unable to prevent third parties from using our proprietary assets without our authorization or from breaching any contractual restrictions with us. Enforcing our rights could be costly, time-consuming, distracting and harmful to significant business relationships. Claims that a third party illegally obtained and is using trade secrets can be difficult to prove, and courts outside the United States may be less willing to protect trade secrets. Additionally, others may independently develop non-infringing technologies that are similar or superior to ours. Any significant failure or inability to adequately protect and control our proprietary assets may harm our business and reduce our ability to compete.
We may face claims for intellectual property infringement, which could subject us to monetary damages or limit us in using some of our technologies or providing certain services.
There has been substantial litigation in the United States regarding intellectual property rights in the information technology industry. We cannot be certain that we do not infringe on the intellectual property rights of third parties, including the intellectual property rights of third parties in other countries, which could result in a liability to us. Historically, patent applications in the United States and some foreign countries have not been publicly disclosed until eighteen months following submission of the patent application, and we may not be aware of currently filed patent applications that relate to our products or processes. If patents are later issued on these applications, we may be liable for infringement. In the event that claims are asserted against us, we may be required to obtain licenses from third parties (if available on acceptable terms or at all). Any such claims, regardless of merit, could be time consuming and expensive to litigate or settle, divert the attention of management and materially disrupt the conduct of our business, and we may not prevail. Intellectual property infringement claims against us could subject us to liability for damages and restrict us from providing services or require changes to certain products or services. Although our policy is to obtain licenses or other rights where necessary, we cannot provide assurance that we have obtained all required licenses or rights. If a successful claim of infringement is brought against us and we fail to develop non-infringing products or services, or to obtain licenses on a timely and cost-effective basis, our reputation, business, financial condition and results of operations could be adversely affected.
Risks Related to Global Operations
Our ability to expand our operations in, and the portion of our revenue derived from, markets outside the United States is subject to economic, political and other inherent risks, which could adversely impact our growth rate and financial performance.
Over the last several years, we have derived a growing portion of our revenues from customers outside the United States, and it is our intent to continue to expand our international operations. We have sales and technical support personnel in numerous countries worldwide. We expect to continue to add personnel internationally to expand our abilities to deliver differentiated services to our international customers. Expansion into international markets will require significant resources and management attention and will subject us to new regulatory, economic and political risks. Moreover, the services we offer in developed and emerging markets must match our customers’ demand for those services. Due to price, limited purchasing power and differences in the development of consumer credit markets, there can be no assurance that our services will be accepted in any particular developed or emerging market, and we cannot be sure that our international expansion efforts will be successful. The
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results of our operations and our growth rate could be adversely affected by a variety of factors arising out of international commerce, some of which are beyond our control. These factors include:
•currency exchange rate fluctuations;
•foreign exchange controls that might prevent us from repatriating cash to the United States;
•difficulties in managing and staffing international offices;
•increased travel, infrastructure, legal and compliance costs of multiple international locations;
•foreign laws and regulatory requirements;
•terrorist activity, natural disasters and other catastrophic events;
•restrictions on the import and export of technologies;
•difficulties in enforcing contracts and collecting accounts receivable;
•longer payment cycles;
•failure to meet quality standards for outsourced work;
•unfavorable tax rules;
•political and economic conditions in foreign countries, particularly in emerging markets;
•the presence and acceptance of varying level of business corruption in international markets;
•varying business practices in foreign countries; and
•reduced protection for intellectual property rights.
For example, revenue from our International segment increased 4.5% in 2021 and 3.5% in 2020 due to the impact of foreign currencies. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations-Twelve Months Ended December 31, 2021, 2020 and 2019-Revenue-International Segment.” As we continue to expand our business, our success will partially depend on our ability to anticipate and effectively manage these and other risks. Our failure to manage these risks could adversely affect our business, financial condition and results of operations.
Risks Related to Our Growth Strategy
When we engage in acquisitions, investments in new businesses or divestitures of existing businesses, we face risks that may adversely affect our business.
We have acquired and may continue to acquire or make investments in businesses that offer complementary services and technologies. Acquisitions may not be completed on favorable terms and acquired assets, data or businesses may not be successfully integrated into our operations. Even if we devote substantial management attention and resources to integrating acquired businesses in order to fully realize the anticipated benefits of such acquisitions, the businesses and assets acquired may not be successful or continue to grow at the same rate as when operated independently or may require greater resources and investments than we originally anticipated. Acquisitions, such as the acquisitions of Neustar and Sontiq, involve significant risks and uncertainties, including:
•failing to achieve the financial and strategic goals for the acquired business;
•paying more than fair market value for an acquired company or assets;
•failing to integrate the operations and personnel of the acquired businesses in an efficient and timely manner;
•disrupting our ongoing businesses, including loss of sales;
•distracting management focus from our existing businesses;
•assumption of unanticipated or contingent liabilities;
•failing to retain key personnel;
•incurring the expense of an impairment of assets due to the failure to realize expected benefits;
•damaging relationships with employees, customers or strategic partners;
•diluting the share value of existing stockholders; and
•incurring additional debt or reducing available cash to service our existing debt.
We have divested our Healthcare business and may in the future divest certain assets or businesses that no longer fit with our growth strategy. Divestitures involve significant risks and uncertainties, including:
•disrupting our ongoing businesses;
•failure to effectively transfer liabilities, contracts, facilities and employees to buyers;
•reducing our revenues;
•losing key personnel;
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•distracting management focus from our existing businesses;
•the possibility that we will become subject to third-party claims arising out of such divestiture;
•indemnification claims for breaches of representations and warranties in sale agreements;
•damaging relationships with employees and customers as a result of transferring a business to new owners; and
•failure to close a transaction due to conditions such as financing or regulatory approvals not being satisfied.
These risks could harm our business, financial condition or results of operations, particularly if they occur in the context of a significant acquisition or divestiture. In addition, changes in laws and regulations following a significant acquisition or divestiture could adversely impact our business, financial condition, results of operations and growth prospects. Acquisitions of businesses having a significant presence outside the United States will increase our exposure to the risks of conducting operations in international markets.
We depend, in part, on strategic alliances, joint ventures and acquisitions to grow our business. If we are unable to make strategic acquisitions and develop and maintain these strategic alliances and joint ventures, our growth may be adversely affected.
An important focus of our business is to identify business partners who can enhance our services and enable us to develop solutions that differentiate us from our competitors. We have entered into several alliance agreements or license agreements with respect to certain of our datasets and services and may enter into similar agreements in the future. These arrangements may require us to restrict our use of certain of our technologies among certain customer industries, or to grant licenses on terms that ultimately may prove to be unfavorable to us, either of which could adversely affect our business, financial condition or results of operations. Relationships with our alliance agreement partners may include risks due to incomplete information regarding the marketplace and commercial strategies of our partners, and our alliance agreements or other licensing agreements may be the subject of contractual disputes. If we or our alliance agreements’ partners are not successful in maintaining or commercializing the alliance agreements’ services, such commercial failure could adversely affect our business.
In addition, a significant strategy for our international expansion is to establish operations through strategic alliances or joint ventures with local financial institutions and other partners. We cannot provide assurance that these arrangements will be successful or that our relationships with our partners will continue to be mutually beneficial. If these relationships cannot be established or maintained, it could negatively impact our business, financial condition and results of operations. Moreover, our ownership in and control of our foreign investments may be limited by local law.
We also selectively evaluate and consider acquisitions as a means of expanding our business and entering into new markets. We may not be able to acquire businesses we target due to a variety of factors such as competition from companies that are better positioned to make the acquisition. Our inability to make such strategic acquisitions could restrict our ability to expand our business and enter into new markets which would limit our ability to generate future revenue growth. Additionally, given some of our equity interests in various companies, we may be limited in our ability to require or influence such companies to make acquisitions or take other actions that we believe to be in our or their best interests. Our inability to take such actions could have a material impact on our revenues or earnings.
Risks Related to Our Indebtedness
We have a substantial amount of debt which could adversely affect our financial position and prevent us from fulfilling our obligations under the debt instruments.
As of December 31, 2021, the book value of our debt was approximately $6,365.9 million consisting of outstanding borrowings under Trans Union LLC’s senior secured credit facility. We may also incur significant additional indebtedness in the future. Our substantial indebtedness may:
•make it difficult for us to satisfy our financial obligations, including with respect to our indebtedness;
•limit our ability to borrow additional funds for working capital, capital expenditures, acquisitions or other general business purposes;
•limit our ability to use our cash flow or obtain additional financing for future working capital, capital expenditures, acquisitions or other general business purposes;
•require us to use a substantial portion of our cash flow from operations to make debt service payments;
•expose us to the risk of increased interest rates as certain of our borrowings, including Trans Union LLC’s senior secured credit facility, are at variable rates of interest;
•limit our ability to pay dividends;
•limit our flexibility to plan for, or react to, changes in our business and industry;
•place us at a competitive disadvantage compared with our less-leveraged competitors; and
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•increase our vulnerability to the impact of adverse economic and industry conditions.
In addition, the credit agreement governing Trans Union LLC’s senior secured credit facility contains restrictive covenants that may limit our ability to engage in activities that may be in our long-term best interest. Our failure to comply with those covenants could result in an event of default which, if not cured or waived, could result in the acceleration of substantially all of our debt.
We have incurred material expenses and indebtedness related to the acquisitions of Neustar and Sontiq.
We have incurred material expenses and indebtedness in acquiring and integrating the business, operations, practices, policies and procedures of each of Neustar and Sontiq. We have incurred and expect to continue to incur integration expenses in connection with the acquisitions, but such expenses are difficult to estimate at the present time and there are a number of factors beyond our control that could affect the total amount, or the timing, of such expenses, and actual integration expenses could be materially different than our current estimates. We financed the purchase price consideration for each of the Neustar and Sontiq acquisitions through debt financing, which increased our debt service obligations and has led to a downgrade of our credit rating by one credit rating agency and could lead to further downgrades from other credit rating agencies. We fully repaid the Sontiq debt in December of 2021. We cannot assure you the indebtedness related to the Neustar acquisition or the expenses related to Neustar and Sontiq acquisitions will not have an adverse effect on us or our results of operations.
Despite our current level of indebtedness, we may still be able to incur additional indebtedness. This could further the risks associated with our substantial indebtedness.
We and our subsidiaries may be able to incur substantial additional indebtedness in the future. The terms of the credit agreement govern our debt limit, but do not prohibit, us or our subsidiaries from incurring additional indebtedness, and any additional indebtedness incurred in compliance with these restrictions could be substantial. If we incur any additional debt, the priority of that debt may impact the ability of existing debt holders to share ratably in any proceeds distributed in connection with any insolvency, liquidation, reorganization, dissolution or other winding-up of us, subject to collateral arrangements. These restrictions will also not prevent us from incurring obligations that do not constitute indebtedness. We also have the ability to request incremental loans on the same terms under the existing senior secured credit facility up to the greater of $1.0 billion and 100% of consolidated EBITDA, and may incur additional incremental loans so long as the senior secured net leverage ratio does not exceed 4.25 to 1.0, subject to certain additional conditions and commitments by existing or new lenders to fund any additional borrowings. If new indebtedness is added to our current debt levels, the related risks that we and our subsidiaries now face could intensify.
We may not be able to generate sufficient cash to service all of our indebtedness, and may be forced to take other actions to satisfy our obligations under our indebtedness, which may not be successful.
Our ability to make scheduled payments due on our debt obligations or to refinance our debt obligations depends on our financial condition and operating performance, which are subject to prevailing economic, industry and competitive conditions and to certain financial, business, legislative, regulatory and other factors beyond our control as discussed above. Our total scheduled principal repayments of debt made in 2021 and 2020 were $54.8 million and $58.8 million, respectively. Our total interest expense for 2021 and 2020 was $112.6 million and $126.3 million, respectively. We may be unable to maintain a level of cash flow from operating activities sufficient to permit us to pay the principal, premium, if any, and interest on our indebtedness.
If our cash flow and capital resources are insufficient to fund our debt service obligations, we could face substantial liquidity problems and could be forced to reduce or delay investments and capital expenditures or to dispose of material assets or operations, seek additional debt or equity capital or restructure or refinance our indebtedness. We may not be able to implement any such alternative measures on commercially reasonable terms or at all and, even if successful, those alternative actions may not allow us to meet our scheduled debt service obligations. The credit agreement governing Trans Union LLC’s senior secured credit facility restricts our ability to dispose of assets and use the proceeds from those dispositions and may also restrict our ability to raise debt or equity capital to be used to repay other indebtedness when it becomes due. We may not be able to consummate those dispositions or to obtain proceeds in an amount sufficient to meet any debt service obligations then due. In addition, under the covenants of the credit agreement governing our senior secured credit facility, TransUnion Intermediate is restricted from making certain payments, including dividend payments to TransUnion, subject to certain exceptions.
Our inability to generate sufficient cash flow to satisfy our debt obligations, or to refinance our indebtedness on commercially reasonable terms or at all, would materially and adversely affect our financial position and results of operations and our ability to satisfy our obligations.
If we cannot make our scheduled debt payments, we will be in default and all outstanding principal and interest on our debt may be declared due and payable, the lenders under Trans Union LLC’s senior secured credit facility could terminate their commitments to loan money, Trans Union LLC’s secured lenders (including the lenders under Trans Union LLC’s senior
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secured credit facility) could foreclose against the assets securing their borrowings and we could be forced into bankruptcy or liquidation.
The expected LIBOR phase-out may have unpredictable impacts on contractual mechanics in the credit markets or the broader financial markets, which could have an adverse effect on our results of operations.
The United Kingdom Financial Conduct Authority, which regulates LIBOR, intends to cease encouraging or requiring banks to submit rates for the calculation of most LIBOR tenors after June 2023 and is discouraging the use of LIBOR as a benchmark in new contracts. It is unclear whether LIBOR will cease to exist after June 2023 and there is currently no global consensus on what rate or rates will become acceptable alternatives. In the United States, the U.S. Federal Reserve Board-led industry group, the Alternative Reference Rates Committee, selected the Secured Overnight Financing Rate (“SOFR”) as an alternative to LIBOR for U.S. dollar-denominated LIBOR-benchmarked obligations. SOFR is a broad measure of the cost of borrowing cash in the overnight United States treasury repo market, and the Federal Reserve Bank of New York has published the daily rate since 2018. Nevertheless, because SOFR is a backward-looking fully secured overnight rate and LIBOR is a forward-looking unsecured rate, SOFR is likely to be lower than LIBOR on most dates, and any spread adjustment applied by market participants to alleviate any mismatch during a transition period will be subject to methodology that remains undefined. Additionally, master agreements or other contracts drafted before consensus is reached on a variety of details related to a transition may not reflect provisions necessary to address it once LIBOR is fully phased out. Essentially all of our outstanding debt is variable-rate debt, including some based on LIBOR, though we have entered into interest rate swap agreements and cap agreements to limit our exposure to changes in LIBOR. The discontinuation of LIBOR and the transition from LIBOR to SOFR or other benchmark rates could have an unpredictable impact on contractual mechanics in the credit markets or result in disruption to the broader financial markets, including causing interest rates under our current or future agreements to perform differently than in the past, which could have an adverse effect on our results of operations.
Risks Related to Ownership of Our Common Stock
Our stock price has been and may continue to be volatile or may decline regardless of our operating performance, and you may not be able to resell shares of our common stock at or above the price you paid or at all.
The trading price of our common stock has been and may continue to be volatile. The stock market routinely experiences price and volume fluctuations that are often unrelated or disproportionate to the operating performance of the underlying businesses. This market volatility, as well as general economic, market or political conditions, could adversely affect the market price of our common stock, regardless of our actual operating performance, and you may not be able to resell your shares at or above the price you paid. In addition to the risks described in this section, several factors that could cause the price of our common stock to fluctuate significantly include, among others, the following, most of which we cannot control:
•quarterly variations in our operating results compared to market expectations;
•guidance that we provide to the public, any changes in this guidance or our failure to meet this guidance;
•changes in preferences of our customers;
•announcements of new products or significant price reductions by us or our competitors;
•size of our public float;
•stock price performance of our competitors;
•publication of research reports about our industry;
•changes in market valuations of our competitors;
•fluctuations in stock market prices and volumes;
•default on our indebtedness;
•actions by our competitors;
•changes in senior management or key personnel;
•changes in financial estimates by securities analysts;
•negative earnings or other announcements by us or other credit reporting agencies;
•downgrades in our credit ratings or the credit ratings of our competitors;
•issuances of capital stock or future sales of our common stock or other securities;
•investor perceptions or the investment opportunity associated with our common stock relative to other investment alternatives;
•the public response to press releases or other public announcements by us or third parties, including our filings with the SEC;
•announcements relating to litigation;
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•the sustainability of an active trading market for our stock;
•changes in accounting principles;
•global economic, legal and regulatory factors unrelated to our performance; and
•other events or factors, including those resulting from natural disasters, war, acts of terrorism or responses to these events.
In addition, price volatility may be greater if the public float and trading volume of our common stock is low, and the amount of public float on any given day can vary depending on whether our stockholders choose to hold their shares for the long term.
In the past, following periods of market volatility, stockholders have instituted securities class action litigation against other issuers. If we were involved in securities litigation, it could have a substantial cost and divert resources and the attention of executive management from our business regardless of the outcome of such litigation.
Anti-takeover provisions in our organizational documents might discourage, delay or prevent acquisition attempts for us that you might consider favorable.
Certain provisions of our third amended and restated certificate of incorporation (“Charter”) and third amended and restated bylaws may have an anti-takeover effect and may delay, defer or prevent a merger, acquisition, tender offer, takeover attempt or other change of control transaction that a stockholder might consider in its best interest, including those attempts that might result in a premium over the market price for the shares held by our stockholders.
These provisions provide for, among other things:
•the ability of our board of directors to issue one or more series of preferred stock;
•advance notice for nominations of directors by stockholders and for stockholders to include matters to be considered at our annual meetings;
•certain limitations on convening special stockholder meetings; and
•the removal of directors only for cause until our 2022 Annual Meeting of Stockholders.
At our 2020 Annual Meeting of Stockholders, our stockholders approved the phased declassification of our board of directors such that all directors will stand for election on an annual basis beginning with the 2022 Annual Meeting of Stockholders. The ability to remove a director with or without cause will be implemented when the board of directors is fully declassified at our 2022 Annual Meeting of Stockholders.
The anti-takeover provisions discussed above could make it more difficult for a third party to acquire us, even if the third party’s offer may be considered beneficial by many of our stockholders. As a result, our stockholders may be limited in their ability to obtain a premium for their shares.
Our ability to pay cash dividends may be limited by the terms of our secured credit facility.
On February 13, 2018, we announced that our board of directors approved a dividend policy pursuant to which we intend to pay quarterly cash dividends on our common stock. The terms of our senior secured credit facility impose certain limitations on our ability to pay dividends. We may, however, declare and pay cash dividends up to an unlimited amount unless a default or event of default exists under the senior secured credit facility. Any determination to pay dividends in the future will be at the discretion of our board of directors and will depend upon results of operations, financial condition, contractual restrictions, restrictions imposed by applicable law and other factors our board of directors deems relevant.
General Risks
We may not be able to attract and retain the skilled employees that we need to support our business.
Our success depends on our ability to attract and retain experienced management, sales, research and development, analytics, marketing and technical support personnel. If any of our key personnel were unable or unwilling to continue in their present positions, it may be difficult to replace them and our business could be seriously harmed. If we are unable to find qualified successors to fill key positions as needed, our business could be seriously harmed. The complexity of our services requires trained customer service and technical support personnel. We may not be able to hire and retain such qualified personnel at compensation levels consistent with our compensation structure. Some of our competitors may be able to offer more attractive terms of employment. In addition, we invest significant time and expense in training our employees, which increases their value to competitors who may seek to recruit them. If we fail to retain our employees, we could incur significant expense replacing employees and our ability to provide quality services could diminish, resulting in a material adverse effect on our business.


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We are subject to losses from risks for which we do not insure.
For certain risks, we do not maintain insurance coverage because of cost and/or availability. Because we retain some portion of insurable risks, and in some cases retain our risk of loss completely, unforeseen or catastrophic losses in excess of insured limits could materially adversely affect our business, financial condition and results of operations.
If we fail to implement and maintain proper and effective internal controls over financial reporting, our ability to produce accurate financial statements on a timely basis could be impaired, which could cause investors to lose confidence in our reported financial information and have a negative effect on our stock price.
Ensuring that we have adequate internal financial and accounting controls and procedures in place to produce accurate financial statements on a timely basis is a costly and time-consuming effort that needs to be reevaluated frequently. Our management is responsible for establishing and maintaining adequate internal control over financial reporting to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of financial statements for external purposes in accordance with U.S. generally accepted accounting principles. A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and instances of fraud, if any, within our company will have been detected. Effective internal controls are necessary for us to produce reliable financial reports and are important to prevent fraud. In July, 2019, we identified a material weakness in our internal control over financial reporting that we remediated as of December 31, 2019. See Part II, Item 9A “Controls and Procedures.” Any failure to maintain or implement new or improved controls over financial reporting could result in additional material weaknesses or result in the failure to detect or prevent material misstatements in our financial statements, which could cause investors to lose confidence in our reported financial information and harm our stock price.
The United Kingdom’s withdrawal from the European Union, commonly referred to as Brexit, may have a negative effect on global economic conditions, financial markets and our business.
Following a national referendum and enactment of legislation by the government of the United Kingdom, the United Kingdom formally withdrew from the European Union and ratified a trade and cooperation agreement governing its future relationship with the European Union. The agreement, which became effective May 1, 2021, addresses trade, economic arrangements, law enforcement, judicial cooperation and a governance framework including procedures for dispute resolution, among other things. Because the agreement merely sets forth a framework in many respects and will require complex additional bilateral negotiations between the United Kingdom and the European Union as both parties continue to work on the rules for implementation, significant political and economic uncertainty remains about how the precise terms of the relationship between the parties will differ from the terms before withdrawal. The U.K.’s withdrawal could potentially disrupt the free movement of goods, services and people between the U.K. and the European Union, undermine bilateral cooperation in key geographic areas and significantly disrupt trade between the U.K. and the European Union or other nations as the U.K. pursues 30 independent trade relations. In addition, Brexit could lead to legal uncertainty and potentially divergent national laws and regulations as the U.K. determines which European Union laws to replace or replicate. The effects of Brexit will depend on any agreements the U.K. makes to retain access to the European Union or other markets either during a transitional period or more permanently. Because this is an unprecedented event, it is unclear what long-term economic, financial, trade and legal implications the withdrawal of the U.K. from the European Union would have and how such withdrawal would affect our business globally and in the region. In addition, Brexit may lead other European Union member countries to consider referendums regarding their European Union membership. These developments, or the perception that any related developments could occur, have had and may continue to have a material adverse effect on global economic conditions and global financial markets, and may significantly reduce global market liquidity, restrict the ability of key market participants to operate in certain financial markets or restrict our access to capital. Any of these factors could have a material adverse effect on our business, financial condition and results of operations and reduce the price of our common stock. Our U.K. operations represented approximately 7.3% of consolidated revenue for the year ended December 31, 2021.
If we experience changes in tax laws or adverse outcomes resulting from examination of our tax returns, it could adversely affect our results of operations.
We are subject to federal, state and local income and other taxes in the United States and in foreign jurisdictions. From time to time the United States federal, state, local and foreign governments make substantive changes to tax rules and the application thereof, which could result in materially different corporate taxes than would be incurred under existing tax law or interpretation and could adversely impact profitability. Governments have strengthened their efforts to increase revenues through changes in tax law, including laws regarding transfer pricing, economic presence and apportionment to determine the tax base.
Consequently, significant judgment is required in determining our worldwide provision for income taxes. Our future effective tax rates and the value of our deferred tax assets could be adversely affected by changes in tax laws. In addition, we are subject
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to the examination of our income tax returns and other tax returns by the Internal Revenue Service and other tax authorities. We regularly assess the likelihood of adverse outcomes resulting from such examinations to determine the adequacy of our provision for income taxes and reserves for other taxes. Although we believe we have made appropriate provisions for taxes in the jurisdictions in which we operate, changes in tax laws, or challenges from tax authorities under existing tax laws could adversely affect our business, financial condition and results of operations.
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ITEM 1B. UNRESOLVED STAFF COMMENTS
None.
ITEM 2. PROPERTIES
Properties
Our corporate headquarters and main data center are located in Chicago, Illinois, in an office building that we own. As of December 31, 2021, we lease space in over 100 other locations, including office space and additional data centers. These locations are geographically dispersed to meet our sales and operating needs. We anticipate that suitable additional or alternative space will be available at commercially reasonably terms for future expansion.
ITEM 3. LEGAL PROCEEDINGS
See Part II, ITEM 8 “FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA - Notes to Consolidated Financial Statements,” Note 22, “Contingencies” for information regarding our legal proceedings.
ITEM 4. MINE SAFETY DISCLOSURES
Not Applicable.
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INFORMATION ABOUT OUR EXECUTIVE OFFICERS
Our executive officers, and their positions and ages as of February 22, 2022, are set forth below:
NameAgePosition
Christopher A. Cartwright56President & Chief Executive Officer and Director
Venkat Achanta49Executive Vice President, Chief Data & Analytics Officer
Todd M. Cello46Executive Vice President, Chief Financial Officer
Steven M. Chaouki49President, U.S. Markets and Consumer Interactive
Abhinav (Abhi) Dhar50Executive Vice President, Chief Information & Technology Officer
Timothy J. Martin51Executive Vice President, Chief Global Solutions Officer
R. Dane Mauldin51Executive Vice President, Chief Operations Officer
Susan W. Muigai52Executive Vice President, Chief Human Resources Officer
Heather J. Russell50Executive Vice President, Chief Legal Officer
Todd C. Skinner52President, International
Christopher A. Cartwright has served as the President & Chief Executive Officer of TransUnion and a member of the board of directors since May 2019. He joined the Company in August 2013, previously serving as Executive Vice President - U.S. Information Services, where he helped drive TransUnion’s transformation into a global information and insights company as the head of the largest business unit, including providing consumer reports, risk scores, analytical services and decision technology to customers in the U.S. across the financial services, insurance, tenant and employment screening and public sector industries.
Prior to joining TransUnion, Mr. Cartwright was the Chief Executive Officer of Decision Insight Information Group, a portfolio of independent businesses providing real property information, software and services to insurance, finance, legal and real estate professionals in the United States, Canada and Europe. Mr. Cartwright also spent almost 14 years at Wolters Kluwer, a global information services and workflow solutions company, where he held a variety of executive positions of increasing responsibility. Prior to Wolters Kluwer, he was Senior Vice President, Strategic Planning & Operations for Christie’s Inc. and Strategy Consultant for Coopers and Lybrand.
Mr. Cartwright earned his bachelor's degree in business administration and his master's in public accountancy from The University of Texas at Austin.
Venkat Achanta has served as Executive Vice President and Chief Data & Analytics Officer for TransUnion since February 2022. Mr. Achanta was appointed to this position following completion of TransUnion’s acquisition of Neustar, Inc. in December 2021. He previously served as Executive Vice President and Chief Data & Technology Officer of Neustar, where he led data science, data strategy and technology teams across Neustar. While at Neustar, he helped lead the creation of the OneID platform and technology transformation across all products.
Prior to joining Neustar in 2016, Mr. Achanta was Chief Data Officer and Head of Data and Analytics at Walmart, beginning in 2014, leading all data and analytics delivery platforms across the company globally. While at Walmart, he spearheaded the data fabric, advanced analytics platforms and decision services groups. Prior to Walmart, Mr. Achanta was Global Head of Analytics and Big Data at AIG. Mr. Achanta also has held senior leadership positions in data and analytics at Capital One and Experian.
Mr. Achanta earned his Bachelor of Science degree in Computer Science and Engineering from Andhra University in India and his M.B.A. from UCLA’s Anderson School of Management.
Todd M. Cello joined the Company in October 1997 and has held numerous roles with increasing levels of responsibility in the corporate finance department. Mr. Cello has served as our Executive Vice President, Chief Financial Officer since August 2017. Prior to his current role, Mr. Cello served as Senior Vice President and International CFO from August 2015 to August 2017, overseeing financial operations for the International segment. Prior to that, Mr. Cello served as Vice President, Financial Planning and Analysis from January 2009 to August 2015, overseeing the enterprise financial planning and analysis function, where he played a lead role in the two leveraged buyouts of TransUnion in 2010 and 2012 and the initial public offering of TransUnion in 2015. Prior to that, Mr. Cello served as Vice President and U.S. Information Services CFO from October 2005 to December 2008, overseeing financial operations of the U.S. Information Services segment. Mr. Cello also serves on the University of Illinois at Chicago’s College of Business Advisory Council.
Mr. Cello earned his bachelor’s degree in Accounting from University of Illinois at Chicago and is a certified public accountant.
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Steven M. Chaouki is President, U.S. Markets & Consumer Interactive, overseeing two TransUnion business lines. U.S. Markets provides information and insights to business customers across financial services, insurance, public sector, media and diversified markets. Consumer Interactive provides credit, financial and identity protection services to consumers. He previously held the role of Executive Vice President, Financial Services from 2013 until May 2019, responsible for the company’s financial services business, which provides solutions to banks, credit unions, capital markets, financial services resellers, auto lenders and other customers. Before joining TransUnion, Mr. Chaouki held roles at HSBC in card/retail services and auto finance. Mr. Chaouki serves on the boards of MAIA Biotechnology, Inc. and Spring Labs.
Mr. Chaouki earned his M.B.A. from the University of Chicago Booth School of Business and his bachelor’s degree from Boston University.
Abhinav (Abhi) Dhar joined the Company in January 2019 as Executive Vice President, Chief Information & Technology Officer. In this role, Mr. Dhar is responsible for all aspects of the company’s technology, including strategy, security, applications, operations, infrastructure and delivery of solutions that support TransUnion’s global information systems. Prior to TransUnion, Mr. Dhar co-founded Packyge, Inc. in April 2017, a last-mile delivery startup focused on enabling last step in-store digital experiences. Prior to Packyge, he held technology leadership roles at Walgreen Boots Alliance (WBA), a pharmacy retail and wholesale company, including Chief Digital Officer, WBA and Chief Information Officer, Retail Pharmacy USA from November 2016 to April 2017, Chief Information Officer and SVP, Digital Product Management and Innovation from December 2015 to November 2016 and SVP and Chief Information Officer, Walgreens, a pharmacy retail company, from November 2014 to December 2015. Mr. Dhar joined WBA in 2009 as CTO for the Walgreens Digital Division. Prior to joining WBA, Mr. Dhar held roles of increasing technology management responsibility in travel distribution companies.
Mr. Dhar earned his B.E. in Mechanical Engineering from the National Institute of Engineering in Mysore, India and his M.S. in Industrial Engineering from the New Jersey Institute of Technology.
Timothy J. Martin has served as Executive Vice President, Chief Global Solutions Officer since May 2019. In this role, Mr. Martin is responsible for managing revenue growth and profitability through the strategy, planning, innovation and commercialization of nearly all of TransUnion’s products and solutions globally. He previously held business management roles at TransUnion leading both a number of industry vertical-focused teams and a high growth horizontal solution called the Specialized Risk Group. Prior to joining TransUnion in September 2009, Mr. Martin was President and Chief Operating Officer of HSBC Auto Finance where he had direct profit & loss responsibility for all strategy, business development, sales, marketing, pricing, risk management, underwriting operations, customer service and collections. Prior to joining HSBC, he was a consultant with Booz Allen Hamilton (now PWC Strategy&) from 1998 to 2003, and senior marketing analyst with American Airlines from 1992 to 1996. Mr. Martin serves on the board of Juvenile Diabetes Research Foundation of South Florida and the Child Rescue Coalition.
Mr. Martin earned his B.S. in Management from Purdue University and his M.B.A. from the University of Michigan Business School.
R. Dane Mauldin has served as Executive Vice President, Chief Operations Officer for TransUnion since May 2019. In this role, Mr. Mauldin leads the organization’s focus on operations across the enterprise, including vision, planning and execution required throughout the customer journey. He previously held the role of Chief Product Officer from 2013 until May 2019, where he was responsible for content acquisition, analytic discovery, product development and product delivery across the company’s global footprint. Mr. Mauldin has an extensive background in the information solutions industry. Prior to joining TransUnion, he served as Chief Executive Officer of Screening Solutions and Customer Operations for LexisNexis Risk Solutions, a division of Reed Elsevier. Prior roles at LexisNexis included Vice President of Total Customer Experience and Vice President of Collections Market Planning. He also held management positions at Commercial Financial Services and Experian.
Mr. Mauldin earned his bachelor’s degree in Journalism from the University of Oklahoma.
Susan W. Muigai has served as Executive Vice President, Chief Human Resources Officer since 2021. She is responsible for leading TransUnion’s human resource strategy and function, and nurturing an inclusive, high-performance culture to help TransUnion achieve its vision and strategy. Ms. Muigai brings deep expertise in talent strategy with an extensive background in global HR, human capital management, organizational leadership, diversity and inclusion, legal and compliance, business transformation and more. She previously spent 16 years at Walmart, based in the U.S., Canada and India, serving as Senior Vice President, People from March 2020 to September 2021, Executive Vice President People/Corporate Affairs, Walmart Canada from August 2016 to August 2020, Senior Vice President People, Walmart Canada from January 2016 to July 2016, Vice President People, Walmart Canada from February 2015 to December 2015, Vice President, International Real Estate and Vice President International Real Estate, Walmart International Real Estate from March 2014 to February 2015, Senior Vice President Legal, General Counsel & Chief Ethics Officer, Walmart India from November 2012 to March 2014, Vice President Audit, Walmart Canada from September 2009 to October 2012, and Senior Director, Risk Management, Walmart Canada from June 2005 to September 2009. She previously worked at Lang Michener LLP.
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Ms. Muigai earned her Master of Law in International Business from the University of London, and her Bachelor of Law from the University of Windsor in Canada. She sits on the Board of Breakfast Club of Canada and previously sat on the boards of MassMart Holdings Ltd and the Walmart Foundation.
Heather J. Russell is Executive Vice President, Chief Legal Officer of TransUnion. Ms. Russell is an accomplished legal executive with more than 25 years of diverse experience across the global financial services and technology sectors. She is responsible for legal, risk, compliance, government and regulatory relations, corporate governance, consumer privacy and ESG functions for TransUnion and its subsidiaries around the world. Prior to joining the Company in 2018, Ms. Russell was a partner at the law firm of Buckley, LLP, from October 2016 until May 2018, where she led the firm’s Financial Institutions Regulation, Supervision and FinTech practices. Previously, she served as Executive Vice President, Chief Legal Officer and Corporate Secretary at Fifth Third Bank from September 2015 until July 2016. From July 2011 until August 2015, Ms. Russell was Managing Director and Global Head of Public Policy and Regulatory Affairs at Bank of New York Mellon. Prior to that, she spent five years as Senior Vice President and Associate General Counsel at Bank of America and eight years at Skadden in Washington, D.C. and London focused on financial services, corporate finance, and mergers and acquisitions.
Ms. Russell earned her B.A. from the College of William & Mary and her J.D. with honors from American University’s Washington College of Law, where she received the Outstanding Graduate Award. Ms. Russell serves on the board of the Chicago Council on Global Affairs, which advances policy solutions and fosters dialogue on critical global issues. She is also a board member of Illinois Legal Aid Online and serves in fundraising advisory roles for the National Women’s Law Center, Pitch Your Peers Chicago and the National Immigrant Justice Center.
Todd C. Skinner has served as President International since August 2021 and is responsible for leading TransUnion’s growth across international markets. Mr. Skinner has nearly 30 years of experience delivering information solutions at leading global companies. He joined TransUnion in 2014, previously serving as TransUnion’s Regional President of Canada, Latin American and Caribbean. Prior to joining TransUnion, Skinner held leadership roles at First Canadian Title and HSBC.
Mr. Skinner earned his M.B.A. from Schulich – Kellogg School of Management and his bachelor’s of commerce from St. Mary’s University. He serves as TransUnion’s representative on the Global Board of the U.S.-India Business Council (USIBC) and is on the Board of Directors for Buro De Credito and Cliffside Capital.
Our executive officers are elected annually by our board of directors. There are no family relationships among any of the Company’s executive officers.

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PART II

ITEM 5. MARKET FOR THE REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
Market Information
Our common stock has been listed on The New York Stock Exchange under the symbol “TRU” since June 25, 2015.
Holders of Record
As of January 31, 2022, we had 15 stockholders of record. We have a greater number of beneficial owners of our stock who own their shares through brokerage firms and other nominees.
Recent Sales of Unregistered Securities
None.
Issuer Purchases of Equity Securities
Period
Total Number of
Shares Purchased(1)
Average Price
Paid Per Share		Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs
Approximate Dollar Value of Shares that May Yet Be Purchased Under the Plans or Programs(2)
October 1 to October 313,482 $113.45 — $166.5 
November 1 to November 30— — — $166.5 
December 1 to December 3114,073 110.73 — $166.5 
Total17,555 — 

(1)Represents shares that were repurchased from employees for withholding taxes for share-based awards pursuant to the Company’s equity compensation plans.    
(2)On February 13, 2017, our board of directors authorized the repurchase of up to $300.0 million of our common stock through February 13, 2020. Our board of directors removed the three-year time limitation on February 8, 2018. Prior to the fourth quarter of 2017, we had purchased approximately $133.5 million of common stock under the program and may purchase up to an additional $166.5 million. Additional repurchases may be made from time to time at management’s discretion at prices management considers to be attractive through open market purchases or through privately negotiated transactions, subject to availability. Open market purchases will be conducted in accordance with the limitations set forth in Rule 10b-18 of the Exchange Act and other applicable legal requirements. We have no obligation to repurchase additional shares, and the timing, actual number and value of the shares that are repurchased, if any, will be at the discretion of management and will depend on a number of factors, including market conditions, the cost of repurchasing shares, the availability of alternative investment opportunities, liquidity, and other factors deemed appropriate. Repurchases may be suspended, terminated or modified at any time for any reason. Any repurchased shares will have the status of treasury shares and may be used, if and when needed, for general corporate purposes.
Performance Graph
This performance graph shall not be deemed “soliciting material” or to be “filed” with the SEC for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities under that Section, and shall not be deemed to be incorporated by reference into any filing of TransUnion under the Securities Act of 1933, as amended, or the Exchange Act.
The following graph shows a comparison of cumulative total shareholder return for the Company’s common stock, the Russell 3000 and the Dow Jones U.S. Financials Index. The graph assumes that $100 was invested at market close on December 31, 2016, in each of the Company’s common stock, the Russell 3000 and the Dow Jones U.S. Financial Index. The cumulative total returns for the Russell 3000 and the Dow Jones U.S. Financial Index assume reinvestment of dividends. The stock price performance of the following graph is not necessarily indicative of future stock price performance.

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ITEM 6. RESERVED
Reserved


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ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of TransUnion’s financial condition and results of operations is provided as a supplement to, and should be read in conjunction with Part I, Item 1A, “Risk Factors,” and Part II, Item 8, “Financial Statements and Supplementary Information,” including TransUnion’s audited consolidated financial statements and the accompanying notes. In addition to historical data, this discussion contains forward-looking statements about our business, operations and financial performance based on current expectations that involve risks, uncertainties and assumptions. Our actual results may differ materially from those discussed in the forward-looking statements as a result of various factors, including but not limited to those discussed in “Cautionary Notice Regarding Forward-Looking Statements” and Part I, Item 1A, “Risk Factors.”
References in this discussion and analysis to the “Company,” “we,” “us,” and “our” refer to TransUnion and its direct and indirect subsidiaries, including TransUnion Intermediate Holdings, Inc.
Overview
TransUnion is a leading global information and insights company that makes trust possible between businesses and consumers, working to help people around the world access opportunities that can lead to a higher quality of life. That trust is built on TransUnion’s ability to deliver safe, innovative solutions with credibility and consistency. We call this Information for Good.
Grounded in our heritage as a credit reporting agency, we have built robust and accurate databases of information for a large portion of the adult population in the markets we serve. We use our data fusion methodology to link and match an increasing set of disparate data to further enrich our database. We use this enriched data, combined with our expertise, to continuously develop more insightful solutions for our customers, all in accordance with global laws and regulations. Because of our work, organizations can better understand consumers in order to make more informed decisions, and earn consumer trust through great, personalized experiences, and the proactive extension of the right opportunities, tools and offers. In turn, we believe consumers can be confident that their data identities will result in better offers and opportunities.
We provide solutions that enable businesses to manage and measure credit risk, market to new and existing customers, verify consumer identities, mitigate fraud, and effectively manage call center operations. Businesses embed our solutions into their process workflows to deliver critical insights and enable effective actions. Consumers use our solutions to view their credit profiles and access analytical tools that help them understand and manage their personal financial information and take precautions against identity theft. We have deep domain expertise across a number of attractive industries, which we also refer to as verticals, including Financial Services and the Emerging Verticals, consisting of Insurance, Services and Collections, Tenant and Employment, Technology, Commerce & Communications, Public Sector, Media, and other emerging verticals we serve, as well as our Neustar business. We have a global presence in over 30 countries and territories across North America, Latin America, Europe, Africa, India, and Asia Pacific.
Our addressable market includes the global data and analytics market, which continues to grow as companies around the world increasingly recognize the benefits of data and analytics-based decision making, and as consumers recognize the important role that their data identities play in their ability to procure goods and services. There are several underlying trends supporting this market growth, including the proliferation of data, advances in technology and analytics that enable data to be processed more quickly and efficiently to provide business insights, and growing demand for these business insights across industries and geographies. Leveraging our established position as a leading provider of information and insights, we have grown our business by expanding the breadth and depth of our data, strengthening our analytics capabilities to deliver innovative solutions, expanding into complementary adjacencies and vertical markets, investing in technology infrastructure to leverage capabilities to best serve our customers and enhancing our global operating model. As a result, we believe we are well positioned to expand our share within the markets we currently serve and capitalize on the larger data and analytics opportunity.
Our solutions are based on a foundation of data assets across financial, credit, alternative credit, identity, phone activity, digital device information, marketing, bankruptcy, lien, judgment, insurance claims, automotive and other relevant information obtained from thousands of sources including financial institutions, private databases and public records repositories. We refine, standardize and enhance this data using sophisticated algorithms to create proprietary databases. Our acquisition of Neustar, Inc. (“Neustar”), and particularly its OneID platform, will further enhance our ability to deliver real-time, persistent identity resolution of disparate data fragments and attributes, in a privacy compliant manner. Our technology infrastructure allows us to efficiently integrate our data with our analytics and technology capabilities to create and deliver innovative solutions to our customers and to quickly adapt to changing customer needs. Our deep analytics resources, including our people and tools driving predictive modeling and scoring, customer segmentation, benchmarking and forecasting, enable us to provide businesses and consumers with better insights.
We leverage our differentiated capabilities in order to serve a global customer base across multiple geographies and industry verticals. We offer our solutions to business customers in Financial Services, Insurance and other industries, and our customer base includes many of the largest companies in the industries we serve. We sell our solutions to leading consumer lending
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banks, credit card issuers, alternative lenders, online-only lenders (“FinTechs”), Point of Sale (“POS”)/Buy Now Pay Later (“BNPL”) lenders, auto lenders, auto insurance carriers, cable and telecom operators, retailers, and federal, state and local government agencies. We have been successful in leveraging our brand, our expertise and our solutions and have a leading presence in several high-growth international markets. Millions of consumers across the globe also use our data to help manage their personal finances and take precautions against identity theft.
We believe we have an attractive business model that has recurring and diversified revenue streams, low capital requirements, significant operating leverage and strong and stable cash flows. The proprietary and embedded nature of our solutions and the integral role that we play in our customers’ decision-making processes have historically translated into high customer retention and revenue visibility. We continue to deliver organic growth by increasing our sales to existing customers, developing new solutions and gaining new customers. We have a diversified portfolio of businesses across our segments, reducing our exposure to cyclical trends in any particular industry vertical or geography. We operate primarily on contributory data models in which we typically obtain updated information including a growing set of public record and alternative data, at little or no cost, as we develop new solutions and expand into new industries and geographies. We are evolving our hybrid public-private cloud technology infrastructure to ensure that our systems remain highly secure, reliable, scalable, and performant by design. We are focused on processes and foundational technology that allows us to leverage demand-led consumption from public cloud providers and from our high performance privately owned infrastructure.
Segments
We manage our business and report our financial results, including disaggregated revenue, in three reportable segments: U.S. Markets, International and Consumer Interactive.
U.S. Markets
The U.S. Markets segment provides consumer reports, actionable insights and analytics to businesses. These businesses use our services to acquire customers, assess consumers’ ability to pay for services, identify cross-selling opportunities, measure and manage debt portfolio risk, collect debt, verify consumer identities and mitigate fraud risk. The core capabilities and delivery methods in our U.S. Markets segment allow us to serve a broad set of customers across industries. We report disaggregated revenue of our U.S. Markets segment for Financial Services and Emerging Verticals. The results of operations of Neustar are included in the Emerging Verticals and our consolidated statements of income since the date of the acquisition.
International
The International segment provides services similar to our U.S. Markets segment to businesses in select regions outside the United States. Depending on the maturity of the credit economy in each country, services may include credit reports, analytics and technology solutions services, and other value-added risk management services. We also have insurance, business and automotive databases in select geographies. These services are offered to customers in a number of industries including financial services, retail credit, insurance, automotive, collections, public sector, and communications, and are delivered through both direct and indirect channels. The International segment also provides consumer services similar to those offered by our Consumer Interactive segment that help consumers proactively manage their personal finances.
We report disaggregated revenue of our International segment for the following regions: Canada, Latin America, the United Kingdom, Africa, India, and Asia Pacific.
Consumer Interactive
The Consumer Interactive segment offers solutions that help consumers manage their personal finances and take precautions against identity theft. Services in this segment include credit reports and scores, credit monitoring, identity protection and resolution, and financial management for consumers. The segment also provides solutions that help businesses respond to data breach events. Our products are provided through user-friendly online and mobile interfaces and are supported by educational content and customer support. Our Consumer Interactive segment serves consumers through both direct and indirect channels. The results of operations of Sontiq are included in the Consumer Interactive segment and our consolidated statements of income since the date of the acquisition.
Corporate
In addition, Corporate provides support services for each of the segments, holds investments, and conducts enterprise functions. Certain costs incurred in Corporate that are not directly attributable to one or more of the segments remain in Corporate. These costs are typically enterprise-level costs and are primarily administrative in nature.
Factors Affecting Our Results of Operations
The following are certain key factors that affect, or have recently affected, our results of operations:
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Macroeconomic and Industry Trends, Including the Effects of the COVID-19 Pandemic on our Business and Results of Operations
Our revenues can be significantly influenced by general macroeconomic conditions, including the impact of the global COVID-19 pandemic, the availability of credit and capital, interest rates, inflation, employment levels, consumer confidence and housing demand. During 2020, the economic effect of the COVID-19 pandemic had a material and adverse impact on numerous aspects of our business, including our results of operations in all of the markets where we operate. During 2021, we saw steady improvements in our results of operations in all these markets. This dynamic impacts the comparability of our results of operations, including our revenue and expenses, for each of the periods presented below. Also, given ongoing uncertainty and the unpredictable nature of the pandemic, including the rise of variants of the virus and the effectiveness of vaccines against those variants, COVID-19 may have a material and adverse impact on various aspects of our business in the future, including our results of operations.
In the markets where we compete, we have seen generally improving macroeconomic conditions since the second quarter of 2020. In the United States, we saw strong and improving macroeconomic conditions throughout 2021, including strong gross domestic product (“GDP”) growth, falling unemployment rates, and mortgage interest rates that are still near historic lows, all of which are evident in the significantly improved 2021 results of all of our segments. During 2021, we saw similar improvements in our international markets, although in certain of these markets there remains higher ongoing concerns about the impact of COVID-19. These macroeconomic improvements are evident in our 2021 results of operations, with all of our segments showing ongoing signs of improvements compared with last year.
While we believe that a strong but slowing global GDP growth is expected for the coming year, such expectations are tempered by increasing concerns around rising inflation, geopolitical tensions and existing and new coronavirus variants, as well as waning consumer confidence, interest rate pressures and increasing supply chain and ongoing labor shortage concerns. Also, in certain of our markets, there remains concern regarding the impact COVID-19 could have on our business.
Effects of Inflation
We do not believe that inflation has had a material effect on our business, results of operations or financial condition. The impact of recent and expected future inflation increases could have a significant negative impact on our business, including decreased demand for our services as a result of rising interest rates.
Recent Developments
The following developments impact the comparability of our balance sheets, results of operations and cash flows between years:
On January 24, 2022, we reached a tentative class settlement with the plaintiffs in Ramirez v. Trans Union LLC (“Ramirez” or the “Ramirez Litigation”), which will require court approval. We expect this matter to be resolved by the end of 2022. Accordingly, in 2021, we revised the amount of the probable loss that we previously estimated, resulting in a reduction of our estimated liability and partially offsetting insurance receivable, and a corresponding net reduction recorded in selling, general and administrative expense for the year end December 31, 2021. See Item 8, “Notes to Consolidated Financial Statements,” Note 22, “Contingencies” for additional information.
During 2020, the economic effect of the COVID-19 pandemic had a material and adverse impact on numerous aspects of our business, including the results of operations in all of our segments. During 2021, we saw ongoing improvements in our results of operations in all of the markets where we operate. This dynamic impacts the comparability of our results of operations between all of the periods presented below.
On December 23, 2021, we entered into a tranche of interest rate swap agreements with various counter-parties that effectively fix our LIBOR exposure on a portion of our Senior Secured Term Loan or similar replacement debt. The tranche commenced on December 31, 2021, and expires on December 31, 2026, with a current aggregate notional amount of $1,600.0 million that amortizes each quarter. The tranche requires TransUnion to pay fixed rates varying between 1.428% and 1.4360% in exchange for receiving a variable rate that matches the variable rate on our loans. We have designated these swap agreements as cash flow hedges.
On December 17, 2021, we completed the sale of our Healthcare business. The Healthcare business met the criteria for discontinued operations at December 31, 2021, as the sale represented a strategic shift in our business that will have a major effect on our results of operations. The results of operations are classified as discontinued operations, net of tax, in our consolidated statement of income for all periods presented. Discontinued operations, net of tax, also includes a gain on the disposal of the Healthcare business of $982.5, net of tax, in the consolidated statements of income for 2021. All tables and discussions below exclude the impact of the Healthcare business.
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On December 1, 2021, we entered into an agreement to amend certain provisions of the Senior Secured Credit Facility and exercise our right to draw additional debt in an amount of $3,100.0 million, less original issue discount and deferred financing fees of $7.8 million and $43.6 million, respectively. Proceeds from the incremental loan on the Senior Secured Credit Facility were used to finance the acquisition of Neustar.
On December 1, 2021, we entered into a Second Lien Credit Agreement to obtain term loans in an aggregate amount of $640.0 million (the “Second Lien Term Loan”), less original issue discount and deferred financing fees of $3.2 million and $14.3 million, respectively, used to fund the acquisition of Sontiq. On December 23, 2021, we fully repaid the Second Lien Term Loan using a portion of the proceeds from our sale of the Healthcare business. As a result of the prepayment, we expensed the unamortized original issue discount and deferred fees to other income and expense in the consolidated statement of income.
In March 2021, we prepaid $85.0 million of our Senior Secured Term Loans, funded from our cash on hand. In December 2020,
we prepaid $150.0 million of our Senior Secured Term Loans, funded from our cash on hand.
On March 10, 2020, we entered into two tranches of interest rate swap agreements with various counter-parties that effectively fix our LIBOR exposure on a portion of our Senior Secured Term Loans or similar replacement debt. The first tranche commenced on June 30, 2020, and expires on June 30, 2022, with a current aggregate notional amount of $1,120.0 million that amortizes each quarter. The first tranche requires TransUnion to pay fixed rates varying between 0.5200% and 0.5295% in exchange for receiving a variable rate that matches the variable rate on our loans. The second tranche commences on June 30, 2022, and expires on June 30, 2025, with an initial aggregate notional amount of $1,110.0 million that amortizes each quarter after it commences. The second tranche requires TransUnion to pay fixed rates varying between 0.9125% and 0.9280% in exchange for receiving a variable rate that matches the variable rate on our loans. We have designated these swap agreements as cash flow hedges.
In December 2020, we prepaid $150.0 million of our Senior Secured Term Loans, funded from our cash on hand. During 2019, we prepaid $340.0 million of our Senior Secured Term Loans, also funded from cash on hand. These transactions affect the comparability of interest expense between 2021, 2020 and 2019 as further discussed in “Results of Operations - Non-Operating Income and Expense” below.
On November 15, 2019, we refinanced our B-3 and B-4 loans with a new tranche of Senior Secured Term Loan B (“Senior Secured Term Loan B-5”) which, along with cash of $9.0 million, was used to pay-off the Senior Secured Term Loan B-3 and Senior Secured Term Loan B-4 loans. On December 10, 2019, we refinanced our A-2 loan with a new tranche of Senior Secured Term Loan A (“Senior Secured Term Loan A-3”), which was used to pay-off our existing Senior Secured Term Loan A-2 loans. With this refinance, we also converted the existing Senior Secured Revolving Line of Credit into a new Senior Secured Revolving Line of Credit.
Recent Acquisitions
We selectively evaluate acquisitions as a means to expand our business and to enter new markets. Since January 1, 2019, we have completed the following acquisitions, including those that impact the comparability of our results between periods:
•On December 1, 2021, we acquired 100% of the equity of Neustar. Neustar, a premier identity resolution company with leading solutions in Marketing, Risk and Communications, enables customers to build connected consumer experiences by combining decision analytics with real-time identity resolution services driven by its OneID platform. The results of operations of Neustar are included in Emerging Verticals as part of our U.S. Markets segment in our consolidated statements of income since the date of the acquisition. See Item 8, “Notes to Consolidated Financial Statements,” Note 2, “Business Acquisitions.”
•On December 1, 2021, we acquired 100% of the equity of Sontiq. Sontiq, a leader in digital identity protection and security, provides solutions including identity monitoring, restoration, and response products and services to help empower consumers and businesses to proactively protect against identity theft and cyber threats. The results of operations of Sontiq, which are not material to our consolidated financial statements, are included in the Consumer Interactive segment in our consolidated statements of income since the date of the acquisition. See Item 8, “Notes to Consolidated Financial Statements,” Note 2, “Business Acquisitions,” for additional information.
•On October 14, 2020, we acquired 100% of the equity of Tru Optik Data Corp (“Tru Optik”). Tru Optik uses its custom audience-building platform to deliver predictive scoring to improve the performance of custom digital marketing campaigns. The results of operations of Tru Optik, which are not material to our consolidated financial statements, have been included as part of our U.S. Markets segment in our consolidated statements of income since the date of the acquisition.
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•On August 14, 2020, we acquired 100% of the equity of Signal Digital, Inc. (“Signal”). Signal is a digital marketing company that provides tag management, data collection, and onboarding capabilities to customers for activation in the marketing ecosystem. The results of operations of Signal, which are not material to our consolidated financial statements, have been included as part of our U.S. Markets segment in our consolidated statements of income since the date of the acquisition.
•On May 22, 2019, we acquired 100% of the equity of TruSignal, Inc. (“TruSignal”). TruSignal is an innovative leader in people-based marketing technology for Fortune 500 brands, agencies, platforms, publishers and data owners. TruSignal uses predictive scoring, powered by artificial intelligence, to make data actionable for one-to-one addressable marketing. The results of operations of TruSignal, which are not material to our consolidated financial statements, have been included as part of our U.S. Markets segment in our consolidated statements of income since the date of the acquisition.
Key Components of Our Results of Operations
Revenue
The following is a more detailed description of how we derive and report revenue for our three reportable segments:
U.S. Markets
U.S. Markets provides consumer reports, actionable insights and analytics such as credit and other scores, and solutions capabilities to businesses. We report disaggregated revenue of our U.S. Markets segment for the following verticals:
•Financial Services:    The Financial Services vertical, which accounts for approximately 60.2% of our 2021 U.S. Markets revenue, consists of our consumer lending, mortgage, auto and cards and payments lines of business. Our financial services customers consist of most banks, credit unions, finance companies, POS/BNPL lenders, auto lenders, mortgage lenders, FinTechs, and other consumer lenders in the United States. We also distribute our solutions through most major resellers, secondary market players and sales agents. Beyond traditional lenders, we work with a variety of credit arrangers, such as auto dealers and peer-to-peer lenders. We provide solutions across every aspect of the lending lifecycle; customer acquisition and engagement, fraud and ID management, retention and recovery. Our products are focused on mitigating risk and include credit reporting, credit marketing, analytics and consulting, identity verification and authentication and debt recovery solutions.
•Emerging Verticals:    Emerging verticals include Insurance, Services and Collections, Tenant and Employment, Technology, Commerce & Communications, Public Sector, Media, and other emerging verticals we serve, as well as our Neustar business. Our solutions in these verticals are also data-driven and address the entire customer lifecycle. We offer onboarding and transaction processing products, scoring and analytic products, marketing solutions, fraud and identity management solutions and customer retention solutions.
International
The International segment provides services similar to our U.S. Markets segment to businesses in select regions outside the United States. Depending on the maturity of the credit economy in each country, services may include credit reports, analytics and solutions services, and other value-added risk management services. In addition, we have insurance, business and automotive databases in select geographies. These services are offered to customers in a number of industries including financial services, retail credit, insurance, automotive, collections, public sector and communications, and are delivered through both direct and indirect channels. The International segment also provides consumer services similar to those offered by our Consumer Interactive segment to help consumers proactively manage their personal finances.
We report disaggregated revenue of our International segment for the following regions: Canada, Latin America, the United Kingdom, Africa, India, and Asia Pacific.
Consumer Interactive
The Consumer Interactive segment offers solutions that help consumers manage their personal finances and take precautions against identity theft. Services in this segment include credit reports and scores, credit monitoring, identity protection and resolution and financial management for consumers. The segment also provides solutions that help businesses respond to data breach events. Our products are provided through user-friendly online and mobile interfaces and are supported by educational content and customer support. Our Consumer Interactive segment serves consumers through both direct and indirect channels. With our acquisition of Sontiq in 2021, we have added to our foundational credit monitoring solutions with a comprehensive set of identity protection offerings. The results of operations of Sontiq, which are not material to our consolidated financial statements, are included in the Consumer Interactive segment in our consolidated statements of income since the date of the acquisition.
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Cost of Services
Costs of services include data acquisition and royalty fees, personnel costs related to our databases and software applications, consumer and call center support costs, hardware and software maintenance costs, telecommunication expenses and occupancy costs associated with the facilities where these functions are performed.
Selling, General and Administrative
Selling, general and administrative expenses include personnel-related costs for sales, administrative and management employees, costs for professional and consulting services, advertising and occupancy and facilities expense of these functions.
Non-Operating Income and Expense
Non-operating income and expense includes interest expense, interest income, earnings from equity-method investments, dividends from cost-method investments, fair-value adjustments of equity-method and Cost Method investments, if any, expenses related to successful and unsuccessful business acquisitions, loan fees, debt refinancing expenses, certain acquisition-related gains and losses and other non-operating income and expenses.
Results of Operations—Twelve Months Ended December 31, 2021, 2020 and 2019
Key Performance Measures
Management, including our chief operating decision maker (“CODM”), evaluates the financial performance of our businesses based on a variety of key indicators. These indicators include the GAAP measures of revenue, segment Adjusted EBITDA, cash provided by operating activities and cash paid for capital expenditures and the non-GAAP measures Adjusted Revenue and consolidated Adjusted EBITDA. Refer to the “Non-GAAP Key Performance Indicators” section immediately below the table for more information, including the definitions of our non-GAAP measures.
For the twelve months ended December 31, 2021, 2020 and 2019, these key performance indicators were as follows:
 Change
 Twelve Months Ended December 31,2021 vs. 20202020 vs. 2019
(dollars in millions)202120202019$%$%
Revenue:
Consolidated revenue as reported$2,960.2 $2,530.6 $2,463.2 $429.6 17.0 %$67.4 2.7 %
   Acquisition-related revenue adjustments(1)
— — 5.6 — nm(5.6)nm
Consolidated Adjusted Revenue$2,960.2 $2,530.6 $2,468.8 $429.6 17.0 %$61.9 2.5 %
U.S. Markets gross revenue$1,791.0 $1,510.7 $1,416.7 $280.3 18.6 %$94.0 6.6 %
   Acquisition-related revenue adjustments(1)
— — — — nm— nm
U.S. Markets gross Adjusted Revenue$1,791.0 $1,510.7 $1,416.7 $280.3 18.6 %$94.0 6.6 %
International gross revenue$701.9 $582.7 $623.5 $119.2 20.5 %$(40.8)(6.5)%
   Acquisition-related revenue adjustments(1)
— — 5.6 — nm(5.6)nm
International gross Adjusted Revenue$701.9 $582.7 $629.1 $119.2 20.5 %$(46.4)(7.4)%
Consumer Interactive gross revenue$545.8 $513.1 $497.8 $32.7 6.4 %$15.3 3.1 %
nm: not meaningful
As a result of displaying amounts in millions, rounding differences may exist in the table above.
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    Change
 Twelve Months Ended December 31,2021 vs. 20202020 vs. 2019
(dollars in millions)202120202019$%$%
Reconciliation of net income attributable to TransUnion to consolidated Adjusted EBITDA:
Net income attributable to TransUnion$1,387.1 $343.2 $346.9 $1,043.9 nm$(3.7)(1.1)%
Discontinued operations(1,031.7)(49.8)(48.0)(981.8)nm(1.8)nm
Net income from continuing operations attributable to TransUnion$355.5 $293.4 $298.9 $62.1 21.2 %$(5.5)(1.9)%
   Net interest expense109.2 120.6 166.2 (11.5)(9.5)%(45.6)(27.4)%
   Provision (benefit) for income taxes130.9 83.7 70.5 47.1 56.3 %13.2 18.8%
   Depreciation and amortization377.0 346.8 338.6 30.3 8.7 %8.2 2.4 %
EBITDA$972.5 $844.5 $874.2 $128.0 15.2 %$(29.7)(3.4)%
Adjustments to EBITDA:
   Acquisition-related revenue adjustments(1)
— — 5.6 — nm(5.6)nm
   Stock-based compensation(2)
70.1 45.9 55.3 24.3 52.8 %(9.4)(17.1)%
   Mergers and acquisitions, divestitures and
   business optimization(3)
52.6 8.5 1.1 44.1 nm7.4 nm
   Technology Transformation(4)
42.3 19.3 — 23.0 nm19.3 nm
   Net other(5)
19.4 35.5 29.7 (16.1)(45.4)%5.7 19.3 %
Total adjustments to EBITDA184.4 109.1 91.7 75.2 68.9 %17.4 19.0 %
Consolidated Adjusted EBITDA$1,156.9 $953.6 $965.9 $203.2 21.3 %$(12.3)(1.3)%
Other Metrics:
Cash provided by continuing operations$759.4 $716.3 $710.9 $43.2 6.0 %$5.4 0.8 %
Capital expenditures$(224.2)$(205.6)$(188.4)$(18.6)9.0 %$(17.2)9.1 %
nm: not meaningful
As a result of displaying amounts in millions, rounding differences may exist in the table above.
1.This adjustment represents certain non-cash adjustments related to acquired entities, predominantly adjustments to increase revenue resulting from purchase accounting reductions to deferred revenue we record on the opening balance sheet of acquired entities. Beginning in the third quarter of 2019, we no longer have these adjustments to revenue.
2.Consisted of stock-based compensation and cash-settled stock-based compensation.
3.For the twelve months ended December 31, 2021, consisted of the following adjustments: $48.1 million of acquisition expenses; $9.1 million of Neustar integration costs; $8.4 million of adjustments to contingent consideration expense from previous acquisitions; a $1.1 million gain reduction to notes receivable that were converted into equity upon acquisition and consolidation of an entity; a ($12.5) million gain on a Cost Method investment resulting from an observable price change for a similar investment of the same issuer; a ($1.1) million reimbursement for transition services related to divested businesses, net of separation expenses; and a ($0.5) million gain on the sale of a Cost Method investment.
For the twelve months ended December 31, 2020, consisted of the following adjustments: $7.5 million of Callcredit integration costs; $7.0 million of acquisition expenses; a $4.8 million loss on the impairment of a Cost Method investment; $1.7 million of adjustments to contingent consideration expense from previous acquisitions; an ($8.1) million remeasurement gain on notes receivable that were converted into equity upon acquisition and consolidation of an entity; a ($2.5) million gain on a Cost Method investment resulting from an observable price change for a similar investment of the same issuer; a ($1.8) million gain on the disposal of assets of a small business in our United Kingdom region; and a ($0.1) million reimbursement for transition services provided to the buyers of certain of our discontinued operations.
For the twelve months ended December 31, 2019, consisted of the following adjustments: a ($31.2) million gain on a Cost Method investment resulting from an observable price change for a similar investment of the same issuer; a ($0.5) million reimbursement for transition services provided to the buyers of certain of our discontinued operations; $15.8 million of Callcredit integration costs; a $10.0 million loss on the impairment of certain Cost Method investments; a $3.7 million loss on assets of a small business in our United Kingdom region that are classified as held-for-sale; $2.4
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million of acquisition expenses; and a $0.8 million adjustment to contingent consideration expense from previous acquisitions.
4.Represents expenses associated with our accelerated technology investment to migrate to the cloud.
5.For the twelve months ended December 31, 2021, consisted of the following adjustments: $17.9 million of deferred loan fees written off as a result of the prepayments on our debt; $1.2 million for certain legal and regulatory expenses; a ($3.5) million recovery from the Fraud Incident, net of additional administrative expense; and a $3.7 million net loss from currency remeasurement of our foreign operations, loan fees and other.
For the twelve months ended December 31, 2020, consisted of the following adjustments: $34.7 million for certain legal expenses; $0.9 million of deferred loan fees written off as a result of the prepayments on our debt; a $(1.5) million recovery from the Fraud Incident, net of additional administrative expense; and $1.4 million net loss from currency remeasurement of our foreign operations, loan fees and other.
For the twelve months ended December 31, 2019, consisted of the following adjustments: $13.5 million of expenses associated with the Fraud Incident, net of the portion that is attributable to the non-controlling interest; $13.0 million of fees related to the refinancing of senior secured credit facility; $2.0 million of deferred loan fees written off as a result of the prepayments on our debt; and $1.3 million loss from currency remeasurement, loan fees, reduction to expenses for certain legal and regulatory matters and other.

Non-GAAP Key Performance Indicators
Adjusted Revenue
We define Adjusted Revenue as GAAP revenue adjusted for certain acquisition-related deferred revenue and non-core contract-related revenue. We present Adjusted Revenue as a supplemental measure of revenue because we believe it provides a basis to compare revenue between periods. Beginning in the third quarter of 2019, we no longer have these adjustments to revenue.
Adjusted EBITDA
We define Adjusted EBITDA as net income (loss) attributable to TransUnion plus (less) loss (income) from discontinued operations, net of tax plus net interest expense, plus (less) provision (benefit) for income taxes, plus depreciation and amortization, plus (less) the revenue adjustments included in Adjusted Revenue, plus stock-based compensation, plus mergers, acquisitions, divestitures and business optimization-related expenses including Neustar and Callcredit integration-related expenses, plus certain accelerated technology investment expenses to migrate to the cloud, plus (less) certain other expenses (income).
We present Adjusted EBITDA as a supplemental measure of our operating performance because it eliminates the impact of certain items that we do not consider indicative of our cash operations and ongoing operating performance. Adjusted EBITDA is also a measure frequently used by securities analysts, investors and other interested parties in their evaluation of the operating performance of companies similar to ours. Our board of directors and executive management team use Adjusted EBITDA as a compensation measure under our incentive compensation plan. Under the credit agreement governing our Senior Secured Credit Facility, our ability to engage in activities such as incurring additional indebtedness, making investments and paying dividends is tied to a ratio based on Adjusted EBITDA. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations - Liquidity and Capital Resources - Debt.” Adjusted EBITDA does not reflect our capital expenditures, interest, income tax, depreciation, amortization, stock-based compensation and certain other income and expense. Other companies in our industry may calculate Adjusted EBITDA differently than we do, limiting its usefulness as a comparative measure. Because of these limitations, Adjusted EBITDA should not be considered in isolation or as a substitute for performance measures calculated in accordance with GAAP. Adjusted EBITDA is not a measure of financial condition or profitability under GAAP and should not be considered as an alternative to cash flows from operating activities, as a measure of liquidity or as an alternative to operating income or net income as indicators of operating performance. We believe that the most directly comparable GAAP measure to Adjusted EBITDA is net income (loss) attributable to TransUnion. The table above provides a reconciliation from our net income (loss) attributable to TransUnion to consolidated Adjusted EBITDA for the twelve months ended December 31, 2021, 2020 and 2019.
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Revenue
As mentioned above, the effects of COVID-19 impact the comparability of revenue between periods for all discussions below.
For 2021, revenue increased $429.6 million compared with 2020, due primarily to improving macroeconomic conditions in all of our markets, revenue from new product initiatives, revenue from our recent acquisitions in the U.S. Markets and Consumer Interactive segments, and an increase of 1.1% increase from the impact of strengthening foreign currencies.
For 2020, revenue increased $67.4 million compared with 2019, due primarily to organic growth in the Financial Services vertical in the U.S. Markets segment, the Consumer Interactive segment, and the Canada region in the International segment, revenue from recent acquisitions in U.S. Markets Emerging Verticals, and revenue from new product initiatives, partially offset by a decrease in organic revenue in U.S. Markets Emerging Verticals and the other regions of the International segment, and a 0.9% decrease from the impact of weakening foreign currencies.
Revenue by segment and a more detailed explanation of revenue within each segment are as follows:
    Change
 Twelve months ended December 31,2021 vs. 20202020 vs. 2019
(dollars in millions)202120202019$%$%
U.S. Markets:
     Financial Services$1,078.9 $939.6 $849.0 $139.3 14.8 %$90.6 10.7 %
     Emerging Verticals712.1 571.1 567.7 141.0 24.7 %3.3 0.6 %
U.S. Markets gross revenue$1,791.0 $1,510.7 $1,416.7 $280.3 18.6 %$94.0 6.6 %
International:
     Canada$126.9 $108.0 $104.1 $19.0 17.6 %$3.9 3.7 %
     Latin America103.2 86.5 104.2 16.7 19.3 %(17.7)(17.0)%
     UK216.5 183.1 186.7 33.4 18.2 %(3.6)(1.9)%
     Africa59.5 49.0 61.2 10.5 21.4 %(12.2)(20.0)%
     India133.1 100.0 108.1 33.1 33.1 %(8.1)(7.5)%
     Asia Pacific62.7 56.2 59.1 6.5 11.6 %(3.0)(5.0)%
International gross revenue$701.9 $582.7 $623.5 $119.2 20.5 %$(40.8)(6.5)%
Consumer Interactive gross revenue$545.8 $513.1 $497.8 $32.7 6.4 %$15.3 3.1 %
Total gross revenue$3,038.7 $2,606.5 $2,538.0 $432.2 16.6 %$68.5 2.7 %
Intersegment revenue eliminations:
U.S. Markets
$(70.5)$(68.9)$(68.7)$(1.6)nm$(0.2)nm
International
(5.9)(5.2)(5.1)(0.7)nm(0.1)nm
Consumer Interactive
(2.0)(1.7)(1.0)(0.3)nm(0.8)nm
Total intersegment revenue eliminations(78.4)(75.9)(74.8)(2.5)nm(1.1)nm
Total revenue as reported$2,960.2 $2,530.6 $2,463.2 $429.6 17.0 %$67.4 2.7 %
nm: not meaningful
As a result of displaying amounts in millions, rounding differences may exist in the table above.
U.S. Markets Segment
For 2021, U.S. Markets revenue increased $280.3 million compared with 2020, primarily due to increases in revenue in both verticals including revenue from our acquisition of Neustar.
For 2020, U.S. Markets revenue increased $94.0 million compared with 2019, due primarily to an increase in revenue in the Financial Services vertical.
Financial Services: For 2021, Financial Services revenue increased $139.3 million due primarily to improvements in macroeconomic conditions and new product initiatives in our consumer lending, card and banking, and auto lines of business, partially offset by a decrease in revenue in our mortgage line of business as volumes have declined due to rising interest rates.
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We anticipate a decline in our mortgage line of business will continue for the foreseeable future as interest rates are expected to continue to rise.
For 2020, Financial Services revenue increased $90.6 million due primarily to improvements in market conditions in our mortgage line of business, as historically low interest rates drove refinance activity and the home purchase market experienced modest growth. The growth in the mortgage line of business was partially offset by decreases in our other lines of business, which have shown signs of improvement since the lows in April 2020.
Emerging Verticals: For 2021, Emerging Verticals revenue increased $141.0 million due primarily to improving macroeconomic conditions in most of our verticals, revenue from new product initiatives, and an increase from recent acquisitions. Every vertical had an increase in revenue during the year, except Services and Collections, which was down slightly. Our recent acquisitions accounted for an increase in revenue of 12.0%.
For 2020, Emerging Verticals revenue increased $3.3 million due primarily to an increase in the Media, Public Sector, Insurance and Tenant & Employment verticals, partially offset by a decrease in the Collections and Diversified Markets verticals. Recent acquisitions accounted for an increase in revenue of 1.8%.
International Segment
For 2021, International revenue increased $119.2 million, or 20.5%, compared with 2020, due primarily to higher local currency revenue from increased volumes resulting from improving economic conditions and from new product initiatives, and an increase of 4.5% from the impact of strengthening foreign currencies.
For 2020, International revenue decreased $40.8 million, or 6.5%, compared with 2019. The decrease was due primarily to the impact of COVID-19, and a decrease of 3.5% from the impact of weakening foreign currencies.
Canada: For 2021, Canada revenue increased $19.0 million, or 17.6%, compared with 2020. The increase was due primarily to higher local currency revenue from increased volumes resulting from improving economic conditions and from new product initiatives and an increase of 7.7% from the impact of strengthening foreign currencies.
For 2020, Canada revenue increased $3.9 million, or 3.7% compared with 2019. The increase was due primarily to higher local currency revenue from increased volumes including new product initiatives, partially offset by a decrease from the impact of COVID-19 primarily in the second and third quarters, and a decrease of less than 1.0% from the impact of weakening foreign currencies.
Latin America: For 2021, Latin America revenue increased $16.7 million, or 19.3%, compared with 2020. The increase was due primarily to higher local currency revenue from increased volumes resulting from improving economic conditions and from new product initiatives, partially offset by a decrease of 1.4% from the impact of weakening foreign currencies.
For 2020, Latin America revenue decreased $17.7 million, or 17.0%, compared with 2019. The decrease was due primarily to a decrease in local currency revenue as a result of COVID-19 primarily in the second, third and fourth quarters, and a decrease of 11.5% from the impact of weakening foreign currencies, partially offset by higher local currency revenue from increased volumes including new product initiatives in the first quarter.
United Kingdom: For 2021, United Kingdom revenue increased $33.4 million, or 18.2%, compared with 2020. The increase was due primarily to higher local currency revenue from increased volumes resulting from improving economic conditions and from new product initiatives and an increase of 7.9% from the impact of strengthening foreign currencies.
For 2020, United Kingdom revenue decreased $3.6 million, or 1.9%, compared with 2019. The decrease was due primarily to a decrease in local currency revenue as a result of COVID-19 primarily in the second, third and fourth quarters, partially offset by higher local currency revenue from increased volumes including new product initiatives in the first quarter and an increase of 0.7% from the impact of strengthening foreign currencies.
Africa: For 2021, Africa revenue increased $10.5 million, or 21.4%. The increase was due primarily to higher local currency revenue from increased volumes resulting from improving economic conditions and from new product initiatives, and an increase of 10.3% from the impact of strengthening foreign currencies.
For 2020, Africa revenue decreased $12.2 million, or 20.0%, due primarily to a decrease in local currency revenue as a result of COVID-19 primarily in the second, third and fourth quarters, and a decrease of 10.1% from the impact of weakening foreign currencies, partially offset by higher local currency revenue from increased volumes including new product initiatives in the first quarter.
India: For 2021, India revenue increased $33.1 million, or 33.1%, due primarily to higher local currency revenue from increased volumes resulting from improving economic conditions and from new product initiatives, and an increase of 0.1% from the impact of strengthening foreign currencies.
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For 2020, India revenue decreased $8.1 million, or 7.5%, due primarily to a decrease in local currency revenue as a result of COVID-19 primarily in the second and third quarters, and a decrease of 4.5% from the impact of weakening foreign currencies, partially offset by an increase in local currency revenue from increased volumes including new product initiatives in the first and fourth quarters.
Asia Pacific: For 2021, Asia Pacific revenue increased $6.5 million, or 11.6%, due primarily to higher local currency revenue from increased volumes resulting from improving economic conditions and from new product initiatives, partially offset by a decrease of 0.2% from the impact of weakening foreign currencies.
For 2020, Asia Pacific revenue decreased $3.0 million, or 5.0%, due primarily to a decrease in local currency revenue as a result of COVID-19 primarily in the second, third and fourth quarters, partially offset by an increase of 1.5% from the impact of strengthening foreign currencies and an increase in local currency revenue from increased volumes including new product initiatives in the first quarter.
Consumer Interactive Segment
For 2021, Consumer Interactive revenue increased $32.7 million, or 6.4%, compared with 2020, due primarily to an increase in revenue from both our direct and indirect channels including revenue from our acquisition of Sontiq. In our indirect channel, revenue increased primarily due to a large breach services contract which was recognized in the second half of 2021.
For 2020, Consumer Interactive revenue increased $15.3 million compared with 2019, due primarily to an increase in revenue from our direct channel, partially offset by a decrease in our indirect channel as a result of COVID-19 primarily in the second, third and fourth quarters.
Operating Expenses
As mentioned above, the effects of COVID-19 impact the comparability of expenses between periods for all discussions below. Operating expenses for the periods reported were as follows:
    Change
 Twelve months ended December 31,2021 vs. 20202020 vs. 2019
(dollars in millions)202120202019$%$%
Cost of services$991.6 $853.9 $805.5 $137.7 16.1 %$48.4 6.0 %
Selling, general and administrative943.9 829.7 777.4 114.2 13.8 %52.3 6.7 %
Depreciation and amortization377.0 346.8 338.6 30.3 8.7 %8.2 2.4 %
Total operating expenses$2,312.5 $2,030.4 $1,921.4 $282.2 13.9 %$108.9 5.7 %
As a result of displaying amounts in millions, rounding differences may exist in the table above.
Cost of Services
For 2021, cost of services increased $137.7 million compared with 2020. The increase was due primarily to:
•an increase in product costs resulting from the increase in revenue, primarily in our U.S. Markets segment;
•operating and integration-related costs relating to the business acquisitions in our U.S. Markets and Consumer Interactive segments;
•an increase in labor costs, primarily in our International segment, as we continue to invest in key strategic growth initiatives;
•an increase in costs from our accelerated technology investment; and
•the impact of strengthening foreign currencies on the expenses of our International segment.
For 2020, cost of services increased $48.4 million compared with 2019. The increase was due primarily to:
•an increase in labor costs in our U.S. Markets segment, primarily due to key strategic growth initiatives;
•an increase in product costs in our U.S. Markets and Consumer Interactive segments; and
•an increase in costs from our accelerated technology investment;
partially offset by:
•a decrease in travel and entertainment expenses due to travel restrictions and shelter in place orders related to COVID-19; and
•the impact of weakening foreign currencies on the expenses of our International segment.
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Selling, General and Administrative
For 2021, selling, general and administrative expenses increased $114.2 million compared with 2020. The increase was due primarily to:
•an increase in labor costs across all segments and Corporate, including an increase in incentive and stock-based compensation due to improved performance, as we continue to invest in key strategic growth initiatives;
•operating and integration-related costs from our recent acquisitions in our U.S. Markets and Consumer Interactive segments;
•an increase in costs from our accelerated technology investment; and
•the impact of strengthening foreign currencies on the expenses of our International segment,
partially offset by:
•a decrease in costs for certain legal and regulatory matters; and
•a decrease in bad debt expense, as we have reversed reserves that were recorded at the beginning of the COVID-19 pandemic;
For 2020, selling, general and administrative expenses increased $52.3 million compared with 2019. The increase was due primarily to:
•an increase of $58.1 million for legal and regulatory matters, primarily related to the Ramirez litigation;
•an increase in bad debt expense due to an increase in our estimated reserves including the expected impact of COVID-19 primarily in our U.S. Markets and International segments;
•an increase in advertising costs, primarily in our Consumer Interactive segment; and
•an increase in costs from our accelerated technology investment;
partially offset by:
•a decrease in travel and entertainment expenses due to travel restrictions and shelter in place orders related to COVID-19;
•a decrease in incentive and stock-based compensation from lower expected achievement on certain performance-based awards due to COVID-19; and
•the impact of overall weakening foreign currencies on the expenses of our International segment.
Depreciation and amortization
For 2021, depreciation and amortization increased $30.3 million compared with 2020, due primarily to recent acquisitions of tangible and intangible assets.
For 2020, depreciation and amortization increased $8.2 million compared with 2019, due primarily to recent acquisitions of tangible and intangible assets, partially offset by a decrease in amortization related to certain intangible assets from our 2012 change in control transaction that have become fully amortized. partially offset by a decrease in amortization related to certain intangible assets from our 2012 change in control transaction that have become fully amortized.
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Adjusted EBITDA and Adjusted EBITDA margin
As mentioned above, the effects of COVID-19 impact the comparability of Adjusted EBITDA between periods for all discussions below.
 Twelve months ended December 31,2021 vs. 20202020 vs. 2019
(dollars in millions)202120202019$ Change% Change$ Change% Change
Adjusted Revenue(1):
U.S. Markets gross Adjusted Revenue
$1,791.0 $1,510.7 $1,416.7 $280.3 18.6 %$94.0 6.6 %
International gross Adjusted Revenue701.9 582.7 629.1 119.2 20.5 %(46.4)(7.4)%
Consumer Interactive gross Adjusted Revenue545.8 513.1 497.8 32.7 6.4 %15.3 3.1 %
Total gross Adjusted Revenue3,038.7 2,606.5 2,543.6 432.2 16.6 %63.0 2.5 %
Less: intersegment revenue eliminations(78.4)(75.9)(74.8)(2.5)nm(1.1)nm
Consolidated Adjusted Revenue$2,960.2 $2,530.6 $2,468.8 $429.6 17.0 %$61.9 2.5 %
Adjusted EBITDA(1):
U.S. Markets$715.6 $593.9 $573.7 $121.8 20.5 %$20.1 3.5 %
International300.1 219.8 258.1 80.3 36.5 %(38.3)(14.8)%
Consumer Interactive263.1 247.6 248.4 15.5 6.3 %(0.8)(0.3)%
Corporate(121.9)(107.6)(114.3)(14.3)(13.3)%6.7 5.9 %
Consolidated Adjusted EBITDA$1,156.9 $953.6 $965.9 $203.2 21.3 %$(12.3)(1.3)%
Adjusted EBITDA margin:
U.S. Markets40.0 %39.3 %40.5 %0.6 %(1.2)%
International42.8 %37.7 %41.0 %5.0 %(3.3)%
Consumer Interactive48.2 %48.3 %49.9 %(0.1)%(1.7)%
Consolidated Adjusted EBITDA margin39.1 %37.7 %39.1 %1.4 %(1.4)%
nm: not meaningful
As a result of displaying amounts in millions, rounding differences may exist in the table above.
1.See the reconciliation of net income attributable to TransUnion to Consolidated Adjusted EBITDA and the reconciliation of segment revenue to segment Adjusted Revenue in the “Key Performance Measures” section at the beginning of our discussion about our Results of Operations. See the “Revenue” table above for details of the intersegment revenue eliminations by segment. Segment Adjusted EBITDA margins are calculated using segment gross Adjusted Revenue and segment Adjusted EBITDA. Consolidated Adjusted EBITDA margin is calculated using consolidated Adjusted Revenue and consolidated Adjusted EBITDA.
For 2021, consolidated Adjusted EBITDA increased $203.2 million due primarily to:
•an increase in revenue from improving macroeconomic conditions in all of our markets;
•a decrease in costs for certain legal and regulatory matters; and
•a decrease in bad debt expense, as we have reversed reserves that were recorded at the beginning of the COVID-19 pandemic,
partially offset by:
•an increase in labor costs across all segments and Corporate, including an increase in incentive compensation due to improved performance;
•operating and integration-related costs from our recent acquisitions in our U.S. Markets and Consumer Interactive segments;
•an increase in product costs resulting from the increase in revenue in all of our segments;
For 2021, Adjusted EBITDA margins for the U.S. Markets segment increased due primarily to an increase in revenue and improving market conditions in both of our verticals and a decrease in bad debt expense, partially offset by an increase in product costs resulting from the increase in revenue and an increase in incentive compensation due to improved performance.
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Adjusted EBITDA margins for the International segment increased due primarily to an increase in revenue and improving market conditions in all of our regions and a decrease in bad debt expense, partially offset by an increase in product costs resulting from the increase in revenue and an increase in incentive compensation due to improved performance.
Adjusted EBITDA margins for the Consumer Interactive were relatively consistent compared to 2020.
For 2020, consolidated Adjusted EBITDA decreased $12.3 million due primarily to:
•an increase in expense for certain legal and regulatory matters;
•a decrease in revenue in our International segment;
•an increase in labor costs in our U.S. Markets segment, as we invested in key strategic growth initiatives;
•an increase in product costs in our U.S. Markets and Consumer Interactive segments; and
•an increase in advertising costs in our Consumer Interactive segment,
partially offset by:
•an increase in revenue in our U.S. Markets and Consumer Interactive segments;
•a decrease in travel and entertainment expenses due to travel restrictions and shelter in place orders related to COVID-19; and
•the impact of weakening foreign currencies on the expenses of our International segment.
For 2020, Adjusted EBITDA margins for the U.S. Markets segment decreased due primarily to the impact of COVID-19 on revenue in Emerging Verticals, an increase in expense for certain legal and regulatory matters and an increase in labor costs primarily due to key strategic growth initiatives, partially offset by improving market conditions in the mortgage line of business in the Financial Services Vertical and a decrease in travel and entertainment expenses.
Adjusted EBITDA margins for the International segment decreased due primarily to the impact of COVID-19 on revenue, partially offset by a decrease in travel and entertainment expenses and the impact of weakening foreign currencies on the expenses of our International segment.
Adjusted EBITDA margins for the Consumer Interactive segment decreased due primarily to an increase in advertising costs and variable product costs, partially offset by an increase in revenue.
Non-Operating Income and (Expense)
Change
 Twelve months ended December 31,2021 vs. 20202020 vs. 2019
(dollars in millions)202120202019$%$%
Interest expense$(112.6)$(126.2)$(173.7)$13.7 10.8 %$47.5 27.4 %
Interest income3.4 5.6 7.5 (2.2)(38.9)%(2.0)(26.0)%
Earnings from equity method investments12.0 8.9 13.2 3.1 34.6 %(4.3)(32.4)%
Other income and (expense), net:
Acquisition fees(48.1)(7.0)(2.4)(41.1)nm(4.6)nm
Loan fees(19.6)(2.0)(17.0)(17.6)nm15.0 88.3 %
Other income (expense), net18.5 9.9 5.2 8.7 (87.5)%4.7 (90.9)%
Total other income and expense, net(49.2)0.9 (14.2)(50.1)nm15.1 nm
Non-operating income and expense$(146.3)$(110.8)$(167.2)$(35.5)32.0 %$56.4 33.7 %
nm: not meaningful
As a result of displaying amounts in millions, rounding differences may exist in the table above.

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Interest expense
For the twelve months ended December 31, 2021, interest expense decreased $13.7 million compared with 2020. For the twelve months ended December 31, 2020, interest expense decreased $47.5 million compared with 2019. The decrease in interest expense for both periods is due primarily to the impact of a decrease in our average interest rate and a decrease in our average outstanding principal balance, and in 2021, partially offset by expenses attributable new borrowings and early prepayments late in the year as described in further detail below.
In December 2019, we refinanced our Senior Secured Credit Facility which decreased our average interest rate in 2020 and 2021. Further, we prepaid $340.0 million, $150.0 million and $85.0 million of our Senior Secured Term Loans in the second half of 2019, in 2020, and in 2021, respectively. These prepayments decreased our average outstanding principal balance in each subsequent period.
On December 1, 2021, we borrowed $3,100.0 of additional debt under our Senior Secured Credit Facility to fund the acquisition of Neustar. In addition, on December 1, 2021, we entered into a Second Lien Credit Agreement to obtain term loans in an aggregate amount of $640.0 million (the “Second Lien Term Loan”) which was used to fund the acquisition of Sontiq. On December 23, 2021, we fully repaid the Second Lien Term Loan using a portion of the proceeds from our sale of the Healthcare business.
These factors impact the comparability of interest expense between periods. Our future interest expense could be materially impacted by changes in our variable interest rates to the extent our variable rate debt is not hedged with fixed rate debt, additional borrowings, or additional prepayments. See Part II, Item 8, “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” Note 12, “Debt,” for additional information about our debt.
Acquisition fees
Acquisition fees represent costs we have incurred for various acquisition-related efforts, and include costs related to our acquisitions of Neustar and Sontiq in 2021, Tru Optik and Signal Digital in 2020, and TruSignal in 2019, as well as costs of our other acquisition efforts. See Part II, Item 8, “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” Note 2, “Business Acquisitions,” for additional information about our acquisition-related efforts.
Loan fees
For 2021, loan fees included $17.9 million of financing fees and other net costs expensed as a result of our repayment of our Second Lien Term Loan and the partial repayment of our other Term Loans. For 2020, loan fees were not significant. For 2019, loan fees included, among other things, $13.0 million of refinancing fees and other net costs expensed as a result of refinancing our Senior Secured Term Loan late in 2019. See Part II, Item 8, “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” Note 12, “Debt,” for additional information about our debt.
Other income (expense), net includes currency remeasurement gains and losses, dividends received from cost method investments, gains and losses on Cost Method investments, if any, and other miscellaneous non-operating income and expense items, including recoveries from the Fraud Incident.
Provision for Income Taxes
For 2021, we reported a 26.1% effective tax rate, which is higher than the 21.0% U.S. federal corporate statutory rate due primarily to recording tax expense related to the remeasurement of our U.K. deferred taxes to reflect an increase in the U.K. corporate tax rate enacted in the second quarter 2021 and nondeductible transaction costs and penalties, partially offset by excess tax benefits on stock based compensation and a tax benefit related to electing the Global Intangible Low Tax Income (“GILTI”) high-tax exclusion retroactively for the 2018 and 2019 tax years. On July 20, 2020, the U.S. Treasury issued and enacted final regulations related to GILTI that allow certain U.S. taxpayers to elect to exclude foreign income that is subject to a high effective tax rate from their GILTI inclusions. The GILTI high-tax exclusion is an annual election and is retroactively available.
For 2020, we reported a 21.5% effective tax rate, which is higher than the 21.0% U.S. federal corporate statutory rate due primarily to an increase in state taxes, valuation allowances on foreign tax credit carryforwards, and uncertain tax positions including related interest and penalties, partially offset by excess tax benefits on stock based compensation and foreign taxes in jurisdictions which have tax rates lower than the U.S. federal corporate statutory rate.
For 2019, we reported a 18.8% effective tax rate, which is lower than the 21.0% U.S. federal corporate statutory rate due primarily to excess tax benefits on stock based compensation, partially offset by U.S. federal tax on foreign earnings and foreign taxes in jurisdictions which have tax rates that are higher than the U.S. federal corporate statutory rate. We also changed our indefinite reinvestment assertion on our unremitted foreign earnings during the fourth quarter 2019, such that management intends to repatriate current year foreign earnings, net of working capital requirements, and indefinitely reinvest prior years’ foreign earnings. The change in assertion had an immaterial impact on the current year effective tax rate.
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Significant Changes in Assets and Liabilities
Total goodwill and intangibles at December 31, 2021 increased compared with December 31, 2020, due primarily to the acquisitions of Sontiq and Neustar. See “Recent Transactions” above and Part II, Item 8 “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” Note 2, “Business Acquisitions” for additional information.
Total cash and cash equivalents increased due primarily to proceeds received from the disposal of our Healthcare business in December, 2021. See Part II, Item 8 “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” Note 3, “Discontinued Operations,” for additional information. A portion of the proceeds from the disposal of our Healthcare business were used to fully repay the Second Lien Term Loan obtained to finance the acquisition of Sontiq. See Part II, Item 8 “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” Note 12, “Debt,” for additional information.
Total debt at December 31, 2021 increased due to additional financings in connection with these acquisitions. See Part II, Item 8 “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” Note 12, “Debt,” for additional information.
Liquidity and Capital Resources
Overview
Our principal sources of liquidity are cash flows provided by operating activities, cash and cash equivalents on hand, and our senior secured revolving line of credit. Our principal uses of liquidity are working capital, capital expenditures, debt service and other capital structure obligations, business acquisitions, and other general corporate purposes. We believe our cash on hand, cash generated from operations, and funds available under the senior secured revolving line of credit will be sufficient to fund our planned capital expenditures, debt service and other capital structure obligations, business acquisitions and operating needs for the foreseeable future. Our ability to maintain adequate liquidity for our operations in the future is dependent upon a number of factors, including our revenue, macroeconomic conditions, our ability to contain costs, including capital expenditures, and to collect accounts receivable, and various other factors, many of which are beyond our control. We will continue to monitor our liquidity position and may elect to raise funds through debt or equity financing in the future to fund operations, significant investments or acquisitions that are consistent with our growth strategy
Cash and cash equivalents totaled $1,842.4 million and $492.7 million at December 31, 2021 and 2020, respectively, of which $205.0 million and $232.0 million were held outside the United States. As of December 31, 2021, we had no outstanding balance under the Senior Secured Revolving Credit Facility and $0.1 million of outstanding letters of credit, and could have borrowed up to the remaining $299.9 million available.
We also have the ability to request incremental loans on the same terms under the existing senior secured credit facility up to the greater of an additional $1,000.0 million and 100% of Consolidated EBITDA. In addition, so long as the senior secured net leverage ratio does not exceed 4.25-to-1, we may incur additional incremental loans, subject to certain additional conditions and commitments by existing or new lenders to fund any additional borrowings. 
With certain exceptions, the Senior Secured Credit Facility obligations are secured by a first-priority security interest in substantially all of the assets of Trans Union LLC, including its investments in subsidiaries. The Senior Secured Credit Facility contains various restrictions and nonfinancial covenants, along with a senior secured net leverage ratio test. The nonfinancial covenants include restrictions on dividends, investments, dispositions, future borrowings and other specified payments, as well as additional reporting and disclosure requirements. The senior secured net leverage test must be met as a condition to incur additional indebtedness, make certain investments, and may be required to make certain restricted payments. The senior secured net leverage ratio must not exceed 5.5-to-1 at any such measurement date.
On January 31, 2022, we prepaid $400 million of our Senior Secured Term Loans, funded from our cash on hand. The remaining balance retained in cash and cash equivalents is consistent with our short-term cash needs and investment objectives.
In April 2022, we are expected to pay approximately $352 million of income taxes related to the gain on the sale of our Healthcare business.
In the second quarter of 2022, we expect to close on the announced agreement to acquire Verisk Financial Services, including Argus Information and Advisory Services, and pay the approximate $515 million purchase price. We intend to fund the acquisition through cash on hand. For additional information on this transaction, see Part II, Item 8, “Notes to Consolidated Financial Statements,” Note 25, “Subsequent Events.”
The Company may be required to make additional principal payments on the Senior Secured Term Loan B based on excess cash flows of the prior year, as defined in the agreement. There were no excess cash flows for 2021 and therefore no additional payment will be required in 2022. Additional payments based on excess cash flows could be due in future years. See Part II,
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Item 8, “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” Note 12, “Debt,” for additional information about our debt.
During 2021 and 2020, we prepaid $85.0 million and $150.0 million, respectively, towards our Senior Secured Term Loans, funded from our cash on hand.
During 2021, the board of directors declared one quarterly dividend of $0.075 per share and three quarterly dividends of $0.095 per share, of which we paid $69.8 million. During 2020, the board of directors declared four quarterly dividends of $0.075 per share, of which we paid $57.6 million.
Any determination to pay dividends in the future will be at the discretion of our board of directors and will depend upon results of operations, financial condition, contractual restrictions, restrictions imposed by applicable law and other factors our board of directors deems relevant. We currently have capacity and intend to continue to pay a quarterly dividend, subject to approval by our board.
During the first quarter of 2021, 1.2 million, outstanding employee restricted stock units vested and became taxable to the employees. Employees satisfy their payroll tax withholding obligations in a net share settlement arrangement. We remitted cash to the respective governmental agencies equivalent to the value of the shares employees used to satisfy their withholding obligations of $36.8 million. There will be a similar cash remittance in February 2022.
On February 13, 2017, our board of directors authorized the repurchase of up to $300.0 million of our common stock over the next 3 years. Our board of directors removed the three-year time limitation on February 8, 2018. To date, we have repurchased $133.5 million of our common stock and have the ability to repurchase the remaining $166.5 million.
We have no obligation to repurchase additional shares, and the timing, actual number and value of the shares that are repurchased, if any, will be at the discretion of management and will depend on a number of factors, including market conditions, the cost of repurchasing shares, the availability of alternative investment opportunities, liquidity, and other factors deemed appropriate. Repurchases may be suspended, terminated or modified at any time for any reason. Any repurchased shares will have the status of treasury shares and may be used, if and when needed, for general corporate purposes.
Sources and Uses of Cash
 Twelve months ended December 31,Change
(dollars in millions)2021202020192021 vs. 20202020 vs. 2019
Cash provided by operating activities$808.3 $787.6 $776.9 $20.8 $10.7 
Cash used in investing activities(2,212.9)(267.2)(203.9)(1,945.7)(63.3)
Cash provided by (used in) financing activities2,762.3 (296.9)(484.8)3,059.2 187.9 
Effect of exchange rate changes on cash and cash equivalents(8.0)(4.4)0.6 (3.6)(5.0)
Net change in cash and cash equivalents$1,349.7 $219.1 $88.8 $1,130.7 $130.3 
Operating Activities
For 2021, the increase in cash provided by continuing operations was due primarily to an increase in operating performance and a decrease in interest expense, partially offset by an increase in working capital. For 2020, the increase in cash provided by operating activities was due primarily to a decrease in interest expense and a decrease in working capital, partially offset by a decrease in operating performance as a result of COVID-19.
Investing Activities
For 2021, the increase in cash used in investing activities was due primarily to the acquisitions of Neustar and Sontiq, various investments in nonconsolidated affiliates, and an increase in capital expenditures, partially offset by the proceeds from the sale of our Healthcare business. For 2020, the increase in cash used in investing activities was due primarily to proceeds from the disposal of discontinued operations in 2019 that did not recur in 2020, an increase in cash used for acquisitions and an increase in capital expenditures, partially offset by an increase in proceeds from the sale of investments in 2020.
Financing Activities
For 2021, The increase in cash provided by financing activities was due primarily to debt proceeds used to fund the Neustar and Sontiq acquisitions, partially offset by the repayment of the debt from a portion of the proceeds received from the sale of our Healthcare business and increased debt financing fees. For 2020, the decrease in cash used in financing activities was due primarily to a decrease in debt prepayments, $150 million in 2020 compared with $340 million in 2019.
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Capital Expenditures
We make capital expenditures to grow our business by developing new and enhanced capabilities, to increase the effectiveness and efficiency of the organization and to reduce risks. We make capital expenditures for product development, disaster recovery, security enhancements, regulatory compliance, and the replacement and upgrade of existing equipment at the end of its useful life.
For 2021, cash paid for capital expenditures increased $18.6 million to $224.2 million. For 2020, cash paid for capital expenditures increased $17.2 million to $205.6 million.
Debt
Senior Secured Credit Facility
On June 15, 2010, we entered into a Senior Secured Credit Facility with various lenders. This facility has been amended several times and currently consists of the Senior Secured Term Loan B-6, Senior Secured Term Loan B-5, Senior Secured Term Loan A-3 (collectively, the “Senior Secured Term Loans”), and the Senior Secured Revolving Credit Facility.
On December 1, 2021, we entered into an agreement to amend certain provisions of the Senior Secured Credit Facility and exercise our right to draw additional debt in an amount of $3,100.0 million, less original issue discount and deferred financing fees of $7.8 million and $43.6 million, respectively. Proceeds from the incremental loan on the Senior Secured Credit Facility were used to fund the acquisition of Neustar.
In addition, on December 1, 2021, we entered into a Second Lien Credit Agreement to obtain term loans in an aggregate amount of $640.0 million, less original issue discount and deferred financing fees of $3.2 million and $14.3 million, respectively, used for the acquisition of Sontiq. On December 23, 2021, we fully repaid the Second Lien Term Loan using a portion of the proceeds from our sale of the Healthcare business.
Hedges
On December 23, 2021, we entered into new interest rate swap agreements with various counter-parties that effectively fix our LIBOR exposure on a portion of our Senior Secured Term Loan or similar replacement debt. The new swaps commenced on December 31, 2021, and expires on December 31, 2026, with a current aggregate notional amount of $1,600.0 million that amortizes each quarter. The new swaps require TransUnion to pay fixed rates varying between 1.4280% and 1.4360% in exchange for receiving a variable rate that matches the variable rate on our loans. We have designated these swap agreements as cash flow hedges.
On March 10, 2020, we entered into two tranches of interest rate swap agreements with various counter-parties that effectively fix our LIBOR exposure on a portion of our Senior Secured Term Loans or similar replacement debt. The first swap commenced on June 30, 2020, and expires on June 30, 2022, with a current aggregate notional amount of $1,120.0 million that amortizes each quarter. The first swap requires TransUnion to pay fixed rates varying between 0.5200% and 0.5295% in exchange for receiving a variable rate that matches the variable rate on our loans. The second swap commences on June 30, 2022, and expires on June 30, 2025, with a current aggregate notional amount of $1,110.0 million that amortizes each quarter after it commences. The second swap requires TransUnion to pay fixed rates varying between 0.9125% and 0.9280% in exchange for receiving a variable rate that matches the variable rate on our loans. We have designated these swap agreements as cash flow hedges.
On December 17, 2018, we entered into interest rate swap agreements with various counter-parties that effectively fix our LIBOR exposure on a portion of our Senior Secured Term Loans or similar replacement debt, which is currently fixed at 2.702% and 2.706%. We have designated these swap agreements as cash flow hedges. The current aggregate notional amount under these agreements is $1,390.0 million, decreasing each quarter until the second agreement terminates on December 30, 2022.
Effect of certain debt covenants
A breach of any of the covenants under the agreements governing our debt could limit our ability to borrow funds under the senior secured revolving line of credit and could result in a default under the Senior Secured Credit Facility. Upon the occurrence of an event of default under the senior secured credit facility, the lenders could elect to declare all amounts then outstanding to be immediately due and payable, and the lenders could terminate all commitments to extend further credit. If we were unable to repay the amounts declared due, the lenders could proceed against any collateral granted to them to secure that indebtedness.
With certain exceptions, the Senior Secured Credit Facility obligations are secured by a first-priority security interest in substantially all of the assets of Trans Union LLC, including its investment in subsidiaries. The Senior Secured Credit Facility contains various restrictions and nonfinancial covenants, along with a senior secured net leverage ratio test. The nonfinancial covenants include restrictions on dividends, investments, dispositions, future borrowings and other specified payments, as well
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as additional reporting and disclosure requirements. The senior secured net leverage test must be met as a condition to incur additional indebtedness, make certain investments, and may be required to make certain restricted payments. The senior secured net leverage ratio must not exceed 5.5-to-1 at any such measurement date. Under the terms of the Senior Secured Credit Facility, TransUnion may make dividend payments up to the greater of $100 million or 10.0% of Consolidated EBITDA per year, or an unlimited amount provided that no default or event of default exists and so long as the total net leverage ratio does not exceed 4.75-to-1. As of December 31, 2021, we were in compliance with all debt covenants.
Our ability to meet our liquidity needs or to pay dividends on our common stock depends on our subsidiaries’ earnings, the terms of their indebtedness, and other contractual restrictions.
For additional information about our debt and hedge, see Part II, Item 8, “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” Note 12, “Debt.”
Contractual Obligations
Refer to Part II, Item 8, “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” Note 12, “Debt,” Note 13, “Leases” and Note 21, “Commitments,” for information about our long-term debt obligations, noncancelable lease obligations, and noncancelable purchase obligations as of December 31, 2021.
Application of Critical Accounting Estimates
We prepare our consolidated financial statements in conformity with generally accepted accounting principles (“GAAP”). See Part II, Item 8, “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements” Note 1, “Significant Accounting and Reporting Policies,” for additional information about our significant accounting and reporting policies that require us to make certain judgements and estimates in reporting our operating results and our assets and liabilities. The following paragraphs describe the accounting policies that require significant judgment and estimates due to inherent uncertainty or complexity.
Goodwill
As of December 31, 2021, our consolidated balance sheet included goodwill of $5,525.7 million. As of December 31, 2021, we did not have any other indefinite-lived intangible assets. We conduct an impairment test in the fourth quarter of each year, or more frequently if events or circumstances indicate that the carrying value of goodwill may be impaired.
We have the option to first perform a qualitative analysis to determine if it is more likely than not that the fair value of a reporting unit is less than its carrying value. If the qualitative analysis indicates that an impairment is more likely than not for any reporting unit, we perform a quantitative impairment analysis for that reporting unit. We have the option to bypass the qualitative analysis for any reporting unit and proceed directly to performing a quantitative analysis.
Our quantitative analysis consists of a fair value calculation for each reporting unit that combines an income approach, using the discounted cash flow method, and a market approach, using the guideline public company method. The quantitative impairment analysis requires the application of a number of significant assumptions, including estimates of future revenue growth rates, EBITDA margins, discount rates, and market multiples. The projected future revenue and EBITDA margins, and the resulting projected cash flows of each reporting unit is based on internal operating plans reviewed by management, extrapolated over the forecast period. The discount rate for each reporting unit is based on the weighted average cost of capital for the reporting unit. Market multiples are based on the Guideline Public Company Method using comparable publicly traded company multiples of earnings before interest, taxes, and depreciation and amortization for a group of benchmark companies.
We believe the assumptions we use in our qualitative and quantitative analysis are reasonable and consistent with assumptions that would be used by other marketplace participants. In order to ensure the assumptions used in the analysis are reasonable, we compare the sum of the fair value of the reporting units to our market capitalization, to ensure it is within a reasonable range. However, such assumptions are inherently uncertain, and a change in assumptions could change the estimated fair values of our reporting units and, therefore, future impairment charges could be required, which could be material to the consolidated financial statements.
In 2021, we elected to bypass the qualitative goodwill impairment analysis, and instead performed a quantitative goodwill impairment analysis for all reporting units. For each of our reporting units, the fair value exceeded the carrying value and no impairment was recorded. Further, a 10% decrease in the estimated cash flows or a 10% increase in the discount rate, combined with a 10% decrease in the market multiple would not result in an impairment for any of our reporting units. Our reporting units that have longer operating histories have greater headroom compared with reporting units that include significant recent acquisitions.
Business Acquisitions
During the fourth quarter of 2021, we completed the acquisitions of Neustar for $3,106.6 million in cash, subject to certain customary purchase price adjustments, and Sontiq for $642.8 million in cash, subject to certain customary purchase price
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adjustments. These transactions were accounted for as business combinations under the acquisition method of accounting. The acquisition method requires, among other things, that assets acquired and liabilities assumed in a business combination generally be recognized at their fair values as of the acquisition date. The determination of fair value requires management to make significant estimates and assumptions. The excess of the purchase price over the fair value of the acquired net assets has been recorded as goodwill.
The valuations of the assets acquired and liabilities assumed have not yet been finalized as of December 31, 2021. The purchase price allocations are preliminary and subject to change, including the valuation of intangible assets, income taxes and goodwill, among other items. The fair values assigned to assets acquired and liabilities assumed as of December 31, 2021 are based on management’s best estimates and assumptions as of the reporting date.
In determining the fair value of the identifiable intangible assets, we utilized various forms of the income approach, depending on the asset being valued. The estimation of fair value requires significant judgment related to cash flow forecasts, discount rates reflecting the risk inherent in each cash flow stream, competitive trends, market comparables and other factors. Other inputs included historical data, current and anticipated market conditions, and growth rates.
The intangible assets were valued using the following valuation approaches:
Customer Relationships
We valued customer relationships using the multi-period excess-earnings method, a form of the income approach, which required the application of judgment for significant assumptions. Significant assumptions include customer attrition rates, EBITDA margins, and discount rates.
Technology and software
We valued the developed technology using the relief-from-royalty method, a form of the income approach, which required the application of judgment for significant assumptions. Significant assumptions include the royalty rate, economic depreciation factors, and discount rates.
Other identifiable intangible assets
Other identifiable intangible assets include trade names and trademarks and non-compete agreements for key employees, which are not material. Trade names and trademarks were valued using the relief from royalty method and non-compete agreements were valued using the lost income method.
We engaged a third-party valuation specialist to assist in our analysis of the fair value of the acquired intangibles. All judgements, significant assumptions and estimates, and forecasts were either provided by or reviewed by us. While we chose to utilize a third-party valuation specialist for assistance, the fair value analysis and related valuations reflect the conclusions of management and not those of any third party. We believe the judgements and assumptions we have used are reasonable and consistent with assumptions that would be used by other marketplace participants. However such assumptions are inherently uncertain, and a change in assumptions could change the estimated fair values of the intangible assets which could have a material impact on our consolidated financial statements.
Legal Contingencies
We are routinely named as defendants in, or parties to, various legal actions and proceedings relating to our current or past business operations. These actions generally assert claims for violations of federal or state credit reporting, consumer protection or privacy laws, or common law claims related to the unfair treatment of consumers, and may include claims for substantial or indeterminate compensatory or punitive damages, or injunctive relief, and may seek business practice changes. We believe that most of these claims are either without merit or we have valid defenses to the claims, and we vigorously defend these matters or seek non-monetary or small monetary settlements, if possible. However, due to the uncertainties inherent in litigation, we cannot predict the outcome of each claim in each instance.
In the ordinary course of business, we also are subject to governmental and regulatory examinations, information-gathering requests, investigations and proceedings (both formal and informal), certain of which may result in adverse judgments, settlements, fines, penalties, injunctions or other relief. In connection with formal and informal inquiries by these regulators, we routinely receive requests, subpoenas and orders seeking documents, testimony, and other information in connection with various aspects of our activities.
In view of the inherent unpredictability of legal and regulatory matters, particularly where the damages sought are substantial or indeterminate or when the proceedings or investigations are in the early stages, we cannot determine with any degree of certainty the timing or ultimate resolution of legal and regulatory matters or the eventual loss, fines or penalties, if any, that may result. We establish reserves for legal and regulatory matters when those matters present loss contingencies that are both probable and can be reasonably estimated. However, for certain of the matters, we are not able to reasonably estimate our exposure because damages have not been specified and (i) the proceedings are in early stages, (ii) there is uncertainty as to the
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likelihood of a class being certified or the ultimate size of the class, (iii) there is uncertainty as to the outcome of similar matters pending against our competitors, (iv) there are significant factual issues to be resolved, and/or (v) there are legal issues of a first impression being presented. The actual costs of resolving legal and regulatory matters, however, may be substantially higher than the amounts reserved for those matters, and an adverse outcome in certain of these matters could have a material adverse effect on our consolidated financial statements in particular quarterly or annual periods. We accrue amounts for certain legal and regulatory matters for which losses were considered to be probable of occurring based on our best estimate of the most likely outcome. It is reasonably possible actual losses could be significantly different from our current estimates. In addition, there are some matters for which it is reasonably possible that a loss will occur, however we cannot estimate a range of the potential losses for these matters. Legal fees incurred in connection with ongoing litigation are considered a period cost and are expensed as incurred.
To reduce our exposure to an unexpected significant monetary award resulting from an adverse judicial decision, we maintain insurance that we believe is appropriate and adequate based on our historical experience. We regularly advise our insurance carriers of the claims (threatened or pending) against us in the course of litigation and generally receive a reservation of rights letter from the carriers when such claims exceed applicable deductibles. We are not aware of any significant monetary claim that has been asserted against us in the course of pending litigation that would not have some level of coverage by insurance after the relevant deductible, if any, is met.
As of December 31, 2021 and 2020, we accrued $85.6 million and $76.0 million, respectively, for anticipated claims. These amounts were recorded in other accrued liabilities in the consolidated balance sheets and the associated expenses were recorded in selling, general and administrative expenses in the consolidated statements of income. Legal fees incurred in connection with ongoing litigation are considered period costs and are expensed as incurred.
See Part II, Item 8 “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” Note 22, “Contingencies,” for further information.
Income Taxes
As of December 31, 2021, our consolidated balance sheet included non-current deferred tax liabilities of $787.6 million. Certain deferred tax assets, including net operating loss and foreign tax credit carryforwards, may be deducted from future taxable income in computing our federal income tax liability. Our deferred tax liability includes deferred tax assets and liabilities resulting from net operating loss and tax credit carryforwards, temporary differences, and unrecognized tax benefits for uncertain tax positions.
We have made certain judgments and estimates to determine various tax amounts recorded, including future tax rates, future taxable income, whether it is more likely than not a tax position will be sustained, and the amount of the unrecognized tax benefit to record. We have deferred tax assets related to loss and credit carryforwards of $169.0 million, net of valuation allowances of $70.8 million. Our estimate of the amount of the deferred tax asset we can realize requires significant assumptions about projected revenues and income that are impacted by future market and economic conditions. We believe the judgments and estimates used are reasonable, but events may arise that were not anticipated and the outcome of tax audits may differ significantly from what is expected.
Recent Accounting Pronouncements
For information about recent accounting pronouncements and the potential impact on our consolidated financial statements, see Part II, Item 8, “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” Note 1, “Significant Accounting and Reporting Policies.”
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ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
In the normal course of business we are exposed to market risk, primarily from changes in variable interest rates and foreign currency exchange rates, which could impact our results of operations and financial position. We manage the exposure to this market risk through our regular operating and financing activities. We may use derivative financial instruments, such as foreign currency and interest rate hedges, but only as a risk management tool and not for speculative or trading purposes.
Interest Rate Risk
Our Senior Secured Credit Facility consists of senior secured term loans and a $300.0 million Senior Secured Revolving Line of Credit. Interest rates on these borrowings are based, at our election, on LIBOR or an alternate base rate, subject to floors, plus applicable margins based on applicable net leverage ratios. As of December 31, 2021, essentially all of our outstanding debt was variable-rate debt. As of December 31, 2021, our variable-rate debt had a weighted-average interest rate of 2.20% and a weighted-average life of 5.54 years. During 2021, a 10% change in the average LIBOR rates utilized in the calculation of our actual interest expense would have increased our interest expense by $0.4 million for the year.
On December 23, 2021, we entered into a tranche of interest rate swap agreements with various counter-parties that effectively fix our LIBOR exposure on a portion of our Senior Secured Term Loan or similar replacement debt. The tranche commenced on December 31, 2021, and expires on December 31, 2026, with a current aggregate notional amount of $1,600.0 million that amortizes each quarter. The tranche requires TransUnion to pay fixed rates varying between 1.4280% and 1.4360% in exchange for receiving a variable rate that matches the variable rate on our loans. We have designated these swap agreements as cash flow hedges.
On March 10, 2020, we entered into two tranches of interest rate swap agreements with various counter-parties that effectively fix our LIBOR exposure on a portion of our Senior Secured Term Loans or similar replacement debt. The first tranche commenced on June 30, 2020, and expires on June 30, 2022, with a current aggregate notional amount of $1,120.0 million that amortizes each quarter. The first tranche requires TransUnion to pay fixed rates varying between 0.5200% and 0.5295% in exchange for receiving a variable rate that matches the variable rate on our loans. The second tranche commences on June 30, 2022, and expires on June 30, 2025, with an initial aggregate notional amount of $1,110.0 million that amortizes each quarter after it commences. The second tranche requires TransUnion to pay fixed rates varying between 0.9125% and 0.9280% in exchange for receiving a variable rate that matches the variable rate on our loans. We have designated these swap agreements as cash flow hedges.
On December 17, 2018, we entered into interest rate swap agreements with various counter-parties that effectively fix our LIBOR exposure on a portion of our Senior Secured Term Loans or similar replacement debt, which is currently fixed at 2.702% and 2.706%. We have designated these swap agreements as cash flow hedges. The current aggregate notional amount under these agreements is $1,390.0 million, decreasing each quarter until the second agreement terminates on December 30, 2022.
Based on the amount of unhedged outstanding variable-rate debt, we have a material exposure to interest rate risk. In the future our exposure to interest rate risk may change due to changes in the amount borrowed, changes in interest rates, or changes in the amount we have hedged. Since the onset of the COVID-19 pandemic, LIBOR has dropped significantly, and may be more volatile in the future, which could materially impact our total interest expense due to the unhedged portion of our debt. The amount of our outstanding debt, and the ratio of fixed-rate debt to variable-rate debt, can be expected to vary as a result of future business requirements, market conditions or other factors.
See Part II, Item 8, “Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements,” Note 12, “Debt,” for additional information about interest rates on our debt.
Foreign Currency Exchange Rate Risk
A substantial majority of our revenue, expense and capital expenditure activities are transacted in U.S. dollars. However, we transact business in a number of foreign currencies, including British pounds sterling, the South African rand, the Canadian dollar, the Indian rupee, the Colombian peso and the Brazilian real. In reporting the results of our foreign operations, we benefit from a weaker U.S. dollar and are adversely affected by a stronger U.S. dollar relative to the foreign currencies.
We are required to translate the assets and liabilities of our foreign subsidiaries that are measured in foreign currencies at the applicable period-end exchange rate in our consolidated balance sheets. We are required to translate revenue and expenses at the average exchange rates prevailing during the year in our consolidated statements of income. The resulting translation adjustment is included in other comprehensive income, as a component of stockholders’ equity. Transaction gains and losses that arise from exchange rate fluctuations on transactions denominated in a currency other than the functional currency are included in other income and expense as incurred.
In 2021, revenue attributable to our foreign operations was $701.9 million, and Adjusted EBITDA attributable to our foreign operations was $300.1 million. A 10% change in the value of the U.S. dollar relative to a basket of the currencies for all foreign
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countries in which we had operations during 2021 would have changed our revenue by $70.2 million and our Adjusted EBITDA by $30.0 million.
A 10% change in the value of the U.S. dollar relative to a basket of currencies for all foreign countries in which we had operations would not have had a significant impact on our 2021 realized foreign currency transaction gains and losses.
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ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Index to Financial Statements
TransUnion:
Report of Independent Registered Public Accounting Firm PricewaterhouseCoopers LLP (PCAOB ID 238)
Report of Independent Registered Public Accounting Firm Ernst & Young, LLP (PCAOB ID 42)
Consolidated Balance Sheets
Consolidated Statements of Income
Consolidated Statements of Comprehensive Income
Consolidated Statements of Cash Flows
Consolidated Statements of Stockholders’ Equity
Notes to Consolidated Financial Statements


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Report of Independent Registered Public Accounting Firm

To the Board of Directors and Stockholders of TransUnion

Opinions on the Financial Statements and Internal Control over Financial Reporting

We have audited the accompanying consolidated balance sheets of TransUnion and its subsidiaries (the “Company”) as of December 31, 2021 and 2020, and the related consolidated statements of income, comprehensive income, stockholders’ equity and cash flows for the years then ended, including the related notes and financial statement schedules listed in the index appearing under Item 15(a)(2) (collectively referred to as the “consolidated financial statements”). We also have audited the Company's internal control over financial reporting as of December 31, 2021, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2021 and 2020, and the results of its operations and its cash flows for the years then ended in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2021, based on criteria established in Internal Control - Integrated Framework (2013) issued by the COSO.

Basis for Opinions

The Company's management is responsible for these consolidated financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in Management's Report on Internal Control over Financial Reporting appearing under Item 9A. Our responsibility is to express opinions on the Company’s consolidated financial statements and on the Company's internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects.

Our audits of the consolidated financial statements included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.

As described in Management’s Report on Internal Control over Financial Reporting, management has excluded Neustar, Inc. and Sontiq, Inc. from its assessment of internal control over financial reporting as of December 31, 2021, because they were acquired by the Company in purchase business combinations during 2021. We have also excluded Neustar, Inc. and Sontiq, Inc. from our audit of internal control over financial reporting. Neustar, Inc. and Sontiq, Inc. are wholly-owned subsidiaries whose total assets and total revenues excluded from management’s assessment and our audit of internal control over financial reporting represent approximately 3% and less than 1% of total assets, respectively, and approximately 2% and less than 1% of total revenues, respectively, of the related consolidated financial statement amounts as of and for the year ended December 31, 2021.

Definition and Limitations of Internal Control over Financial Reporting

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and
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expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

Critical Audit Matters

The critical audit matters communicated below are matters arising from the current period audit of the consolidated financial statements that were communicated or required to be communicated to the audit committee and that (i) relate to accounts or disclosures that are material to the consolidated financial statements and (ii) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.

Goodwill Impairment Assessment – Certain Reporting Units Within the International Segment

As described in Notes 1 and 6 to the consolidated financial statements, the Company’s consolidated goodwill balance was $5,525.7 million as of December 31, 2021, of which $1,384.1 million was allocated to the International reportable segment. Management conducts an impairment test in the fourth quarter of each year, or more frequently if events or circumstances indicate that the carrying value of goodwill may be impaired. Management performed a quantitative impairment test for all reporting units. To determine the fair value of each reporting unit, management uses a combination of an income approach, using the discounted cash flow method, and a market approach, using the guideline public company method. For each reporting unit, management compares the fair value to its carrying value including goodwill. If the fair value of the reporting unit is less than its carrying value, management records an impairment charge based on that difference, up to the amount of goodwill recorded in that reporting unit. The quantitative impairment analysis requires the application of a number of significant assumptions by management, including estimates of future revenue growth rates, EBITDA margins, discount rates, and market multiples.

The principal considerations for our determination that performing procedures relating to the goodwill impairment assessment of certain reporting units within the International segment is a critical audit matter are (i) the significant judgment by management when developing the fair value of the reporting units; (ii) a high degree of auditor judgment, subjectivity, and effort in performing procedures and evaluating management’s significant assumptions related to the estimates of future revenue growth rates, EBITDA margins, the discount rate, and market multiple, as applicable to the reporting units; and (iii) the audit effort involved the use of professionals with specialized skill and knowledge.

Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the consolidated financial statements. These procedures included testing the effectiveness of controls relating to management’s goodwill impairment assessment, including controls over the valuation of certain reporting units within the International segment. These procedures also included, among others (i) testing management’s process for developing the fair value estimates; (ii) evaluating the appropriateness of the discounted cash flow method and guideline public company method; (iii) testing the completeness and accuracy of underlying data used in the valuation methods; and (iv) evaluating the significant assumptions used by management related to the estimates of future revenue growth rates, EBITDA margins, the discount rate, and market multiple, as applicable to the reporting units. Evaluating management’s assumptions related to the estimates of future revenue growth rates and EBITDA margins involved evaluating whether the assumptions used by management were reasonable considering (i) the current and past performance of the reporting units; (ii) the consistency with external market data; and (iii) whether these assumptions were consistent with evidence obtained in other areas of the audit. Professionals with specialized skill and knowledge were used to assist in the evaluation of management’s discounted cash flow method and guideline public company method, and the discount rate and market multiple assumptions, as applicable to the reporting units.

Acquisition of Neustar, Inc. - Valuation of customer relationship intangible assets

As described in Note 2 to the consolidated financial statements, the Company completed the acquisition of Neustar, Inc. during the fourth quarter of 2021. Identifiable intangible assets acquired and recorded by management included customer relationship intangible assets with a preliminary value of $1,183 million. Management valued the customer relationships using the multi-period excess-earnings method, a form of the income approach, which required the application of judgment for significant assumptions. Significant assumptions include customer attrition rates, EBITDA margin, and discount rate.

The principal considerations for our determination that performing procedures relating to the valuation of the customer relationship intangible assets from the acquisition of Neustar, Inc. Inc is a critical audit matter are (i) a high degree of auditor judgment and subjectivity in performing procedures relating to the fair value of the customer relationship intangible assets
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acquired due to the significant judgment by management when developing the estimate; (ii) the significant audit effort in evaluating the significant assumptions related to customer attrition rates, EBITDA margin, and discount rate; and (iii) the audit effort involved the use of professionals with specialized skill and knowledge.

Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the consolidated financial statements. These procedures included testing the effectiveness of controls relating to the acquisition accounting, including controls over management’s valuation of the customer relationship intangible assets. These procedures also included, among others (i) reading the purchase agreement and (ii) testing management’s process for estimating the fair value of the customer relationship intangible assets. Testing management’s process included evaluating the appropriateness of the multi-period excess-earnings method, testing the completeness and accuracy of data provided by management, and evaluating the reasonableness of significant assumptions related to customer attrition rates, EBITDA margin, and discount rate for the customer relationship intangible assets. Evaluating the reasonableness of the EBITDA margin involved considering the (i) past performance of the acquired business; (ii) historical EBITDA margins of the Company and the acquired business; and (iii) guideline public company information. Professionals with specialized skill and knowledge were used to assist in the evaluation of the Company’s valuation method, and the customer attrition rate and discount rate assumptions.

/s/ PricewaterhouseCoopers LLP

Chicago, Illinois
February 22, 2022

We have served as the Company’s auditor since 2020.
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Report of Independent Registered Public Accounting Firm


To the Stockholders and the Board of Directors of TransUnion and subsidiaries
Opinion on the Financial Statements
We have audited the accompanying consolidated statements of income, comprehensive income, stockholders’ equity and cash flows of TransUnion and subsidiaries (the Company) for the year ended December 31, 2019, and the related notes and financial statement schedules for the year ended December 31, 2019 listed in the Index at Item 15 (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the results of its operations and its cash flows for the year ended December 31, 2019, in conformity with U.S. generally accepted accounting principles.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company’s financial statements based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audit provides a reasonable basis for our opinion.
We served as the Company’s auditor from 2005 to 2020.


/s/Ernst & Young, LLP
Chicago, Illinois
February 18, 2020,
Except for Note 3, as to which the date is
February 22, 2022
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TRANSUNION AND SUBSIDIARIES
Consolidated Balance Sheets
(in millions, except per share data)
 December 31,
2021		December 31,
2020
Assets
Current assets:
Cash and cash equivalents$1,842.4 $492.7 
Trade accounts receivable, net of allowance of $10.7 and $17.1
558.0 392.8 
Other current assets231.6 156.1 
Current assets of discontinued operations— 428.1 
Total current assets2,632.0 1,469.7 
Property, plant and equipment, net of accumulated depreciation and amortization of $625.4 and $532.3
247.7 219.7 
Goodwill5,525.7 3,226.6 
Other intangibles, net of accumulated amortization of $1,908.9 and $1,659.1
3,770.6 2,173.1 
Other assets459.0 222.5 
Total assets$12,635.0 $7,311.6 
Liabilities and stockholders’ equity
Current liabilities:
Trade accounts payable$270.2 $188.4 
Short-term debt and current portion of long-term debt114.6 55.5 
Other current liabilities972.2 405.2 
Current liabilities of discontinued operations— 20.7 
Total current liabilities1,357.0 669.8 
Long-term debt6,251.3 3,398.7 
Deferred taxes787.6 396.8 
Other liabilities232.9 210.2 
Total liabilities8,628.8 4,675.5 
Stockholders’ equity:
Common stock, $0.01 par value; 1.0 billion shares authorized at December 31, 2021 and December 31, 2020; 197.4 million and 195.7 million shares issued as of December 31, 2021 and December 31, 2020, respectively; and 191.8 million and 190.5 million shares outstanding as of December 31, 2021 and December 31, 2020, respectively
2.0 2.0 
Additional paid-in capital2,188.9 2,088.1 
Treasury stock at cost; 5.6 million and 5.2 million shares at December 31, 2021 and December 31, 2020, respectively
(252.0)(215.2)
Retained earnings2,254.6 937.4 
Accumulated other comprehensive loss(285.4)(272.1)
Total TransUnion stockholders’ equity3,908.1 2,540.2 
Noncontrolling interests98.1 95.9 
Total stockholders’ equity4,006.2 2,636.1 
Total liabilities and stockholders’ equity$12,635.0 $7,311.6 
See accompanying notes to consolidated financial statements.

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Consolidated Statements of Income
(in millions, except per share data)
Twelve Months Ended December 31,
 202120202019
Revenue$2,960.2 $2,530.6 $2,463.2 
Operating expenses
Cost of services (exclusive of depreciation and amortization below)991.6 853.9 805.5 
Selling, general and administrative943.9 829.7 777.4 
Depreciation and amortization377.0 346.8 338.6 
Total operating expenses2,312.5 2,030.4 1,921.5 
Operating income 647.7 500.3 541.7 
Non-operating income and (expense)
Interest expense(112.6)(126.2)(173.7)
Interest income3.4 5.6 7.5 
Earnings from equity method investments12.0 8.9 13.2 
Other income and (expense), net(49.2)0.9 (14.2)
Total non-operating income and (expense)(146.3)(110.8)(167.2)
Income from continuing operations before income taxes501.4 389.5 374.5 
Provision for income taxes(130.9)(83.7)(70.5)
Income from continuing operations370.5 305.7 304.0 
Discontinued operations, net of tax1,031.7 49.8 48.0 
Net income1,402.2 355.6 352.0 
Less: net income attributable to noncontrolling interests(15.0)(12.4)(5.1)
Net income attributable to TransUnion$1,387.1 $343.2 $346.9 
Income from continuing operations$370.5 $305.7 $304.0 
Less: income from continuing operations attributable to noncontrolling interests(15.0)(12.4)(5.1)
Income from continuing operations attributable to TransUnion355.5 293.4 298.9 
Discontinued operations, net of tax1,031.7 49.8 48.0 
Net income attributable to TransUnion$1,387.1 $343.2 $346.9 
Basic earnings per common share from:
Income from continuing operations attributable to TransUnion$1.86 $1.54 $1.59 
Discontinued operations, net of tax5.39 0.26 0.26 
Net Income attributable to TransUnion$7.25 $1.81 $1.85 
Diluted earnings per common share from:
Income from continuing operations attributable to TransUnion$1.84 $1.53 $1.56 
Discontinued operations, net of tax5.35 0.26 0.25 
Net Income attributable to TransUnion$7.19 $1.79 $1.81 
Weighted-average shares outstanding:
Basic191.4 189.9 187.8 
Diluted193.0 192.2 191.8 
See accompanying notes to consolidated financial statements.


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TRANSUNION AND SUBSIDIARIES
Consolidated Statements of Comprehensive Income
(in millions)
Twelve Months Ended December 31,
 202120202019
Net income$1,402.2 $355.6 $352.0 
Other comprehensive income:
         Foreign currency translation:
               Foreign currency translation adjustment(66.4)8.9 66.1 
               Benefit (expense) for income taxes0.3 0.8 (0.5)
         Foreign currency translation, net(66.1)9.7 65.6 
         Hedge instruments:
               Net change on interest rate cap— 4.1 (11.0)
               Net change on interest rate swap67.3 (43.5)(35.4)
               Cumulative effect of adopting ASU 2017-12— — 1.0 
              Benefit (expense) for income taxes(16.8)9.5 11.5 
         Hedge instruments, net50.5 (29.9)(33.9)
         Available-for-sale securities:
              Net unrealized gain— 0.3 — 
              Expense for income taxes— (0.1)— 
         Available-for-sale securities, net— 0.2 — 
Total other comprehensive (loss) income, net of tax(15.6)(20.0)31.7 
Comprehensive income1,386.6 335.6 383.7 
Less: comprehensive income attributable to noncontrolling interests(12.7)(12.9)(5.7)
Comprehensive income attributable to TransUnion$1,373.9 $322.7 $378.0 
See accompanying notes to consolidated financial statements.


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Consolidated Statements of Cash Flows
(in millions)
Twelve Months Ended December 31,
 202120202019
Cash flows from operating activities:
Net income$1,402.2 $355.6 $352.0 
Less: Discontinued operations, net of tax1,031.7 49.8 48.0 
Income from continuing operations370.5 305.7 304.0 
Adjustments to reconcile net income to net cash provided by operating activities:
Depreciation and amortization377.0 346.8 338.6 
Loss on repayment of loans17.9 0.4 15.0 
Net gain on investments in affiliated companies and other investments(11.9)(7.5)(17.5)
Deferred taxes(17.2)(36.1)(23.0)
Stock-based compensation69.2 44.3 48.3 
Provision for losses on trade accounts receivable(2.6)9.8 8.3 
Other1.4 5.8 6.9 
Changes in assets and liabilities:
Trade accounts receivable(36.2)(15.6)16.3 
Other current and long-term assets(20.9)(3.5)(16.6)
Trade accounts payable45.7 18.1 5.6 
Other current and long-term liabilities(33.5)48.1 25.0 
Cash provided by operating activities of continuing operations759.4 716.3 710.9 
Cash provided by operating activities of discontinued operations48.9 71.3 66.0 
Cash provided by operating activities808.3 787.6 776.9 
Cash flows from investing activities:
Capital expenditures(224.2)(205.6)(188.4)
Proceeds from sale/maturity of other investments36.3 90.6 35.9 
Purchases of other investments(66.9)(73.5)(31.4)
Investments in consolidated affiliates, net of cash acquired (3,596.1)(57.9)(22.3)
Investments in nonconsolidated affiliates and purchase of convertible notes(75.4)(8.6)(24.0)
Proceeds from disposal of discontinued operations1,706.8 1.6 40.3 
Other(1.1)2.4 (3.9)
Cash used in investing activities of continuing operations(2,220.6)(251.0)(193.8)
Cash provided by (used in) investing activities of discontinued operations7.7 (16.2)(10.1)
Cash used in investing activities(2,212.9)(267.2)(203.9)
Cash flows from financing activities:
Proceeds from Term Loans3,740.0 — 3,750.0 
Repayments of Term Loans(640.0)— (3,759.1)
Repayments of debt(140.8)(208.8)(389.0)
Debt financing fees(68.8)— (11.2)
Proceeds from issuance of common stock and exercise of stock options21.9 22.9 24.4 
Dividends to shareholders(69.8)(57.6)(56.8)
Distributions to noncontrolling interests(11.0)(10.9)(3.9)
Employee taxes paid on restricted stock units recorded as treasury stock(36.8)(36.1)(39.2)
Payment of contingent consideration(32.4)(6.4)— 
Cash provided by (used in) financing activities of continuing operations2,762.3 (296.9)(484.8)
Cash used in financing activities of discontinued operations— — (1.9)
Cash provided by (used in) financing activities2,762.3 (296.9)(486.7)
Effect of exchange rate changes on cash and cash equivalents(8.0)(4.4)0.6 
Net change in cash and cash equivalents1,349.7 219.1 86.9 
Cash and cash equivalents, beginning of period492.7 273.6 186.7 
Cash and cash equivalents, end of period$1,842.4 $492.7 $273.6 
Supplemental disclosure of cash flow information:
Cash paid during the period for:
Interest$109.1 $120.0 $163.5 
Income taxes, net of refunds$181.2 $131.9 $110.6 
See accompanying notes to consolidated financial statements.
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TRANSUNION AND SUBSIDIARIES
Consolidated Statements of Stockholders’ Equity
(in millions)
 Common Stock      
 SharesAmountPaid-In
Capital		Treasury
Stock		Retained EarningsAccumulated
Other
Comprehensive
Loss		Noncontrolling
Interests		Total
Balance, December 31, 2018185.7 $1.9 $1,947.3 $(139.9)$363.1 $(282.7)$92.5 $1,982.2 
Net income— — — — 346.9 — 5.1 352.0 
Other comprehensive income (loss)— — — — — 31.1 0.6 31.7 
Distributions to noncontrolling interests— — — — — — (4.1)(4.1)
Noncontrolling interests of acquired businesses— — — — — — (0.1)(0.1)
Stock-based compensation— — 48.4 — — — — 48.4 
Employee share purchase plan0.3 — 15.2 — — — — 15.2 
Exercise of stock options1.6 — 11.4 — — — — 11.4 
Vesting of restricted stock units and performance stock units1.7 — — — — — — — 
Treasury stock purchased(0.6)— — (39.2)— — — (39.2)
Dividends to shareholders— — — — (57.1)— — (57.1)
Cumulative effect of adopting ASC 2017-12— — — — (1.0)— — (1.0)
Other— — — (0.1)0.1 — — — 
Balance, December 31, 2019188.7 $1.9 $2,022.3 $(179.2)$652.0 $(251.6)$94.0 $2,339.4 
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Consolidated Statements of Stockholders’ Equity—Continued
(in millions)
Common Stock
SharesAmountPaid-In
Capital		Treasury
Stock		Retained
Earnings		Accumulated
Other
Comprehensive
Loss		Noncontrolling
Interests		Total
Net income— $— $— $— $343.2 $— $12.4 $355.6 
Other comprehensive income— — — — — (20.5)0.5 (20.0)
Distributions to noncontrolling interests— — — — — — (10.9)(10.9)
Noncontrolling interests of acquired businesses— — (3.7)— — — 0.3 (3.4)
Stock-based compensation— — 43.7 — — — — 43.7 
Employee share purchase plan0.2 — 19.1 — — — — 19.1 
Exercise of stock options0.9 0.1 6.7 — — — — 6.8 
Vesting of restricted stock units and performance stock units1.1 — — — — — — — 
Treasury stock purchased(0.4)— — (36.1)— — — (36.1)
Dividends to shareholders— — — — (57.7)— — (57.7)
Other— — — — — — (0.4)(0.4)
Balance, December 31, 2020190.5 $2.0 $2,088.1 $(215.2)$937.4 $(272.1)$95.9 $2,636.1 
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Consolidated Statements of Stockholders’ Equity—Continued
(in millions)
 Common Stock
 SharesAmountPaid-In
Capital		Treasury
Stock		Retained
Earnings		Accumulated
Other
Comprehensive
Loss		Noncontrolling
Interests		Total
Net income— $— $— $— $1,387.1 $— $15.0 $1,402.2 
Other comprehensive income (loss)— — — — — (13.3)(2.3)(15.6)
Distributions to noncontrolling interests— — — — — — (11.0)(11.0)
Stock-based compensation— — 75.7 — — — — 75.7 
Employee share purchase plan0.2 — 22.2 — — — — 22.2 
Exercise of stock options0.3 — 2.9 — — — — 2.9 
Vesting of restricted stock units and performance stock units1.2 — — — — — — — 
Treasury stock purchased(0.4)— — (36.8)— — — (36.8)
Dividends to shareholders— — — — (69.9)— — (69.9)
Other— — — — — — 0.5 0.5 
Balance, December 31, 2021191.8 $2.0 $2,188.9 $(252.0)$2,254.6 $(285.4)$98.1 $4,006.2 
See accompanying notes to consolidated financial statements.
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TRANSUNION AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Years Ended December 31, 2021, 2020 and 2019
1. Significant Accounting and Reporting Policies
Description of Business
TransUnion is a leading global information and insights company that makes trust possible between businesses and consumers, working to help people around the world access opportunities that lead to a higher quality of life. That trust is built on TransUnion’s ability to deliver safe, innovative solutions with credibility and consistency. We call this Information for Good.
Grounded in our heritage as a credit reporting agency, we have built robust and accurate databases of information for a large portion of the adult population in the markets we serve. We use our data fusion methodology to link and match an increasing set of disparate data to further enrich our database. We use this enriched data, combined with our expertise, to continuously develop more insightful solutions for our customers, all in accordance with global laws and regulations. Because of our work, organizations can better understand consumers in order to make more informed decisions, and earn consumer trust through great, personalized experiences, and the proactive extension of the right opportunities, tools and offers. In turn, we believe consumers can be confident that their data identities will result in better offers and opportunities.
We provide solutions that enable businesses to manage and measure credit risk, market to new and existing customers, verify consumer identities, mitigate fraud, and effectively manage call center operations. Businesses embed our solutions into their process workflows to deliver critical insights and enable effective actions. Consumers use our solutions to view their credit profiles and access analytical tools that help them understand and manage their personal financial information and take precautions against identity theft. We have deep domain expertise across a number of attractive industries, which we also refer to as verticals, including Financial Services and Emerging Verticals, which consists of Insurance, Services and Collections, Tenant and Employment, Technology, Commerce & Communications, Public Sector, Media, and other emerging verticals we serve, as well as our Neustar business. We have a global presence in over 30 countries and territories across North America, Latin America, Europe, Africa, India, and Asia Pacific.
Our solutions are based on a foundation of data assets across financial, credit, alternative credit, identity, phone activity, digital device information, marketing, bankruptcy, lien, judgment, insurance claims, automotive and other relevant information obtained from thousands of sources including financial institutions, private databases and public records repositories. We refine, standardize and enhance this data using sophisticated algorithms to create proprietary databases. Our technology infrastructure allows us to efficiently integrate our data with our analytics and technology capabilities to create and deliver innovative solutions to our customers and to quickly adapt to changing customer needs. Our deep analytics resources, including our people and tools driving predictive modeling and scoring, customer segmentation, benchmarking and forecasting, enable us to provide businesses and consumers with better insights.
We leverage our differentiated capabilities in order to serve a global customer base across multiple geographies and industry verticals. We offer our solutions to business customers in Financial Services, Insurance and other industries, and our customer base includes many of the largest companies in the industries we serve. We sell our solutions to leading consumer lending banks, credit card issuers, alternative lenders, online-only lenders (“FinTechs”), Point of Sale (“POS”)/Buy Now Pay Later (“BNPL”) lenders, auto lenders, auto insurance carriers, cable and telecom operators, retailers, and federal, state and local government agencies. Millions of consumers across the globe also use our data to help manage their personal finances and take precautions against identity theft.
Basis of Presentation
The accompanying consolidated financial statements of TransUnion and subsidiaries have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”). Our consolidated financial statements reflect all adjustments which, in the opinion of management, are necessary for a fair presentation of the periods presented. All significant intercompany transactions and balances have been eliminated. As a result of displaying amounts in millions, rounding differences may exist in the financial statements and footnote tables. Certain prior period presentations, including our discontinued Healthcare operations as further discussed in Note 3, “Discontinued Operations,” have been recast to conform to current year presentations.
Unless the context indicates otherwise, any reference in this report to the “Company,” “we,” “our,” “us,” and “its” refers to TransUnion and its consolidated subsidiaries, collectively.
For the periods presented, TransUnion does not have any material assets, liabilities, revenues, expenses or operations of any kind other than its ownership investment in TransUnion Intermediate Holdings. Inc.
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Principles of Consolidation
The consolidated financial statements of TransUnion include the accounts of TransUnion and all of its controlled subsidiaries. Investments in nonmarketable unconsolidated entities in which the Company is able to exercise significant influence are accounted for using the equity method. Investments in nonmarketable unconsolidated entities in which the Company is not able to exercise significant influence, our “Cost Method Investments,” are accounted for at our initial cost, minus any impairment, plus or minus changes resulting from observable price changes in orderly transactions for the identical or a similar investment of the same issuer.
Use of Estimates
The preparation of consolidated financial statements and related disclosures in accordance with GAAP requires management to make estimates and judgments that affect the amounts reported. We believe that the estimates used in preparation of the accompanying consolidated financial statements are reasonable, based upon information available to management at this time. These estimates and judgments affect the reported amounts of assets, liabilities and disclosure of contingent assets and liabilities at the balance sheet date, as well as the amounts of revenue and expense during the reporting period. Estimates are inherently uncertain and actual results could differ materially from the estimated amounts.
Impact of COVID-19 on Our Financial Statements
During 2020, the economic effect of the COVID-19 pandemic had a material and adverse impact on numerous aspects of our business, including customer demand for our services and solutions in all of our segments. During 2021, we saw ongoing improvements in our results of operations in all the markets where we operate. However, given ongoing uncertainty and the unpredictable nature of the pandemic, including the rise of variants of the virus and the effectiveness of vaccines against those variants, COVID-19 may have a material and adverse impact on various aspects of our business in the future, including our consolidated financial statements.
Segments
Operating segments are businesses for which separate financial information is available and evaluated regularly by our chief operating decision maker (“CODM”) deciding how to allocate resources and assess performance. We have three operating and reportable segments; U.S. Markets, International and Consumer Interactive. We also report expenses for Corporate, which provides support services to each segment. Details of our segment results are discussed in Note 20, “Reportable Segments.”
Revenue Recognition and Deferred Revenue
All of our revenue is derived from contracts with our customers and is reported as revenue in the Consolidated Statements of Income generally as or at the point in time our performance obligations are satisfied. A performance obligation is a promise in a contract to transfer a distinct good or service to a customer. We have contracts with two general groups of performance obligations; those that require us to stand ready to provide goods and services to a customer to use as and when requested (“Stand Ready Performance Obligations”) and those that do not require us to stand ready (“Other Performance Obligations”). Our Stand Ready Performance Obligations include obligations to stand ready to provide data, process transactions, access our databases, software-as-a-service and direct-to-consumer products, rights to use our intellectual property and other services. Our Other Performance Obligations include the sale of certain batch data sets and various professional and other services.
Deferred revenue generally consists of amounts billed in excess of revenue recognized for the sale of data services, subscriptions and set up fees. As our contracts with customers generally have a duration of one year or less, our contract liabilities consist of deferred revenue that is primarily short-term in nature. The current and long-term portions of deferred revenue are included in other current liabilities and other liabilities.
See Note 15, “Revenue,” for a further discussion about our revenue recognition policies.
Costs of Services
Costs of services include data acquisition and royalty fees, personnel costs related to our databases and software applications, consumer and call center support costs, hardware and software maintenance costs, telecommunication expenses and occupancy costs associated with the facilities where these functions are performed.
Selling, General and Administrative Expenses
Selling, general and administrative expenses include personnel-related costs for sales, administrative and management employees, costs for professional and consulting services, advertising and occupancy and facilities expense of these functions. Advertising costs, are expensed as incurred. Advertising costs, which include commissions we pay to our partners to promote our products online, for the years ended December 31, 2021, 2020 and 2019 were $92.9 million, $89.8 million and $83.3 million, respectively.
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Stock-Based Compensation
Compensation expense for all stock-based compensation awards is determined using the grant date fair value. For all equity-based plan, we record the impact of forfeitures when they happen. Expense is recognized on a straight-line basis over the requisite service period of the award, which is generally equal to the vesting period. The details of our stock-based compensation program are discussed in Note 18, “Stock-Based Compensation.”
Income Taxes
Deferred income tax assets and liabilities are determined based on the estimated future tax effects of temporary differences between the financial statement and tax basis of assets and liabilities, as measured by current enacted tax rates. The effect of a tax rate change on deferred tax assets and liabilities is recognized in operations in the period that includes the enactment date of the change. We periodically assess the recoverability of our deferred tax assets, and a valuation allowance is recorded against deferred tax assets if it is more likely than not that some portion of the deferred tax assets will not be realized. See Note 17, “Income Taxes,” for additional information.
Foreign Currency Translation
The functional currency for each of our foreign subsidiaries is generally that subsidiary’s local currency. We translate the assets and liabilities of foreign subsidiaries at the year-end exchange rate, and translate revenues and expenses at the monthly average rates during the year. We record the resulting translation adjustment as a component of other comprehensive income in stockholders’ equity.
Transaction gains and losses that arise from exchange rate fluctuations on transactions denominated in a currency other than the functional currency of an entity are included in the results of operations as incurred. The exchange rate losses for the years ended December 31, 2021, 2020 and 2019 were not material.
Cash and Cash Equivalents
We consider investments in highly liquid debt instruments with original maturities of three months or less to be cash equivalents. The carrying value of our cash and cash equivalents approximate their fair value.
Trade Accounts Receivable
We base our allowance for doubtful accounts estimate on our historical loss experience, our current expectations of future losses, current economic conditions, an analysis of the aging of outstanding receivables and customer payment patterns, and specific reserves for customers in adverse financial condition or for existing contractual disputes.
The following is a rollforward of the allowance for doubtful accounts for the periods presented:
 Twelve months ended December 31,
202120202019
Beginning Balance$17.1 $13.4 $10.5 
Provision for losses on trade accounts receivable(2.6)9.8 8.3 
Write-offs, net of recovered accounts(3.8)(6.1)(5.4)
Ending balance$10.7 $17.1 $13.4 
Long-Lived Assets
Property, Plant, Equipment and Intangibles
Property, plant and equipment is depreciated primarily using the straight-line method, over the estimated useful lives of the assets. Buildings and building improvements are generally depreciated over 20 years. Computer equipment and purchased software are depreciated over 3 to 7 years. Leasehold improvements are depreciated over the shorter of the estimated useful life of the asset or the lease term. Other assets are depreciated over 5 to 7 years. Intangibles, other than indefinite-lived intangibles, are amortized using the straight-line method, which approximates the pattern of usage, over their economic life, generally 3 to 40 years. Assets to be disposed of, if any, are separately presented in the consolidated balance sheet and reported at the lower of the carrying amount or fair value, less costs to sell, and are no longer depreciated. See Note 5, “Property, Plant and Equipment,” and Note 7, “Intangible Assets,” for additional information about these assets.
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Internal Use Software
We monitor the activities of each of our internal use software and system development projects and analyze the associated costs, making an appropriate distinction between costs to be expensed and costs to be capitalized. Costs incurred during the preliminary project stage are expensed as incurred. Many of the costs incurred during the application development stage are capitalized, including costs of software design and configuration, development of interfaces, coding, testing and installation of the software. Once the software is ready for its intended use, it is amortized on a straight-line basis over its useful life, generally 3 to 10 years.
Impairment of Long-Lived Assets
We review long-lived asset groups that are subject to amortization for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset group may not be recoverable. Recoverability of asset groups to be held and used is measured by a comparison of the carrying amount of an asset group to the estimated undiscounted future cash flows expected to be generated by the asset group. If the carrying amount of an asset group exceeds its estimated future cash flows, an impairment charge is recognized equal to the amount by which the carrying amount of the asset group exceeds the fair value of the asset group. There were no significant impairment charges recorded during 2021, 2020 and 2019.
Marketable Securities
We classify our investments in debt and equity securities in accordance with our intent and ability to hold the investments. Held-to-maturity securities are carried at amortized cost, which approximates fair value, and are classified as either short-term or long-term investments based on the contractual maturity date. Earnings from these securities are reported as a component of interest income. Available-for-sale securities if any, are carried at fair market value, with the unrealized gains and losses, net of tax, included in accumulated other comprehensive income.
At December 31, 2021 and 2020, the Company’s marketable securities consisted of available-for-sale securities. The available-for-sale securities relate to foreign exchange-traded corporate bonds. There were no significant realized or unrealized gains or losses for these securities for any of the periods presented. We follow fair value guidance to measure the fair value of our financial assets as further described in Note 19, “Fair Value”.
We periodically review our marketable securities to determine if there is an other-than-temporary impairment on any security. If it is determined that an other-than-temporary decline in value exists, we write down the investment to its market value and record the related impairment loss in other income. There were no other-than-temporary impairments of marketable securities in 2021, 2020 or 2019.
Goodwill
Goodwill is allocated to our reporting units, which are an operating segment or one level below an operating segment. We have no indefinite-lived intangible assets other than goodwill. We conduct an impairment test in the fourth quarter of each year, or more frequently if events or circumstances indicate that the carrying value of goodwill may be impaired.
We have the option to first perform a qualitative analysis to determine if it is more likely than not that the fair value of a reporting unit is less than its carrying value. If the qualitative analysis indicates that an impairment is more likely than not for a reporting unit, we perform a quantitative impairment analysis for that reporting unit. We have the option to bypass the qualitative analysis for any reporting unit and proceed directly to performing a quantitative analysis.
When we perform a quantitative impairment analysis, we use a combination of an income approach, using the discounted cash flow method, and a market approach, using the guideline public company method, to determine the fair value of each reporting unit. For each reporting unit, we compare the fair value to its carrying value including goodwill. If the fair value of the reporting unit is less than its carrying value, we record an impairment charge based on that difference, up to the amount of goodwill recorded in that reporting unit.
The quantitative impairment analysis requires the application of a number of significant assumptions, including estimates of future revenue growth rates, EBITDA margins, discount rates, and market multiples. The projected future revenue and EBITDA margins, and the resulting projected cash flows of each reporting unit, is based on internal operating plans reviewed by management, extrapolated over the forecast period. The discount rate for each reporting unit is based on the weighted average cost of capital for the reporting unit. Market multiples are based on the Guideline Public Company Method using comparable publicly traded company multiples of earnings before interest, taxes, and depreciation and amortization for a group of benchmark companies.
See Note 6, “Goodwill,” for additional information about our 2021 impairment analysis.
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Benefit Plans
We maintain a 401(k) defined-contribution profit sharing plan for eligible employees. We provide a partial matching contribution and a discretionary contribution based on a fixed percentage of a participant’s eligible compensation. Contributions to this plan for the years ended December 31, 2021, 2020 and 2019 were $34.5 million, $27.2 million and $29.6 million, respectively.
Recently Adopted Accounting Pronouncements
On December 18, 2019, the FASB issued Accounting Standards Update (“ASU”) 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes. This ASU removes specific exceptions to the general principles in Topic 740. Among other things, it eliminates the need for organizations to analyze whether the following apply in a given period: an exception to the incremental approach for intra-period tax allocation; exceptions to accounting for basis differences when there are ownership changes in foreign investments; and an exception in interim period income tax accounting for year-to-date losses that exceed anticipated losses. This ASU also improves financial statement preparers’ application of income tax-related guidance and simplifies GAAP for: franchise taxes that are partially based on income; transactions with a government that result in a step up in the tax basis of goodwill; separate financial statements of legal entities that are not subject to tax; and enacted changes in tax laws in interim periods. This guidance is effective for annual reporting periods beginning after December 15, 2020, including interim periods therein. Upon adoption, this guidance did not have a material impact on our consolidated financial statements.
On January 16, 2020, the FASB issued ASU 2020-01, Investments-Equity Securities (Topic 321), Investments-Equity Method and Joint Ventures (Topic 323), and Derivatives and Hedging (Topic 815)-Clarifying the Interactions between Topic 321, Topic 323, and Topic 815. This ASU, among other things, clarifies that a company should consider observable transactions that require a company to either apply or discontinue the equity method of accounting under Topic 323, Investments-Equity Method and Joint Ventures, for the purposes of applying the measurement alternative in accordance with Topic 321 immediately before applying or upon discontinuing the equity method. This amendment also clarifies that, when determining the accounting for certain forward contracts and purchased options a company should not consider, whether upon settlement or exercise, if the underlying securities would be accounted for under the equity method or fair value option. This guidance is effective for annual reporting periods beginning after December 15, 2020, including interim periods therein. Upon adoption, this guidance had no impact our consolidated financial statements as we had no such transactions at the time of adoption.
On October 28, 2021, the FASB issued ASU 2021-08, Business Combinations (Topic 805): Accounting for Contract Assets and Contract Liabilities from Contracts with Customers. This ASU will require acquiring entities to apply Topic 606 to recognize and measure contract assets and contract liabilities in a business combination. Previously, acquiring entities generally were required to recognize such items at fair value on the acquisition date. This guidance is effective for annual reporting periods beginning after December 15, 2022, including interim periods therein, with early adoption permitted. We elected to early adopt this guidance on December 1, 2021, and have accounted for contract assets and liabilities for our 2021 acquisitions in accordance with this updated guidance.
Recent Accounting Pronouncements Not Yet Adopted
There are no pending recent accounting pronouncements that apply to TransUnion that have not been adopted.
2. Business Acquisitions
2021 Acquisitions
During the fourth quarter of 2021, we completed the acquisitions of Neustar, Inc. (“Neustar”) and Sontiq, Inc. (“Sontiq”). These transactions were accounted for as business combinations under the acquisition method of accounting. The acquisition method requires, among other things, that assets acquired and liabilities assumed in a business combination generally be recognized at their fair values as of the acquisition date. The determination of fair value requires management to make significant estimates and assumptions. The excess of the purchase price over the fair value of the acquired net assets has been recorded as goodwill. The results of operations of these acquisitions are included in our consolidated financial statements from the dates of acquisition.
Neustar
On December 1, 2021, we completed our previously announced acquisition of Neustar, pursuant to a Securities Purchase Agreement dated as of September 11, 2021 (the “Neustar Agreement”), by and between Trans Union LLC and Aerial Investors LLC.
Neustar, a premier identity resolution company with leading solutions in Marketing, Risk and Communications, enables customers to build connected consumer experiences by combining decision analytics with real-time identity resolution services driven by its OneID platform. The acquisition of Neustar provides immediate scale to our identity resolution services through
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their large, well-established customer base as well as accelerates the future growth of our identity-based solutions and expands our powerful digital identity capabilities through the addition of distinctive data and analytics, enabling consumers and businesses to transact online with greater confidence.
We acquired 100% of the equity interests of Neustar for $3,106.6 million in cash, subject to certain customary purchase price adjustments as set forth in the Neustar Agreement. The transaction was primarily funded with the proceeds from the issuance of our Incremental Term B-6 Loan, which closed concurrently with the closing of the transaction. See Note 12, “Debt,” for additional information about our Incremental Term B-6 Loan. There was no contingent consideration resulting from this transaction.
We engaged in business activities with Neustar prior to the acquisition that were not material. The results of operations of Neustar subsequent to the acquisition date and the acquired assets and assumed liabilities, including the preliminary allocation of goodwill and intangible assets, are included in the U.S. Markets segment, including revenue of $51.0 million and a net loss of $11.7 million in 2021.
Sontiq
On December 1, 2021, we completed our previously announced acquisition of Sontiq, pursuant to a Securities Purchase Agreement dated as of October 22, 2021 (the “Sontiq Agreement”), by and among TransUnion Interactive, Inc., EZShield Group Holdings, LLC and EZS Parent Inc.
Sontiq provides solutions including identity monitoring, restoration, and response products and services to help empower consumers and businesses to proactively protect against identity theft and cyber threats. The acquisition of Sontiq enables access to an attractive new base of customers and consumers through a highly recurring subscription-based revenue model and also complements and expands our Consumer Interactive solutions portfolio by providing valuable identity protection services for consumers. Sontiq’s identity security monitoring products incorporate our credit data, are highly complementary to our capabilities and are expected to significantly increase our opportunities for growth.
We acquired 100% of the equity interests of Sontiq for $642.8 million in cash, subject to certain customary purchase price adjustments as set forth in the Sontiq Agreement. The transaction was primarily funded with the proceeds from the issuance of our Second Lien Term Loan, which closed concurrently with the closing of the transaction. The Second Lien Term Loan was repaid in full prior to December 31, 2021. See Note 12, “Debt,” for additional information about our Second Lien Term Loan. There was no contingent consideration resulting from this transaction.
The results of operations of Sontiq subsequent to the acquisition date and the acquired assets and assumed liabilities, including the preliminary allocation of goodwill and intangible assets, are included within the Consumer Interactive segment. The results of operations of Sontiq subsequent to the acquisition date are not material to our consolidated financial results.
Acquisition Costs
We recognized transaction costs related to the acquisitions of Neustar and Sontiq of $38.8 million for the year ended December 31, 2021. These costs include investment banker fees, legal, due diligence, and other external costs that we have recorded within other income and expense.
Purchase Price Allocations
The purchase price for the acquisitions are preliminary, pending final customary purchase price adjustments. The valuations of the assets acquired and liabilities assumed have not yet been finalized as of December 31, 2021. The purchase price allocations are preliminary and subject to change, including the valuation of intangible assets, income taxes and goodwill, among other items. The purchase price allocations for both of the acquisitions will be finalized as the information necessary to complete the analysis is obtained, which we expect to complete within one year from the acquisition date.
The fair values assigned to assets acquired and liabilities assumed as of December 31, 2021 are based on management’s best estimates and assumptions as of the reporting date and are considered preliminary pending finalization of the valuation analysis. Further, we have not yet allocated goodwill to reporting units.
The table below summarizes the preliminary allocation of fair value of assets acquired and liabilities assumed as of December 1, 2021:
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December 1, 2021
(in millions)NeustarSontiqTotal
Purchase price:$3,106.6 $642.8 $3,749.4 
Assets acquired:
Cash and cash equivalents$122.7 $17.8 $140.4 
Trade accounts receivable118.7 10.4 129.1 
Other current assets24.9 1.4 26.3 
Right of use lease assets83.2 2.4 85.6 
Property, plant and equipment42.5 5.2 47.7 
Identifiable intangible assets1,513.0 237.2 1,750.2 
Goodwill1
1,900.3 445.8 2,346.0 
Other assets5.4 0.2 5.6 
Total assets acquired$3,810.7 $720.3 $4,531.0 
Liabilities assumed:
Accounts payable$29.1 $7.0 $36.1 
Other current liabilities157.6 4.7 162.3 
Deferred revenue49.3 19.1 68.5 
Operating lease liabilities88.3 2.4 90.7 
Other liabilities14.7 0.1 14.8 
Deferred tax liabilities365.1 44.2 409.3 
Total liabilities assumed$704.1 $77.5 $781.6 
Net assets acquired:$3,106.6 $642.8 $3,749.4 
(1) For tax purposes, we estimate that $326.6 million of the goodwill, which originated from previous acquisitions of Neustar and Sontiq, is tax deductible.
Identifiable Intangible Assets
The following table sets forth the components of identifiable intangible assets acquired and the weighted average amortization period as of the acquisition date:
December 1, 2021
NeustarSontiq
(dollars in millions)Fair ValueWeighted-Average Amortization PeriodFair ValueWeighted-Average Amortization Period
Customer relationships$1,183.0 18 years$184.1 17 years
Technology and software320.0 10 years49.3 10 years
Trade names and trademarks10.0 1 year1.5 1 year
Non-compete agreements— — 2.3 2 years
Total identifiable intangible assets$1,513.0 16 years$237.2 15 years
In determining the fair value of the identifiable intangible assets, we utilized various forms of the income approach, depending on the asset being valued. The estimation of fair value requires significant judgment related to cash flow forecasts, discount rates reflecting the risk inherent in each cash flow stream, competitive trends, market comparables and other factors. Other inputs included historical data, current and anticipated market conditions, and growth rates.
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The intangible assets were valued using the following valuation approaches:
Customer Relationships
We valued customer relationships using the multi-period excess-earnings method, a form of the income approach, which required the application of judgment for significant assumptions. Significant assumptions include customer attrition rates, EBITDA margins, and discount rates.
Technology and software
We valued the developed technology using the relief-from-royalty method, a form of the income approach, which required the application of judgment for significant assumptions. Significant assumptions include the royalty rate, economic depreciation factors, and discount rates.
Other identifiable intangible assets
Other identifiable intangible assets include trade names and trademarks and non-compete agreements for key employees, which are not material. Trade names and trademarks were valued using the relief from royalty method, and non-compete agreements were valued using the lost income method.
We recorded the excess of the purchase price over the fair value of the net tangible and identifiable intangible assets acquired and liabilities assumed as goodwill. The purchase price of both acquisitions exceeded the fair value estimate of the net assets acquired primarily due to expected future revenue growth opportunities, synergies, operating efficiencies and the assembled workforce. The acquisition of Neustar is expected to accelerate growth through both material revenue synergies and increased participation in the fast-growing digital marketing and identity verification marketplaces. The acquisition of Sontiq is expected to result in a more comprehensive set of offerings which are expected to significantly increase growth opportunities for the Company.
Unaudited pro-forma financial information
The supplemental pro-forma financial information has been prepared using the acquisition method of accounting and is based on the historical financial information of TransUnion and Neustar, assuming the transaction occurred on January 1, 2020. The pro-forma revenues and results of operations of Sontiq are not included because the impact on our consolidated financial statements is immaterial. The supplemental pro-forma financial information does not necessarily represent what the combined companies' revenue or results of operations would have been had the acquisition of Neustar been completed on January 1, 2020, nor is it intended to be a projection of future operating results of the combined company. It also does not reflect any operating efficiencies or potential cost savings that might be achieved from synergies of combining TransUnion and Neustar.
The unaudited supplemental pro-forma financial information has been calculated after applying TransUnion’s accounting policies and adjusting the results of the combined company to reflect incremental amortization expense resulting from the fair value adjustments for acquired intangible assets as well as the net decrease to interest expense resulting from the elimination of the historical interest expense on Neustar debt that was paid off at closing partially offset by incremental interest expense resulting from the external debt borrowed by TransUnion to fund the acquisition, and the corresponding income tax impact of these adjustments.
Also, during the year ended December 31, 2021, TransUnion and Neustar incurred $29.7 million and $88.2 million of acquisition-related costs, respectively. These expenses are reflected in Pro-forma net income from continuing operations attributable to TransUnion for the year ended December 31, 2020, in the table below and the acquisition related expenses incurred by TransUnion are included in other income (expense), net, in our consolidated statement of income for the year ended December 31, 2021..
There are no other material non-recurring pro-forma adjustments directly attributable to the acquisition included in the reported pro-forma revenue and pro-forma net income.
(Unaudited)
TransUnion and Neustar combined
For the Year Ended
(in millions)December 31,
2021		December 31,
2020
Pro-forma revenue$3,493.2 $3,064.5 
Pro-forma net income from continuing operations attributable to TransUnion$247.6 $72.9 
2020 and 2019 Acquisitions
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During 2020 and 2019, we acquired 100% of the equity of several businesses, including Tru Optik Data Corp (“Tru Optik”) and Signal Digital, Inc. (“Signal”) in 2020, and TruSignal, Inc. (“TruSignal”) in 2019. The results of operations of Tru Optik, Signal and TruSignal, which are not material to our consolidated financial statements, have been included as part of our U.S. Markets reportable segment in our consolidated statements of income since the date of each of the acquisitions. During 2021, we finalized the purchase accounting for Tru Optik and Signal, with no material changes to our previous estimates.
3. Discontinued Operations
During the fourth quarter of 2021 the Company entered into a definitive agreement to sell the Healthcare business, and on December 17, 2021, we completed the closing of the transaction. The transaction consideration was $1,705.9 million in cash, subject to a final net working capital adjustment in early 2022. The after-tax net proceeds are approximately $1.4 billion, subject to the final net working capital adjustment. The terms and conditions of the transaction are set forth in the Stock Purchase Agreement dated as of October 26, 2021, by and between Trans Union LLC and nThrive, Inc. We also entered into a transition services agreement (“TSA”) that requires Trans Union LLC to provide certain administrative and operational services to the buyer on a transitional basis for generally up to 24 months. This agreement is not material and does not confer upon us the ability to influence the operating or financial policies of the buyer subsequent to the closing date. Income generated from the services provided under the TSA will be recorded in other income and expense.
The Healthcare business met the criteria for discontinued operations at December 31, 2021, as the sale represented a strategic shift in our business that will have a major effect on our results of operations. The Healthcare business was previously an operating segment included in our U.S. Markets reportable segment. As the transaction closed on December 17, 2021, there are no assets or liabilities of discontinued operations on our consolidated balance sheet as of December 31, 2021. The assets and liabilities of the Healthcare business are classified as current assets and current liabilities of discontinued operations in our consolidated balance sheet for 2020. The results of operations are classified as discontinued operations, net of tax, in our consolidated statement of income for all periods presented. Discontinued operations, net of tax, also includes a gain on the disposal of the Healthcare business of $982.5 million, net of tax, in the consolidated statements of income for the twelve months ended December 31, 2021.
The results of operations of the Healthcare business are presented as income from discontinued operations, net of tax on our consolidated statement of income. The following table presents financial results of TransUnion Healthcare business for each respective period.
Twelve Months Ended December 31,
(in millions)
2021(1)
2020
2019 (2)
Revenue$184.8 $185.9 $192.9 
Operating expenses
Cost of services (exclusive of depreciation and amortization below)65.6 66.5 68.6 
Selling, general and administrative39.1 30.6 34.7 
Depreciation and amortization16.5 21.1 23.5 
Total operating expenses121.2 118.2 126.8 
Operating income of discontinued operations63.6 67.7 66.1 
Non-operating income and (expense)1.9 (1.4)(0.1)
Income before income taxes from discontinued operations65.5 66.3 66.0 
Provision for income taxes(16.3)(16.5)(13.4)
Gain on sale of discontinued operations, net of tax982.5 — — 
Income from discontinued operations, net of tax$1,031.7 $49.8 $52.6 
(1) The 2021 results are through December 16, 2021.
(2) The 2019 column in the table above does not include the activity of discontinued operations of our UK business that was not material. We disposed of that business in 2019.
The following table presents the carrying amounts of the major classes of assets and liabilities of discontinued operations of TransUnion Healthcare business at each respective date:

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(in millions)
December 31,
2021(1)
December 31,
2020
Assets:
Trade accounts receivable$— $60.9 
Other current assets— 3.9 
Goodwill— 235.0 
Other intangible assets— 111.5 
Other non-current assets— 16.8 
Total assets of discontinued operations$— $428.1 
Liabilities:
Current liabilities$— $15.4 
Non-current liabilities— 5.3 
Total liabilities of discontinued operations$— $20.7 
(1) The sale of the Healthcare business closed on December 17, 2021. As of December 31, 2021, there are no assets or liabilities of discontinued operations.
4. Other Current Assets
Other current assets consisted of the following:
(in millions)December 31,
2021		December 31,
2020
Prepaid expenses (Note 2)$136.2 $84.3 
Contract assets (Note 15)5.2 1.8 
Marketable securities (Note 19)3.1 3.2 
Other87.1 66.8 
Total other current assets$231.6 $156.1 
The December 31, 2021 prepaid expense balance includes prepaid expenses from our acquisition of Neustar and Sontiq. Other includes other investments in non-negotiable certificates of deposit that are recorded at their carrying value which approximates fair value.
5. Property, Plant and Equipment
Property, plant and equipment, including those acquired by capital lease, consisted of the following:
(in millions)December 31,
2021		December 31,
2020
Computer equipment and furniture$511.8 $451.8 
Purchased software218.3 179.0 
Building and building improvements139.8 118.0 
Land3.2 3.2 
Total cost of property, plant and equipment873.1 752.0 
Less: accumulated depreciation(625.4)(532.3)
Total property, plant and equipment, net of accumulated depreciation$247.7 $219.7 
The December 31, 2021 balances above include fixed assets acquired from our acquisition of Neustar and Sontiq. See Footnote 2, “Business Acquisitions,” for additional information. Depreciation expense, including depreciation of assets recorded under capital leases, for the years ended December 31, 2021, 2020 and 2019, was $98.8 million, $94.0 million and $85.6 million, respectively.
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6. Goodwill
Our reporting units consist of U.S. Markets, Consumer Interactive, and the geographic regions of the United Kingdom, Africa, Canada, Latin America, India, and Asia Pacific within our International reportable segment.
In 2021 and 2020, we elected to bypass the qualitative goodwill impairment analysis, and instead performed a quantitative goodwill impairment analysis for all reporting units. We compared the fair value of each reporting unit to its carrying value including goodwill. For each of our reporting units, the fair value exceeded the carrying value and no impairment loss was recorded. Our reporting units that have longer operating histories have greater headroom compared with those reporting units that include significant recent acquisitions. We did not record a goodwill impairment loss in 2021, 2020 and 2019 and as of December 31, 2021, there was no accumulated goodwill impairment loss.
Goodwill allocated to our reportable segments as of December 31, 2021, and 2020, and the changes in the carrying amount of goodwill during the periods, consisted of the following: 
(in millions)U.S. MarketsInternationalConsumer
Interactive		Total
Balance, December 31, 2019$1,486.1 $1,415.5 $241.2 $3,142.8 
2020 Acquisitions76.2 — — 76.2 
Foreign exchange rate adjustment— 7.6 — 7.6 
Balance, December 31, 2020$1,562.3 $1,423.1 $241.2 $3,226.6 
2021 Acquisitions1,900.2 — 445.8 2,346.0 
Purchase accounting measurement period adjustments(7.9)— — (7.9)
Foreign exchange rate adjustment— (39.0)— (39.0)
Balance, December 31, 2021$3,454.6 $1,384.1 $687.0 $5,525.7 
7. Intangible Assets
Intangible assets are initially recorded at their acquisition cost, or fair value if acquired as part of a business combination, and amortized over their estimated useful lives. The increase in the gross amount of intangible assets during 2021 was attributable to a $1,750.2 million increase related to our business acquisitions as further discussed in Note 2, “Acquisitions,” and a $140.3 million increase related to the development of internal use software, partially offset by a $33.4 million decrease related to changes in foreign exchange rates. Intangible assets consisted of the following:
 December 31, 2021December 31, 2020
(in millions)GrossAccumulated
Amortization		NetGrossAccumulated
Amortization		Net
Customer relationships$1,918.1 $(225.3)$1,692.8 $561.4 $(189.6)$371.8 
Internal use software1,765.9 (874.5)891.4 1,270.4 (766.3)504.1 
Database and credit files1,403.3 (655.0)748.3 1,418.5 (566.1)852.4 
Trademarks, copyrights and patents581.9 (146.7)435.2 569.5 (129.8)439.7 
Noncompete and other agreements10.3 (7.4)2.9 12.4 (7.3)5.1 
Total intangible assets$5,679.5 $(1,908.9)$3,770.6 $3,832.2 $(1,659.1)$2,173.1 
All amortizable intangible assets are amortized on a straight-line basis, which approximates the pattern of benefit, over their estimated useful lives. Database and credit files are generally amortized over a 12 to 15 year period. Internal use software is generally amortized over 3 to 10 year period. Customer relationships are amortized over a 10 to 20 year period. Trademarks primarily consist of the TransUnion trade name, which is being amortized over a 40 year useful life, and the remaining trademark assets are generally amortized over a shorter period based on their estimated useful life, which ranges between 1 and 20 years. Copyrights, patents, noncompete and other agreements are amortized over varying periods based on their estimated economic life. The weighted average lives of our intangibles is approximately 15 years.
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Amortization expense related to intangible assets for the years ended December 31, 2021, 2020 and 2019, was $278.2 million, $252.7 million and $253.0 million, respectively. Estimated future amortization expense related to intangible assets at December 31, 2021, is as follows:
(in millions) Annual
Amortization
Expense
2022$402.7 
2023372.7 
2024345.0 
2025324.1 
2026302.7 
Thereafter2,023.4 
Total future amortization expense$3,770.6 

8. Other Assets
Other assets consisted of the following:
(in millions)December 31,
2021		December 31,
2020
Investments in affiliated companies (Note 9)$240.5 $133.6 
Right-of-use lease assets (Note 2 and 13)145.1 59.8 
Interest rate swaps (Notes 12 and 19)12.1 — 
Other61.3 29.1 
Total other assets$459.0 $222.5 
The increase in Investment in affiliated companies was due primarily to new investments and gains on existing investments. The December 31, 2021 right-of-use lease assets balance includes leases acquired from our acquisition of Neustar and Sontiq. See Footnote 2, “Business Acquisitions,” for additional information.
9. Investments in Affiliated Companies
Investments in affiliated companies represent our investment in non-consolidated domestic and foreign entities. These entities are in businesses similar to ours.
We use the equity method to account for investments in affiliates where we are able to exercise significant influence. For these investments, we adjust the carrying value for our proportionate share of the affiliates’ earnings, losses and distributions, as well as for purchases and sales of our ownership interest.
We account for nonmarketable investments in equity securities in which we are not able to exercise significant influence, our “Cost Method Investments”, at our initial cost, minus any impairment, plus or minus changes resulting from observable price changes in orderly transactions for the identical or a similar investment of the same issuer. For these investments, we adjust the carrying value for any purchases or sales of our ownership interests. We record any dividends received from these investments as other income in non-operating income and expense.
We have elected to account for our investment in a limited partnership, which is not material, using the net asset value fair value practical expedient. Gains and losses on this investment, which are not material, are included in other income and expense in the consolidated statements of income.
During 2021, we recorded a $12.5 million gain on a Cost Method investment resulting from an observable price change for a similar investment of the same issuer. During 2020, we recorded a $4.8 million impairment loss of a Cost Method investment, partially offset by a $2.5 million gain on a Cost Method investment resulting from an observable price change for a similar investment of the same issuer. During 2019, we recorded a $31.2 million gain on a Cost Method investment resulting from an observable price change for a similar investment of the same issuer, partially offset by a $10.0 million impairment loss of other Cost Method investments. These gains and losses are included in other income and expense in the consolidated statements of income.
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Investments in affiliated companies consisted of the following:
(in millions)December 31,
2021		December 31,
2020
Equity Method investments$46.1 $46.1 
Cost Method Investments192.6 87.5 
Limited Partnership investment1.8 — 
Total investments in affiliated companies (Note 8)$240.5 $133.6 
These balances are included in other assets in the consolidated balance sheets. The increase in Cost Method investments is due primarily due to investments we made during 2021 recorded in all three of our Operating Segments and a gain on a Cost Method investment resulting from an observable price change for a similar investment of the same issuer.
For one of these costs method investments, we paid cash and also have a contingent consideration obligation due in 2022. In addition, for this investment, under the terms of the purchase agreement, there are call and put options associated with this investment that are exercisable in 2024 and 2025, subject to certain restrictions. The fair value of the call option is included in other assets on our balance sheet. The fair value of the put option is included in other liabilities on our balance sheet, and will be adjusted to fair value at each reporting date. See Note 11, “Other Liabilities,” and Note 19, “Fair Value,” for additional information about the contingent consideration and put option.
Earnings from equity method investments, which are included in other non-operating income and expense, and dividends received from equity method investments consisted of the following:
Twelve Months Ended December 31,
(in millions)202120202019
Earnings from equity method investments (Note 20)$12.0 $8.9 $13.2 
Dividends received from equity method investments$11.0 $8.2 $10.3 
10. Other Current Liabilities
Other current liabilities consisted of the following:
(in millions)December 31,
2021		December 31,
2020
Income taxes payable (Note 3 and Note 17)$351.1 $7.8 
Accrued payroll and employee benefits279.9 147.9 
Deferred revenue (Note 15)133.6 79.3 
Accrued legal and regulatory (Note 22)85.6 76.0 
Operating lease liabilities (Note 13)38.4 16.9 
Contingent consideration (Note 19)16.8 37.8 
Other66.8 39.5 
Total other current liabilities$972.2 $405.2 
Income taxes payable at December 31, 2021, includes income taxes payable resulting from the sale of our Healthcare business. The December 31, 2021 balances of income taxes payable, accrued payroll and employee benefits, deferred revenue, operating lease liabilities, contingent consideration and other all include liabilities assumed from our acquisition of Neustar and Sontiq. See Footnote 2, “Business Acquisitions,” for additional information. The increase in accrued payroll and employee benefits is also due to an increase related to our improved operating results in 2021 compared with 2020. Contingent consideration that was accrued as of December 31, 2020 was paid out in the second quarter of 2021.
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11. Other Liabilities
Other liabilities consisted of the following:
(in millions)December 31,
2021		December 31,
2020
Operating lease liabilities (Note 13)$119.1 $49.0 
Unrecognized tax benefits, net of indirect tax effects (Note 17)40.7 34.4 
Interest rate swaps (Notes 12 and 19)34.5 89.7 
Put option (Note 9 and 19)11.9 — 
Deferred revenue (Note 15)6.5 2.6 
Other20.2 34.5 
Total other liabilities$232.9 $210.2 
The December 31, 2021 balances of operating lease liabilities include liabilities assumed from our acquisition of Neustar and Sontiq. See Footnote 2, “Business Acquisitions,” for additional information. The increase in the interest rate swaps liability was due primarily to changes in the forward LIBOR curve during the period.
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12. Debt
Debt outstanding consisted of the following:
(in millions)December 31,
2021		December 31,
2020
Senior Secured Term Loan B-6, payable in quarterly installments through December 1, 2028, with periodic variable interest at LIBOR or alternate base rate, plus applicable margin (2.75% at December 31, 2021), net of original issue discount and deferred financing fees of $7.7 million and $43.1 million, respectively, at December 31, 2021
$3,049.2 $— 
Senior Secured Term Loan B-5, payable in quarterly installments through November 15, 2026, with periodic variable interest at LIBOR or alternate base rate, plus applicable margin (1.85% at December 31, 2021, and 1.90% at December 31, 2020), net of original issue discount and deferred financing fees of $3.2 million and $7.7 million, respectively, at December 31, 2021, and original issue discount and deferred financing fees of $3.9 million and $9.5 million, respectively, at December 31, 2020
2,227.1 2,335.6 
Senior Secured Term Loan A-3, payable in quarterly installments through December 10, 2024, with periodic variable interest at LIBOR or alternate base rate, plus applicable margin (1.35% at December 31, 2021 and 1.40% at December 31, 2020), net of original issue discount and deferred financing fees of $1.9 million and $1.2 million, respectively, at December 31, 2021, and original issue discount and deferred financing fees of $2.6 million and $1.6 million, respectively, at December 31,2020
1,089.4 1,117.0 
Senior Secured Revolving Credit Facility— — 
Other notes payable— 1.4 
Finance leases0.2 0.2 
Total debt6,365.9 3,454.2 
Less short-term debt and current portion of long-term debt(114.6)(55.5)
Total long-term debt$6,251.3 $3,398.7 
Excluding any potential additional principal payments which may become due on the Senior Secured Credit Facility based on excess cash flows of the prior year, scheduled future maturities of total debt at December 31, 2021, were as follows:
(in millions)December 31,
2021
2022$114.6 
2023114.6 
20241,034.5 
202557.0 
20262,165.0 
Thereafter2,945.0 
Unamortized original issue discounts and deferred financing fees(64.8)
Total debt$6,365.9 
Senior Secured Credit Facility
On June 15, 2010, we entered into a Senior Secured Credit Facility with various lenders. This facility has been amended several times and currently consists of the Senior Secured Term Loan B-6, Senior Secured Term Loan B-5, Senior Secured Term Loan A-3 (collectively, the “Senior Secured Term Loans”), and the Senior Secured Revolving Credit Facility.
On December 1, 2021, we entered into an agreement to amend certain provisions of the Senior Secured Credit Facility and exercise our right to draw additional debt in an amount of $3,100.0 million, less original issue discount and deferred financing fees of $7.8 million and $43.6 million, respectively. Proceeds from the incremental loan on the Senior Secured Credit Facility were used to fund the acquisition of Neustar.
In addition, on December 1, 2021, we entered into a Second Lien Credit Agreement to obtain term loans (the “Second Lien Term Loan”) in an aggregate amount of $640.0 million, less original issue discount and deferred financing fees of $3.2 million and $14.3 million, respectively, used to fund the acquisition of Sontiq. On December 23, 2021, we fully repaid the Second Lien Term Loan using a portion of the proceeds from our sale of the Healthcare business. As a result of the prepayment, we expensed $3.2 million and $14.2 million, respectively, of the unamortized original issue discount and deferred fees to other income and expense in the consolidated statement of income.
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During 2021 and 2020, we prepaid $85.0 million and $150.0 million, respectively, of our Senior Secured Term Loans, funded from our cash on hand. As a result of these prepayments, we expensed $0.5 million and $0.9 million, respectively, of the unamortized original issue discount and deferred fees to other income and expense in the consolidated statement of income.
Interest rates on the Senior Secured Term Loan B-6 are based on the London Interbank Offered Rate (“LIBOR”) with a floor of 0.50%, unless otherwise elected, plus a margin of 2.25% or 2.00% depending on our total net leverage ratio. The Company is required to make principal payments at the end of each quarter of 0.25% of the 2021 incremental principal balance plus additional borrowings with the remaining balance due December 1, 2028.
Interest rates on the Senior Secured Term Loan B-5 are based on LIBOR, unless otherwise elected, plus a margin of 1.75%. The Company is required to make principal payments at the end of each quarter of 0.25% of the 2019 refinanced principal balance plus additional borrowings with the remaining balance due November 15, 2026.
Interest rates on Senior Secured Term Loan A-3 are based on LIBOR, unless otherwise elected, plus a margin of 1.25%, 1.50% or 1.75% depending on our total net leverage ratio. The Company is required to make principal payments of 0.625%, of the 2019 refinanced principal balance plus additional borrowings, at the end of each quarter through December 2021, increasing to 1.25% each quarter thereafter, with the remaining balance due December 10, 2024.
Interest rates on the Senior Secured Revolving Credit Facility are based on LIBOR, unless otherwise elected, plus a margin of 1.25%, 1.50% or 1.75% depending on our total net leverage ratio. There is a 0.20%, 0.25% or 0.30% annual commitment fee, depending on our total net leverage ratio, payable quarterly based on the undrawn portion of the Senior Secured Revolving Credit Facility. The commitment under the Senior Secured Revolving Line of Credit expires on December 10, 2024.
Interest rates on the Second Lien Term Loan were based on LIBOR, unless otherwise elected, plus a margin of 5.00%. The Company was required to repay the principal balance plus interest due December 1, 2029, however, the loan was repaid in full on December 23, 2021.
The Company may be required to make additional payments based on excess cash flows of the prior year, as defined in the agreement. Depending on the senior secured net leverage ratio for the year, a principal payment of between zero and fifty percent of the excess cash flows will be due the following year. There is no required excess cash flow payment due for 2022. Additional payments based on excess cash flows could be due in future years.
As of December 31, 2021, we had no outstanding balance under the Senior Secured Revolving Credit Facility and $0.1 million of outstanding letters of credit, and could have borrowed up to the remaining $299.9 million available.
TransUnion also has the ability to request incremental loans on the same terms under the Senior Secured Credit Facility up to the sum of the greater of $1,000.0 million and 100% of Consolidated EBITDA, minus the amount of secured indebtedness and the amount incurred prior to the incremental loan, and may incur additional incremental loans so long as the senior secured net leverage ratio does not exceed 4.25-to-1, subject to certain additional conditions and commitments by existing or new lenders to fund any additional borrowings. 
With certain exceptions, the Senior Secured Credit Facility obligations are secured by a first-priority security interest in substantially all of the assets of Trans Union LLC, including its investment in subsidiaries. The Senior Secured Credit Facility contains various restrictions and nonfinancial covenants, along with a senior secured net leverage ratio test. The nonfinancial covenants include restrictions on dividends, investments, dispositions, future borrowings and other specified payments, as well as additional reporting and disclosure requirements. The senior secured net leverage test must be met as a condition to incur additional indebtedness, make certain investments, and may be required to make certain restricted payments. The senior secured net leverage ratio must not exceed 5.5-to-1 at any such measurement date. Under the terms of the Senior Secured Credit Facility, TransUnion may make dividend payments up to the greater of $100 million or 10.0% of Consolidated EBITDA per year, or an unlimited amount provided that no default or event of default exists and so long as the total net leverage ratio does not exceed 4.75-to-1. As of December 31, 2021, we were in compliance with all debt covenants.
Interest Rate Hedging
On December 23, 2021, we entered into new interest rate swap agreements with various counter-parties that effectively fix our LIBOR exposure on a portion of our Senior Secured Term Loan or similar replacement debt. The new swaps commenced on December 31, 2021, and expires on December 31, 2026, with a current aggregate notional amount of $1,600.0 million that amortizes each quarter. The tranche requires TransUnion to pay fixed rates varying between 1.4280% and 1.4360% in exchange for receiving a variable rate that matches the variable rate on our loans. We have designated these swap agreements as cash flow hedges.
On March 10, 2020, we entered into two new interest rate swap agreements with various counter-parties that effectively fix our LIBOR exposure on a portion of our Senior Secured Term Loans or similar replacement debt. The first swap commenced on June 30, 2020, and expires on June 30, 2022, with a current aggregate notional amount of $1,120.0 million that amortizes each quarter. The first swap requires TransUnion to pay fixed rates varying between 0.5200% and 0.5295% in exchange for
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receiving a variable rate that matches the variable rate on our loans. The second swap commences on June 30, 2022, and expires on June 30, 2025, with an initial aggregate notional amount of $1,110.0 million that amortizes each quarter after it commences. The second swap requires TransUnion to pay fixed rates varying between 0.9125% and 0.9280% in exchange for receiving a variable rate that matches the variable rate on our loans. We have designated these swap agreements as cash flow hedges.
On December 17, 2018, we entered into interest rate swap agreements with various counter-parties that effectively fix our LIBOR exposure on a portion of our Senior Secured Term Loans or similar replacement debt, which is currently fixed at 2.702% and 2.706%. We have designated these swap agreements as cash flow hedges. The current aggregate notional amount under these agreements is $1,390.0 million, decreasing each quarter until the second agreement terminates on December 30, 2022.
On December 18, 2015, we entered into interest rate cap agreements with various counter-parties that effectively capped our LIBOR exposure on a portion of our Senior Secured Term Loans or similar replacement debt at 0.75% beginning June 30, 2016. These cap agreements expired on June 30, 2020, and were previously designated as cash flow hedges.
The change in the fair value of our hedging instruments, included in our assessment of hedge effectiveness, is recorded in other comprehensive income, and reclassified to interest expense when the corresponding hedged debt affects earnings.
The net change in the fair value of the swaps resulted in an unrealized gain of $67.3 million ($50.5 million, net of tax), and an unrealized loss of $43.5 million ($32.7 million, net of tax) and $35.4 million ($26.7 million, net of tax) for the years ended December 31, 2021, 2020 and 2019, respectively, recorded in other comprehensive income. Interest expense on the swaps in the twelve months ended December 31, 2021, 2020 and 2019 was $41.8 million ($31.4 million, net of tax), $32.3 million ($23.3 million, net of tax) and $5.6 million ($4.2 million), respectively. We expect to recognize a loss of approximately $47.1 million as interest expense due to our expectation that LIBOR will exceed the fixed rates of interest over the next twelve months.
The net change in the fair value of the caps resulted in a recognition into interest expense previously unrealized loss of $4.1 million ($2.8 million, net of tax), and an unrealized loss of $11.0 million ($8.2 million, net of tax), for the years ended December 31, 2020 and 2019, respectively, recorded in other comprehensive income. Interest expense reclassified from other comprehensive income to interest expense related to the fair value of the portion of the caps expiring in the twelve-month period of 2020 and 2019 was an income of expense of $6.7 million ($5.1 million net of tax), and income of $1.9 million ($1.4 million net of tax), respectively. These cap agreements expired on June 30, 2020.
Fair Value of Debt
As of December 31, 2021, the fair value of our Senior Secured Term Loan B-6, excluding original issue discounts and deferred fees, was approximately $3,096.1 million. As of December 31, 2021 and December 31, 2020, the fair value of our Senior Secured Term Loan B-5, excluding original issue discounts and deferred fees, was approximately $2,217.0 million and $2,351.9 million, respectively. As of December 31, 2021 and December 31, 2020, the fair value of our variable-rate Senior Secured Term Loan A-3, excluding original issue discounts and deferred fees was approximately $1,076.1 million and $1,112.8 million, respectively. The fair values of our variable-rate term loans are determined using Level 2 inputs, based on quoted market prices for the publicly traded instruments.
13. Leases
As a result of our acquisitions of Neustar and Sontiq on December 31, 2021, we acquired additional leases in 2021. Our lease obligations consist of operating leases for office space and data centers and a small number of finance leases for equipment. Our operating leases have remaining lease terms of up to 11.1 years. As of December 31, 2021 and December 31, 2020 the weighted-average remaining lease terms were 6.6 years and 5.4 years, respectively. We have options to extend many of our operating leases for an additional period of time and options to terminate several of our operating leases early. The lease term consists of the non-cancelable period of the lease, periods covered by options to extend the lease if we are reasonably certain to exercise the option, periods covered by an option to terminate the lease if we are reasonably certain not to exercise the option, and periods covered by an option to extend or not to terminate the lease in which the exercise of the option is controlled by the lessor.
On the commencement date of an operating lease, we record a right-of-use asset (“ROU asset”), which represents our right to use or control the use of the specified asset for the lease term, and an offsetting lease liability, which represents our obligation to make lease payments arising from the lease, based on the present value of the net fixed future lease payments due over the initial lease term. We use an estimate of the incremental borrowing rate for similarly rated debt issuers, at the inception of the lease or when the lease is assumed, as the discount rate to determine the present value of the net fixed future lease payments, except for leases where the interest rate implicit in the lease is readily determinable. As of December 31, 2021 and
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December 31, 2020, the weighted-average discount rate at lease inception used to calculate the present value of the fixed future lease payments were 4.1% and 5.7%, respectively.
Lease accounting guidance under ASU 842 require us to expense the net fixed payments of operating leases on a straight-line basis over the lease term. ASU 842 requires us to include any built up deferred or prepaid rent balance resulting from the difference between the straight-line expense and the cash payments as a component of our ROU asset. Also included in our ROU asset is any monthly prepayment of rent. Our rent expense is typically due on the first day of each month, and we typically pay rent several weeks before it is due, so at any given month end, we will have a prepaid rent balance that is included as a component of our ROU asset.
Most of our operating leases contain variable non-lease components consisting of maintenance, insurance, utilities, taxes and similar costs of the office and data center space we occupy. We have adopted the practical expedient to not separate these non-lease components from the lease components and instead account for them as a single lease component for all of our leases. We straight-line the net fixed payments of operating leases over the lease term and expense the variable lease payments in the period in which we incur the obligation to pay such variable amounts. These variable lease payments are not included in our calculation of our ROU assets or lease liabilities.
We have no significant short-term operating leases, finance leases, or subleases.
ROU assets are included in Other Assets, and operating lease liabilities are included in Other Current Liabilities and Other Liabilities in our Consolidated Balance Sheet. Finance lease assets are included in Property, Plant and Equipment, and finance lease liabilities are included in the Current Portion of Long-term Debt and Long-term Debt in our Consolidated Balance Sheet. See Note 8, “Other Assets,” Note 10, “Other Current Liabilities,” Note 11, “Other Liabilities,” and Note 12, “Debt,” for additional information about these items.
For the years ended December 31, 2021, 2020, 2019 our operating lease costs, including fixed, variable and short-term lease costs, were $30.4 million, $33.4 million, $32.4 million, respectively. Cash paid for operating leases are included in operating cash flows, and were $30.9 million, $34.2 million, and $32.4 million, for the years ended December 31, 2021, 2020, and 2019, respectively. Our finance lease amortization expense, interest expense, and cash paid were not significant for the reported periods.
We have elected to use the portfolio approach to assess the discount rate we use to calculate the present value of our future lease payments. Using this approach does not result in a materially different outcome compared with applying separate discount rates to each lease in our portfolio.
We have adopted an accounting policy to recognize rent expense for short-term leases, those leases with initial lease terms of twelve months or less, on a straight-line basis in our income statement.
Future fixed payments for non-cancelable operating leases and finance leases in effect as of December 31, 2021, are payable as follows:
(in millions)Operating LeasesFinance LeasesTotal
2022$42.4 $0.1 $42.5 
202335.8 0.1 35.9 
202424.1 — 24.1 
202516.7 — 16.7 
202613.3 — 13.3 
Thereafter46.8 — 46.8 
Less imputed interest(21.6)— (21.6)
Totals$157.5 $0.2 $157.7 

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14. Stockholders’ Equity
Common Stock Dividends
During the second quarter of 2021, we increased our quarterly dividend from $0.075 per share to $0.095 per share. During 2021, 2020 and 2019, we paid dividends of $69.8 million, $57.6 million and $56.8 million, respectively. Dividends declared accrue to outstanding restricted stock units and are paid to employees as dividend equivalents when the restricted stock units vest.
Any determination to pay dividends in the future will be at the discretion of our board of directors and will depend on a number of factors, including our liquidity, results of operations, financial condition, contractual restrictions, restrictions imposed by applicable law and other factors our board of directors deems appropriate. We currently have capacity and intend to continue to pay a quarterly dividend, subject to approval by our board.
Treasury Stock
On February 13, 2017, our board of directors authorized the repurchase of up to $300.0 million of our common stock over the next 3 years. Our board of directors removed the three-year time limitation on February 8, 2018. To date, we have repurchased $133.5 million of our common stock and have the ability to repurchase the remaining $166.5 million.
We have no obligation to repurchase additional shares. Any determination to repurchase additional shares will be at the discretion of management and will depend on a number of factors, including our liquidity, results of operations, financial condition, contractual restrictions, restrictions imposed by applicable law, market conditions, the cost of repurchasing shares, the availability of alternative investment opportunities and other factors management deems appropriate. Any repurchased shares will have the status of treasury shares and may be used, if and when needed, for general corporate purposes.
During 2021, 2020 and 2019 1.2 million, 1.1 million and 1.7 million outstanding employee restricted stock units vested and became taxable to the employees. Employees satisfy their payroll tax withholding obligations in a net share settlement arrangement. During 2021, 2020 and 2019 we remitted cash to the respective governmental agencies equivalent to the value of the shares employees used to satisfy their withholding obligations of $36.8 million, $36.1 million and $39.2 million, respectively.
Preferred Stock
As of December 31, 2021 and 2020, we had 100.0 million shares of preferred stock authorized and no preferred stock issued or outstanding.
15. Revenue
All of our revenue is derived from contracts with customers and is reported as revenue in the consolidated statements of income generally as, or at the point in time, the performance obligation is satisfied. A performance obligation is a promise in a contract to transfer a distinct good or service to a customer. We have contracts with two general groups of performance obligations: those that require us to stand ready to provide goods and services to a customer to use as and when requested (“Stand Ready Performance Obligations”) and those that do not require us to stand ready (“Other Performance Obligations”). Our Stand Ready Performance Obligations include obligations to stand ready to provide data, process transactions, access our databases, software-as-a-service and direct-to-consumer products, provide rights to use our intellectual property and other services. Our Other Performance Obligations include the sale of certain batch data sets and various professional and other services.
Most of our Stand Ready Performance Obligations consist of a series of distinct goods and services that are substantially the same and have the same monthly pattern of transfer to our customers. We consider each month of service in this time series to be a distinct performance obligation and, accordingly, recognize revenue over time. For a majority of these Stand Ready Performance Obligations, the total contractual price is variable because our obligation is to process an unknown quantity of transactions, as and when requested by our customers, over the contract period. We allocate the variable price to each month of service using the time-series concept and recognize revenue based on the most likely amount of consideration to which we will be entitled, which is generally the amount we have the right to invoice. This monthly amount can be based on the actual volume of units delivered or a guaranteed minimum, if higher. Occasionally we have contracts where the amount we will be entitled to for the transactions processed is uncertain, in which case we estimate the revenue based on what we consider to be the most likely amount of consideration we will be entitled to, and adjust any estimates as facts and circumstances evolve.
For all contracts that include a Stand Ready Performance Obligation with variable pricing, we are unable to estimate the variable price attributable to future performance obligations because the number of units to be purchased is not known. As a result, we use the exception available to forgo disclosures about revenue attributable to the future performance obligations where we recognize revenue using the time-series concept as discussed above, including those qualifying for the right to invoice practical expedient. We also use the exception available to forgo disclosures about revenue attributable to contracts with expected durations of one year or less.
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Certain of our Other Performance Obligations, including certain batch data sets and certain professional and other services, are delivered at a point in time. Accordingly, we recognize revenue upon delivery, once we have satisfied that obligation. For certain Other Performance Obligations, including certain professional and other services, we recognize revenue over time, based on an estimate of progress towards completion of that obligation. These contracts are not material.
In certain circumstances we apply the revenue recognition guidance to a portfolio of contracts with similar characteristics. We use estimates and assumptions when accounting for a portfolio that reflect the size and composition of the portfolio of contracts.
Our contracts include standard commercial payment terms generally acceptable in each region, and do not include financing with extended payment terms. We have no significant obligations for refunds, warranties, or similar obligations. Our revenue does not include taxes collected from our customers.
Accounts receivable are shown separately on our balance sheet. Contract assets and liabilities result due to the timing of revenue recognition, billings and cash collections. Contract assets include our right to payment for goods and services already transferred to a customer when the right to payment is conditional on something other than the passage of time, for example, contracts pursuant to which we recognize revenue over time but do not have a contractual right to payment until we complete the contract. Contract assets are included in our other current assets and are not material as of December 31, 2021 and 2020.
As our contracts with customers generally have a duration of one year or less, our contract liabilities consist of deferred revenue that is primarily short-term in nature. Contract liabilities include current and long-term deferred revenue that is included in other current liabilities and other liabilities. We expect to recognize the December 31, 2021, current deferred revenue balance as revenue during 2022. The majority of our long-term deferred revenue, which is not material, is expected to be recognized in less than two years.
We have certain contracts that have a duration of more than one year. For these contracts, the transaction price allocable to the future performance obligations is primarily fixed but contains a variable component. There is one material fixed fee contract with a duration of more than one year, and for this contract, we expect to recognize revenue of approximately $117.0 million over the next two years and $136.5 million thereafter.
For additional disclosures about the disaggregation of our revenue see Note 20, “Reportable Segments.”
16. Earnings Per Share
Basic earnings per share represents income available to common stockholders divided by the weighted average number of common shares outstanding during the reported period. Diluted earnings per share reflects the effect of the increase in shares outstanding determined by using the treasury stock method for awards issued under our incentive stock plans.
As of December 31, 2021, 2020, and 2019 there were less than 0.1 million anti-dilutive weighted stock-based awards outstanding. As of December 31, 2021, 2020, and 2019, there were 0.1 million, 1.3 million and 1.1 million, respectively, of contingently issuable performance-based stock awards outstanding that were excluded from the diluted earnings per share calculation because the contingencies had not been met.
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Basic and diluted weighted average shares outstanding and earnings per share were as follows:
Twelve Months Ended December 31,
(in millions, except per share data)202120202019
Income from continuing operations$370.5 $305.7 $304.0 
Less: income from continuing operations attributable to noncontrolling interests(15.0)(12.4)(5.1)
Income from continuing operations attributable to TransUnion$355.5 $293.4 $298.9 
Discontinued operations, net of tax1,031.7 49.8 48.0 
Net income attributable to TransUnion$1,387.1 $343.2 $346.9 
Basic earnings per common share from:
Income from continuing operations attributable to TransUnion
$1.86 $1.54 $1.59 
Discontinued operations, net of tax5.39 0.26 0.26 
Net Income attributable to TransUnion
$7.25 $1.81 $1.85 
Diluted earnings per common share from:
Income from continuing operations attributable to TransUnion
$1.84 $1.53 $1.56 
Discontinued operations, net of tax5.35 0.26 0.25 
Net Income attributable to TransUnion
$7.19 $1.79 $1.81 
Weighted-average shares outstanding:
Basic191.4 189.9 187.8 
Dilutive impact of stock based awards1.6 2.3 4.1 
Diluted193.0 192.2 191.8 

17. Income Taxes
The provision for income taxes consisted of the following:
Twelve Months Ended December 31,
(in millions)
2021
2020
2019
Federal
Current
$62.0 $55.9 $39.1 
Deferred
(9.3)(8.0)(1.5)
State
Current
18.811.62.3
Deferred
— (4.4)(7.9)
Foreign
Current
67.352.452.1
Deferred
(7.9)(23.7)(13.6)
Provision for income taxes
$130.9 $83.7 $70.5 

The components of income before income taxes consisted of the following:
Twelve Months Ended December 31,
(in millions)
2021
2020
2019
Domestic
$318.3 $258.5 $267.6 
Foreign
183.1 131.0 107.0 
Income from continuing operations before income taxes$501.4 $389.5 $374.5 
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The effective income tax rate reconciliation consisted of the following:
Twelve Months Ended December 31,
(in millions)
2021
2020
2019
Income taxes at statutory rate
$105.3 21.0 %$81.8 21.0 %$78.6 21.0 %
Increase (decrease) resulting from:
State taxes, net of federal benefit
15.5 3.1 %8.4 2.2 %(1.0)(0.3)%
Foreign rate differential
(6.8)(1.3)%(9.4)(2.4)%10.6 2.8 %
Excess tax benefits on stock-based compensation
(10.8)(2.2)%(25.3)(6.5)%(37.8)(10.1)%
Foreign tax law changes
22.7 4.5 %(0.1)— %(6.5)(1.7)%
Uncertain tax positions
4.6 0.9 %8.3 2.1 %1.9 0.5 %
Valuation allowances
(5.0)(1.0)%8.3 2.1 %(0.8)(0.2)%
Foreign withholding taxes
6.5 1.3 %5.2 1.3 %12.4 3.3 %
U.S. Federal tax on foreign earnings
(15.1)(3.0)%4.9 1.2 %12.0 3.2 %
U.S. Federal R&D tax credit(6.4)(1.3)%(4.4)(1.1)%(2.9)(0.8)%
Nondeductible expenses20.0 4.0 %2.6 0.7 %5.7 1.5 %
Other
0.4 0.1 %3.3 0.9 %(1.7)(0.5)%
Total
$130.9 26.1 %$83.7 21.5 %$70.5 18.8%
For 2021, we reported a 26.1% effective tax rate, which is higher than the 21.0% U.S. federal corporate statutory rate due primarily to recording tax expense related to the remeasurement of our U.K. deferred taxes to reflect an increase in the U.K. corporate tax rate enacted in the second quarter 2021 and nondeductible transaction costs and penalties, partially offset by excess tax benefits on stock based compensation and a tax benefit related to electing the Global Intangible Low Tax Income (“GILTI”) high-tax exclusion retroactively for the 2018 and 2019 tax years. On July 20, 2020, the U.S. Treasury issued and enacted final regulations related to GILTI that allow certain U.S. taxpayers to elect to exclude foreign income that is subject to a high effective tax rate from their GILTI inclusions. The GILTI high-tax exclusion is an annual election and is retroactively available.
For 2020, we reported a 21.5% effective tax rate, which is higher than the 21.0% U.S. federal corporate statutory rate due primarily to an increase in state taxes, valuation allowances on foreign tax credit carryforwards, and uncertain tax positions including related interest and penalties, partially offset by excess tax benefits on stock based compensation and foreign taxes in jurisdictions which have tax rates lower than the U.S. federal corporate statutory rate.
For 2019, we reported a 18.8% effective tax rate, which is lower than the 21.0% U.S. federal corporate statutory rate due primarily to excess tax benefits on stock based compensation, partially offset by U.S. federal tax on foreign earnings and foreign taxes in jurisdictions which have tax rates that are higher than the U.S. federal corporate statutory rate. We also changed our indefinite reinvestment assertion on our unremitted foreign earnings during the fourth quarter 2019, such that management intends to repatriate current year foreign earnings, net of working capital requirements, and indefinitely reinvest prior years’ foreign earnings. The change in assertion had an immaterial impact on the current year effective tax rate.












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Components of net deferred income tax consisted of the following:
(in millions)
December 31, 2021
December 31, 2020
Deferred income tax assets:
Compensation
$16.8 $18.5 
Employee benefits
22.5 15.1 
Legal reserves and settlements
13.2 13.5 
Hedge investments
5.6 22.2 
Loss and tax credit carryforwards
169.0 130.1 
Leases
41.5 17.5 
Other
38.4 16.9 
Gross deferred income tax assets
$307.0 $233.8 
Valuation allowance
(70.8)(65.7)
Total deferred income tax assets, net
$236.2 $168.0 
Deferred income tax liabilities:
Depreciation and amortization
(947.5)(520.5)
Right of use asset
(38.9)(16.1)
Taxes on unremitted foreign earnings
(10.0)(10.8)
Financing related costs
(0.5)(0.8)
Investment in affiliated companies
(8.9)(4.6)
Other
(8.1)(8.4)
Total deferred income tax liability
(1,013.9)(561.4)
Net deferred income tax liability
$(777.8)$(393.3)
Deferred tax assets and liabilities result from temporary differences between tax and accounting methods. Our balance sheet includes a deferred tax asset of $10.0 million and $3.4 million at December 31, 2021 and 2020, respectively, which is included in other assets.
If certain deferred tax assets are not likely recoverable in future years a valuation allowance is recorded. As of December 31, 2021 and 2020, a valuation allowance of $70.8 million and $65.7 million, respectively, reduced deferred tax assets related to worldwide net operating losses and tax credit carryforwards. Our estimate of the amount of the deferred tax asset we can realize requires significant assumptions about projected revenues and income that are impacted by future market and economic conditions. Our carryforwards will expire as follows: U.S. federal net operating loss carryforwards over one year to an indefinite number of years, foreign loss carryforwards over one year to an indefinite number of years, foreign tax credit carryforwards over nine years, interest expense carryforwards over an indefinite number of years, state net operating loss carryforwards over one year to an indefinite number of years and state tax credit carryforwards over one year to an indefinite number of years. As of December 31, 2021, the deferred tax assets associated with U.S. foreign tax credit carryforwards and U.S. federal net operating loss carryforwards were $66.1 million and $12.9 million, respectively. Deferred tax assets associated with foreign net operating loss carryforwards and foreign interest expense carryforwards were $21.7 million and $33.4 million, respectively. Deferred tax assets associated with U.S. federal and state interest expense carryforwards is $17.4 million. Deferred tax assets associated with other loss and tax credit carryforwards were not significant.
The total amount of gross unrecognized tax benefits as of December 31, 2021, 2020 and 2019 are $45.8 million, $36.9 million and $32.8 million, respectively. The amounts that would affect the effective tax rate if recognized are $28.3 million, $18.5 million and $13.6 million, respectively.
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The total amount of gross unrecognized tax benefits consisted of the following:
(in millions)
December 31, 2021
December 31, 2020
December 31, 2019
Balance as of beginning of period
$36.9 $32.8 $19.6 
Increase in tax positions due to acquisition
5.3 — — 
Increase in tax positions of prior years
5.6 6.2 0.5 
Decrease in tax positions of prior years
(4.5)(3.6)(0.5)
Increase in tax positions of current year
2.8 1.6 13.2 
Reductions relating to settlement and lapse of statute
(0.4)— — 
Balance as of end of period
$45.8 $36.9 $32.8 
We classify interest and penalties as income tax expense in the consolidated statements of income and their associated liabilities as other liabilities in the consolidated balance sheets. Interest and penalties on unrecognized tax benefits were $7.6 million and $4.8 million, respectively, for the years ended December 31, 2021 and December 31, 2020, and not significant for the year ended December 31, 2019.
We are regularly audited by federal, state and foreign taxing authorities. Given the uncertainties inherent in the audit process, it is reasonably possible that certain audits could result in a significant increase or decrease in the total amounts of unrecognized tax benefits. An estimate of the range of the increase or decrease in unrecognized tax benefits due to audit results cannot be made at this time. Tax years 2009 and forward remain open for examination in some foreign jurisdictions, 2015 and forward in some state jurisdictions, and 2012 and forward for U.S. federal purposes.
18. Stock-Based Compensation
For the years ended December 31, 2021, 2020 and 2019, we recognized stock-based compensation expense of $70.1 million, $45.9 million and $55.3 million, respectively, with related income tax benefits of approximately $10.0 million, $8.4 million and $8.0 million, respectively. Of the stock-based compensation expense recognized in 2021, 2020 and 2019, $0.9 million, $1.6 million and $7.0 million, respectively, was from cash-settleable awards.
Under the TransUnion Holding Company, Inc. 2012 Management Equity Plan (the “2012 Plan”), stock-based awards could be issued to executive officers, employees and independent directors of the Company. A total of 10.1 million shares were authorized for grant under the 2012 Plan. Effective upon the closing of our IPO, the Company’s board of directors and its stockholders adopted the TransUnion 2015 Omnibus Incentive Plan, which has since been amended and restated (the “2015 Plan”), and no more shares can be issued under the 2012 Plan. During 2020, we increased the authorized shares available under the 2015 plan to a total of 12.4 million shares. The 2015 Plan provides for the granting of stock options, restricted stock and other stock-based or performance-based awards to key employees, directors or other persons having a service relationship with the Company and its affiliates. As of December 31, 2021, there were approximately 2.0 million of unvested awards outstanding and approximately 4.0 million of awards have vested under the 2015 Plan.
Effective upon the closing of the IPO, the Company’s board of directors and its stockholders adopted the TransUnion 2015 Employee Stock Purchase Plan, which has since been amended and restated (the “ESPP”). A total of 2.4 million shares have been authorized to be issued under the ESPP. The ESPP provides certain employees of the Company with an opportunity to purchase the Company’s common stock at a discount. As of December 31, 2021, the Company has issued approximately 1.1 million shares of common stock under the ESPP.
2012 Plan
Stock Options
Stock options granted under the 2012 Plan have a 10 year term. For stock options granted to employees, 40% generally vest based on the passage of time (service condition options), and 60% generally vest based on the passage of time, subject to meeting certain stockholder return on investment conditions (market condition options). These stockholder return on investment conditions were satisfied in February 2017, and all remaining outstanding stock options now vest solely on the passage of time. All stock options granted to non-employee directors vest based on the passage of time.
Service condition options were valued using the Black-Scholes valuation model and vest over a 5 year service period, with 20% generally vesting one year after the grant date, and 5% vesting each quarter thereafter. Compensation costs for the service condition options are recognized on a straight-line basis over the requisite service period for the entire award. Market condition options were valued using a risk-neutral Monte Carlo valuation model, with assumptions similar to those used to value the service condition options, and vest over a 5 year service period now that the market conditions have been satisfied. There were no stock options granted during 2021, 2020, and 2019.
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Stock option activity as of December 31, 2021 and 2020, and for the year ended December 31, 2021, consisted of the following:
SharesWeighted
Average
Exercise
Price		Weighted
Average
Remaining
Contractual
Term
(in years)		Aggregate
Intrinsic
Value
(in millions)
Outstanding as of December 31, 2020571,817 $8.58 2.7$51.8 
Granted— — 
Exercised(329,283)8.97 
Forfeited— — 
Expired— — 
Outstanding as of December 31, 2021242,534 8.05 1.5$26.8 
Expected to vest as of December 31, 2021— $— 0.0$— 
Exercisable as of December 31, 2021242,534 $8.05 1.5$26.8 
As of December 31, 2021, there was no stock-based compensation expense remaining to be recognized in future years related to options. During 2021, cash received from the exercise of stock options was $2.9 million and the tax benefit realized from the exercise of stock options was $7.7 million.
The intrinsic value of options exercised and the fair value of options vested for the periods presented are as follows:
Twelve Months Ended December 31,
(in millions)202120202019
Intrinsic value of options exercised$31.4 $71.1 $106.4 
Total fair value of options vested$1.7 $4.5 $7.4 
2015 Plan
Restricted Stock Units
During 2021, 2020 and 2019, restricted stock units were granted under the 2015 Plan. Restricted stock units issued to date generally consist of: 50% service-based restricted stock units that vest based on passage of time and 50% performance-based awards consisting of performance-based restricted stock units that vest based on the passage of time, subject to meeting certain 3-year cumulative revenue and Adjusted EBITDA targets, and market-based restricted stock units that vest based on the passage of time, subject to meeting certain relative total stockholder return (“TSR”) targets. For the performance awards, including the market-based performance awards, between zero and 200% of the units granted may eventually vest, based upon the final cumulative revenue and Adjusted EBITDA and TSR achievement relative to the targets over the 3-year measurement period. Restricted stock units generally vest 3 years from the grant date, subject to meeting any performance and market conditions. We occasionally issue off-cycle or special grants that could have performance measurements and vesting terms.
Service-based and performance-based restricted stock units are valued on the award grant date at the closing market price of our stock. Market-based awards are valued using a risk-neutral Monte-Carlo model, with assumptions similar to those used to value the 2012 Plan market-condition options, based on conditions that existed on the grant date of the award.
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Restricted stock unit activity as of December 31, 2021 and 2020, and for the year ended December 31, 2021, consisted of the following:
SharesWeighted
Average
Grant Date
Fair Value		Weighted
Average
Remaining
Contractual
Term
(in years)		Aggregate
Intrinsic
Value
(in millions)
Outstanding as of December 31, 20202,187,949 78.85 1.0$217.1 
Granted1,131,318 94.38 
Vested (1,125,726)73.96 
Forfeited(188,476)87.65 
Outstanding as of December 31, 20212,005,065 $90.79 1.0$237.8 
Expected to vest as of December 31, 20212,057,500 $90.60 1.0$244.0 
The fair value and intrinsic value of restricted stock units that vested during the year ended December 31, 2021 was $83.3 million and $103.5 million, respectively. As of December 31, 2021, stock-based compensation expense remaining to be recognized in future years related to restricted stock units that we currently expect to vest was $96.8 million, with weighted-average recognition periods of 1.9 years. During 2021, the tax benefit realized from vested restricted stock units was $15.9 million.
Other
We have certain other stock-based grants outstanding awarded to directors and employees of acquired companies. The shares expected to vest related to these awards are not material.
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19. Fair Value
The following table summarizes financial instruments measured at fair value, on a recurring basis, as of December 31, 2021:
(in millions)TotalLevel 1Level 2Level 3
Assets
Interest rate swaps (Note 8 and 12)$12.1 $— $12.1 $— 
Available-for-sale debt securities (Note 4)3.1 — 3.1 — 
Total$15.2 $— $15.2 $— 
Liabilities
Interest rate swaps (Note 11 and 12)$34.5 $— $34.5 $— 
Put option on Cost Method Investment (Note 9 and 11)11.9 — — 11.9 
Contingent consideration (Note 9 and 10)16.8 — — 16.8 
Total$63.2 $— $34.5 $28.7 
The following table summarizes financial instruments measured at fair value, on a recurring basis, as of December 31, 2020:
(in millions)TotalLevel 1Level 2Level 3
Assets
Available-for-sale debt securities (Note 4)$3.2 $— $3.2 $— 
Total$3.2 $— $3.2 $— 
Liabilities
Interest rate swaps (Note 11 and 12)$89.7 $— $89.7 $— 
Contingent consideration (Note 10)41.4 — — 41.4 
Total$131.1 $— $89.7 $41.4 
Level 2 instruments consist of foreign exchange-traded corporate bonds and interest rate swaps. Foreign exchange-traded corporate bonds are available-for-sale debt securities valued at their current quoted prices. These securities mature between 2027 and 2033. Unrealized gains and losses on available-for-sale debt securities, which are not material, are included in other comprehensive income. The interest rate swaps fair values are determined using the market standard methodology of discounting the future expected net cash receipts or payments that would occur if variable interest rates rise above or fall below the fixed rates of the swaps. The variable interest rates used in the calculations of projected receipts on the swaps are based on an expectation of future interest rates derived from observable market interest rate curves and volatilities. As discussed in Note 12, “Debt,” there are two tranches of interest rate swaps that we entered into in 2020. As of December 31, 2021, one of those tranches is in an asset position, and the other is in a liability position.
Level 3 instruments consist of a put option on a cost-method investment we made in 2021 and contingent consideration obligations related to companies we acquired in 2020 and 2021 and a cost method investment we made in 2021. The put option allows the other stockholders to put their equity to TransUnion and require us to purchase their shares, subject to certain restrictions. The fair value of the put option is determined using a Monte Carlo analysis with assumptions that include revenue projections, volatility rates, discount rates and the option period, among others. There was no material change to the fair value of this obligation between October 1, 2021, the date we acquired the obligation, and December 31, 2021. The contingent consideration obligations are payable to the sellers, contingent upon meeting certain revenue performance metrics. The fair values of these obligations are determined based on an income approach, using our expectations of the future expected revenue of the acquired entities. During 2021, we adjusted our acquisition date estimate of the fair value of the 2020 obligations, with an offset to goodwill. During 2021, we also adjusted the carrying value of the 2020 obligations to their fair values, with an offset to selling, general and administrative expenses, and paid $41.2 million to the sellers to settle these obligations in full and have no further obligations related to the 2020 contingent consideration obligations. In addition, during 2021, we assumed a contingent consideration obligation of $2.0 million when we acquired Neustar, and recorded a $14.8 million contingent consideration obligation related to a cost method investment we made in 2021, with no material changes to the fair value of either of these obligations in 2021.
We have elected to account for our investment in a limited partnership that we purchased in 2021, which is not material, using the net asset value fair value practical expedient. Gains and losses on this investment, which are not material, are included in other income and expense in the consolidated statements of income.
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20. Reportable Segments
We have three reportable segments, U.S. Markets, International, and Consumer Interactive, and the Corporate unit, which provides support services to each of the segments. Our chief operating decision maker (“CODM”) uses the profit measure of Adjusted EBITDA, on both a consolidated and a segment basis, to allocate resources and assess performance of our businesses. We use Adjusted EBITDA as our profit measure because it eliminates the impact of certain items that we do not consider indicative of operating performance, which is useful to compare operating results between periods. Our board of directors and executive management team also use Adjusted EBITDA as a compensation measure for both segment and corporate management under our incentive compensation plans. Adjusted EBITDA is also a measure frequently used by securities analysts, investors and other interested parties in their evaluation of the operating performance of companies similar to ours.
We define Adjusted EBITDA as net income (loss) attributable to each segment plus (less) loss (income) from discontinued operations, plus net interest expense, plus (less) provision (benefit) for income taxes, plus depreciation and amortization, plus (less) certain acquisition-related deferred revenue adjustments, plus stock-based compensation, plus mergers, acquisitions, divestitures and business optimization-related expenses including certain integration-related expenses, plus certain accelerated technology investment expenses to migrate to the cloud, plus (less) certain other expenses (income).
The segment financial information below aligns with how we report information to our CODM to assess operating performance and how we manage the business. The accounting policies of the segments are the same as described in Note 1, “Significant Accounting and Reporting Policies” and Note 15, “Revenue.”
The following is a more detailed description of our reportable segments and the Corporate unit, which provides support services to each segment:
U.S. Markets
The U.S. Markets segment provides consumer reports, actionable insights and analytics to businesses. These businesses use our services to acquire customers, assess consumers’ ability to pay for services, identify cross-selling opportunities, measure and manage debt portfolio risk, collect debt, verify consumer identities and mitigate fraud risk. The core capabilities and delivery methods in our U.S. Markets segment allow us to serve a broad set of customers across industries. We report disaggregated revenue of our U.S. Markets segment for Financial Services and Emerging Verticals.
•Financial Services:    The Financial Services vertical, which accounts for 60.2% of our 2021 U.S. Markets revenue, consists of our consumer lending, mortgage, auto and cards and payments lines of business. Our Financial Services clients consist of most banks, credit unions, finance companies, auto lenders, mortgage lenders, FinTechs, and other consumer lenders in the United States. We also distribute our solutions through most major resellers, secondary market players and sales agents. Beyond traditional lenders, we work with a variety of credit arrangers, such as auto dealers and peer-to-peer lenders. We provide solutions across every aspect of the lending lifecycle; customer acquisition and engagement, fraud and ID management, retention and recovery. Our products are focused on mitigating risk and include credit reporting, credit marketing, analytics and consulting, identity verification and authentication and debt recovery solutions.
•Emerging Verticals:    Emerging Verticals include Insurance, Services and Collections, Tenant and Employment, Technology, Commerce & Communications, Public Sector, Media, and other emerging verticals we serve, as well as our Neustar business. Our solutions in these verticals are also data-driven and address the entire customer lifecycle. We offer onboarding and transaction processing products, scoring and analytic products, marketing solutions, fraud and identity management solutions and customer retention solutions. The results of operations of Neustar are included in Emerging Verticals in our consolidated statements of income since the date of the acquisition.
International
The International segment provides services similar to our U.S. Markets segment to businesses in select regions outside the United States. Depending on the maturity of the credit economy in each country, services may include credit reports, analytics and solutions services, and other value-added risk management services. In addition, we have insurance, business and automotive databases in select geographies. These services are offered to customers in a number of industries including financial services, insurance, automotive, collections, and communications, and are delivered through both direct and indirect channels. The International segment also provides consumer services similar to those offered by our Consumer Interactive segment that help consumers proactively manage their personal finances and take precautions against identity theft.
We report disaggregated revenue of our International segment for the following regions: Canada, Latin America, the United Kingdom, Africa, India, and Asia Pacific.
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Consumer Interactive
The Consumer Interactive segment provides solutions that help consumers manage their personal finances and take precautions against identity theft. Services in this segment include paid and free credit reports, scores and freezes, credit monitoring, identity protection and resolution, and financial management for consumers. The segment also provides solutions that help businesses respond to data breach events. Our products are provided through user-friendly online and mobile interfaces and are supported by educational content and customer support. Our Consumer Interactive segment serves consumers through both direct and indirect channels. The results of operations of Sontiq are included in the Consumer Interactive segment in our consolidated statements of income since the date of the acquisition.
Corporate
Corporate provides support services for each of the segments, holds investments, and conducts enterprise functions. Certain costs incurred in Corporate that are not directly attributable to one or more of the segments remain in Corporate. These costs are typically enterprise-level costs and are primarily administrative in nature.
Selected segment financial information and disaggregated revenue consisted of the following:
Twelve Months Ended December 31,
(in millions)202120202019
Gross Revenue:
U.S. Markets:
Financial Services$1,078.9 $939.6 $849.0 
Emerging Verticals712.1 571.1 567.7 
Total U.S. Markets1,791.0 1,510.7 1,416.7 
  International:
   Canada126.9 108.0 104.1 
Latin America
103.2 86.5 104.2 
    United Kingdom216.5 183.1 186.7 
    Africa59.5 49.0 61.2 
    India133.1 100.0 108.1 
    Asia Pacific62.7 56.2 59.1 
  Total International701.9 582.7 623.5 
  Total Consumer Interactive545.8 513.1 497.8 
Total revenue, gross$3,038.7 $2,606.5 $2,538.0 
Intersegment revenue eliminations:
U.S. Markets$(70.5)$(68.9)$(68.7)
International(5.9)(5.2)(5.1)
Consumer Interactive(2.0)(1.7)(1.0)
Total intersegment eliminations(78.4)(75.9)(74.8)
Total revenue as reported$2,960.2 $2,530.6 $2,463.2 
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A reconciliation of Segment Adjusted EBITDA to income from continuing operations before income taxes for the periods presented is as follows:
Twelve Months Ended December 31,
(in millions)202120202019
U.S. Markets Adjusted EBITDA$715.6 $593.9 $573.7 
International Adjusted EBITDA300.1 219.8 258.1 
Consumer Interactive Adjusted EBITDA
263.1 247.6 248.4 
Total
$1,278.8 $1,061.2 $1,080.2 
Adjustments to reconcile to income from continuing operations before income taxes:
Corporate expenses(1)
(121.9)(107.6)(114.3)
Net interest expense
(109.2)(120.6)(166.2)
Depreciation and amortization
(377.0)(346.8)(338.6)
Acquisition-related revenue adjustments(2)
— — (5.6)
Stock-based compensation(3)
(70.1)(45.9)(55.3)
Mergers and acquisitions, divestitures and business optimization(4)
(52.6)(8.5)(1.1)
Accelerated technology investment(5)
(42.3)(19.3)— 
Net other(6)
(19.4)(35.5)(29.7)
Net income attributable to non-controlling interests15.0 12.4 5.1 
Total adjustments
$(777.4)$(671.8)$(705.7)
Income from continuing operations before income taxes
$501.4 $389.5 $374.5 
(1)Certain costs that are not directly attributable to one or more of the segments remain in Corporate. These costs are typically enterprise-level costs and are primarily administrative in nature.
(2)This adjustment represents certain non-cash adjustments related to acquired entities, predominantly adjustments to increase revenue resulting from purchase accounting reductions to deferred revenue we record on the opening balance sheets of acquired entities. Beginning in the third quarter of 2019, we no longer have these adjustments to revenue.
(3)Consisted of stock-based compensation and cash-settled stock-based compensation.
(4)For the twelve months ended December 31, 2021, consisted of the following adjustments: $(48.1) million of acquisition expenses; $(9.1) million of Neustar integration costs; $(8.4) million of adjustments to contingent consideration expense from previous acquisitions; a ($1.1) million gain reduction to notes receivable that were converted into equity upon acquisition and consolidation of an entity; a $12.5 million gain on a Cost Method investment resulting from an observable price change for a similar investment of the same issuer; a $1.1 million reimbursement for transition services related to divested businesses, net of separation expenses; and a $0.5 million gain on the sale of a Cost Method investment.
For the twelve months ended December 31, 2020, consisted of the following adjustments: $(7.5) million of Callcredit integration costs; $(7.0) million of acquisition expenses; a $(4.8) million loss on the impairment of a Cost Method investment; $(1.7) million of adjustments to contingent consideration expense from previous acquisitions; an $8.1 million remeasurement gain on notes receivable that were converted into equity upon acquisition and consolidation of an entity; a $2.5 million gain on a Cost Method investment resulting from an observable price change for a similar investment of the same issuer; a $1.8 million gain on the disposal of assets of a small business in our United Kingdom region; and a $0.1 million reimbursement for transition services provided to the buyers of certain of our discontinued operations.
For the twelve months ended December 31, 2019, consisted of the following adjustments: a $31.2 million gain on a Cost Method investment resulting from an observable price change for a similar investment of the same issuer; a $0.5 million reimbursement for transition services provided to the buyers of certain of our discontinued operations; $(15.8) million of Callcredit integration costs; a $(10.0) million loss on the impairment of certain Cost Method investments; a $(3.7) million loss on assets of a small business in our United Kingdom region that are classified as held-for-sale; $(2.4) million of acquisition expenses; and a $(0.8) million adjustment to contingent consideration expense from previous acquisitions.
(5)Represents expenses associated with our accelerated technology investment to migrate to the cloud.
(6)For the twelve months ended December 31, 2021, consisted of the following adjustments: ($17.9) million of deferred loan fees written off as a result of the prepayments on our debt; ($1.2) million in certain legal and regulatory expenses;
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a $3.5 million recovery from the Fraud Incident, net of additional administrative expense; and a ($3.7) million net loss from currency remeasurement of our foreign operations, loan fees and other.
For the twelve months ended December 31, 2020, consisted of the following adjustments: $(34.7) million for certain legal expenses; $(0.9) million of deferred loan fees written off as a result of the prepayments on our debt; a $1.5 million recovery from the Fraud Incident, net of additional administrative expense; and a $(1.4) million net loss from currency remeasurement of our foreign operations, loan fees and other.
For the twelve months ended December 31, 2019, consisted of the following adjustments: $(13.5) million of expenses associated with the Fraud Incident, net of the portion that is attributable to the non-controlling interest; $(13.0) million of fees related to the refinancing of senior secured credit facility; $(2.0) million of deferred loan fees written off as a result of the prepayments on our debt; and $(1.3) million loss from currency remeasurement, loan fees, reduction to expenses for certain legal and regulatory matters and other.
Earnings from equity method investments included in non-operating income and expense was as follows:
Twelve Months Ended December 31,
(in millions)202120202019
U.S. Markets$2.4 $2.6 $2.6 
International9.6 6.4 10.6 
Total$12.0 $8.9 $13.2 
Total assets, by segment, consisted of the following:
(in millions)December 31, 2021December 31, 2020
U.S. Markets$6,934.8 $3,182.5 
International2,921.2 2,974.5 
Consumer Interactive1,222.3 458.9 
Total segment assets$11,078.2 $6,615.9 
Corporate1,556.8 267.5 
Discontinued operations— 428.1 
Total assets$12,635.0 $7,311.6 
Cash paid for capital expenditures, by segment, was as follows:
Twelve Months Ended December 31,
(in millions)202120202019
U.S. Markets$145.3 $119.1 $112.1 
International65.1 68.2 59.8 
Consumer Interactive11.8 12.8 13.4 
Corporate2.0 5.5 3.2 
Total$224.2 $205.6 $188.4 
Depreciation and amortization expense by segment was as follows:
Twelve Months Ended December 31,
(in millions)202120202019
U.S. Markets$222.0 $205.8 $201.4 
International132.4 120.6 118.6 
Consumer Interactive16.8 14.6 13.3 
Corporate5.7 5.7 5.2 
Total$377.0 $346.8 $338.6 

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Percentage of revenue based on where it was earned, was as follows:
Twelve Months Ended December 31,
202120202019
Domestic76 %77 %75 %
International24 %23 %25 %
Percentage of long-lived assets, other than financial instruments and deferred tax assets, based on the location of the legal entity that owns the asset, was as follows:
 As of December 31,
202120202019
Domestic76 %59 %59 %
International24 %41 %41 %
21. Commitments
Future minimum payments for noncancelable operating leases, purchase obligations and other liabilities in effect as of December 31, 2021, are payable as follows:
(in millions)Operating
Leases		Purchase
Obligations and
 Other		Total
2022$42.4 $141.1 $183.5 
202335.8 93.3 129.1 
202424.1 55.9 80.0 
202516.7 43.2 59.9 
202613.3 0.8 14.1 
Thereafter46.8 0.3 47.1 
Totals$179.1 $334.6 $513.7 
Purchase obligations and other excludes trade accounts payable that are included in our balance sheet as of December 31, 2021. Purchase obligations and other include commitments for outsourcing services, royalties, data licenses, and maintenance and other operating expenses.
Licensing agreements
We have agreements with Fair Isaac Corporation to license credit-scoring algorithms and the right to sell credit scores derived from those algorithms. Payment obligations under these agreements vary due to factors such as the volume of credit scores we sell, what type of credit scores we sell, and how our customers use the credit scores. There are no minimum payments required under these licensing agreements. However, we do have a significant level of sales volume related to these credit scores.
22. Contingencies
Legal and Regulatory Matters
We are routinely named as defendants in, or parties to, various legal actions and proceedings relating to our current or past business operations. These actions generally assert claims for violations of federal or state credit reporting, consumer protection or privacy laws, or common law claims related to the unfair treatment of consumers, and may include claims for substantial or indeterminate compensatory or punitive damages, or injunctive relief, and may seek business practice changes. We believe that most of these claims are either without merit or we have valid defenses to the claims, and we vigorously defend these matters or seek non-monetary or small monetary settlements, if possible. However, due to the uncertainties inherent in litigation, we cannot predict the outcome of each claim in each instance.
In the ordinary course of business, we also are subject to governmental and regulatory examinations, information-gathering requests, investigations and proceedings (both formal and informal), certain of which may result in adverse judgments, settlements, fines, penalties, injunctions or other relief. In connection with formal and informal inquiries by these regulators, we routinely receive requests, subpoenas and orders seeking documents, testimony, and other information in connection with various aspects of our activities.
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In view of the inherent unpredictability of legal and regulatory matters, particularly where the damages sought are substantial or indeterminate or when the proceedings or investigations are in the early stages, we cannot determine with any degree of certainty the timing or ultimate resolution of legal and regulatory matters or the eventual loss, fines, penalties or, if any, that may result. We establish reserves for legal and regulatory matters when those matters present loss contingencies that are both probable and can be reasonably estimated. However, for certain of the matters, we are not able to reasonably estimate our exposure because damages have not been specified and (i) the proceedings are in early stages, (ii) there is uncertainty as to the likelihood of a class being certified or the ultimate size of the class, (iii) there is uncertainty as to the outcome of similar matters pending against our competitors, (iv) there are significant factual issues to be resolved, and/or (v) there are legal issues of a first impression being presented. The actual costs of resolving legal and regulatory matters, however, may be substantially higher than the amounts reserved for those matters, and an adverse outcome in certain of these matters could have a material adverse effect on our consolidated financial statements in particular quarterly or annual periods. We accrue amounts for certain legal and regulatory matters for which losses were considered to be probable of occurring based on our best estimate of the most likely outcome. It is reasonably possible actual losses could be significantly different from our current estimates. In addition, there are some matters for which it is reasonably possible that a loss will occur, however we cannot estimate a range of the potential losses for these matters. Legal fees incurred in connection with ongoing litigation are considered a period cost and are expensed as incurred.
To reduce our exposure to an unexpected significant monetary award resulting from an adverse judicial decision, we maintain insurance that we believe is appropriate and adequate based on our historical experience. We regularly advise our insurance carriers of the claims (threatened or pending) against us in the course of litigation and generally receive a reservation of rights letter from the carriers when such claims exceed applicable deductibles. We are not aware of any significant monetary claim that has been asserted against us in the course of pending litigation that would not have some level of coverage by insurance after the relevant deductible, if any, is met.
As of December 31, 2021 and 2020, we accrued $85.6 million and $76.0 million, respectively, for anticipated claims. These amounts were recorded in other accrued liabilities in the consolidated balance sheets and the associated expenses were recorded in selling, general and administrative expenses in the consolidated statements of income. Legal fees incurred in connection with ongoing litigation are considered period costs and are expensed as incurred.
Ramirez v. Trans Union LLC
In Ramirez v. Trans Union LLC (“Ramirez” or the “Ramirez Litigation”) filed in 2012, the plaintiff alleged that the OFAC Alert service did not comply with the Cortez ruling and that we willfully violated the Fair Credit Reporting Act (“FCRA”) by continuing to offer the OFAC Alert service. The plaintiff also alleged that there are one or more classes of individuals who should be entitled to statutory damages based on the allegedly willful violations. In July 2014, the trial Court in Ramirez certified a class of 8,185 individuals solely for purposes of statutory damages if TransUnion was ultimately found to have willfully violated the FCRA.
On June 21, 2017, the jury in Ramirez returned a verdict in favor of a class of 8,185 individuals and awarded punitive and statutory damages totaling approximately $60 million. In November 2017, the trial court denied our post-trial motions for judgment as a matter of law, a new trial and a reduction on the jury verdict. We appealed the Ramirez ruling to the United States Court of Appeals for the Ninth Circuit and on February 27, 2020, the Ninth Circuit affirmed in part and reversed and vacated in part the trial court’s judgment, holding that the punitive damages award was excessive in violation of constitutional due process. On April 8, 2020, the Ninth Circuit denied our petition for rehearing en banc, and on September 2, 2020, we filed a Petition for Certiorari with the United States Supreme Court. On December 16, 2020, the United States Supreme Court granted the Petition for Certiorari with respect to whether Article III of the United States Constitution or Rule 23 of the Federal Rules of Civil Procedure permit a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.
On June 25, 2021, the United States Supreme Court’s decision reversed the Ninth Circuit opinion, and remanded the matter back to the lower courts for further proceedings consistent with its opinion. The United States Supreme Court’s opinion held that only plaintiffs who have suffered a concrete harm by a defendant’s statutory violation have Article III standing to seek damages against defendants in Federal court. Based on the ruling, only approximately 23% of the class was determined to have suffered concrete harm.
On January 24, 2022, we reached a tentative class settlement with the plaintiffs, which will require court approval. We expect this matter to be resolved by the end of 2022.
Accordingly, in 2021, we revised the amount of the probable loss that we previously estimated, resulting in a reduction of our estimated liability and partially offsetting insurance receivable, and a corresponding net reduction recorded in selling, general and administrative expense for the year end December 31, 2021.
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CFPB Matter
In June 2021, we received a Notice and Opportunity to Respond and Advise (“NORA”) letter from the Consumer Financial Protection Bureau (“CFPB”), informing us that the CFPB’s Enforcement Division is considering whether to recommend that the CFPB take legal action against us and certain of our executive officers. The NORA letter alleged that we failed to comply with and timely implement a Consent Order issued by the CFPB in January 2017, and further alleged additional violations related to Consumer Interactive’s marketing practices. On September 27, 2021, the Enforcement Division advised us that it had obtained authority to pursue an enforcement action. We are currently engaged in active settlement discussions with the CFPB regarding this matter. If our ongoing discussions do not result in a negotiated resolution, we expect that the CFPB will pursue litigation against the Company and these executive officers, seeking restitution, civil money penalties, and injunctive relief. We continue to believe that our marketing practices are lawful and appropriate, and would vigorously defend against allegations to the contrary in such proceedings. We cannot provide assurance that the CFPB will not ultimately commence litigation against us in this matter, nor are we able to predict the likely outcome of this matter.
As of December 31, 2021, we have an accrued liability of $26.5 million in connection with this matter and there is a reasonable possibility that a loss in excess of the amount accrued may be incurred, and such an outcome could have a material adverse effect on our results of operations and financial condition. However, any possible loss or range of loss in excess of the amount accrued is not reasonably estimable at this time.
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23. Quarterly Financial Data (Unaudited)
The quarterly financial data for 2021 and 2020 consisted of the following:
 Three Months Ended
(in millions)
December 31, 2021(1)
September 30,
2021(2)
June 30,
2021(3)
March 31,
2021
Revenue$789.8 $743.4 $728.2 $698.9 
Operating income114.0 169.7 200.4 163.6 
Income from continuing operations34.4 96.7 122.1 117.3 
Net income1,020.5 118.2 132.9 130.6 
Net income attributable to TransUnion1,017.4 114.2 127.6 127.9 
Basic earnings per common share from:
Income from continuing operations attributable to TransUnion$0.16 $0.48 $0.61 $0.60 
Net Income attributable to TransUnion$5.31 $0.60 $0.67 $0.67 
Diluted earnings per common share from:
Income from continuing operations attributable to TransUnion$0.16 $0.48 $0.61 $0.60 
Net Income attributable to TransUnion$5.27 $0.59 $0.66 $0.66 
 Three Months Ended
(in millions)
December 31, 2020(4)
September 30,
2020(4)
June 30,
2020(4)
`
March 31,
2020(4,5)
Revenue$653.3 $650.5 $587.1 $639.6 
Operating income128.8 144.9 106.0 120.6 
Income from continuing operations92.5 92.3 58.2 62.8 
Net income104.5 106.7 70.0 74.3 
Net income attributable to TransUnion101.7 102.8 68.5 70.2 
Basic earnings per common share from:
Income from continuing operations attributable to TransUnion$0.47 $0.46 $0.30 $0.31 
Net Income attributable to TransUnion$0.53 $0.54 $0.36 $0.37 
Diluted earnings per common share from:
Income from continuing operations attributable to TransUnion$0.47 $0.46 $0.30 $0.31 
Net Income attributable to TransUnion$0.53 $0.53 $0.36 $0.37 
1Net income and net income attributable to TransUnion includes a gain on the disposal of our Healthcare business of $982.5 million. Income from continuing operations, net income, and net income attributable to TransUnion include $27.7 million for acquisition expenses, $17.4 million for deferred fees write-off, and $9.1 million for integration costs, partially offset by a $12.5 million gain on a Cost Method investment resulting from an observable price change for a similar investment of the same issue. Operating income, income from continuing operations, net income, and net income attributable to TransUnion include $21.6 million for certain legal expenses.
2Net income and net income attributable to TransUnion includes a $12.9 million gain on the sale of a Cost Method investment of our discontinued operations. Income from continuing operations, net income, and net income attributable to TransUnion include $18.3 million for acquisition expenses. Operating income, income from continuing operations, net income, and net income attributable to TransUnion include $12.0 million for certain legal expenses.
3Operating income, income from continuing operations, net income, and net income attributable to TransUnion include a $32.4 million net reduction in certain legal expenses.
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4For 2020, beginning in mid-March 2020, the COVID-19 pandemic, widespread measures implemented to contain its effects, and business and consumer responses to such measures, had a material and adverse impact on numerous aspects of our business, including customer demand for our services and solutions in all of our segments.
5Operating income, income from continuing operations, net income, and net income attributable to TransUnion all include $30.5 million for certain legal expenses.

24. Accumulated Other Comprehensive Loss
The following table sets forth the changes in each component of accumulated other comprehensive loss, net of tax:
(in millions)Foreign Currency
Translation
Adjustment		Net Unrealized
Gain/(Loss)
On Hedges		Net Unrealized
Gain/(Loss) On 
Available-for-sale
Securities		Accumulated Other
Comprehensive Loss
Balance, December 31, 2018$(279.6)$(3.3)$0.2 $(282.7)
Change65.0 (33.9)— 31.1 
Balance, December 31, 2019$(214.6)$(37.2)$0.2 $(251.6)
Change9.2 (29.9)0.2 (20.5)
Balance, December 31, 2020$(205.4)$(67.1)$0.4 $(272.1)
Change(63.8)50.5 — (13.3)
Balance, December 31, 2021$(269.2)$(16.6)$0.4 $(285.4)
25. Subsequent Events
On January 31, 2021, we prepaid $400 million of our Senior Secured Term Loans, funded from our cash on hand. As a result of the prepayment, we expect to expense $1.0 million and $5.5 million, respectively, of the unamortized original issue discount and deferred fees to other income and expense in the consolidated statement of income in the first quarter of 2022.
On February 22, 2022, we announced our agreement to acquire Verisk Financial Services, including Argus Information and Advisory Services, Inc., for $515 million in cash, subject to certain customary purchase price adjustments. We intend to fund the acquisition through cash on hand. We expect the acquisition to close in the second quarter of 2022, subject to the satisfaction of customary closing conditions and regulatory approvals.
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ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
Not applicable.
ITEM 9A. CONTROLS AND PROCEDURES
Disclosure Controls and Procedures
Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of our disclosure controls and procedures as of the end of the period covered by this report. The term “disclosure controls and procedures” as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act, means controls and other procedures of a company that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms.
Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the company’s management, including its principal executive and principal financial officers, as appropriate, to allow timely decisions regarding required disclosure. Management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Based on the evaluation of our disclosure controls and procedures as of the end of the period covered by this report, our Chief Executive Officer and Chief Financial Officer concluded that, as of such date, our disclosure controls and procedures were effective at the reasonable assurance level.
Management’s Report on Internal Control over Financial Reporting
Management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act. TransUnion’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. generally accepted accounting principles. Internal control over financial reporting includes those policies and procedures that:
•pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of TransUnion;
•provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. generally accepted accounting principles;
•provide reasonable assurance that receipts and expenditures of TransUnion are being made only in accordance with the authorizations of management and directors of TransUnion; and
•provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of assets that could have a material effect on the consolidated financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Management’s assessment of and conclusion on the effectiveness of internal control over financial reporting did not include the
internal controls over financial reporting of Neustar, Inc. (“Neustar”) or Sontiq, Inc. (“Sontiq”), both of which we acquired in business combinations during 2021, and both of which are included in the 2021 consolidated financial statements of TransUnion from the date of acquisition. As of December 31, 2021, total assets of Neustar and Sontiq represented approximately 3% and less than 1%, respectively, of TransUnion’s consolidated total assets. Total revenues attributable to Neustar and Sontiq represented approximately 2% and less than 1%, respectively, of TransUnion’s consolidated total revenue for the year ended December 31, 2021.
Management assessed the effectiveness of TransUnion’s internal control over financial reporting as of December 31, 2021. In making this assessment, management used the criteria described in Internal Control—Integrated Framework as issued by the Committee of Sponsoring Organizations of the Treadway Commission in 2013.
Management’s assessment included an evaluation of the design of TransUnion’s internal control over financial reporting and testing of the operational effectiveness of its internal control over financial reporting. Management reviewed the results of its assessment with the Audit and Compliance Committee of TransUnion’s Board of Directors. Our independent registered public accounting firm, PricewaterhouseCoopers LLP has issued an attestation report on TransUnion’s internal control over financial reporting that is included in this Annual Report on Form 10-K.
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Based on our assessment, management has concluded that, as of December 31, 2021, TransUnion’s internal control over financial reporting was effective based on those criteria. Our independent registered public accounting firm, PricewaterhouseCoopers LLP, has audited the effectiveness of TransUnion’s internal control over financial reporting as of December 31, 2021, as stated in their report which is included in this Annual Report on Form 10-K.
Changes in internal control over financial reporting
During the quarter ended December 31, 2021, there have been no changes in our internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

ITEM 9B. OTHER INFORMATION
None.

ITEM 9C. DISCLOSURES REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
Not applicable.

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PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
The information required by this item is incorporated by reference to our Proxy Statement for the 2022 Annual Meeting of Stockholders to be held on May 11, 2022, which will be filed with the SEC within 120 days of the end of our fiscal year ended December 31, 2021.
Code of Business Conduct and Ethics
We have adopted a Code of Business Conduct and Ethics that applies to all directors, officers and employees. Our Code of Business Conduct and Ethics is available in the “Investor Relations” section of our website at www.transunion.com, under the tab “Leadership and Governance,” and a copy of the Code of Business Conduct and Ethics may also be obtained free of charge upon a request directed to TransUnion, 555 West Adams Street, Chicago, Illinois 60661, Attn: Corporate Secretary. Our Code of Business Conduct and Ethics is a “code of ethics,” as defined in Item 406(b) of Regulation S-K. We will make any legally required disclosures regarding amendments to, or waivers of, provisions of our code of ethics on our website.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item is incorporated by reference to our Proxy Statement for the 2022 Annual Meeting of Stockholders to be held on May 11, 2022, which will be filed with the SEC within 120 days of the end of our fiscal year ended December 31, 2021.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The information required by this item is incorporated by reference to our Proxy Statement for the 2022 Annual Meeting of Stockholders to be held on May 11, 2022, which will be filed with the SEC within 120 days of the end of our fiscal year ended December 31, 2021.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
The information required by this item is incorporated by reference to our Proxy Statement for the 2022 Annual Meeting of Stockholders to be held on May 11, 2022, which will be filed with the SEC within 120 days of the end of our fiscal year ended December 31, 2021.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
The information required by this item is incorporated by reference to our Proxy Statement for the 2022 Annual Meeting of Stockholders to be held on May 11, 2022, which will be filed with the SEC within 120 days of the end of our fiscal year ended December 31, 2021.
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PART IV
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a)List of Documents Filed as a Part of This Report:
(1)Financial Statements. The following financial statements are included in Item 8 of Part II:
◦Consolidated Balance Sheets—December 31, 2021 and 2020;
◦Consolidated Statements of Income for the years ended December 31, 2021, 2020 and 2019;
◦Consolidated Statements of Comprehensive Income for the years ended December 31, 2021, 2020 and 2019;
◦Consolidated Statements of Cash Flows for the years ended December 31, 2021, 2020 and 2019;
◦Consolidated Statements of Stockholders’ Equity for the years ended December 31, 2021, 2020 and 2019;
◦Notes to Consolidated Financial Statements.
(2)Financial Statement Schedules.
◦Schedule I - Condensed Financial Information of TransUnion as of December 31, 2021 and 2020, and for the years ended December 31, 2021, 2020 and 2019 and the accompanying notes; and
◦Schedule II—Valuation and Qualifying Accounts for the years ended December 31, 2021, 2020 and 2019.
Schedules I and II are filed as part of this Report and are set forth immediately following the signature page.
(3)The following exhibits are filed with this Annual Report on Form 10-K for the fiscal year ended December, 31, 2021, or incorporated herein by reference.
Exhibit
No.		Exhibit Name
Securities Purchase Agreement, dated as of September 11, 2021, by and between Trans Union LLC and Aerial Investors LLC (Incorporated by reference to Exhibit 2.1 to TransUnion’s Current Report on Form 8-K filed on September 13, 2021).
Stock Purchase Agreement, dated as of October 26, 2021, by and between Trans Union LLC and nThrive, Inc.
Third Amended and Restated Certificate of Incorporation of TransUnion (Incorporated by reference to Exhibit 3.1.2 to TransUnion’s Current Report on Form 8-K filed on May 18, 2020).
Third Amended and Restated Bylaws of TransUnion (Amended as of May 12, 2020) (Incorporated by reference to Exhibit 3.2 to TransUnion’s Current Report on Form 8-K filed on May 18, 2020).
Form of Stock Certificate for Common Stock (Incorporated by reference to Exhibit 4.6 to TransUnion’s Amendment No. 3 to Registration Statement on Form S-1 filed on June 15, 2015).
Description of TransUnion’s securities (Incorporated by reference to Exhibit 4.2 to TransUnion’s Annual Report on Form 10-K filed on February 16, 2021).
Amendment No. 13 to Credit Agreement, dated as of August 9, 2017, by and among TransUnion Intermediate Holdings, Inc., Trans Union LLC, the guarantors party thereto, Deutsche Bank AG New York Branch, as Administrative Agent and as Collateral Agent, Deutsche Bank AG New York Branch, as L/C Issuer, the other lenders from time to time party thereto and Deutsche Bank Securities, Inc., Capital One, N.A., Goldman Sachs Lending Partners LLC, JP Morgan Chase Bank, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBC Capital Markets and Wells Fargo Securities, LLC, as joint lead arrangers and joint bookrunners (Incorporated by reference to Exhibit 10.1 to TransUnion’s Quarterly Report on Form 10-Q filed on October 27, 2017).
Amendment No. 14 to Credit Agreement, dated as of May 2, 2018, by and among TransUnion Intermediate Holdings, Inc. (f/k/a TransUnion Corp.), Trans Union LLC, the Guarantors, Deutsche Bank Securities Inc., Capital One, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated and RBC Capital Markets, as joint lead arrangers, Deutsche Bank AG New York Branch, as administrative agent and collateral agent, and each of the other Lenders party thereto (Incorporated by reference to Exhibit 10.1 to TransUnion’s Quarterly Report on Form 10-Q filed on July 25, 2018).
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Amendment No. 15 to Credit Agreement, dated as of June 19, 2018, by and among TransUnion Intermediate Holdings, Inc. (f/k/a TransUnion Corp.), Trans Union LLC, the Guarantors, Deutsche Bank Securities Inc., RBC Capital Markets, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Capital One, N.A., as joint lead arrangers, Deutsche Bank AG New York Branch, as administrative agent and collateral agent, and each of the other Lenders party thereto (Incorporated by reference to Exhibit 10.2 to TransUnion’s Quarterly Report on Form 10-Q filed on July 25, 2018).
Amendment No. 16 to Credit Agreement, dated as of June 29, 2018, by and among TransUnion Intermediate Holdings, Inc. (f/k/a TransUnion Corp.), Trans Union LLC, the Guarantors, Deutsche Bank Securities Inc., RBC Capital Markets, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Capital One, N.A., as joint lead arrangers, Deutsche Bank AG New York Branch, as administrative agent and collateral agent, and each of the other Lenders party thereto (Incorporated by reference to Exhibit 10.3 to TransUnion’s Quarterly Report on Form 10-Q filed on July 25, 2018).
Amendment No. 17 to Credit Agreement, dated as of November 15, 2019, by and among TransUnion Intermediate Holdings, Inc. (f/k/a TransUnion Corp.), Trans Union LLC, the Guarantors, Deutsche Bank Securities Inc., BofA Securities, Inc., Capital One, N.A. and RBC Capital Markets, as joint lead arrangers, Deutsche Bank AG New York Branch, as administrative agent and collateral agent, and each of the other Lenders party thereto (Incorporated by reference to Exhibit 10.5 to TransUnion’s Annual Report on Form 10-K filed on February 18, 2020).
Amendment No. 18 to Credit Agreement, dated as of December 10, 2019, by and among TransUnion Intermediate Holdings, Inc. (f/k/a TransUnion Corp.), Trans Union LLC, the Guarantors, Deutsche Bank Securities Inc., BofA Securities, Inc., Capital One, N.A. RBC Capital Markets, Wells Fargo Securities LLC and JP Morgan Chase Bank, N.A. as joint lead arrangers, Deutsche Bank AG New York Branch, as administrative agent and collateral agent, and each of the other Lenders party thereto (Incorporated by reference to Exhibit 10.6 to TransUnion’s Annual Report on Form 10-K filed on February 18, 2020).

Amendment No. 19 to Credit Agreement, dated as of December 1, 2021, by and among TransUnion Intermediate Holdings, Inc. (f/k/a TransUnion Corp.), Trans Union LLC, the Guarantors, Deutsche Bank Securities Inc., Bank of America, N.A., Capital One, N.A., JP Morgan Chase Bank, N.A., Royal Bank of Canada as joint lead arrangers and joint bookrunners, Deutsche Bank AG New York Branch, as administrative agent and collateral agent, and each of the other Lenders party thereto.

Second Lien Credit Agreement, dated as of December 1, 2021, by and among TransUnion Intermediate Holdings, Inc., Trans Union LLC, the Guarantors, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, each of the other Lenders party thereto, JPMorgan Chase Bank, N.A., Deutsche Bank Securities Inc. and Wells Fargo Securities, LLC, as joint lead arrangers and joint bookrunners.

TransUnion Holding Company, Inc. 2012 Management Equity Plan (Effective April 30, 2012) (Incorporated by reference to Exhibit 10.1 to TransUnion’s Registration Statement on Form S-4 filed July 31, 2012).
TransUnion Holding Company, Inc. 2012 Management Equity Plan Stock Option Agreement (Effective April 30, 2012) (Incorporated by reference to Exhibit 10.2 to TransUnion’s Registration Statement on Form S-4 filed July 31, 2012).

Amendment No. 1 to TransUnion Holding Company, Inc. 2012 Management Equity Plan Stock Option Agreement, dated as of January 1, 2016 (Incorporated by reference to Exhibit 10.7 to TransUnion’s Annual Report on Form 10-K for the year ended December 31, 2015).
Form of Director Indemnification Agreement for directors of TransUnion (Incorporated by reference to Exhibit 10.6 to TransUnion’s Registration Statement on Form S-4 filed July 31, 2012).
Employment Agreement with James M. Peck, President and Chief Executive Officer of TransUnion and TransUnion Intermediate Holdings, Inc., dated December 6, 2012 (Incorporated by reference to Exhibit 10.15 to TransUnion’s and TransUnion Intermediate Holdings, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2012).

Letter Agreement between TransUnion and Reed Elsevier with respect to the employment of James M. Peck as the President and Chief Executive Officer of TransUnion and TransUnion Intermediate Holdings, Inc., dated December 6, 2012 (Incorporated by reference to Exhibit 10.16 to TransUnion’s and TransUnion Intermediate Holdings, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2012).
Employment Agreement, dated as of November 13, 2018, by and between TransUnion and Christopher A. Cartwright (Incorporated by reference to Exhibit 10.1 to TransUnion’s Current Report on Form 8-K filed on November 14, 2018).
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Employment Agreement, dated as of November 13, 2018, by and between TransUnion and James M. Peck (Incorporated by reference to Exhibit 10.2 to TransUnion’s Current Report on Form 8-K filed on November 14, 2018).
Retirement and Transition Agreement, dated as of April 1, 2021, by and between TransUnion and John Danaher (Incorporated by reference to Exhibit 10.1 to TransUnion’s Current Report on Form 8-K filed on April 7, 2021).
Retirement and Transition Agreement, dated as of August 12, 2021, by and between TransUnion and David Neenan (Incorporated by reference to Exhibit 10.1 to TransUnion’s Current Report on Form 8-K filed on August 13, 2021).
Employment Agreement, dated as of August 12, 2021 by and among TransUnion, Trans Union of Canada, Inc. and Todd Skinner (Incorporated by reference to Exhibit 10.2 to TransUnion’s Quarterly Report on Form 10-Q filed on October 26, 2021).
Form of TransUnion Executive Severance and Restrictive Covenant Agreement (Incorporated by reference to Exhibit 10.3 to TransUnion’s Quarterly Report on Form 10-Q filed on October 26, 2021).
Amended and Restated TransUnion 2015 Omnibus Incentive Plan (Incorporated by reference to Exhibit 10.1 to TransUnion’s Current Report on Form 8-K filed on May 18, 2020).
TransUnion 2015 Omnibus Incentive Plan Award Agreement with respect to Restricted Stock Units (U.S. Employees).
TransUnion 2015 Omnibus Incentive Plan Award Agreement with respect to Performance Share Units (U.S. Employees).
TransUnion 2015 Omnibus Incentive Plan Award Agreement with respect to Restricted Stock (Outside Directors) (Incorporated by reference to Exhibit 10.3 to TransUnion’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2016).
TransUnion 2015 Employee Stock Purchase Plan, as Amended and Restated, Effective November 6, 2018 (Incorporated by reference to Exhibit 10.24 to TransUnion’s Annual Report on Form 10-K for the year ended December 31, 2018).
Consent Order Issued by the United States Consumer Financial Protection Bureau on January 3, 2017, Administrative Proceeding - File No. 2017-CFPB-0002, In the Matter of: TransUnion Interactive, Inc., Trans Union LLC and TransUnion (Incorporated by reference to Exhibit 10.25 to TransUnion’s Annual Report on Form 10-K for the year ended December 31, 2016).
Subsidiaries of TransUnion.
Consent of PricewaterhouseCoopers LLP.
Consent of Ernst & Young LLP.
Power of Attorney - TransUnion (included on the signature page of this Form 10-K).
Certification of Principal Executive Officer for TransUnion pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Principal Financial Officer for TransUnion pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Executive Officer and Chief Financial Officer for TransUnion pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101.INS**XBRL Instance Document
101.SCH**XBRL Taxonomy Extension Schema Document
101.CAL**XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF**XBRL Taxonomy Extension Definition Linkbase Document
101.LAB**XBRL Taxonomy Extension Label Linkbase Document
101.PRE**XBRL Taxonomy Extension Presentation Linkbase Document
104**Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101).
† Identifies management contracts and compensatory plans or arrangement.
** Filed or furnished herewith.
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†† Schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule or exhibit will be furnished to the SEC upon request; provided, however, that the parties may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any document so furnished.

(4)Valuation and qualifying accounts.
(b)Exhibits. See Item 15(a)(3).
(c)Financial Statement Schedules. See Item 15(a)(2)
ITEM 16. FORM 10-K SUMMARY
None.

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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on February 22, 2022.
TransUnion
By:
/s/ Todd M. Cello
Todd M. Cello
Executive Vice President and Chief Financial Officer
POWER OF ATTORNEY
The officers and directors whose signatures appear below constitute and appoint Heather J. Russell and Rachel W. Mantz as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for them in their name, place and stead, in any and all capacities, to sign and file, with the Securities and Exchange Commission, this Form 10-K and any and all amendments and exhibits thereto, and all documents in connection therewith, granting unto each such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully and to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents or their substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities indicated on February 22, 2022.


SignatureTitle
/s/ Christopher A. CartwrightPresident and Chief Executive Officer, Director
Christopher A. Cartwright(Principal Executive Officer)
/s/ Todd M. CelloExecutive Vice President and Chief Financial Officer
Todd M. Cello(Principal Financial Officer)
/s/ Timothy ElberfeldSenior Vice President and Chief Accounting Officer
Timothy Elberfeld(Principal Accounting Officer)
/s/ George M. AwadDirector
George M. Awad
/s/ William P. (Billy) BosworthDirector
William P. (Billy) Bosworth
/s/ Suzanne P. ClarkDirector
Suzanne P. Clark
/s/ Russell P. FradinDirector
Russell P. Fradin
/s/ Charles E. GottdienerDirector
Charles E. Gottdiener
/s/ Pamela A. JosephDirector
Pamela A. Joseph
/s/ Thomas L. Monahan, IIIDirector
Thomas L. Monahan, III
/s/ Andrew ProzesDirector
Andrew Prozes
119

Table of Contents
Schedule I—Condensed Financial Information of TransUnion
TRANSUNION
Parent Company Only
Balance Sheet
(in millions, except per share data)
 December 31,
2021		December 31,
2020
Assets
Current assets:
Other current assets$0.4 $0.3 
Total current assets0.4 0.3 
Investment in TransUnion Intermediate4,217.6 2,748.7 
Other assets6.1 6.3 
Total assets$4,224.1 $2,755.3 
Liabilities and stockholders’ equity
Current liabilities:
Trade accounts payable$0.3 $— 
Due to TransUnion Intermediate312.0 211.4 
Other current liabilities1.3 1.4 
Total current liabilities313.6 212.8 
Other liabilities2.4 2.3 
Total liabilities316.0 215.1 
Stockholders’ equity:
Common stock, $0.01 par value; 1.0 billion shares authorized at December 31, 2021 and December 31, 2020; 197.4 million and 195.7 million shares issued as of December 31, 2021 and December 31, 2020, respectively; and 191.8 million and 190.5 million shares outstanding as of December 31, 2021 and December 31, 2020, respectively
2.0 2.0 
Additional paid-in capital2,188.9 2,088.1 
Treasury stock at cost; 5.6 million and 5.2 million shares at December 31, 2021 and December 31, 2020, respectively
(252.0)(215.2)
Retained earnings2,254.6 937.4 
Accumulated other comprehensive loss(285.4)(272.1)
Total stockholders’ equity3,908.1 2,540.2 
Total liabilities and stockholders’ equity$4,224.1 $2,755.3 
 See accompanying notes to condensed financial statements.
120

Table of Contents
Schedule I —Condensed Financial Information of TransUnion
TRANSUNION
Parent Company Only
Statement of Income
(in millions)
Twelve Months Ended December 31,
 202120202019
Revenue$— $— $— 
Operating expenses
Selling, general and administrative3.5 3.1 3.5 
Total operating expenses3.5 3.1 3.5 
Operating loss(3.5)(3.1)(3.5)
Non-operating income and expense
Equity Income from TransUnion Intermediate1,388.6 345.0 349.2 
Other income and (expense), net— 0.2 — 
Total non-operating income and expense1,388.6 345.2 349.2 
Income from continuing operations before income taxes1,385.1 342.1 345.7 
Benefit for income taxes2.0 1.1 1.2 
Net income$1,387.1 $343.2 $346.9 
See accompanying notes to condensed financial statements.
121

Table of Contents
Schedule I —Condensed Financial Information of TransUnion
TRANSUNION
Parent Company Only
Statements of Comprehensive Income
(in millions)

 
Twelve Months Ended December 31,
 202120202019
Net income$1,387.1 $343.2 $346.9 
Other comprehensive income:
         Foreign currency translation:
               Foreign currency translation adjustment(64.1)8.4 65.5 
               Benefit (expense) for income taxes0.3 0.8 (0.5)
         Foreign currency translation, net(63.8)9.2 65.0 
         Hedge instruments:
               Net change on interest rate cap— 4.1 (11.0)
               Net change on interest rate swap67.3 (43.5)(35.4)
               Cumulative effect of adopting ASU 2017-12— — 1.0 
              Benefit (expense) for income taxes(16.8)9.5 11.5 
         Hedge instruments, net50.5 (29.9)(33.9)
         Available-for-sale securities:
              Net unrealized gain— 0.3 — 
              Expense for income taxes— (0.1)— 
         Available-for-sale securities, net— 0.2 — 
Total other comprehensive (loss) income, net of tax(13.3)(20.5)31.1 
Comprehensive income attributable to TransUnion$1,373.8 $322.7 $378.0 
See accompanying notes to condensed financial statements.

122

Table of Contents
Schedule I —Condensed Financial Information of TransUnion
TRANSUNION
 Parent Company Only
Statement of Cash Flows
(in millions)
 
Twelve Months Ended December 31,
 202120202019
Cash provided by operating activities$84.7 $70.8 $71.7 
Cash used in investing activities— — — 
Cash flows from financing activities:
Proceeds from issuance of common stock and exercise of stock options21.9 22.9 24.4 
Dividends to shareholders(69.8)(57.6)(56.8)
Treasury stock purchased(36.8)(36.1)(39.3)
Cash used in financing activities(84.7)(70.8)(71.7)
Net change in cash and cash equivalents— — — 
Cash and cash equivalents, beginning of period— — — 
Cash and cash equivalents, end of period$— $— $— 
See accompanying notes to condensed financial statements.

123


Schedule I —Condensed Financial Information of TransUnion
TRANSUNION
 Parent Company Only
Notes to Financial Statements
Note 1. Basis of Presentation
In the TransUnion parent company only financial statements, the Company’s investment in subsidiaries is stated at cost plus equity in the undistributed earnings of subsidiaries since the date of acquisition. The Company’s share of net income of its subsidiaries is included in consolidated income using the equity method. The parent company only financial information should be read in conjunction with TransUnion’s consolidated financial statements.
Note 2. Income tax
TransUnion entered into an intercompany tax allocation agreement with TransUnion Intermediate Holdings, Inc. in 2013, effective for all taxable periods from May 1, 2012, forward, in which they are members of the same consolidated federal or state tax groups. The agreement allocates the consolidated tax liability from those filings among the various members of the group.
Note 3. Dividends to Stockholders
During the second quarter of 2021, we increased our quarterly dividend from $0.075 per share to $0.095 per share. During 2021, 2020 and 2019, we paid dividends of $69.8 million, $57.6 million and $56.8 million, respectively. Dividends declared accrue to outstanding restricted stock units and are paid to employees as dividend equivalents when the restricted stock units vest.

124


Schedule II—Valuation and Qualifying Accounts
TRANSUNION

(in millions)Balance at
Beginning of
Year		Charged to
Costs and
Expenses		Charged to
Other
Accounts		DeductionsBalance at
End of
Year
Allowance for deferred tax assets:
Year ended December 31,
2021$65.7 $3.8 $14.4 $(13.1)$70.8 
2020$53.3 $12.6 $3.7 $(3.8)$65.7 
2019$51.9 $14.1 $— $(12.7)$53.3 
As a result of displaying amounts in millions, rounding differences may exist in the table above.
125
Exhibit 2.2

Execution Version
STOCK PURCHASE AGREEMENT
dated as of
October 26, 2021
by and between
TRANS UNION LLC
and
NTHRIVE, INC.



TABLE OF CONTENTS
ARTICLE I
Definitions
Section 1.01    Definitions
2
16
Section 1.03    Other Definitional and Interpretative Provisions
19
ARTICLE II
Purchase and Sale
Section 2.01    Purchase and Sale of the Purchased Interests
Section 2.02    Purchase Price; Allocation of Purchase Price; Withholding
20
Section 2.03    Closing
20
Section 2.04    Adjustment Amount
22
ARTICLE III
Representations and Warranties of Seller
Section 3.01    Existence and Power of Seller
24
Section 3.02    Authorization
24
Section 3.03    Governmental Authorization
25
Section 3.04    Noncontravention
25
Section 3.05    Purchased Subsidiaries
25
Section 3.06    Financial Statements
27
Section 3.07    Absence of Certain Changes
27
28
28
30
31
32
32
35
35
35
37
38
38
41
41
41
41
42
ARTICLE IV
Representations and Warranties of Buyer
i





Section 4.01    Existence and Power
42
Section 4.02    Authorization
42
Section 4.03    Governmental Authorization
43
Section 4.04    Noncontravention
43
Section 4.05    Financing
43
Section 4.06    Litigation
45
Section 4.07    Solvency
45
Section 4.08    Purchase for Investment
45
Section 4.09    Finders’ Fees
45
Section 4.10    No Other Representations and Warranties; No Reliance
46
ARTICLE V
Covenants
Section 5.01    Conduct of the Business
47
Section 5.02    Pre-Closing Access
50
Section 5.03    Regulatory Filings
51
Section 5.04    Shared Contracts
53
Section 5.05    Pre-Closing Intercompany Assignments and Wrong Pockets; Third Party Approvals
55
Section 5.06    Consents Generally
56
Section 5.07    Wrong Pockets
57
Section 5.08    Intercompany Balances; Affiliate Transactions
57
Section 5.09    Business Guarantees
58
Section 5.10    Use of Retained Marks
59
Section 5.11    Representation and Warranty Insurance
60
Section 5.12    Insurance
60
Section 5.13    Production of Witnesses; Third Party Claims; Split Litigation
60
Section 5.14    Retention of Books and Records and Post-Closing Access
63
Section 5.15    Confidentiality
64
Section 5.16    Public Announcements
65
Section 5.17    Non-Solicitation; Non-Competition
66
Section 5.18    Resignations
68
Section 5.19    Director and Officer Liability and Indemnification
68
Section 5.20    Further Assurances
70
Section 5.21    Contact with Employees, Customers and Suppliers
70
Section 5.22    Financing
71
Section 5.23    Use of Names
74
Section 5.24    Exclusivity
74
Section 5.25    Ahuja Share Transfer
74
Section 5.26    Commercial Agreements
74
ARTICLE VI
Tax Matters
ii



Section 6.01    Tax Returns; Allocation of Taxes
75
Section 6.02    Cooperation on Tax Matters
76
Section 6.03    Buyer Covenants
77
Section 6.04    Tax Sharing Agreements
77
Section 6.05    Tax Claims
78
Section 6.06    Section 338(h)(10) Election
78
Section 6.07    Allocation of Purchase Price
78
Section 6.08    Post-Closing Payments
79
ARTICLE VII
Employee Matters
Section 7.01    Employee Communications and Consultations
79
Section 7.02    Offers of Employment
79
Section 7.03    Effect of Transfer
80
Section 7.04    Continuation of Benefits
81
Section 7.05    Closing Year Annual Bonus
82
Section 7.06    Severance Benefits
82
Section 7.07    Assumption of Agreements
82
Section 7.08    Service Credit
82
Section 7.09    Work Authorization
83
Section 7.10    Vacation
83
Section 7.11    Retirement Plans
83
Section 7.12    Health and Welfare Benefits
83
Section 7.13    COBRA
84
Section 7.14    Workers’ Compensation
Section 7.15    Buyer Benefit Plans
84
Section 7.16    Employment Tax Reporting Responsibility
84
Section 7.17    WARN
85
Section 7.18    Third-Party Rights
85
Section 7.19    No Buyer Liability for Seller Parent Equity Awards
85
ARTICLE VIII
Conditions to Closing
Section 8.01    Conditions to the Obligations of Buyer and Seller
85
Section 8.02    Conditions to the Obligations of Buyer
86
Section 8.03    Conditions to the Obligations of Seller
86
Section 8.04    Frustration of Conditions
87
ARTICLE IX
Termination
Section 9.01    Termination
87
Section 9.02    Effect of Termination
88
Section 9.03    Termination Fees
89
ARTICLE X
Miscellaneous
iii



Section 10.01    Survival; Certain Waivers
91
Section 10.02    Notices
91
Section 10.03    Waiver
92
Section 10.04    Expenses
93
Section 10.05    Assignment
93
Section 10.06    Governing Law
93
Section 10.07    Jurisdiction; Waiver of Jury Trial
93
Section 10.08    Captions; Counterparts
94
Section 10.09    Rights of Third Parties
94
Section 10.10    Entire Agreement
95
Section 10.11    Amendments
95
Section 10.12    Severability
95
Section 10.13    Disclosure Schedules
95
Section 10.14    Enforcement
96
Section 10.15    Non-Recourse
97
Section 10.16    Privileged Matters; Conflicts of Interest
97
Section 10.17    Currency
99

ANNEXES


AnnexIAccounting Principles
AnnexIIPurchased Subsidiaries

EXHIBITS


ExhibitAForm of Transition Services Agreement

iv



STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of October 26, 2021, is made by and between Trans Union LLC, a Delaware limited liability company (“Seller”), and nThrive, Inc., a Delaware corporation (the “Buyer”). Seller and Buyer are each referred to herein as a “Party” and collectively as the “Parties”.
W I T N E S S E T H :
WHEREAS, Seller, certain of its Subsidiaries and TransUnion Risk and Alternative Data Solutions, Inc., a Delaware corporation (“TRADS”), are engaged in the provision of healthcare information technology, software, solutions and services related to front-end (i.e., pre-service and point of service) and back-end (i.e., post-service) revenue cycle management to healthcare providers and payers; the creation and sale of analytical insights regarding healthcare information, as well as healthcare information technology solutions; and the sale and resale of data (i.e. credit, identity, public records and marketing) to healthcare providers, payers (i.e., private and public health insurance organizations), and the life sciences industry for the purposes of increasing revenue and improving engagement with their respective patients, members or customers (collectively, the “Business”); provided, that the Business shall exclude the Retained Entities;
WHEREAS, Buyer desires to acquire the Business by purchasing the Purchased Interests from Seller, and Seller desires to sell the Business by selling the Purchased Interests to Buyer, in each case, upon the terms and subject to the conditions hereinafter set forth;
WHEREAS, certain Buyer Related Parties (each in their capacity as such, the “Guarantors”), simultaneously with the execution of this Agreement, have, in order to induce Seller to enter into this Agreement, delivered to Seller a limited guaranty (the “Limited Guaranty”), pursuant to which the Guarantors have agreed to guarantee full payment of certain of Buyer’s obligations set forth in this Agreement, subject to terms and conditions set forth therein; and
WHEREAS, certain Buyer Related Parties (each in their capacity as such, the “Equity Financing Sources”), simultaneously with the execution of this Agreement, have, in order to induce Seller to enter into this Agreement, delivered to Seller an equity commitment letter (the “Equity Commitment Letter”), pursuant to which the Equity Financing Sources have committed to provide equity financing in an aggregate amount of $861,052,879.41, subject to terms and conditions set forth therein.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
Definitions
Section 1.01    Definitions. As used herein, the following terms have the following meanings:
“Accounting Principles” means the accounting principles, practices, policies, judgments and methodologies set forth in Annex I.
“Acquisition Proposal” means any proposal or offer from any Person (other than Buyer and its representatives, Affiliates or any group (as defined in Rule 13d-5 of the Exchange Act)




that the foregoing are members of) providing for any transaction or series of transactions that would result in any (a) merger, business combination, reorganization, share exchange, consolidation or similar transaction involving the Purchased Subsidiaries or the Business, (b) acquisition or purchase of (i) more than a de minimis amount of the Purchased Interests or any other class of equity interests of the Purchased Subsidiaries, (ii) any option, call, warrant or right (whether or not immediately exercisable) to acquire any Purchased Interests or any other equity interests of the Purchased Subsidiaries, or (iii) any security, instrument or obligation that is convertible into or exchangeable for any Purchased Interests or any other equity interests of the Purchased Subsidiaries, or (c) acquisition, lease, license, sublicense or purchase of more than fifteen percent (15%) of the consolidated assets (measured by value) of the Business or the Purchased Subsidiaries, each taken as a whole, other than the transactions contemplated pursuant to or permitted by this Agreement and other than sales of products and services in the ordinary course of business; provided, however, that no proposal with respect to any transaction or series of transactions that would not reasonably be expected to, individually or in the aggregate, interfere with, prevent or delay the ability of Seller, TopCo or TRADS to enter into and perform their respective obligations under the Transaction Documents to which they are a party or to consummate the transactions contemplated thereby shall be deemed to constitute an “Acquisition Proposal”, including any (x) merger, business combination, reorganization, share exchange, consolidation or similar transaction involving Seller Parent, Seller or any of the Retained Entities, (y) acquisition, purchase, sale or issuance of (i) any equity interests of Seller Parent, Seller or any Retained Entity, (ii) any option, call, warrant or right (whether or not immediately exercisable) to acquire any class of equity interests of Seller Parent, Seller or any Retained Entity, or (iii) any security, instrument or obligation that is convertible into or exchangeable for any class of equity interests of Seller Parent, Seller or any Retained Entity, or (z) acquisition, purchase or sale of assets of Seller Parent, Seller or any Retained Entity, other than assets of the Business. Additionally, for the avoidance of doubt, no proposal or offer providing for a transfer of securities of Rubixis India to a Buyer, its Affiliates, or any designee of Buyer or its Affiliates shall be deemed to be an Acquisition Proposal.
“Action” means any claim, action, suit, complaint, audit, proceeding (public or private) or arbitration, in each case, commenced or brought by any Person, that is conducted or heard by or before any Governmental Authority (other than ordinary course office actions and similar ordinary course notices or proceedings in connection with the prosecution of applications for registration or issuance of Intellectual Property Rights).
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such other Person. For purposes of this definition and the definition of “Buyer Controlling Persons”, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities or other ownership interests, by contract or otherwise, and the terms “controlling” and “controlled” have correlative meanings.
“Ahuja Share” means the share of Rubixis Technologies Private Limited held by Mr. Pankaj Ahuja.
“Assumed Plans” means (i) the Purchased Subsidiary Plans (if any) and (ii) each Employee Plan that is assumed by Buyer pursuant to Section 7.07(a) of this Agreement and that is listed on Schedule 7.07(a).
“Balance Sheet Date” means June 30, 2021.
“Business Data” means all confidential data, information, and data compilations stored in the IT Assets, including Personal Information, that are used by, or necessary to the operation of, the Business.
2




“Business Day” means any day that is not a Saturday, a Sunday or other day on which the commercial banks in New York, New York are required or authorized by Law to be closed.
“Business Employees” means (i) each employee of the Purchased Subsidiaries, (ii) each employee of Seller who, as of October 19, 2021, provides services primarily in respect of the Business (in the case of each clauses (i) and (ii), each of whom is set forth on the Employee List, which Employee List may be modified pursuant to Section 3.17(c)), and (iii) to the extent permitted by Section 5.01, any employee hired by Seller after the date of this Agreement who provides services primarily in respect of the Business.
“Business Guarantees” means all guarantees, letters of credit, bonds, sureties and other credit support or assurances provided by Seller or any of the Retained Entities in support of any obligation of the Business, and which are set forth on Schedule 1.01(a).
“Business Intellectual Property Rights” means the Business Patents, the Business Trademarks and the Other Business Intellectual Property Rights.
“Business Patents” means the Patents used primarily in the conduct of the Business.
“Business Records” means all books, records, files, plans, studies, reports, manuals, handbooks, catalogs, brochures, ledgers, drawings and other similar materials to the extent primarily related to the Business, including (a) all lists, including lists of customers, suppliers or personnel, (b) all product, business and marketing plans, (c) operating and personnel records and (d) all Tax-related records and receipts (or portions thereof), in each case, primarily related to the Business.
“Business Trademarks” means the Trademarks used primarily in the conduct of the Business.
“Buyer Controlling Persons” means any beneficial owners of Buyer that directly or indirectly control Buyer and any such beneficial owners’ affiliated investment funds.
“CARES Act” means the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. No. 116-136 (H.R. 748)) and any and all Laws promulgated thereunder (including any SBA rules, regulations and guidance).
“Cash and Cash Equivalents” of any Person as of any date means the aggregate cash and cash equivalents of such Person, however and wherever held, and including (a) all marketable securities and all checks and wire transfers or drafts deposited or available for deposit for the account of any such Person and (b) shall exclude (i) all checks and wire transfers or drafts written or issued by such Person but uncleared, (ii) the amount of any declared and unpaid dividends, distributions or other commitments to make a payment to any equityholder of such Person, (iii) security deposits with third parties (including cash collateralizing letter of credit obligations) and cash held in third party escrow accounts, and (iv) cash, the use of which by such Person is subject to any restrictions on its availability or use. For the avoidance of doubt, Cash and Cash Equivalents shall not include any amount that is included as a current asset in the calculation of Net Working Capital.
“Closing Date Net Working Capital” means the Net Working Capital immediately prior to the Closing.
“Code” means the United States Internal Revenue Code of 1986, as amended.
3




“Collective Bargaining Agreement” means each agreement or labor contract entered into with a union, labor organization or works council governing the terms and conditions of employment of any Business Employee.
“Combined Tax” means (i) any Tax with respect to which any of the Purchased Subsidiaries has filed or will file a Tax Return with any Retained Entity on a consolidated basis pursuant to Section 1501 of the Code and (ii) any income or franchise Tax payable to any state, local or foreign Taxing jurisdiction in which any of the Purchased Subsidiaries has filed or will file a Tax Return with any Retained Entity on an affiliated, consolidated, combined or unitary basis with respect to such Tax.
“Combined Tax Return” means any Tax Return for Combined Taxes that includes any Purchased Subsidiary and any Retained Entity.
“Commitment Letters” means, collectively, the Equity Commitment Letter and the Debt Commitment Letter.
“Competition Laws” means any relevant merger or acquisition Laws or other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization, lessening of competition or restraint of trade, including the HSR Act, in each case, as amended, and the related rules and regulations, as amended.
“Confidentiality Agreement” means that certain Confidentiality Agreement by and between Trans Union LLC and an Affiliate of Buyer, dated August 3, 2021.
“Contingent Provider” means (i) each individual directly or indirectly engaged as a consultant, independent contractor, or other non-employee service provider of the Purchased Subsidiaries, (ii) each individual directly or indirectly engaged as a consultant, independent contractor, or other service provider of Seller or its Affiliates who, as of October 19, 2021, provides services primarily in respect of the Business and (iii) in the case of Rubixis India, each individual directly or indirectly employed or engaged as a contractor by Rubixis India (in the case of each of clauses (i), (ii) and (iii), each of whom is set forth on the Contingent Provider List).
“Contract” means any written or oral legally binding contract, agreement, lease, sublease, license or sublicense.
“COTS License” means a “shrink-wrap,” “click-through” or “off-the-shelf” software license, or any other license of software that is commercially available to the public generally, with one-time or annual license, maintenance, support and other fees of $250,000 or less.
“COVID-19” means SARS-CoV-2 or COVID-19 and any evolutions or mutations thereof, or any escalation or worsening of any of the foregoing (including subsequent waves).
“COVID-19 Measures” means any public health, quarantine, “shelter in place,” “stay at home,” social distancing, shut down, furlough, closure, sequester, safety or similar Law, directive or mandate promulgated by any Governmental Authority, in each case in response to COVID-19.
“Credit Facility” means collectively, (i) that certain Third Amended and Restated Credit Agreement, dated as of August 9, 2017, by and among TransUnion Intermediate Holdings, Inc., Trans Union LLC, the guarantors party thereto, Deutsche Bank AG New York Branch, as Administrative Agent and as Collateral Agent, Deutsche Bank AG New York Branch, as L/C Issuer, the other lenders from time to time party thereto and Deutsche Bank Securities, Inc.,
4




Capital One, N.A., Goldman Sachs Lending Partners LLC, JP Morgan Chase Bank, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, RBC Capital Markets and Wells Fargo Securities, LLC, as joint lead arrangers and joint bookrunners and (ii) that certain Credit Agreement, dated as of June 15, 2010, by and among TransUnion Intermediate Holdings, Inc., Trans Union LLC, Deutsche Bank AG New York Branch, as Administrative Agent and the lenders from time to time party thereto, in each case as amended, amended and restated, supplemented and/or otherwise modified.
“Customer Contract” means a Contract pursuant to which Seller, TRADS or any of their respective Subsidiaries licenses or otherwise provides products or services of the Business to customers, including any Contract pursuant to which any non-exclusive license is granted to a customer of the Business to use hosted or object-code-only versions of the Business’s products or services.
“Data Processor” means a natural or legal Person, public authority, agency or other body that Processes Personal Information on behalf of or at the direction of Seller or its Affiliates in connection with the operation of the Business.
“Disclosure Schedules” means the disclosure schedules delivered by Seller to Buyer concurrently with the execution and delivery of this Agreement.
“Employee Plan” means any “employee benefit plan”, as defined in Section 3(3) of ERISA, whether or not subject to ERISA, and any Contract, plan, practice, program, arrangement or policy providing for employment, consulting, severance, equity or equity-like compensation, bonus, profit-sharing, incentive or deferred compensation, vacation or other paid-time-off, health or welfare benefits, sick pay, pension or retirement benefits or other compensation or employee benefits, in each case, which covers any Business Employee and is sponsored, maintained or contributed to by Seller or any of its Subsidiaries, but excluding the Purchased Subsidiary Plans and any plan that is required to be maintained by applicable Law or that is sponsored in whole or in part by any Governmental Authority, union or employee organization.
“Environmental Laws” means any applicable Law relating to pollution, protection of the environment or natural resources, or protection of the health and safety of individuals from exposures to Hazardous Substances in the environment.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Estimated Net Working Capital Adjustment Amount” which may be positive or negative, means the Estimated Closing Date Net Working Capital minus the Target Closing Net Working Capital.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Financing Sources” means the Persons (other than Buyer and its Affiliates), if any, that have committed or subsequently commit, after the date hereof, to provide or arrange or otherwise have entered into agreements in connection with all or any part of the Debt Financing or any Alternate Debt Financing in connection with the transactions contemplated by this Agreement and any commitment letters or credit agreements (including any amendments thereto) relating thereto (including any arrangers, agents, underwriters, placement agents, investors or initial purchasers in connection with the Debt Financing or any Alternate Debt Financing), together with their respective Affiliates and their and their Affiliates’ current, former and future officers,
5




directors, general or limited partners, shareholders, members, controlling persons, employees, agents and representatives and the successors and assigns of each of the foregoing.
“Fraud” means a claim by (i) Buyer for actual and intentional fraud of Seller with respect to the making of the representations and warranties of Seller pursuant to Article III or (ii) Seller for actual and intentional fraud of Buyer with respect to the making of the representations and warranties of Buyer pursuant to Article IV; provided that actual and intentional fraud shall only be deemed to exist if Seller or Buyer made a knowing and intentional misrepresentation (under Article III or Article IV, as applicable) of a material fact with the intent that the other party rely on such knowing and intentional misrepresentation of such material fact, coupled with damages caused by such other party’s detrimental reliance on such knowing and intentional misrepresentation of such material fact under circumstances that constitute common law fraud under the Laws of the State of Delaware. For the avoidance of doubt, “Fraud” does not include any claim for equitable fraud, unfair dealings fraud, or any torts (including a claim for fraud) based on negligence or recklessness.
“Fundamental Representations” means the representations and warranties of Seller contained in Section 3.01 (Existence and Power), Section 3.02 (Authorization), the first three sentences of Section 3.05(b) (Purchased Interests), Section 3.14(b) (Sufficiency of Assets) and Section 3.20 (Finders’ Fees).
“GAAP” means accounting principles generally accepted in the United States of America.
“Governmental Authority” means any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court, tribunal or arbitral body.
“Governmental Order” means any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any Governmental Authority.
“Hazardous Substances” means any pollutant, contaminant, chemical, waste and any other toxic, infectious, carcinogenic, radioactive, ignitable, corrosive, reactive or otherwise hazardous substances or materials (whether solids, liquids or gases) subject to regulation, control or remediation under any Environmental Law based upon its toxic, hazardous or deleterious properties or characteristics, including petroleum, its derivatives, by-products and other hydrocarbons, urea formaldehyde, lead-based paint, PCBs, silica and asbestos.
“Health Information Laws” means HIPAA and any other applicable Laws governing the privacy, security, integrity, accuracy, creation, transmission, receipt, maintenance, use, disclosure or other protection of individually identifiable health information.
“HIPAA” means the Health Information Portability and Accountability Act of 1996, as amended, and all applicable implementing Laws and guidance of any applicable Governmental Authority.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
“Income Tax” means any Tax that is, in whole or in part, based on or measured by net income or profit.
“Income Tax Return” means any Tax Return with respect to Income Taxes.
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“Indebtedness” means, without duplication, (a) all obligations of the Purchased Subsidiaries for borrowed money, (b) all obligations of the Purchased Subsidiaries evidenced by notes, bonds, debentures or other similar instruments or similar debt securities, (c) all reimbursement obligations of the Purchased Subsidiaries under letters of credit, bankers’ acceptances or similar instruments to the extent such letters of credit, bankers’ acceptances or similar instruments have been drawn, (d) all obligations of the Purchased Subsidiaries under capitalized leases to the extent any such lease is accrued as indebtedness in accordance with GAAP (for the avoidance of doubt, capital leases shall exclude any operating lease right-of-use asset and lease liability determined in accordance with Accounting Standards Codification Topic 842), (e) all obligations of the Purchased Subsidiaries arising out of interest rate and currency swap arrangements and any other arrangements designed to provide protection against fluctuations in interest or currency rates, (f) any indebtedness for the deferred purchase price of property, assets or services with respect to which the Purchased Subsidiaries are liable as obligor or otherwise (including amounts for which the Purchased Subsidiaries are liable with respect to purchase price adjustments, “holdback” or similar payments, and earn-out payments), (g) any obligations or liabilities secured by a Lien (other than Permitted Liens) on the assets of the Business or the Purchased Subsidiaries, (h) the net amount of any unfunded pension, retiree medical or non-qualified retirement plan, program or arrangement, (i) all obligations of the Purchased Subsidiaries with respect to any unpaid severance obligations and accrued termination payments, in each case, resulting from the termination of any Person prior to the Closing, including the applicable Purchased Subsidiary’s share of Taxes payable with respect to all such amounts, (j) any bonus or incentive compensation (excluding accrued commissions) which is attributable to or in respect of any time period ending on or before the Closing Date and which is payable by the Buyer or the Purchased Subsidiaries or will become payable by the Buyer or the Purchased Subsidiaries to any Business Employee or any current or former employee, consultant, independent contractor or equityholder of the Purchased Subsidiaries under any contract, program, policy or arrangement, including the Buyer’s or the applicable Purchased Subsidiary’s share of Taxes payable with respect to all such amounts, (k) all obligations of the Purchased Subsidiaries with respect to any compensation which has been earned by any Business Employee or any employee, consultant, independent contractor or equityholder of the Purchased Subsidiaries under any contract, program, policy or arrangement but the actual payment of which has been deferred to a date beyond the month or year in which it was earned (excluding accrued obligations regularly paid through the Purchased Subsidiaries’ normal payroll schedule and excluding any commissions or bonuses), including the Purchased Subsidiary’s share of Taxes payable with respect to all such amounts, (l) all obligations of the Purchased Subsidiaries for guarantees of another Person in respect of any items set forth in clauses (a) through (k) (other than guarantees that constitute Permitted Liens described in clause (l) of the definition thereof), (m) all accrued interest, fees and expenses (including prepayment premium obligations) resulting from any of the items set forth in clauses (a) through (l), (n) any Pre-Closing Taxes that remain unpaid as of immediately prior to the Closing (whether or not due and payable as of the Closing Date) and (o) the Sales and Use Tax Deduction. For the avoidance of doubt, Indebtedness amounts included within the Closing Statement will reflect the obligations of the Purchased Subsidiaries and will not include allocations from Seller Parent to the extent such allocations are not directly attributable to the Purchased Subsidiaries. For the avoidance of doubt, Indebtedness shall not include any amount that is included as a liability in the calculation of Net Working Capital.
“Information Privacy and Security Requirements” means all applicable Laws and Contracts relating to the Processing or protection of Personal Information applicable to the Business, including, without limitation, (a) the Gramm-Leach-Bliley Act; the Federal Trade Commission Act; the Privacy Act of 1974; Health Information Laws; the California Consumer Privacy Act, Massachusetts Gen. Law Ch. 93H, 201 C.M.R. § 17.00, et seq.; Nev. Rev. Stat. 603A, et seq.; Cal. Civ. Code § 1798.82, et seq.; N.Y. Gen. Bus. Law § 899-aa, et seq.; N.Y. Gen. Bus. Law § 899-bb, et seq.; the Illinois Biometric Information Privacy Act, 740 I.L.C.S. §
7




14, et seq.; and all other Laws and binding regulations relating to data protection, information security, cybercrime, Security Incident notification, social security number protection, outbound communications and/or electronic marketing, use of electronic data and privacy matters (including online privacy) in any applicable jurisdictions; (b) each Contract relating to the Processing of Personal Information applicable to the Business; (c) and the Payment Card Industry Data Security Standard (“PCI-DSS”); and (d) the Information Technology (Reasonable Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 under the Information Technology Act, 2000 of India.
“Information Security Program” means a written information security program that complies with Information Privacy and Security Requirements, that when appropriately implemented and maintained would constitute reasonable security procedures and practices appropriate to the nature of Personal Information Processed in the operation of the Business and that includes: (i) written policies and procedures regarding Personal Information, and the Processing thereof; (ii) administrative, technical and physical safeguards to protect the security, confidentiality, availability, and integrity of any Personal Information owned, controlled, maintained, held, or Processed by Seller, its Affiliates, or their Data Processors in connection with the operation of the Business; (iii) disaster recovery, business continuity, incident response, and security plans, procedures and facilities; and (iv) protections against Security Incidents, and against loss, misuse, unauthorized access to, and disruption of, the Processing of Business Data, IT Assets and the systems of any Data Processor.
“Intellectual Property Rights” means all intellectual property rights in any and all jurisdictions throughout the world, including all: (a) Patents; (b) Trademarks; (c) trade secrets and other intellectual property rights in inventions (whether or not patentable and whether or not reduced to practice), confidential information, data, know-how, product designs, methods and processes, including customer information and marketing materials; and (d) copyrights and mask works, whether or not registered, and registrations and applications for registration thereof.
“IT Assets” means all software, computer systems, servers, computer hardware, workstations, routers, hubs, switches, data communication lines, firmware, networks, Internet-related information technology infrastructure, wide area network and all other data communications information technology equipment owned or leased by, or licensed to, Seller or the Purchased Subsidiaries that are used in the operation of the Business.
“knowledge of Buyer”, “Buyer’s knowledge” or any other similar knowledge qualification in this Agreement means to the actual knowledge, after reasonable inquiry and investigation, of the Persons set forth in Schedule 1.01(b).
“knowledge of Seller”, “Seller’s knowledge” or any other similar knowledge qualification in this Agreement means to the actual knowledge, after reasonable inquiry and investigation, of the Persons set forth in Schedule 1.01(c).
“Law” means, with respect to any Person, any statute, law, bylaw, ordinance, rule, regulation, or Governmental Order, in each case, of any Governmental Authority that is binding upon or applicable to such Person.
“Leased Real Property” means the real property leased or subleased by the Purchased Subsidiaries or Seller as tenants or subtenants described in Schedule 3.12(a)(ii).
“Leases” means the leases and subleases pursuant to which the Purchased Subsidiaries or Seller have a leasehold or subleasehold interest in the Leased Real Property.
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“Liability” means any liability, loss, cost, expense, debt, commitment or obligation of any kind, character or description, and whether known or unknown, choate or inchoate, liquidated or unliquidated, accrued, absolute, contingent or otherwise, and regardless of when asserted or by whom.
“Lien” means, with respect to any property, equity interest or other asset, any mortgage, deed of trust, lien, encumbrance, lease, sublease, occupancy agreement, pledge, security interest, right of way, covenant, condition, right of first refusal, transfer or use restriction, easement, encroachment, servitude, option or conditional sale agreement or other encumbrance, in each case, in respect of such property, equity interest or other asset.
“Marketing Period” means the first fifteen (15) consecutive Business Day period (provided, that (x) November 24, 2021 and November 26, 2021 shall not be included in the calculation of such period (but for the avoidance of doubt, the exclusion of such dates shall not restart the Marketing Period) and (y) if such period shall not have ended on or prior to December 17, 2021, such period shall not commence prior to January 4, 2022) commencing on the Business Day on which Buyer has been delivered the Required Financial Information and during which period nothing has occurred and no condition exists that would cause any of the conditions set forth in Section 8.02(a) or Section 8.02(b) to fail to be satisfied (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at such time)as of the Closing if the Closing were to be scheduled for any time during such fifteen (15) consecutive Business Day period; provided, that the Marketing Period shall end on any earlier date on which the Debt Financing or any alternative financing in lieu thereof as set forth in Section 5.22(d) is obtained. It is understood and agreed that when Seller in good faith reasonably believes that it has delivered the Required Financial Information to Buyer and the other conditions to the commencement of the Marketing Period set forth in the preceding sentence have been satisfied, it may deliver to Buyer a written notice to that effect (stating when it believes it completed such delivery), in which case the Marketing Period shall be deemed to have commenced on the date specified in such notice, unless Buyer in good faith reasonably believes that Seller has not completed delivery of the Required Financial Information and, within two (2) Business Days after receipt of such notice from Seller, Buyer delivers a written notice to Seller to that effect (stating with specificity which portions of the Required Financial Information Seller has not delivered), but without prejudice to Seller’s right to assert that such financial information was in fact delivered. Notwithstanding the foregoing, the Marketing Period shall not commence and shall be deemed not to have commenced if, prior to the completion of the Marketing Period (i) the Business’ auditor shall have withdrawn, or have notified Seller in writing that they intend to withdraw, any audit opinion contained in the Required Financial Information, in which case the Marketing Period shall not be deemed to commence unless and until a new unqualified audit opinion is issued with respect thereto by the auditor or another independent public accounting firm reasonably acceptable to Buyer or (ii) Seller issues a public statement indicating its intent to, or determines that it is required to, restate any historical financial statements of the Business or that any such restatement is under consideration, in which case the Marketing Period shall not be deemed to commence unless and until such restatement has been completed and the relevant financial statements have been amended or Seller has announced that it has concluded that no restatement shall be required in accordance with GAAP.
“Material Adverse Effect” means any effect, occurrence, development, fact, event or change that, individually or in the aggregate has resulted in or would reasonably be expected to result in a material adverse effect on the results of operations or financial condition of the Business, taken as a whole; provided, however, that in no event would any of the following, alone or in combination, be deemed to constitute, nor shall any of the following (including the effect of any of the following) be taken into account in determining whether there has been or will be or would reasonably be expected to be, a “Material Adverse Effect”: (a) any change in applicable Law or GAAP or any interpretation thereof; (b) general economic, political or
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business conditions or changes therein (including commencement, continuation or escalation of war, armed hostilities, terrorism or national or international calamity); (c) financial and capital markets conditions, including interest rates and currency exchange rates, or changes therein; (d) seasonal fluctuations; (e) any change generally affecting the industries in which the Business operates; (f) the entry into or announcement of this Agreement, the pendency or consummation of the transactions contemplated hereby or the performance of this Agreement or any other Transaction Document, including any change in customer, supplier, governmental, landlord, employee or similar relationships resulting therefrom or with respect thereto; (g) the compliance with the terms of this Agreement or any other Transaction Document or the taking of any action (or the omission of any action) that is required or contemplated by this Agreement or any other Transaction Document or that is taken (or omitted to be taken) with the written consent of Buyer; (h) any act of God, weather condition, natural disaster, epidemic, pandemic or disease outbreak (including COVID-19); (i) any COVID-19 Measures, including any change, event, effect or circumstance with respect to, or resulting from, COVID-19 Measures, (j) any failure of the Business to meet any projections, business plans or forecasts (provided that, this clause (j) shall not prevent a determination that any change or effect underlying such failure to meet projections, business plans or forecasts has resulted in a Material Adverse Effect (to the extent such change or effect is not otherwise excluded from this definition of Material Adverse Effect)); or (k) any matter to which Buyer has consented or hereafter consents in writing; provided, further, that in the case of the foregoing clauses (a), (b), (c), (d), (e), (h) and (i), except to the extent that such matters materially and disproportionately impact the Business (taken as a whole) relative to other businesses in the industries locations in which the Business operates.
“Multiemployer Plan” means any “multiemployer plan” (as defined in Section 3(37) of ERISA).
“Net Working Capital” has the meaning set forth in the Accounting Principles.
“Net Working Capital Adjustment Amount” means an amount (which may be positive or negative) equal to the Closing Date Net Working Capital minus the Target Closing Net Working Capital.
“Open Source Software” means software that is distributed as “free software”, “open source software” or under a similar licensing or distribution terms including any license approved by the Open Source Initiative and listed at http://www.opensource.org/licenses.
“Organizational Documents” means any charter, certificate of incorporation, certificate of formation, articles of incorporation, articles of association, memorandum of association, bylaws, operating agreement, partnership agreement or similar formation or governing documents and instruments.
“Other Business Intellectual Property Rights” means all Intellectual Property Rights (other than Patents and Trademarks) used primarily in the conduct of the Business.
“Owned IP” means all Intellectual Property Rights that are owned by the Purchased Subsidiaries and all Business Intellectual Property Rights that are owned by Seller or any of its Affiliates (other than the Purchased Subsidiaries).
“Patents” means patents and patent applications (including any provisional applications, continuations, continuations-in-part, divisionals, re-examinations, reissues, revisions and extensions), utility models, industrial designs and other statutory invention registrations and applications for any of the foregoing.
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“Permitted Liens” means (a) Liens for Taxes, assessments or other governmental charges, in each case, not yet delinquent or the amount or validity of which is being contested in good faith by (if then appropriate) appropriate proceedings and for which adequate reserves have been established on the Financial Statements in accordance with GAAP, (b) mechanics’, carriers’, workers’, repairers’ and similar Liens arising or incurred in the ordinary course of business and for which adequate reserves have been established on the Financial Statements in accordance with GAAP, (c) with respect to any Leased Real Property, zoning, building, entitlement and other land use and environmental regulations promulgated by any Governmental Authority that are not materially violated by the operation of the Business, (d) Liens of public record, (e) with respect to any Leased Real Property, covenants, conditions, restrictions, easements, rights of way, encumbrances, defects, imperfections, irregularities of title or other Liens, if any, that are not materially violated by the Business’s current use or occupancy of such Leased Real Property or the operation of the Business and that would not reasonably be expected to materially impair the current use or occupancy of the Leased Real Property subject thereto, (f) with respect to any Leased Real Property, (i) the interests and rights of the respective lessors with respect thereto and (ii) any Lien permitted under the applicable Lease and any ancillary documents thereto, (g) with respect to any Leased Real Property, covenants, conditions, restrictions, easements, rights of way, encumbrances, defects, imperfections, irregularities of title or other Liens that are disclosed in an accurate survey covering the Leased Real Property that has been made available to Buyer, or that are otherwise disclosed in any real property files that have been made available to Buyer, (h) Liens created by Buyer or its successors and assigns, (i) Liens disclosed in the Financial Statements or listed in Schedule 1.01(d), (j) Liens (other than monetary liens) incurred in the ordinary course of business since the Balance Sheet Date, (k) non-exclusive licenses to Intellectual Property Rights granted in the ordinary course of business, (l) Liens securing Indebtedness outstanding under the Credit Facility (to the extent such Liens relating to the Purchased Interests are released as of the Closing or are required to be released upon consummation of the transactions contemplated hereby under the terms thereof), (m) statutory or contractual Liens of lessors or Liens on lessors’ or prior lessors’ interests and (n) COVID-19 Measures restricting the access or use of any Leased Real Property.
“Person” means any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, governmental agency or instrumentality or other entity of any kind.
“Personal Information” means (i) any information that can be used on its own or with other information to identify, contact, or locate an individual, including demographic information; (ii) social security numbers; or (iii) any information that is regulated by the Information Privacy and Security Requirements.
“Pre-Closing Taxes” means (a) any and all Income Taxes of any Purchased Subsidiary for or relating to any Pre-Closing Tax Period, including any Income Taxes incurred in connection with the Pre-Closing Intercompany Assignments, but excluding any Combined Taxes attributable to any Purchased Subsidiary (to the extent that a Retained Entity is liable for such Taxes, including pursuant to Section 6.01(a)(iii)) and (b) any liabilities for amounts that any Purchased Subsidiary has deferred pursuant to Section 2302 of the CARES Act; provided, that, for purposes of determining Pre-Closing Taxes, (i) Taxes with respect to any Straddle Period shall be determined and allocated in accordance with Section 6.01(c), (ii) the taxable year of any pass-through entity or controlled foreign corporation (as defined in Section 957 of the Code) shall be deemed to terminate as of the end of the Closing Date (including for purposes of recognizing any income pursuant to Section 951 or Section 951A of the Code), (iii) deductions from taxable income of the Purchased Subsidiaries arising in connection with the transactions contemplated by this Agreement shall be allocated in accordance with Section 6.01(a)(ii) and net operating loss carryforwards, Income Tax credit carryforwards and other Income Tax attributes arising in any Pre-Closing Tax Period shall be taken into account to the extent allowed pursuant
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to applicable Law to offset taxable income or Income Taxes for any Pre-Closing Tax Period, (iv) all deferred Tax liabilities (other than those described in the foregoing clause (b)) and deferred Tax assets (except to the extent provided in the foregoing clause (iii)) shall be excluded and (v) estimated (or other prepaid) Income Tax payments shall be taken into account to the extent such payments reduce the actual amount of cash Income Taxes payable.
“Post-Closing Tax Period” means any Tax period beginning after the Closing Date and, with respect to a Straddle Tax Period, the portion of such Tax period beginning after the Closing Date.
“Pre-Closing Tax Period” means any Tax period ending on or before the Closing Date and, with respect to a Straddle Tax Period, the portion of such Tax period ending on the Closing Date.
“Privacy Policies” means any (a) data privacy and security policies concerning the Processing of Personal Information and (b) public statements, representations, obligations, promises or commitments relating to privacy, security, or the Processing of Personal Information.
“Processing,” “Process,” or “Processed” means any collection, access, acquisition, storage, protection, use, recording, maintenance, operation, dissemination, re-use, disposal, disclosure, re-disclosure, deletion, destruction, sale, transfer, modification, or any other processing (as defined by Information Privacy and Security Requirements) of Business Data.
“Purchased Interests” means all of the issued and outstanding shares of capital stock of TopCo.
“Purchased Subsidiaries” means all of the entities identified on Annex I.
“Purchased Subsidiary Plan” means any “employee benefit plan”, as defined in Section 3(3) of ERISA, whether or not subject to ERISA, and any Contract, plan, practice, arrangement or policy providing for severance, equity compensation, profit-sharing, incentive or deferred compensation, vacation or other paid-time-off, health or welfare benefits, sick pay, pension or retirement benefits or other compensation or employee benefits, in each case, which covers any Business Employee and is sponsored or maintained solely by a Purchased Subsidiary.
“Representative” means, with respect to any Person, such Person’s directors, officers, principals, managers, employees, counsel (including any legal counsel), accountants, consultants (including any investment banker or financial advisor), financing sources, agents and other authorized representatives.
“Required Financial Information” means (a) the carve-out audited combined balance sheets of the Business as of December 31, 2020 and December 31, 2019 and the related combined statements of comprehensive income, net parent investment and cash flows for each of the years in the two (2)-year period ended December 31, 2020, (b) the Carve-out Unaudited Interim Financial Statements and (c) the carve-out unaudited combined balance sheet of the Business as of September 30, 2021 and the related carve-out unaudited combined statement of income for the nine-month period then ended.
“Retained Businesses” means all businesses, products and/or services, other than the Business, now, previously or hereafter conducted and/or provided (as applicable) by any of the Retained Entities, including (a) credit, (b) identity, and (c) public records, inclusive of social determinants of health data, together with reasonable extensions or development of the businesses, products and/or services described in the foregoing clauses (a) – (c).
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“Retained Entities” means Seller Parent and all of the direct and indirect Subsidiaries of Seller Parent other than the Purchased Subsidiaries.
“Retained Marks” means the names and marks TRANSUNION, INFORMATION FOR GOOD and MAKES TRUST POSSIBLE and any other Trademarks used by the Retained Entities, and any translations, localizations, adaptations, derivations and combinations thereof, and any Trademarks confusingly similar thereto.
“Retained Matters” means the matters set forth on Schedule 1.01(g).
“Retained Plans” means the Employee Plans to the extent they are not Assumed Plans.
“Rubixis India” means Rubixis Technologies Private Limited, a private limited company organized under the Laws of India and a wholly-owned indirect subsidiary of TopCo.
“Sales and Use Tax Deduction” means $795,000.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Security Incident” means any unauthorized Processing of Business Data, any unauthorized access to the IT Assets, or any incident that may require notification to any Person or Governmental Authority under Information Privacy and Security Requirements.
“Seller Parent” means TransUnion, a Delaware corporation.
“Shared Contract” means any Contract to which Seller or any Retained Entity is a party with any non-Affiliated third party and which benefits (and/or burdens) both the Business and any Retained Business, and which is set forth on Schedule 1.01(e).
“Shares” means, collectively, the Purchased Interests and the Subsidiary Shares.
“Straddle Tax Period” means a Tax period that begins on or before the Closing Date and ends after the Closing Date.
“Subsidiary” means, with respect to a Person, a corporation or other entity of which more than 50% of the voting power of the equity securities or equity interests is owned, directly or indirectly, by such Person.
“Subsidiary Shares” means, with respect to each Purchased Subsidiary other than TopCo, the issued and outstanding shares of capital stock of, or other equity interests in, such Purchased Subsidiary, as applicable.
“Target Closing Net Working Capital” means $50,439,000.
“Tax” means all federal, state, local, or foreign taxes (including income, profits, windfall profits, franchise, alternative minimum, add-on minimum, gross receipts, sales, use, customs duties, value added, ad valorem, transfer, real property, personal property, stamp, capital stock, excise, premium, social security, payroll, occupation, employment, unemployment, severance, disability, registration, license, value added, escheat or unclaimed property obligation, withholding and estimated tax), and any interest, penalty, or addition with respect thereto
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imposed by any Governmental Authority (a “Taxing Authority”) responsible for the imposition of any such tax (domestic or foreign).
“Tax Return” means any report, return, document, declaration, election or other information filed or required to be filed with any Taxing Authority with respect to Taxes, including information returns and any documents with respect to or accompanying payments of estimated Taxes, and any attachments thereto or amendments thereof.
“TopCo” means TransUnion Healthcare, Inc., a Texas corporation.
“Trademarks” means (a) trademarks, service marks, certification marks, logos, trade dress, trade names, product names, brand names, domain names and other indicia of origin (whether registered, common law, statutory or otherwise), together with all translations, localizations, adaptations, derivations and combinations thereof, (b) all registrations and applications to register the foregoing anywhere in the world and (c) all goodwill associated with all of the foregoing.
“Transaction Documents” means this Agreement, the Transition Services Agreement, the Commercial Agreements, the Commitment Letters, the Limited Guaranty, and all other agreements, instruments and documents entered into or delivered in connection with the transactions contemplated hereby.
“Transaction Expenses” means, without duplication, to the extent not paid as of immediately prior to the Closing, the amount of (i) all third-party fees, costs and expenses (including fees, costs and expenses of legal counsel, investment bankers, brokers or other third party representatives and consultants) incurred by or on behalf of the Purchased Subsidiaries prior to Closing in connection with the preparation, negotiation, execution or performance of this Agreement and the other Transaction Documents, or in connection with, as a result of or related to the transactions contemplated hereby and thereby, (ii) all obligations of the Purchased Subsidiaries for amounts (including change in control, severance, termination, “golden parachute,” tax gross-up, transaction and similar bonuses and payments) that are payable as of the Closing Date to any Business Employee or any current or former employee, director, officer, consultant or independent contractor of any of the Purchased Subsidiaries as a result of, based upon or in connection with the consummation of the transactions contemplated by this Agreement (either alone or in connection with any other event, whether contingent or otherwise, but excluding any amounts payable as a result of, based upon or in connection with a termination of such individual’s employment by Buyer or Buyer’s failure to comply with the terms of Section 7.02 or Section 7.04), including the applicable Purchased Subsidiary’s share of Taxes payable with respect to all such amounts (including the employer portion of all payroll or employment Taxes incurred in connection therewith), (iii) any amounts that are payable or may become payable by the Buyer or the Purchased Subsidiaries pursuant to the retention award agreements set forth on Schedule 7.07(a), including the Buyer’s or the applicable Purchased Subsidiary’s share of Taxes payable with respect to all such amounts, and (iv) Seller’s share of the Retention Pool.
“Transferred Employees” means (a) all Business Employees who are employed by a Purchased Subsidiary as of the Closing and (b) all Business Employees who accept an offer of employment pursuant to Section 7.02 with Buyer or a Subsidiary of Buyer.
“Transition Services Agreement” means that certain transition services agreement, substantially in the form of Exhibit A.
Section 1.02    Cross References. Each of the following terms is defined in the Section set forth opposite such term:
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Term    Section
Additional Business Guarantee    Section 5.09(a)
Adjustment Amount    Section 2.04(d)
Agreement    Preamble
Allocation Statement    Section 6.07(a)
Alternate Debt Financing    Section 5.22(d)
Anti-Corruption Laws     Section 3.11(b)
Auditor    Section 2.04(c)
Benefits Continuation Period    Section 7.04(a)
Business    Recital
Business Materials    Section 5.10(b)
Business Registered Intellectual Property Rights    Section 3.13(a)
Buyer    Preamble
Buyer 401(k) Plan    Section 7.11
Buyer Plan    Section 7.15
Buyer Related Parties     Section 9.03(e)
Buyer Responsible Third Party Claim    Section 5.13(b)
Buyer-Filed Tax Returns    Section 6.01(a)(iv)
Carve-out Unaudited Annual Financial Statements    Section 3.06
Carve-out Unaudited Interim Financial Statements    Section 3.06
Change in Status    Section 3.17(c)
Change of Control Consents    Section 5.06
Closing    Section 2.03(a)
Closing Date    Section 2.03(a)
Closing Date Cash    Section 2.04(b)
Closing Date Indebtedness    Section 2.04(b)
Closing Date Notice     Section 2.03(a)
Closing Legal Impediment    Section 8.01(b)
Closing Statement    Section 2.04(b)
Commercial Agreements     Section 5.26
Competitive Activities    Section 5.17(c)
Contingent Provider List    Section 3.17(e)
D&O Tail Policies    Section 5.19(c)
Debt Commitment Letter    Section 4.05(a)
Debt Fee Letter    Section 4.05(a)
Debt Financing    Section 4.05(a)
Deficit Amount    Section 2.04(d)
Designated Person    Section 10.16(b)
Determination Date    Section 2.04(c)
Employee List    Section 3.17(c)
Equity Commitment Letter    Recital
Equity Financing    Section 4.05(a)
Equity Financing Sources     Recital
Estimated Closing Date Cash    Section 2.04(a)
Estimated Closing Date Indebtedness    Section 2.04(a)
Estimated Closing Date Net Working Capital    Section 2.04(a)
Estimated Closing Statement     Section 2.04(a)
Estimated Purchase Price     Section 2.04(a)
Estimated Transaction Expenses     Section 2.04(a)
FCPA     Section 3.11(b)
Final Allocation Statement    Section 6.07(a)
Financial Statements    Section 3.06
Financing     Section 4.05(a)
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Financing Purposes    Section 4.05(c)
Financing Source Related Parties    Section 9.03(f)
Guarantor    Recital
Inactive Employee    Section 7.02
Increase Amount    Section 2.04(d)
Indemnification Obligation    Section 5.19(d)
Indemnified Person    Section 5.19(a)
Information    Section 10.16(a)
Limited Guaranty    Recital
Major Customer    Section 3.09(a)(ii)
Major Supplier    Section 3.09(a)(iii)
Material Contract    Section 3.09(a)
Non-Permitted Transfers    Section 5.05(b)
Non-Responsible Party    Section 5.13(b)
Other Indemnitors    Section 5.19(d)
Outside Date    Section 9.01(e)
Party    Preamble
Permits    Section 3.15
Pre-Closing Intercompany Assignments    Section 5.05(a)
Prior Business Counsel    Section 10.16(b)
Privileged Information    Section 10.16(a)
Privileges    Section 10.16(a)
Purchase Price    Section 2.02(a)
R&W Insurer    Section 5.11(a)
Regulatory Approvals    Section 5.03(a)
Replacement Contracts    Section 5.04
Responsible Party    Section 5.13(b)
Retention Pool    Section 7.04(b)
Reverse Termination Fee    Section 9.03(a)
Sanctions     Section 3.11(c)
SEC     Section 5.14(b)
Section 338 Forms    Section 6.06
Seller    Preamble
Seller 401(k) Plan    Section 7.11
Seller Bonus Payment    Section 7.05
Seller Related Parties    Section 9.03(e)
Seller Responsible Third Party Claim    Section 5.13(b)
Seller’s Cafeteria Plan    Section 7.13
Split Litigation    Section 5.13(c)
Tax Claim    Section 6.02
Termination Fee Collection Costs     Section 9.03(c)
Third Party Approvals    Section 5.05(b)
Third Party Claims    Section 5.13(b)
TRADS    Recital
Transfer Taxes    Section 6.01(b)
Transfer Time    Section 7.02
Unallocated Retention Pool    Section 7.04(b)
Unpaid Retention Pool    Section 7.04(b)
US Business Employee     Section 7.10
WARN    Section 7.18
Workers Compensation Event    Section 7.15

Section 1.03    Other Definitional and Interpretative Provisions. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this
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Agreement as a whole and not to any particular provision of this Agreement. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Unless the context of this Agreement clearly requires otherwise, words importing the masculine gender shall include the feminine and neutral gender and vice versa. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. The word “or” shall be disjunctive but not exclusive. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to any Law shall be deemed to refer to such Law as amended from time to time, except as otherwise specified herein, and to any rules or regulations promulgated thereunder. All references to any time herein shall refer to U.S. Central Time. The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent and no rule of strict construction shall be applied against any Party. Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. Unless otherwise provided for herein, when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day. The word “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP. Reference herein to any document or other information being “made available” or “provided” to Buyer shall mean that such document or information was included in the virtual data room of Seller hosted by Intralinks, or otherwise delivered to Buyer or its Representatives (including via email), prior to execution of this Agreement.
ARTICLE II
Purchase and Sale
Section 2.01    Purchase and Sale of the Purchased Interests. Upon the terms and subject to the conditions of this Agreement, Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, all of the Purchased Interests at the Closing, free and clear of all Liens other than restrictions on transfer arising under applicable securities Laws or Liens created by Buyer or its Affiliates.
Section 2.02    Purchase Price; Allocation of Purchase Price; Withholding.
(a)    The “Purchase Price” for the Purchased Interests shall, subject to the adjustments at and following the Closing set forth in Section 2.04, be an amount in cash equal to (i) $1,735,000,000, plus (ii) the Net Working Capital Adjustment Amount, minus (iii) the Closing Date Indebtedness, plus (iv) the Closing Date Cash, minus (v) the Transaction Expenses.
(b)    Buyer shall be entitled to deduct and withhold from the Purchase Price such amounts as it is required to deduct and withhold for tax purposes under applicable Tax Law. If Buyer determines that any deduction or withholding is required in respect of a payment pursuant to this Agreement (other than with respect to amounts treated as compensation for
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services for applicable tax purposes or on account of the failure by Seller to provide the form required under Section 2.03(c)(iii)), Buyer shall use commercially reasonable efforts to provide written notice to Seller no less than five (5) days prior to the date on which such deduction or withholding is to be made with a written explanation substantiating the requirement to deduct or withhold, and the Parties shall use commercially reasonable efforts to cooperate (at the sole expense of the Person subject to such withholding) to mitigate any such requirement to the maximum extent permitted by Law. Buyer shall promptly remit all deducted or withheld amounts to the applicable Governmental Authority in accordance with applicable Law and shall promptly provide Seller with a receipt issued by the Governmental Authority or other reasonable evidence of such remittance. Any amounts so deducted, withheld and remitted to the applicable Governmental Authority shall be treated for all purposes of this Agreement as having been paid to Seller.
Section 2.03    Closing.
(a)    Subject to the terms and conditions of this Agreement, the closing (the “Closing”) of the purchase and sale of the Purchased Interests hereunder shall take place remotely by telephonic or electronic delivery or release of documents or at the offices of Latham & Watkins LLP, 330 North Wabash Ave, Suite 2800, Chicago, Illinois 60611, (i) on the third (3rd) Business Day after all of the conditions precedent set forth in Article VIII shall have been satisfied or waived (other than those conditions that, by their nature, are to be satisfied at the Closing (but subject to the satisfaction or waiver thereof at or prior to the Closing)); provided, however, that if all of the conditions precedent set forth in Article VIII first become satisfied or waived (other than those conditions that, by their nature, are to be satisfied at the Closing (but subject to the satisfaction or waiver thereof at or prior to the Closing)) on any of the last three (3) Business Days of December 2021, such purchase and sale of the Purchased Interests shall take place on the last Business Day of December 2021, or (ii) on such other date as the Parties may mutually agree in writing. The date on which the Closing actually occurs is hereinafter referred to as the “Closing Date.” Unless otherwise explicitly specified, all transactions taking place at the Closing shall be deemed to occur simultaneously. Notwithstanding the foregoing, if the Marketing Period has not ended at the time of the satisfaction or, to the extent permitted by applicable Law, waiver of the conditions set forth in Article VIII (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at or prior to the Closing), then the Closing shall occur instead on the date that is the earlier to occur of (i) any Business Day during the Marketing Period as may be specified by Buyer on no less than two (2) Business Days’ prior notice to Seller and (ii) one (1) Business Day following the final day of the Marketing Period, in each case, subject to the satisfaction or, to the extent permitted by applicable Law, waiver, of the conditions set forth in Article VIII (other than such conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at or prior to the Closing).
(b)    Upon the terms and subject to the conditions of this Agreement, at the Closing, in consideration for the sale of the Purchased Interests, Buyer shall pay, or cause to be paid, (i) to Seller the Estimated Purchase Price in immediately available funds by wire transfer to an account or accounts designated by Seller by written notice to Buyer, which written notice shall be delivered not later than three (3) Business Days prior to the Closing Date, (ii) to each Person to whom a portion of the Estimated Transaction Expenses is owed, the applicable portion of the Estimated Transaction Expenses in immediately available funds by wire transfer to an account or accounts designated in the Estimated Closing Statement and (iii) to each holder of Estimated Closing Date Indebtedness in immediately available funds by wire transfer in such amounts, and to such account or accounts, as are designated by Seller by written notice to Buyer, which written notice shall be delivered not later than three (3) Business Days prior to the Closing Date.
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(c)    In addition, the following deliveries shall be made prior to or at the Closing:
(i)    Seller shall deliver to Buyer the certificates representing any certificated Purchased Interests and a stock power duly executed by Seller for the transfer of the Purchased Interests to Buyer;
(ii)    Seller and Buyer shall, and shall cause their respective Affiliates to, deliver to each other duly executed counterparts to each of the Transaction Documents (other than this Agreement, the Equity Commitment Letter and the Limited Guaranty (which are all being executed on the date hereof)) to which they are party;
(iii)    Seller shall deliver to Buyer a duly executed and completed IRS Form W-9 certifying that Seller is a “U.S. person” (as defined in Section 7701(a)(30) of the Code) and is not subject to backup withholding; and
(iv)    Seller shall deliver to Buyer executed documentation with respect to the Credit Facility, in each case, that provides that, upon consummation of the transactions contemplated hereby, all material obligations of the Purchased Subsidiaries with respect to the Credit Facility and all Liens securing the Credit Facility with respect to the Purchased Interests, the Purchased Subsidiaries and the assets of the Business shall be terminated and be of no further force and effect.
Section 2.04    Adjustment Amount.
(a)    Not less than three (3) Business Days prior to the Closing Date and in no event more than ten (10) Business Days prior to the Closing Date, Seller shall deliver to Buyer a written statement, together with reasonably detailed supporting documentation (the “Estimated Closing Statement”), which shall be prepared in accordance with the Accounting Principles and the applicable definitions contained herein, setting forth (i) its good faith estimate of (A) the Closing Date Net Working Capital (the “Estimated Closing Date Net Working Capital”), (B) the Indebtedness as of immediately prior to the Closing (the “Estimated Closing Date Indebtedness”), (C) the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing , not to exceed an amount equal to $2,500,000 (the “Estimated Closing Date Cash”) and (D) the Transaction Expenses (the “Estimated Transaction Expenses”), (ii) its calculation of the Estimated Net Working Capital Adjustment Amount, and (iii) its resulting calculation of the Purchase Price under Section 2.02(a) (the “Estimated Purchase Price”).
(b)    Within sixty (60) days following the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “Closing Statement”) which shall be prepared in accordance with the Accounting Principles and the applicable definitions contained herein, setting forth (i) a calculation of the Closing Date Net Working Capital, (ii) a calculation of the Indebtedness as of immediately prior to the Closing (the “Closing Date Indebtedness”), (iii) a calculation of the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing, not to exceed an amount equal to $2,500,000 (the “Closing Date Cash”) and (iv) a calculation of the Transaction Expenses. Nothing in this Section 2.04 is intended to be used to adjust for errors, omissions or inconsistencies that may be found with respect to the Financial Statements, or any actual or alleged failure of the Financial Statements to be prepared in accordance with GAAP or in good faith. Following the Closing, Buyer shall provide Seller and its Representatives reasonable access, during normal business hours and upon reasonable prior notice, to the records, properties, personnel and (subject to the execution of customary work paper access letters) auditors of Buyer utilized in the preparation of the Closing Statement and shall cause the personnel of Buyer and its Subsidiaries (including the Purchased Subsidiaries)
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involved in the preparation of the Closing Statement to reasonably cooperate, during normal business hours and upon reasonable prior notice, with Seller and its Representatives in connection with their review of the Closing Statement.
(c)    If Seller disagrees with the calculation of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses and/or the Closing Date Cash, it shall notify Buyer of such disagreement in writing, setting forth in reasonable detail the particulars of such disagreement, within forty-five (45) days after its receipt of the Closing Statement. In the event that Seller does not provide such a notice of disagreement within such forty-five (45)-day period, Seller shall be deemed to have accepted the Closing Statement and the calculation of the Closing Date Net Working Capital, the Closing Date Indebtedness and the Closing Date Cash delivered by Buyer, which shall be final, binding and conclusive for all purposes hereunder. In the event any such notice of disagreement is timely provided, Buyer and Seller shall use commercially reasonable efforts for a period of forty-five (45) days (or such longer period as they may mutually agree) to resolve any disagreements with respect to the calculations of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash (or of any line item contained in any of the foregoing), and all such discussions related thereto shall (unless otherwise agreed by Seller and Buyer) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. If, at the end of such period, they are unable to resolve such disagreements, then Grant Thornton LLP (or such other independent accounting or financial consulting firm of recognized national standing as may be mutually selected by Buyer and Seller) (the “Auditor”) shall resolve any remaining disagreements. Seller and Buyer shall instruct the Auditor to determine as promptly as practicable, but in any event within forty-five (45) days of the date on which such dispute is referred to the Auditor, whether the Closing Statement was prepared in accordance with the standards set forth in the Accounting Principles and the applicable definitions contained herein and (only with respect to the remaining disagreements submitted to the Auditor) whether and to what extent (if any) the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash require adjustment; provided, that in resolving any disputed amount in connection with such determination, the Auditor may not assign a value to the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash greater than the greatest amount for such value, or less than the smallest amount for such value, in either case, claimed by Buyer in the Closing Statement or Seller in its notice of disagreement delivered pursuant to this Section 2.04(c). The Auditor shall consider only those items and amounts in Buyer’s and Seller’s respective calculations (as set forth in the Closing Statement and the notice of disagreement described above, respectively) of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses, and the Closing Date Cash that are identified as being items and amounts to which Buyer and Seller have been unable to agree and shall only be permitted to determine whether such items are calculated in accordance with the Accounting Principles and the applicable definitions contained herein, and Buyer and Seller shall instruct the Auditor not to make any other determination, including any determination as to whether the Target Net Working Capital or any estimates on the Estimated Closing Statement are correct, adequate or sufficient. The fees and expenses of the Auditor shall be paid one-half by Buyer (or its Subsidiaries) and one-half by Seller (or the Retained Entities). Absent manifest error, the determination of the Auditor shall be final, binding and conclusive on the Parties and shall not be subject to appeal or further review; provided, however, that the Parties shall be entitled to have a judgment entered upon the written determination of the Auditor in accordance with Section 10.07. The date on which the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses and the Closing Date Cash are finally determined in accordance with this Section 2.04(c) is hereinafter referred to as the “Determination Date.”
(d)    The “Adjustment Amount,” which may be positive or negative, shall mean (i) the Closing Date Net Working Capital (as finally determined in accordance with Section
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2.04(c)), minus the Estimated Closing Date Net Working Capital, plus (ii) the Estimated Closing Date Indebtedness, minus the Closing Date Indebtedness (as finally determined in accordance with Section 2.04(c)), plus (iii) the Closing Date Cash (as finally determined in accordance with Section 2.04(c)), minus the Estimated Closing Date Cash, plus (iv) the Estimated Transaction Expenses minus the Transaction Expenses (as finally determined in accordance with Section 2.04(c)). If the Adjustment Amount is a positive number, then the Purchase Price shall be increased by the Adjustment Amount (the “Increase Amount”), and if the Adjustment Amount is a negative number, then the Purchase Price shall be decreased by the absolute value of the Adjustment Amount (the “Deficit Amount”). The Adjustment Amount shall be paid in accordance with Section 2.04(e).
(e)    If there is an Increase Amount, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Buyer shall pay to Seller (and/or one or more Retained Entities designated by Seller) an amount in cash equal to the Increase Amount in immediately available funds by wire transfer to an account or accounts designated by Seller, by written notice to Buyer. If there is a Deficit Amount, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Seller shall pay, or shall cause to be paid, to Buyer an amount in cash equal to the Deficit Amount in immediately available funds by wire transfer to an account or accounts designated by Buyer, by written notice to TransUnion. For U.S. federal income and other applicable Tax purposes, to the extent permitted by applicable Law, any Increase Amount or Deficit Amount pursuant to this Section 2.04 shall be treated as an adjustment to the portion of the Purchase Price attributable to the relevant Purchased Interests.
ARTICLE III
Representations and Warranties of Seller
Except as set forth in the Disclosure Schedules (but subject to Section 10.13), Seller represents and warrants to Buyer as of the date of this Agreement that:
Section 3.01    Existence and Power of Seller. Seller is duly organized and validly existing under the Laws of its jurisdiction of organization, formation or incorporation, as applicable. Seller (a) is duly licensed or qualified to do business and is in good standing (to the extent such concepts are recognized under applicable Law) in each other jurisdiction in which the properties of the Business leased by it or the operation of the Business makes such licensing or qualification necessary and (b) Seller has the requisite power and authority to enable it to own the Purchased Interests, except in the case of clause (a) or (b) where the failure to be so qualified or in good standing, or to have such power or authority, would not, individually or in the aggregate, have a Material Adverse Effect.
Section 3.02    Authorization. The execution, delivery and performance by Seller, TRADS or TopCo of the Transaction Documents, in each case, to which any of them is a party and the consummation of the transactions contemplated thereby are within Seller’s, TRADS’ and TopCo’s organizational powers and have been (or will be prior to execution) duly authorized by all necessary organizational action on the part of Seller, TRADS and TopCo, as applicable, and no other or further action or proceeding on the part of Seller Parent, Seller, TRADS, any Purchased Subsidiary, or any of their respective equityholders is necessary to authorize the execution and delivery by each of Seller, TRADS and TopCo of the Transaction Documents, in each case, to which any of them is a party and the consummation of the transactions contemplated thereby. This Agreement has been duly and validly executed and delivered by Seller and (assuming the due and valid execution and delivery of this Agreement by Buyer) constitutes a legal, valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally and to general
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principles of equity. Each other Transaction Document to which Seller, TRADS or TopCo is a party shall be duly and validly executed by Seller, TRADS or TopCo at or prior to the Closing and, upon such execution and delivery by Seller, TRADS or TopCo and the due and valid execution and delivery of such Transaction Document by each other party thereto, shall constitute a legal, valid and binding obligation of Seller, TRADS and TopCo enforceable against Seller, TRADS and TopCo in accordance with its terms, subject to applicable bankruptcy insolvency, reorganization, moratorium and similar Laws affecting or relating to the enforcement of creditors’ rights and remedies generally and to general principles of equity.
Section 3.03    Governmental Authorization. Assuming the accuracy and completeness of the representations and warranties of Buyer contained in this Agreement, no consent, approval or authorization of, or declaration or filing with, any Governmental Authority is required on the part of Seller Parent, Seller, TRADS or any Purchased Subsidiary with respect to Seller’s, TRADS’ or TopCo’s execution or delivery of the Transaction Documents or the consummation of the transactions contemplated thereby, except for (a) applicable requirements of Competition Laws and the Exchange Act, (b) any consents, approvals, authorizations, declarations or filings, the failure of which to make or obtain would not reasonably be expected to have a material and adverse effect on the Business or the Purchased Subsidiaries, taken as a whole or on Seller’s ability to consummate the transactions contemplated by this Agreement and (c) those consents disclosed in Schedule 3.03.
Section 3.04    Noncontravention. Except as set forth in Schedule 3.04, subject to the receipt of the consents, approvals, authorizations and other requirements set forth in Section 3.03 or in Schedule 3.03, and except as may result from any facts or circumstances relating solely to Buyer, the execution and delivery by Seller, TRADS, and TopCo of the Transaction Documents to which any of them is a party and the consummation of the transactions contemplated thereby do not and will not, (a) violate any applicable Law to which Seller, TRADS or any Purchased Subsidiary is subject or by which any property or asset of the Business is bound, (b) violate any provision of, or result in a breach of, the Organizational Documents of Seller, TRADS or any Purchased Subsidiary, (c) violate any provision of, or result in a breach of or default under, or require a consent under, any Material Contract, or terminate or result in the termination of, or give rise to any right of termination or cancellation under any Material Contract, or result in the creation of any Lien (other than a Permitted Lien) under any Material Contract or upon any of the properties or assets of the Purchased Subsidiaries or the Business, or constitute an event which, after notice or lapse of time or both, would result in any such violation, breach, default, termination or creation of a Lien or (d) result in a violation or revocation of, or require a consent in connection with, any Permit, except to the extent that the occurrence of any of the foregoing items set forth in clauses (a), (c) or (d) would not, individually or in the aggregate, reasonably be expected to have a material and adverse effect on the Business or the Purchased Subsidiaries, taken as a whole.
Section 3.05    Purchased Subsidiaries.
(a)    Each Purchased Subsidiary is duly organized and validly existing under the Laws of its jurisdiction of organization, formation or incorporation, as applicable and has the requisite power and authority to own or lease all of its material assets and to conduct the Business in all material respects as currently conducted by it. Each Purchased Subsidiary is duly licensed or qualified to do business and is in good standing (to the extent such concepts are recognized under applicable Law) in each other jurisdiction in which the properties leased by it or the operation of the Business makes such licensing or qualification necessary, except to the extent that the failure to be so licensed, qualified or in good standing would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. Seller has made available to Buyer complete and correct copies of the Organizational Documents of the Purchased Subsidiaries. There has been no violation of any of the provisions of the
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Organizational Documents of any Purchased Subsidiary except to the extent that any such violation would not, individually or in the aggregate, reasonably be expected to have a material and adverse effect on the Business or the Purchased Subsidiaries, taken as a whole.
(b)    All of the Purchased Interests are owned of record by Seller, free and clear of all Liens, other than (i) Liens securing indebtedness outstanding under the Credit Facility (which Liens relating to the Purchased Interests shall be released as of the Closing upon consummation of the transactions contemplated hereby) and (ii) transfer restrictions of general applicability under applicable federal and state securities Laws. All of the Purchased Interests have been duly authorized and validly issued in compliance with all applicable Laws, are fully paid and non-assessable and have not been issued in violation of, nor are the Purchased Interests subject to, any preemptive or subscription rights. The Purchased Interests constitute all of the issued and outstanding equity interests of TopCo. There is no existing option, warrant, call, right or agreement to which Seller or any of its Subsidiaries (including the Purchased Subsidiaries) is a party that requires, and there are no securities of TopCo outstanding that upon conversion or exchange would require, the issuance or sale, or that restrict the transfer or voting, of any capital stock or other equity interest of TopCo, as applicable, or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase any capital stock or other equity interest of TopCo. There is no other contract or commitment obligating TopCo to issue, deliver, sell, purchase, redeem or acquire, or cause to be issued, delivered, sold, purchased, redeemed or acquired, equity or securities of TopCo (or securities convertible into, or exchangeable or exercisable for, equity interests of TopCo), or obligating TopCo to grant, extend or enter into any such option, warrant call, right commitment or agreement. Neither Seller nor any of its Affiliates (including the Purchased Subsidiaries) is a party to any voting trust or other agreement with respect to the voting, redemption, sale, transfer or other disposition of the interests of TopCo and there are no outstanding bonds, debentures, notes or other indebtedness for borrowed money having the right to vote (or convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matters for which equityholders of TopCo may vote. Assuming that the delivery described in Section 2.03(c)(v) is made prior to or at the Closing, Seller has good, valid and marketable title to, and has the right to transfer and sell, the Purchased Interests to Buyer in accordance with the terms of this Agreement.
(c)    All of the Subsidiary Shares (including the voting rights attached to such Subsidiary Shares) are owned of record by Seller or the Purchased Subsidiary set forth on Schedule 3.05(c), free and clear of all Liens, other than transfer restrictions of general applicability under applicable federal and state securities Laws. All of the Subsidiary Shares have been duly authorized and validly issued and allotted in compliance with all applicable Laws, are fully paid and non-assessable and have not been issued in violation of, nor are the Subsidiary Shares subject to, any preemptive or subscription rights. The Subsidiary Shares constitute all of the issued and outstanding equity interests of the Purchased Subsidiaries other than TopCo. There is no existing option, warrant, call, right or agreement to which Seller or any of its Subsidiaries (including the Purchased Subsidiaries) is a party that requires, and there are no securities of any Purchased Subsidiaries (other than TopCo, which is addressed in Section 3.05(b)) outstanding that upon conversion or exchange would require, the issuance of any capital stock or other equity interest of any Purchased Subsidiary (other than TopCo, which is addressed in Section 3.05(b)), as applicable, or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase any capital stock or other equity interest of any Purchased Subsidiary (other than TopCo, which is addressed in Section 3.05(b)). There is no other contract or commitment obligating any Purchased Subsidiary to issue, deliver, sell, purchase, redeem or acquire, or cause to be issued, delivered, sold, purchased, redeemed or acquired, equity securities of such Purchased Subsidiary (or securities convertible into, or exchangeable or exercisable for, equity interests of such Purchased Subsidiary), or obligating such Purchased Subsidiary to grant, extend or enter into any such contract or commitment. Neither Seller nor any of its Affiliates (including the Purchased Subsidiaries) is a party to any
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voting trust or other agreement with respect to the voting, redemption, sale, transfer or other disposition of the interests of any Purchased Subsidiary (other than TopCo, which is addressed in Section 3.05(b)) and there are no outstanding bonds, debentures, notes or other indebtedness for borrowed money having the right to vote (or convertible into, or exercisable or exchange for, securities having the right to vote) on any matters for which holders of the Subsidiary Shares are entitled to vote by virtue of their ownership of the Subsidiary Shares. The Purchased Subsidiaries do not hold, directly or indirectly, any capital stock of, or other equity interests in, and do not control and have not made any equity investment in, directly or indirectly, any other Person besides the Purchased Subsidiaries.
Section 3.06    Financial Statements.Attached as Schedule 3.06 are true and complete copies of (i) the carve-out unaudited combined balance sheet of the Business as of December 31, 2020 and 2019 and the related carve-out unaudited combined statements of income for each of the years in the two (2)-year period ended December 31, 2020 (collectively, the “Carve-out Unaudited Annual Financial Statements”) which have been prepared in conformity with GAAP except as otherwise referenced herein and (ii) the carve-out unaudited combined balance sheet of the Business as of June 30, 2021 and the related carve-out unaudited combined statement of income for the six-month period then ended (the “Carve-out Unaudited Interim Financial Statements” and, together with the Carve-out Unaudited Annual Financial Statements, the “Financial Statements”). The Financial Statements have been derived from the consolidated financial statements and accounting records of Seller Parent and its applicable Subsidiaries (including the Purchased Subsidiaries) and fairly present in all material respects the financial position of the Business as of the dates thereof and the results of operations of the Business as of the times and for the periods referred to therein (subject to certain adjustments made to present the Financial Statements on a carve-out basis and the absence of disclosures normally made in footnotes, the provision for income taxes, which is based on preliminary estimates, and, in the case of the Carve-out Unaudited Interim Financial Statements, normal year-end adjustments, (none of which are, individually or in the aggregate, material)). This Section 3.06 is qualified by the fact that the Business has not operated as a separate “stand alone” entity within Seller Parent. As a result, the Business has been allocated certain charges and credits for purposes of the preparation of the Financial Statements. Such allocations of charges and credits do not necessarily reflect the amounts that would have resulted from arms-length transactions or the actual costs that would be incurred if the Business operated as an independent enterprise. For the avoidance of doubt, the preceding three sentences qualify the representations made in this Section 3.06 in their entirety.
Section 3.07    Absence of Certain Changes. Except for actions taken in preparation for the transactions contemplated by this Agreement (including the Pre-Closing Intercompany Assignments), (a) from December 31, 2020 through the date of this Agreement, the Business has been conducted in the ordinary course of business consistent with past practices in all material respects and (b) since December 31, 2020, there has not been any effect, event, change, occurrence or development that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 3.08    No Undisclosed Liabilities. Except as set forth on Schedule 3.08, there is no Liability of the Business to be transferred of a type required to be reflected or reserved for on a balance sheet prepared in accordance with GAAP, except for (a) liabilities reflected or reserved for on the Financial Statements, (b) liabilities that have arisen since the Balance Sheet Date in the ordinary course of the operation of the Business, (c) liabilities incurred in connection with the transactions contemplated by this Agreement and the other Transaction Documents or (d) immaterial liabilities.
Section 3.09    Material Contracts.
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(a)    Except as set forth in Schedule 3.09(a), as of the date of this Agreement, none of Seller, TRADS or any of the Purchased Subsidiaries is a party to or bound by any of the following (in each case, solely with respect to the Business (and not with respect to any Retained Business)):
(i)    any Contract that Seller reasonably anticipates will involve annual payments or consideration furnished by or to the Business of more than $10,000,000 which are not cancelable (without penalty, cost or other liability) within ninety (90) days or less;
(ii)    any Contract with any of the 20 largest customers of the Business, as measured by dollar value of aggregate customer spend on products or services of the Business (A) for the twelve months ended December 31, 2020 and (B) for the six months ended June 30, 2021(each, a “Major Customer”);
(iii)    any Contract with any of the 10 largest suppliers of the Business, as measured by dollar value of aggregate spend on goods or services for the Business (A) for the twelve months ended December 31, 2020 and (B) for the six months ended June 30, 2021(each, a “Major Supplier”);
(iv)    any Contract entered into during the last three (3) years providing for the acquisition or disposition of any business, equity interests or material assets (whether by merger, sale of stock, sale of equity or otherwise) pursuant to which the Purchased Subsidiaries or the Business have any material ongoing obligation (including for deferred purchase price obligations, earn-out obligations, indemnification obligations and other contingent liabilities);
(v)    any partnership, joint venture or other similar agreement;
(vi)    any Contract with any Governmental Authority (other than Contracts entered into with state municipalities in the ordinary course of business);
(vii)    any Contract with any of the 100 largest customers of the Business as measured by dollar value of aggregate customer spend on products or services of the Business (A) for the twelve months ended December 31, 2020 and (B) for the six months ended June 30, 2021 that expressly (A) limits in any material respect the freedom of the Purchased Subsidiaries or the Business to compete in any line of business or with any Person or in any area or (B) restricts in any material respect the Purchased Subsidiaries’ or the Business’s ability to sell to or purchase from any Person or to solicit or hire any person as an employee, other than any confidentiality agreement entered into in the ordinary course of business;
(viii)    any material Contract granting any Person the right to use, exploit or practice any Owned IP, or granting to Seller, TRADS or any of the Purchased Subsidiaries the right to use, exploit or practice any third-party Intellectual Property Rights, in each case, other than COTS Licenses or non-exclusive licenses granted in the ordinary course of business;
(ix)    any lease, installment and conditional sale agreement or other Contract held by Seller, TRADS or any Purchased Subsidiary with respect to the Business that, in each case, provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any (A) Leased Real Property, the lease of which may not be terminated by Seller, TRADS or a Purchased Subsidiary, as applicable, at will or by giving notice of ninety (90) days or less, without cost or penalty and provides for
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annual rental payments in excess of $1,000,000 or (B) personal property involving annual payments in excess of $500,000;
(x)    excluding the Credit Facility, (A) any note, mortgage, indenture or other obligation or agreement or other instrument for or relating to indebtedness for borrowed money in excess of $250,000, (B) any guarantee of (1) third party obligations in excess of $250,000 or (2) of any obligations of Seller or any of its Affiliates (other than any Purchased Subsidiary), or (C) any material letters of credit, performance bonds or other credit support for the Business that will need to be replaced at the Closing;
(xi)    any Contract containing any future capital expenditure obligation of the Purchased Subsidiaries or the Business in excess of $1,000,000;
(xii)    any Contract with any of the 100 largest customers of the Business as measured by dollar value of aggregate customer spend on products or services of the Business (A) for the twelve months ended December 31, 2020 and (B) for the six months ended June 30, 2021 that grants the counterparty or any third Person “most favored nation” status or similar rights;
(xiii)    any Contract relating to settlement of any administrative or judicial proceedings within the past two (2) years or pursuant to which the Purchased Subsidiaries or the Business has any material ongoing obligation;
(xiv)    any Contract pursuant to which the Purchased Subsidiaries or Seller or TRADS with respect to the Business has provided funds to or made any loan, capital contribution or other investment in, or assumed any Liability or obligation of, any Person, including take-or-pay Contracts or keepwell agreements;
(xv)    any Contract evidencing or creating any liabilities of the Purchased Subsidiaries or the Business in respect of any interest rate protection, commodity or currency hedge, swaps, puts, calls, options or similar derivative products;
(xvi)    any employment or consulting Contract entered into by Seller, TRADS or the Purchased Subsidiaries with any Business Employee earning $150,000 (or the local currency equivalent thereof) or more per year in annual base salary;
(xvii)    any collective bargaining, works council or other material labor union Contract or labor arrangement covering any Purchased Subsidiary or Business Employee, excluding any national, industry or similar generally applicable Contract or arrangement; and
(xviii)    any Contract that commits Seller, TRADS or any of the Purchased Subsidiaries to enter into any of the foregoing.
Each Contract set forth in Schedule 3.09(a) (other than the Leases, as to which certain representations and warranties are made exclusively pursuant to Section 3.12), is referred to herein as a “Material Contract”.
(b)    Seller has made available to Buyer a true and complete copy of each Material Contract, together with any material amendments, modifications or supplements thereto. Except as set forth in Schedule 3.09(b), all of the Material Contracts (i) are in full force and effect and (ii) represent the legal, valid and binding obligations of TRADS, Seller or a Purchased Subsidiary party thereto and, to the knowledge of Seller, represent the legal, valid and binding obligations of the other parties thereto. Except as set forth in Schedule 3.09(b), (A) none of
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TRADS, Seller or any of the Purchased Subsidiaries or, to the knowledge of Seller, any other party thereto is in material breach of or material default under any Material Contract, (B) none of TRADS, Seller or any of the Purchased Subsidiaries has, in the past two (2) years, received or made (x) any written or, to Seller’s knowledge, oral claim of material breach of or material default under any Material Contract or (y) any written or, to the knowledge of Seller, oral notice threatening to terminate (other than Material Contracts that are expiring pursuant to their terms) or not renew any Material Contract, and (C) to the knowledge of Seller, no event has occurred which, individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any Material Contract (in each case, with or without notice or lapse of time or both).
Section 3.10    Litigation. Except as set forth in Schedule 3.10, there are no pending or, to the knowledge of Seller, threatened in writing or, to the knowledge of Seller, orally, Actions at Law or in equity or, to the knowledge of Seller, investigations before or by any Governmental Authority, against the Business or pertaining to the Purchased Subsidiaries or any of their respective directors, officers or senior management employees (in their capacities as such) that, in each case, if resolved adversely against Seller or its Affiliates, would reasonably be expected to be material to the Business, taken as a whole. There are no outstanding Governmental Orders binding on the Business or any of the Purchased Subsidiaries, in each case, that would have a material and adverse effect on the Business or the Purchased Subsidiaries.
Section 3.11    Compliance with Laws.
(a)    Except with respect to matters set forth in Schedule 3.11, none of Seller, TRADS or any of the Purchased Subsidiaries is, or in the past three (3) years has been, in violation of any Law or Governmental Order relating to the Business or pertaining to the Purchased Subsidiaries, except for violations that would not reasonably be expected to, individually or in the aggregate, have a material and adverse effect on the Business or the Purchased Subsidiaries, taken as a whole.
(b)    For the past three (3) years, neither Seller, TRADS, or any Purchased Subsidiary, nor any of their respective directors, officers or employees, in each case, acting on behalf of the Business or any Purchased Subsidiary, has, directly or indirectly, (i) taken any action which would cause it to be in violation of any applicable anti-corruption Law, including the U.S. Foreign Corrupt Practices Act (15 U.S.C. §§ 78dd-1 et seq.), as amended (the “FCPA”), the False Claims Act, 31 U.S.C. §3729 et seq., the Corruption of Foreign Public Officials Act (Canada), the U.K. Bribery Act 2010, or any other applicable anti-corruption law of a similar nature (collectively, “Anti-Corruption Laws”) or (ii) made, offered, promised or authorized any payment or gift of any money or anything of value to or for the benefit of any “foreign official” (as such term is defined in FCPA), foreign political party or official thereof or candidate for foreign political office for the purpose of (A) improperly influencing any official act or decision of such official, party or candidate, (B) improperly inducing such official, party or candidate to use his, her or its influence to affect any act or decision of a foreign governmental authority, or (C) securing any improper advantage, in the case of (A), (B) and (C) above in order to assist Seller, TRADS, the Purchased Subsidiaries or any of their respective Affiliates in obtaining or retaining business. For the past three (3) years, none of Seller, TRADS, or any Purchased Subsidiary, any of their respective directors, officers or employees, or, to the knowledge of Seller, any of their respective agents, representatives, sales intermediaries or other third parties, in each case, acting on behalf of the Business or any Purchased Subsidiary, has, directly or indirectly, made or authorized any bribe, improper payoff, kickback or other unlawful payment of funds or received or retained any funds or otherwise been in violation of any applicable Anti-Corruption Law. None of Seller, TRADS or any Purchased Subsidiary, any of their respective directors, officers or employees, or to the knowledge of Seller, any of their respective agents, representatives, sales intermediaries or other third parties, in each case, acting
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on behalf of the Business or any Purchased Subsidiary, is the subject of any material allegation, voluntary disclosure, investigation, prosecution or other enforcement action related to any applicable Anti-Corruption Law.
(c)    Neither Seller or any Purchased Subsidiary, any director or officer of Seller, or any Purchased Subsidiary, or, to the knowledge of Seller, any employee of the Business or any Purchased Subsidiary is, or is fifty percent (50%) or more owned (or where relevant under applicable Sanctions, controlled) by one or more Persons that are (i) currently the target of any economic or trade sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department or the U.S. Department of State (collectively, “Sanctions”) or (ii) located, organized, or resident in a country or territory that is the subject of Sanctions (currently, Crimea, Cuba, Iran, North Korea, and Syria). Seller, each Purchased Subsidiary, their respective directors and officers, and, to the knowledge of Seller, their employees, are in compliance in all material respects with all applicable Sanctions, and Seller and the Purchased Subsidiaries maintain policies and procedures reasonably designed to maintain compliance with applicable Sanctions.
Section 3.12    Leased Real Property.
(a)    Schedule 3.12(a)(i) sets forth an accurate and complete list of the Leases. The Leased Real Property constitutes all of the real property that is owned, leased, used or held for use primarily in the conduct of the Business as currently conducted.
(b)    Except for Permitted Liens, as contemplated by the Transition Services Agreement or as would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Purchased Subsidiaries, taken as a whole, no Person other than the Purchased Subsidiaries has the right to use or occupy the Leased Real Property.
(c)    Seller has made available to Buyer a true and correct copy of each Lease. Except as set forth in Schedule 3.12(c), (i) each Lease (together with any amendment thereto) is valid and in full force and effect, represents the legal, valid and binding obligations of Seller or its applicable Affiliate that is the tenant thereunder, is unmodified and represents the entire agreement between Seller or its applicable Affiliate, as tenant, and the applicable lessor and (ii) Seller or its applicable Affiliate that is the tenant thereunder, as applicable, and, to the knowledge of Seller, each other party thereto is not in breach of or default of its obligations under such Lease beyond any applicable notice and cure period, except for such defaults as would not have a material and adverse effect on the Business, taken as a whole. All rent (including base rent and additional rent) payable under each Lease has been paid to date, except for any such failure to pay that would not be material or would not otherwise result in a material breach or material default of the applicable Lease.
(d)    As of the date hereof, neither Seller nor any of its Affiliates has received any written notice from any Governmental Authority in the past two years that (i) any condemnation proceeding is pending or threatened with respect to any Leased Real Property or (ii) any material zoning or building code, ordinance, order or regulation is violated in any material respect by the operation or use of the Leased Real Property.
Section 3.13    Intellectual Property; Information Privacy and Security; Health Information.
(a)    Schedule 3.13(a) contains a list of all issued Patents, applications for Patents, registered Trademarks, applications for the registration of Trademarks, registered copyrights and applications for the registration of copyrights, and registrations for Internet domain names included in the Owned IP and that are currently subsisting (the “Business
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Registered Intellectual Property Rights”). To the knowledge of Seller, each item of Business Registered Intellectual Property Rights is valid, and enforceable.
(b)    Except as disclosed in Schedule 3.13(b), (i) Seller or its Affiliates are the sole and exclusive owners of all Owned IP free and clear of all Liens, except Permitted Liens, (ii) as of the date hereof, no Action is pending that challenges the validity, ownership or enforceability of any Owned IP and (iii) to the knowledge of Seller, as of the date hereof, no third party is infringing, misappropriating, diluting or violating or has in the past three (3) years infringed, misappropriated, diluted, or violated, any Owned IP.
(c)    Except as disclosed in Schedule 3.13(c), (i) the Purchased Subsidiaries, the conduct of the Business and the use of any products or services of the Business as intended by the Purchased Subsidiaries do not infringe, misappropriate, dilute or otherwise violate, and have not in the past three (3) years infringed, misappropriated, diluted, or otherwise violated, any Intellectual Property Rights of any other Person, and (ii) neither Seller nor its Affiliates have received any charge, complaint, claim, demand or notice during the three (3) years prior to the date of this Agreement alleging that the Purchased Subsidiaries, the conduct of the Business, or the use of any products or services of the Business as intended by the Purchased Subsidiaries, infringes, misappropriates, dilutes or otherwise violates any Intellectual Property Rights of any other Person.
(d)    Seller and the Purchased Subsidiaries have taken commercially reasonable measures to protect the confidentiality of all trade secrets and other material confidential information in the Owned IP. Each current and former employee of Seller or any of the Purchased Subsidiaries who materially contributed to the development of any Owned IP has acknowledged and agreed to abide by Seller’s company policy on inventions, confidential information and trade secrets, including that employee automatically assigns all right, title and interest of such employee in such Intellectual Property Rights to Seller or an Affiliate of Seller and agreeing to confidentiality provisions protective of the confidential information of the Business. To Seller’s knowledge, no current or former employee of the Business is in violation of such company policy.
(e)    The manner in which any Open Source Software is incorporated into, linked to or called by, or otherwise combined or distributed with any product or service of the Business does not, according to the terms of the license applicable to such Open Source Software, obligate Seller or any of the Purchased Subsidiaries to: (i) disclose, make available, offer or deliver all or any portion of any source code of any such software product or service or any component thereof to any third party, other than the applicable Open Source Software, or (ii) create obligations for Seller or any of the Purchased Subsidiaries to grant, or purport to grant, to any third party any rights or immunities under any Owned IP (including any agreement not to assert patents), or impose any present economic limitations on Seller’s or any of the Purchased Subsidiaries’ commercial exploitation thereof.
(f)    Neither Seller nor any of the Purchased Subsidiaries has delivered, licensed or made available to any escrow agent or other Person any source code for any product or service of the Business except for disclosures to employees and independent contractors for the Business that are subject to written confidentiality obligations to maintain the confidentiality of such source code and who have had such access only during the term of their employment by or provision of services to the Business or the Purchased Subsidiaries. None of Seller or any of the Purchased Subsidiaries has any duty or obligation (whether present, contingent or otherwise) to deliver, license or make available the source code for any product or service of the Business to any escrow agent or other Person.
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(g)    No contract to which any Purchased Subsidiary is a party would, upon or after Closing, grant or purport to grant to any Person any license, covenant not to sue, or other rights related to Intellectual Property Rights owned by Buyer or any of its Affiliates (other than the Purchased Subsidiaries). All Intellectual Property Rights used in or necessary to the conduct of the Business as currently conducted shall be owned or available for use by the Purchased Subsidiaries immediately after the Closing on terms and conditions sufficient to operate the Business in substantially the same manner as it was conducted immediately prior to the Closing.
(h)    The IT Assets are (i) in all material respects in good repair and operating condition to perform all information technology operations to operate the Business, and (ii) to Seller’s knowledge, do not contain and have not been affected by, any virus, spyware, malware, worm, Trojan horse, or other disabling codes or instructions, or other similar code or software routines or components. The Business has not experienced a material outage of the IT Assets during the past two (2) years where such effects on the IT Assets have not been materially cured.
(i)    During the six (6) years prior to the date of this Agreement, Seller and its Affiliates have operated the Business in material compliance with all applicable Information Privacy and Security Requirements and Privacy Policies. Neither the execution, delivery or performance of this Agreement nor any of the other agreements contemplated by this Agreement, nor the consummation of any of the transactions contemplated by this Agreement or any such other agreements violate any Information Privacy and Requirements or Privacy Policies. Where Seller or its Affiliates use a Data Processor to Process Personal Information in the operation of the Business, the Data Processor has provided guarantees, warranties or covenants in relation to Processing of Personal Information, confidentiality, and security measures, and has agreed to comply with those obligations in a manner sufficient for compliance, by Seller and its Affiliates, with Privacy Requirements.
(j)    Seller and its Affiliates have established an Information Security Program with respect to the Business that is appropriately implemented and maintained, and Seller and its Affiliates have materially complied with such Information Security Program in connection with the operation of the Business. Seller and its Affiliates have (i) assessed and tested such Information Security Program used in connection with the Business on a no less than annual basis and (ii) cured all known risks and vulnerabilities to the extent material to the Business in a timely manner; and, with respect to the operation of the Business, such Information Security Program has proven sufficient and compliant with Information Privacy and Security Requirements in all material respects. All Business Data will continue to be available for Processing by the Business following the Closing on substantially the same terms and conditions as existed immediately before the Closing.
(k)    With respect to the operation of the Business, Seller and the Purchased Subsidiaries and, to the knowledge of Seller, its Data Processors have not suffered any material Security Incident. None of Seller, any of the Purchased Subsidiaries, or any third party acting at their direction or authorization has paid any perpetrator of any actual or threatened Security Incident or cyber attack, including a ransomware attack or a denial-of-service attack, with respect to Business Data or IT Assets. Neither Seller nor the Purchased Subsidiaries have received a written notice (including any enforcement notice), letter, or complaint from a Governmental Authority or any Person alleging material noncompliance or potential noncompliance with any Information Privacy and Security Requirements or Privacy Policies as related to the Business, and have not been subject to any Proceeding relating to material noncompliance or potential noncompliance with Information Privacy and Security Requirements or the Processing of Personal Information as related to the Business. Seller and the Purchased Subsidiaries do not transfer Personal Information internationally on behalf of the Business, except where such transfers comply with Information Privacy and Security Requirements and Privacy Policies. In connection with the operation of the Business, Seller and its Affiliates have not been, and are not
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required to, issue a notification or report to any Governmental Authority regarding any Security Incident.
Section 3.14    Title to and Sufficiency of Assets.
(a)    Except as set forth in Schedule 3.14(a), (i) the Purchased Subsidiaries, in the aggregate, own, lease, license or have the right to use, and have good and marketable title to (or a valid leasehold interest in or license to), all material tangible assets and properties of the Purchased Subsidiaries, in each case, free and clear of all Liens, except for Permitted Liens and (ii) Seller and its Affiliates (other than the Purchased Subsidiaries) have good and marketable title to (or a valid leasehold interest in or license to) all material tangible assets of the Business held by Seller and such Affiliates, as applicable, in each case, free and clear of all Liens, except for Permitted Liens.
(b)    Except (i) for Shared Contracts and (ii) as set forth in Schedule 3.14(b), the assets and properties of the Purchased Subsidiaries, together with all other rights of Buyer or the Purchased Subsidiaries pursuant to this Agreement, the Transition Services Agreement, the Commercial Agreements and the other Transaction Documents, immediately after the Closing and after giving effect to the Pre-Closing Intercompany Assignments, constitute all of the assets (tangible and intangible) and properties required to operate the Business in all material respects in the manner conducted on the date hereof by Seller and its Affiliates (including the Purchased Subsidiaries); provided, that, the foregoing is subject to the limitation that certain transfers and assignments contemplated by the Pre-Closing Intercompany Assignments, the entry into Replacement Contracts, the obtaining of any Change of Control Consents, and any claim or right or benefit arising thereunder or resulting therefrom, may require consent of a Governmental Authority or other Person, which has not been obtained, and that such matters are addressed elsewhere in this Agreement and the other Transaction Documents.
Section 3.15    Permits. The Business possesses all material governmental permits, approvals, orders, authorizations, consents, licenses, certificates, franchises, exemptions of, or filings or registrations with, or issued by, any Governmental Authority required by Law for the operation of the Business as currently conducted (the “Permits”), except when any failure to possess such Permits would not reasonably be expected, individually or in the aggregate, to be material to the Business or the Purchased Subsidiaries, taken as a whole. All such Permits are in full force and effect, and, as of the date hereof, there are no Actions pending or, to the knowledge of Seller, threatened before any Governmental Authority that seek the revocation, cancellation, suspension or adverse modification thereof, except as would not reasonably be expected to, individually or in the aggregate, have a material and adverse effect on the Business or the Purchased Subsidiaries, taken as a whole. None of the Business or any of the Purchased Subsidiaries is in material default, and, as of the date hereof, no condition exists that with notice or lapse of time or both would constitute a material default, under the Permits.
Section 3.16    Employee Benefit Plans.
(a)    Schedule 3.16(a) sets forth a true and complete list, as of the date hereof, of each material Employee Plan and each material Purchased Subsidiary Plan.
(b)    Seller has made available to Buyer true and complete copies of each Assumed Plan, other than any Assumed Plan maintained in a jurisdiction outside of the United States, the most recent summary plan description, if any, for each Purchased Subsidiary Plan and copies of all IRS determination letters in the case of all Employee Plans intended to qualify under Section 401(a) of the Code.
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(c)    Neither Seller nor any ERISA Affiliate has ever maintained, sponsored, participated in or contributed to, or could have any liability with respect to any (i) Multiemployer Plan, (ii) “multiple employer plan” (as defined in Section 4063 or Section 4064 of ERISA), (iii) defined benefit pension plan or a plan subject to Section 302 of Title 1 of ERISA, Section 412 of the Code or Title IV of ERISA, or (iv) “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), in each case that covered any Business Employee or any employee that would have been considered a Business Employee had the individual remained employed through the Closing.
(d)    Each Employee Plan and Purchased Subsidiary Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, has pending or is within the remedial amendment period in which to file an application for such determination from the Internal Revenue Service or has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer.
(e)    (i) Each Assumed Plan materially complies with and has been maintained, funded, operated and administered in material compliance with its terms and with applicable Law and (ii) except as would not reasonably be expected to result in material liability to the Purchased Subsidiaries, all payments (including premiums due) and all employer and employee contributions required to have been collected in respect of each Purchased Subsidiary Plan and Assumed Plan have been paid when due.
(f)    There are no actions or legal proceedings pending or, to Seller’s knowledge, threatened with respect to any Purchased Subsidiary Plan or, to Seller’s knowledge, any fiduciary (in its capacity as fiduciary of such Purchased Subsidiary Plan) or assets thereof. No Purchased Subsidiary Plan is currently under audit or review by any applicable Governmental Authority.
(g)    Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in connection with any other event, whether contingent or otherwise) will: (i) entitle any Business Employee to any material payment, forgiveness of Indebtedness, vesting, distribution, or increase in benefits or compensation under or with respect to any Employee Plan or Purchased Subsidiary Plan; (ii) result in any acceleration (of vesting or payment of benefits or compensation or otherwise) under or with respect to any Employee Plan or Purchased Subsidiary Plan; (iii) trigger any obligation to fund any Employee Plan or Purchased Subsidiary Plan; or (iv) result in any Employee Plan, Purchased Subsidiary Plan or any other Contract to which Seller or any of its Affiliates is a party with respect to the Business providing for the payment of any amount which would not be deductible by reason of Section 280G of the Code. The Company has no obligation, under an Employee Plan, Purchased Subsidiary Plan or otherwise, to provide for a gross-up on any Taxes which may be imposed under Section 4999 of the Code.
Section 3.17    Employees.
(a)     (i) With respect to the Business Employees and Contingent Providers, Seller and its Affiliates are, and at all times during the past three (3) years have been, in material compliance with all applicable Laws respecting employment, employment practices and labor and (ii) there are no currently pending, and there have not been during the past three (3) years, any material complaints, charges, lawsuits, claims, grievances, arbitration or other proceedings filed by or with a Governmental Authority pending or, to the knowledge of Seller, threatened against Seller or its Affiliates brought by or on behalf of any Business Employee, Contingent
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Provider, or former employee, or service provider that provided services primarily in respect of the Business.
(b)    There are no labor unions presently representing or, to the knowledge of Seller, engaged in any organizing activity with respect to any Business Employee. During the past three (3) years there has not been, and there is not, as of the date hereof, pending nor, to the knowledge of Seller, threatened, any material strike, slowdown, picketing, or work stoppage by Business Employees.
(c)    Seller has provided to Buyer a schedule of all Business Employees as of October 19, 2021 (the “Employee List”) and shall update the Employee List not less frequently than bi-weekly prior to the Closing Date to reflect resignations, employees that are hired or terminated to the extent not prohibited by Section 5.10, and the leave of absence status of any Business Employee, as applicable (each, a “Change in Status”). For the avoidance of doubt, such updates to the Employee List may, but need not, update the information set forth in Section 3.17(d) below with respect to any Business Employee who has not had a Change in Status.
(d)    The Employee List contains the following true and accurate information with respect to each Business Employee: (i) name; (ii) number of years of service with Seller and its Affiliates; (iii) job title; (iv) the entity with which they are employed; (v) base salary or wage rate; (vi) target bonus rates or target commission rates; (vii) length of recognized service; (viii) job location (country, state, city); (ix) fulltime, part-time, or temporary status; (x) visa status, if applicable; (xi) leave of absence status (including estimated return to work date); (xii) designation of whether they are classified as exempt or non-exempt for purposes of the Fair Labor Standards Act and any similar state law; and (xiii) accrued but unused vacation time and/or paid time off; provided, however, that Seller’s obligation to provide such information shall be subject in all respects to applicable Law.
(e)    Seller has provided to Buyer a schedule of all Contingent Providers as of October 19, 2021 (the “Contingent Provider List”), which includes the following information with respect to each Contingent Provider: (i) country where engaged; and (ii) Seller engaging entity.
(f)    To the knowledge of Seller, during the past three (3) years, (i) no allegations of sexual or racial harassment, discrimination or misconduct have been made against any Business Employee who is an officer or executive, and (ii) Seller and its Affiliates have not entered into any settlement agreement or conducted any investigation related to allegations of sexual or racial harassment or discrimination by or against any Business Employee who was or is an officer or executive.
Section 3.18    Environmental Compliance. Except as disclosed in Section 3.18, and except for matters that would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect:
(a)    the Business, the Purchased Subsidiaries and the Leased Real Property are in compliance with all applicable Environmental Laws, including, any Permits required by applicable Environmental Laws;
(b)    as of the date hereof, (i) no written notice, claim, inquiry, order, request for information, complaint, penalty demand or violation notice has been made and (ii) there is no Action and, to the knowledge of Seller, no investigation pending or threatened, that (A) alleges the actual or potential violation of or noncompliance with any Environmental Law or any Permit required by any applicable Environmental Law, alleges any potential Liability arising under or relating to any Environmental Law, including any investigatory, remedial, natural resource,
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response, removal or corrective obligations, or seeks to revoke, amend, modify or terminate any Permit required by any applicable Environmental Law, (B) relates to the Business, the Purchased Subsidiaries or the Leased Real Property and (C) has not been settled, dismissed, paid or otherwise resolved without ongoing obligations or costs prior to the date hereof; and
(c)    the Business has not caused any past or present release, spill or disposal of any Hazardous Substances at, on, under or from any currently or formerly owned or leased property or facility relating to the Business, the Purchased Subsidiaries or the Leased Real Property.
Notwithstanding anything to the contrary in this Agreement, this Section 3.18 provides the sole and exclusive representations and warranties of Seller in respect of environmental matters.
Section 3.19    Taxes.
(a)    All income and other material Tax Returns required to be filed by each Purchased Subsidiary, by Seller Parent with respect to any Purchased Subsidiary or by Seller or TRADS with respect to the assets to be transferred pursuant to the Pre-Closing Intercompany Assignments, in each case, have been timely filed (taking into account applicable extensions) and all such Tax Returns are accurate and complete in all material respects. All income and other material Taxes due and payable by each Purchased Subsidiary, by Seller Parent with respect to each Purchased Subsidiary and by Seller or TRADS with respect to the assets to be transferred pursuant to the Pre-Closing Intercompany Assignments, have been paid.
(b)    There are no ongoing or pending Tax Claims by or before a Taxing Authority relating to any of the Purchased Subsidiaries or relating to the assets to be transferred pursuant to the Pre-Closing Intercompany Assignments, and no written notice of any Tax Claim by a Taxing Authority in respect of any Tax liability of any Purchased Subsidiary or relating to the assets to be transferred pursuant to the Pre-Closing Intercompany Assignments has been received by Seller, Seller Parent, any Purchased Subsidiary or TRADS which audit or assessment has not been finally resolved.
(c)    The charges, accruals and reserves for Taxes with respect to the Purchased Subsidiaries reflected on the books of the Purchased Subsidiaries (excluding any provision for deferred income taxes) are materially adequate to cover their liability for Taxes accruing through the end of the last period for which any Purchased Subsidiary has recorded items on its books, and since the end of the last period for which any Purchased Subsidiary has recorded items on its books, such Purchased Subsidiary has not incurred any material liability for Taxes other than in the ordinary course of business.
(d)    No waiver or extension of the statute of limitations is in effect for the assessment of any material Taxes of any Purchased Subsidiary or relating to the assets to be transferred pursuant to the Pre-Closing Intercompany Assignments. No power of attorney that will be in effect on the Closing Date has been granted by any Purchased Subsidiary with respect to Taxes for any period for which the statute of limitations has not yet expired.
(e)    There are no material Liens for Taxes upon the assets of any Purchased Subsidiary or upon any asset to be transferred pursuant to the Pre-Closing Intercompany Assignments, other than for Permitted Liens.
(f)    No Purchased Subsidiary will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any Post-Closing Tax Period as a result of (i) any adjustment pursuant to Section 481(a) of the Code (or any
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predecessor provision) or any similar provision of state, local or non-U.S. Tax Law by reason of any change of accounting methods, or use of an improper method of accounting, prior to the Closing; (ii) any “closing agreement” as described in Section 7121 of the Code (or any comparable law in any jurisdiction) executed prior to the Closing; (iii) any installment sale or open transaction disposition occurring prior to the Closing; (iv) any prepaid amount received prior to the Closing; (v) any intercompany transaction; (vi) any gain recognition agreement to which any Purchased Subsidiary is a party under Section 367 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Law); or (vii) Section 965(h) of the Code.
(g)    No Purchased Subsidiary has received a written claim to pay Taxes or file Tax Returns from a Governmental Authority in a jurisdiction where the Purchased Subsidiary has not filed Tax Returns or paid Taxes, which claim has not been finally resolved.
(h)    No Purchased Subsidiary is a party to, is otherwise bound by or has any obligation under, any Tax sharing, Tax allocation or Tax indemnity agreement or other similar Contract, other than (i) any commercial Contracts entered into in the ordinary course of business and not primarily related to Taxes or (ii) any Tax sharing, allocation or indemnification agreement the only parties to which are any of Seller Parent or its Subsidiaries, which such agreement shall be terminated with respect to the Purchased Subsidiaries pursuant to Section 6.04.
(i)    No rulings, requests for rulings, or closing agreements relating to Taxes for which any Purchased Subsidiary may have liability for Taxes for any taxable period ending after the Closing Date have been sought from, entered into or issued by any Taxing Authority.
(j)    No Purchased Subsidiary (i) has ever been a member of an “affiliated group” within the meaning of Code Section 1504(a) filing a consolidated federal Income Tax Return or a combined, consolidated, unitary or similar corporate group for U.S. state and local, or non-U.S. Tax purposes (in each case other than a group consisting solely of Seller Parent and/or its Subsidiaries) or (ii) have any liability for the Taxes of any Person (other than Seller Parent or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract (other than commercial Contracts entered into in the ordinary course of business and not primarily related to Taxes) or otherwise by operation of Law. The sale of the Purchased Interests pursuant to this Agreement is not subject to the rules of Treasury Regulation Section 1.1502-36 and no attributes of any Purchased Subsidiary will be reduced or reattributed pursuant to Treasury Regulation Section 1.1502-36.
(k)    No Purchased Subsidiary is the beneficiary of any Tax credits, grants, exemptions, holidays, concessions or other similar arrangements with any Taxing Authority that are or could be subject to clawback or recapture as a result of (i) the transactions contemplated by this Agreement or (ii) a failure on or prior to the Closing Date by any Purchased Subsidiary to satisfy one or more requirements on which the credit, grant or similar amount is or was conditioned.
(l)    No Purchased Subsidiary has been party to a transaction that is a “listed transaction” or a “reportable transaction” within the meaning of Section 6707A(c) of the Code or Treasury Regulations Section 1.6011-4, or any transaction requiring disclosure under a corresponding or similar provision of state, local or non-U.S. Tax Law. In the two-year period ending on the date of this Agreement, no Purchased Subsidiary has been party to a transaction described in Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code).
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(m)    Within the last six (6) taxable years, no Purchased Subsidiary has or has ever had any direct or indirect ownership interest in any corporation, partnership, joint venture or other entity, or any arrangement that could be treated as a partnership for tax purposes (other than another Purchased Subsidiary). Schedule 3.19(m) lists the current U.S. federal income tax classification of each Purchased Subsidiary and the type and effective date of any election under Treasury Regulation Section 301.7701-3 made with respect to the U.S. federal income tax classification of any Purchased Subsidiary.
(n)    Except as set forth in Schedule 3.19(n), within the last six (6) taxable years, no Purchased Subsidiary (i) is, or has ever been, a “controlled foreign corporation” (within the meaning of Section 957 of the Code) or a United States shareholder (within the meaning of Section 951(b) of the Code) of a “controlled foreign corporation” or (ii) holds, or has ever held an interest in, a “passive foreign investment company” (within the meaning of Section 1297 of the Code).
(o)    Each Purchased Subsidiary is, and has at all times been, resident in its jurisdiction of incorporation for Tax purposes and is not, and has not at any time been, treated as resident in any other jurisdiction (whether within or without of the United States) for any Tax purpose (including any double taxation arrangement). No Purchased Subsidiary (i) has or has had a permanent establishment in any country other than the country of its organization or (ii) has engaged in a trade or business in any country (other than the country in which it is organized) that requires such Purchased Subsidiary to file a Tax Return for Income Taxes or pay Income Tax in such country.
(p)    Each Purchased Subsidiary (i) has materially complied with all legal requirements in order to defer the amount of the employer’s share of any “applicable employment taxes” under Section 2302 of the CARES Act, (ii) to the extent applicable, has materially complied with all legal requirements and duly accounted for any available tax credits under Sections 7001 through 7005 of the Families First Coronavirus Response Act, and (iii) has not received or claimed any tax credits under Section 2301 of the CARES Act.
(q)    As of the time immediately prior to the Closing, none of the Purchased Subsidiaries is the owner of any property for Tax purposes that is owned by any other Person for non-Tax purposes.
(r)    As of the time immediately prior to the Closing, the Purchased Subsidiaries own the Business Registered Intellectual Property Rights for all Tax purposes.
Section 3.20    Finders’ Fees. Except for Centerview Partners LLC, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Seller or its Affiliates (including the Purchased Subsidiaries) who might be entitled to any fee or commission in connection with the transactions contemplated by this Agreement.
Section 3.21    Insurance. All material insurance policies with respect to the Business and the Purchased Subsidiaries (the “Insurance Policies”) are in force in all material respects. The Insurance Policies are of the type and in the amounts as are customary for businesses of similar size, in their geographic regions and in the same industry as the Business and the Purchased Subsidiaries, and, except as would not reasonably be expected, individually or in the aggregate, to have a material and adverse effect on the Business or the Purchased Subsidiaries, taken as a whole, meet all contractual and statutory requirements to which the Business and the Purchased Subsidiaries are subject. There is no material claim pending under any Insurance Policy with respect to the Business.
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Section 3.22    Affiliate Transactions. Except for any Shared Contracts, any Contracts that are to be assigned pursuant to the Pre-Closing Intercompany Assignments or any other intercompany or other arrangements resulting from Seller and its Affiliates operating the Business prior to Closing (including any insurance arrangements, employment arrangements or any arrangements to be provided under the Transaction Documents), or as otherwise set forth on Schedule 3.22, (a) there are no arrangements between Seller, on the one hand, or any of its controlled Affiliates, on the other hand, related to the Business or the Purchased Subsidiaries and (b) no director or officer of Seller Parent or any of its Subsidiaries: (i) has any ownership interest in any material assets of the Business or (ii) is a party to any material Contract with Seller or any of its Affiliates related to the Business (other than in such director’s or officer’s capacity as a director or officer of Seller Parent or any of its Subsidiaries, as applicable).
Section 3.23    Customers and Vendors. Schedule 3.23 sets forth a list of the Major Customers and Major Suppliers. No such Major Customer or Major Supplier has provided any written or, to the knowledge of Seller, oral notice to Seller or its Affiliates (including the Purchased Subsidiaries) that it will stop or terminate or materially reduce its rate of buying materials, products or services from the Business or supplying materials, products or services to the Business, as applicable.
Section 3.24    No Other Representations and Warranties. Except for the representations and warranties contained in this Article III or the certificate delivered by Seller pursuant to Section 8.02(c), neither Seller nor any of its Affiliates (including any Retained Entity) or any of their respective Representatives has made or is making any express or implied representation or warranty with respect to Seller, its Subsidiaries (including the Purchased Subsidiaries), any Retained Entity or any of the Shares, the Business, or with respect to any other information provided, or made available, to Buyer or any of its Affiliates or Representatives, in each case in connection with the transactions contemplated hereby or by any Transaction Document. Neither Seller nor any other Person will have or be subject to any Liability or other obligation to Buyer, its Affiliates or Representatives or any Person resulting from Buyer’s use of, or the use by any of its Affiliates or Representatives of, any such information, including information, documents, projections, forecasts or other material made available to Buyer, its Affiliates or Representatives in any “data rooms,” teaser, confidential information memorandum or management presentations in connection with the transactions contemplated by this Agreement. Except for the representations and warranties in this Article III or in the certificate delivered by Seller pursuant to Section 8.02(c), Seller and its Affiliates (including the Retained Entities) disclaim any and all representations and warranties, whether express or implied. Notwithstanding anything to the contrary contained in this Agreement, neither Seller nor any of its Affiliates (including any Retained Entity) or Representatives make any express or implied representation or warranty with respect to the Retained Entities in connection with the transactions contemplated hereby or by any Transaction Document.
ARTICLE IV
Representations and Warranties of Buyer
Buyer represents and warrants to Seller as of the date of this Agreement that:
Section 4.01    Existence and Power. Buyer is a corporation duly incorporated and validly existing under the Laws of the State of Delaware and has the requisite corporate power and authority to enable it to own, operate, lease and otherwise hold its assets and to conduct its business in all material respects as it is now being conducted. Buyer is duly licensed or qualified to do business and is in good standing (to the extent such concepts are recognized under applicable Law) in each jurisdiction in which the properties owned or leased, by it or the operation of its business makes such licensing or qualification necessary, except to the extent that the failure to be so licensed, qualified or in good standing would not reasonably be expected to,
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individually or in the aggregate, interfere with, prevent or delay the ability of Buyer to enter into and perform its obligations under the Transaction Documents to which it is a party or consummate the transactions contemplated thereby.
Section 4.02    Authorization. The execution, delivery and performance by Buyer of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby are within the corporate powers of Buyer and have been (or will be prior to execution) duly authorized by all necessary action on the part of Buyer. This Agreement has been duly and validly executed and delivered by Buyer and (assuming the due and valid execution and delivery of this Agreement by Seller) constitutes a legal, valid and binding agreement of Buyer, enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally and to general principles of equity. Each other Transaction Document to which Buyer is a party shall be duly and validly executed by Buyer at or prior to the Closing and, upon such execution and delivery by Buyer and the due and valid execution and delivery of such Transaction Document by each other party thereto, shall constitute a legal, valid and binding agreement of Buyer, enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting or relating to the enforcement of creditors’ rights and remedies generally and to general principles of equity.
Section 4.03    Governmental Authorization. The execution, delivery and performance by Buyer of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby require no material action by or in respect of, or material filing with, any Governmental Authority, other than compliance with any applicable requirements of the Competition Laws and the Exchange Act.
Section 4.04    Noncontravention. The execution, delivery and performance by Buyer of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby do not and will not (a) violate the Organizational Documents of Buyer, (b) assuming compliance with the matters referred to in Section 4.03, violate any Law applicable to Buyer, (c) require any consent or other action by any Person under, constitute a default under, or give rise to any right of termination, cancellation or acceleration of any material right or obligation or to a loss of any material benefit to which Buyer or any of its Subsidiaries is entitled under any provision of any agreement or other instrument binding upon Buyer or any of its Subsidiaries or (d) result in the creation or imposition of any material Lien on any asset of Buyer or any of its Subsidiaries (except, in the case of clauses (b), (c) and (d), as would not reasonably be expected to, individually or in the aggregate, interfere with, prevent or delay the ability of Buyer to enter into and perform its obligations under the Transaction Documents to which it is a party or consummate the transactions contemplated thereby).
Section 4.05    Financing.
(a)    As of the date of this Agreement, Buyer has delivered to Seller a copy of (i) the Equity Commitment Letter, duly executed by the Equity Financing Sources and dated as of the date hereof, pursuant to which the Equity Financing Sources have committed to provide equity financing in an aggregate amount of $861,052,879.41, subject to terms and conditions set forth therein (the “Equity Financing”) and (ii) a debt commitment letter, duly executed by Buyer and dated as of the date hereof (including all exhibits, schedules and annexes thereto and any associated fee letter, the “Debt Commitment Letter”), pursuant to which the Financing Sources party thereto have committed to provide the debt financing commitments contained therein, subject to terms and conditions set forth therein (the “Debt Financing” and, together with the Equity Financing, the “Financing”), together with the fee letter referenced in the Debt Commitment Letter (the “Debt Fee Letter”) (except that the fee amounts, other economic terms,
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“market flex” and other customary provisions (none of which would adversely affect the amount, conditionality, availability or termination of the Debt Financing) set forth therein have been redacted). The Equity Commitment Letter provides that Seller is an express third-party beneficiary thereto to the extent provided therein.
(b)    As of the date hereof: (i) the Commitment Letters and the terms of the Financing have not been amended or modified prior to the date hereof; (ii) no such amendment or modification is contemplated (other than amendments to the Debt Commitment Letter as contemplated by the Debt Commitment Letter as in effect on the date hereof); and (iii) the respective commitments contained therein have not been withdrawn, terminated or rescinded in any respect. There are no other Contracts, agreements, side letters or arrangements to which Buyer is a party relating to the funding or investing, as applicable, of the Financing, other than as expressly set forth in the Commitment Letters, that would reduce the aggregate amount of the Financing to an amount less than the amount necessary to fund the Financing Purposes. Other than as set forth in the Commitment Letters, there are no conditions precedent related to the funding or investing, as applicable, of the full amount of the Financing.
(c)    The net proceeds of the Financing, when funded in accordance with the Commitment Letters, will be, in the aggregate and together with Buyer’s cash on hand, sufficient for Buyer to consummate the transactions contemplated by this Agreement, including (a) paying the Estimated Purchase Price and all other amounts required to be paid by Buyer at the Closing pursuant to Section 2.03, and (b) paying all out-of-pocket expenses incurred by Buyer and required to be paid at the Closing by Buyer in connection with the transactions contemplated by this Agreement (collectively, the “Financing Purposes”).
(d)    The Commitment Letters are in full force and effect and constitute the legal, valid and binding obligations of Buyer, the Guarantors (in the case of the Equity Commitment letter) and, to Buyer’s knowledge, each of the other parties thereto, as applicable, enforceable against each of Buyer and, to Buyer’s knowledge, each of the other parties thereto, as applicable, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally and to general principles of equity. To Buyer’s knowledge, no event has occurred that, with notice or lapse of time or both, would, or would reasonably be expected to, constitute a default or breach on the part of Buyer, the Guarantors or, to Buyer’s knowledge, any other party thereto, pursuant to the Commitment Letters. Assuming satisfaction of the conditions set forth in Section 8.01 and Section 8.02, Buyer has no any reason to believe that any of the conditions to receipt of the Financing contemplated by the Commitment Letters will not be satisfied or the Financing will not be available as and when needed at the Closing. As of the date hereof, Buyer has fully paid, or caused to be fully paid, all commitment or other fees that are due and payable on or prior to the date hereof, in each case pursuant to and in accordance with the terms of the Commitment Letters.
(e)    None of the Guarantors, any Equity Financing Source, Buyer or any of their respective Affiliates has entered into any Contract, arrangement or understanding (i) awarding any agent, broker, investment banker or financial advisor any financial advisory role on an exclusive basis in connection with the transactions contemplated by this Agreement; or (ii) expressly prohibiting any bank, investment bank or other potential provider of debt financing from providing or seeking to provide debt financing or financial advisory services to any Person in connection with a transaction relating to the Purchased Subsidiaries in connection with the transactions contemplated by this Agreement.
(f)    Concurrently with the execution of this Agreement, the Guarantors have delivered to Seller the duly executed Limited Guaranty. The Limited Guaranty is in full force and effect, has not been amended or modified, and is a legal, valid, binding and enforceable
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obligation of each of the Guarantors enforceable against them in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally and to general principles of equity. No event has occurred which (with or without notice, lapse of time or both) would constitute a default on the part of any Guarantor under the Limited Guaranty.
(g)    For the avoidance of doubt, and notwithstanding anything contained herein to the contrary, in no event shall the funding of the Financing constitute a condition to Closing.
Section 4.06    Litigation. There are no Actions pending or, to the knowledge of Buyer, threatened in writing against Buyer, except for such Actions as would not reasonably be expected to, individually or in the aggregate, interfere with, prevent or delay the ability of Buyer to enter into and perform its obligations under the Transaction Documents to which it is a party or consummate the transactions contemplated thereby.
Section 4.07    Solvency. Buyer is not entering into this Agreement or the transactions contemplated hereby with the actual intent to hinder, delay or defraud either present or future creditors of Buyer or any of its Subsidiaries. Assuming (i) that the representations and warranties of Seller contained in Section 3.06 and Section 3.08 of this Agreement are true and correct in all material respects and (ii) that the Purchased Subsidiaries on a consolidated basis are solvent as of immediately prior to Closing, immediately after giving effect to the transactions contemplated by this Agreement, Buyer and its Subsidiaries (including the Purchased Subsidiaries) on a consolidated basis (a) will be solvent (in that both the fair value of its assets will not be less than the sum of its debts and that the fair saleable value (determined on a going concern basis) of its assets will not, as of such date, be less than the amount required to pay its probable liability on its recourse debts as they mature or become due), (b) will have adequate capital and liquidity with which to engage in its business and (c) will not have incurred debts beyond its ability to pay as they mature or become due.
Section 4.08    Purchase for Investment. Buyer is purchasing the Purchased Interests for investment for its own account and not with a view to, or for sale in connection with, any distribution thereof. Buyer (either alone or together with its advisors) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Purchased Interests and is capable of bearing the economic risks of such investment. Buyer understands and agrees that the Purchased Interests may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act, except pursuant to an exemption from such registration available under the Securities Act, and without compliance with state, local and foreign securities Laws, in each case, to the extent applicable.
Section 4.09    Finders’ Fees. There is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Buyer or any of its Affiliates that might be entitled to any fee or commission in connection with the transactions contemplated by this Agreement for which Seller may be liable.
Section 4.10    No Other Representations and Warranties; No Reliance.
(a)    Buyer acknowledges and agrees that neither Seller nor any of its Affiliates (including any Retained Entity) or Representatives, nor any other Person, has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Purchased Subsidiaries, the Retained Entities, the Shares, the Business or other matters in connection with this Agreement or the transactions contemplated hereby or by any Transaction Document that are not specifically included in Article III of this Agreement
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(subject to the Disclosure Schedules) the certificate delivered by Seller pursuant to Section 8.02(c). Without limiting the generality of the foregoing, neither Seller nor any of its Affiliates (including any Retained Entity) or Representatives, nor any other Person, has made a representation or warranty to Buyer in connection with this Agreement or the transactions contemplated herby or by any Transaction Document with respect to, and neither Seller nor any other Person shall be subject to any Liability to Buyer or any other Person resulting from, Seller, any of its Affiliates (including any Retained Entity) or their Representatives making available to Buyer, (i) any projections, estimates or budgets for the Business or (ii) any materials, documents or information relating to Seller, the Retained Entities, the Purchased Subsidiaries or the Business made available to Buyer or its Representatives in certain “data rooms,” offering memoranda, confidential information memoranda, management presentations or otherwise. In connection with Buyer’s investigation of the Business, Seller has delivered, or made available to Buyer and its Affiliates and Representatives, certain projections and other forecasts, including projected financial statements, cash flow items and other data of Seller, the Retained Entities and their Subsidiaries relating to the Business and certain business plan information of the Business. Buyer acknowledges that there are uncertainties inherent in attempting to make such projections and other forecasts and plans and accordingly is not relying on them, that Buyer is familiar with such uncertainties, that Buyer is taking full responsibility for making its own evaluation of the adequacy and accuracy of all projections and other forecasts and plans so furnished to it, and that Buyer and its Affiliates and Representatives shall have no claim against Seller, its Affiliates (including any Retained Entity) or any other Person with respect thereto. Accordingly, Buyer acknowledges that, without limiting the generality of Section 3.24, neither Seller, nor any of its Representatives (including any Retained Entity) or their Affiliates, have made any representation or warranty with respect to such projections and other forecasts and plans.
(b)    Notwithstanding anything contained in this Agreement, it is the explicit intent of the Parties that neither Seller nor any of its Affiliates (including any Retained Entity) or their Representatives are making any representation or warranty whatsoever, express or implied, in connection with this Agreement or the transactions contemplated hereby beyond those expressly given in Article III of this Agreement (subject to the Disclosure Schedules) the certificate delivered by Seller pursuant to Section 8.02(c), including any implied warranty or representation as to the value, condition, non-infringement, merchantability, suitability or fitness for a particular purpose as to any of the assets of the Purchased Subsidiaries and, except as expressly provided in Article III of this Agreement (subject to the Disclosure Schedules) or in the certificate delivered by Seller pursuant to Section 8.02(c), and subject to the terms and conditions of this Agreement and the other Transaction Documents, it is understood that Buyer is acquiring the Purchased Subsidiaries as is and where is with any and all faults and defects as of the Closing Date.
(c)    In furtherance of the foregoing, Buyer acknowledges that it is not relying on any representation or warranty of Seller or its Affiliates (including any Retained Entity) or their Representatives, other than those representations and warranties specifically set forth in Article III of this Agreement (subject to the Disclosure Schedules) or in the certificate delivered by Seller pursuant to Section 8.02(c). Buyer acknowledges that it has conducted to its satisfaction an independent investigation of the financial condition, Liabilities, results of operations and projected operations of the Business and the nature and condition of its properties, assets and businesses and, in making the determination to proceed with the transactions contemplated hereby, has relied solely on the results of its own independent investigation and the representations and warranties set forth in Article III (subject to the Disclosure Schedules) the certificate delivered by Seller pursuant to Section 8.02(c).
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ARTICLE V
Covenants
Section 5.01    Conduct of the Business.
(a)    From the date hereof until the Closing Date, except (A) as set forth in Schedule 5.01(a), (B) as required by applicable Law, (C) as otherwise expressly provided by the Transaction Documents, (D) in connection with the Pre-Closing Intercompany Assignments in accordance with the procedures set forth in Section 5.05 or the obtaining of any Replacement Contracts in respect of Shared Contracts in accordance with the procedures set forth in Section 5.04, (E) for any reasonable actions taken (or any reasonable failures to take action) in response to COVID-19 or any COVID-19 Measures, or (F) with Buyer’s prior written consent, Seller and its Affiliates shall, and shall cause their Subsidiaries to, use their reasonable best efforts to conduct the Business in the ordinary course of business consistent with past practices in all material respects and to preserve intact the present business organizations and goodwill of the Business. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, except (1) as set forth in Schedule 5.01(a), (2) as required by applicable Law, (3) as otherwise expressly provided by the Transaction Documents, (4) in connection with the Pre-Closing Intercompany Assignments in accordance with the procedures set forth in Section 5.05 or the obtaining of any Replacement Contracts in respect of Shared Contracts in accordance with the procedures set forth in Section 5.04, (5) for any reasonable actions taken (or any reasonable failures to take action) in response to COVID-19 or any COVID-19 Measures, or (6) with Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller shall not, and shall cause its Affiliates (including each Purchased Subsidiary) not to take any of the following actions (but in each case, solely with respect to the Business (and not with respect to any Retained Business)):
(i)    sell, lease, license or otherwise dispose of any material properties, rights or assets of the Purchased Subsidiaries or the Business, except (A) pursuant to existing Contracts, or (B) for sales or non-exclusive licensing of products to customers in the ordinary course of business consistent with past practice in all material respects;
(ii)    create or otherwise incur any Lien on any material property, right or asset of any Purchased Subsidiary or the Business, other than Permitted Liens;
(iii)    make any loans, advances or capital contributions to, or investments in, any Person (other than (A) loans, advances or capital contributions to, or investments in, any of the Purchased Subsidiaries or (B) loans, advances or capital contributions from one Retained Entity to another Retained Entity or investments by one Retained Entity in another Retained Entity), other than advances to Business Employees for expenses or otherwise in the ordinary course of business consistent with past practices in all material respects;
(iv)    (A) amend or otherwise modify in any material respect, terminate (excluding any expiration in accordance with its terms), or waive any material right, claim or benefit under, any Material Contract, other than any such amendment, modification or waiver entered into or granted in the ordinary course of business consistent with past practices in all material respects, and which contains terms, taken as a whole, not materially less favorable to the Business than the terms of such Contract in effect as of the date of this Agreement; or (B) other than in the ordinary course of business, enter into any Contract that, if in effect on the date hereof, would constitute a Material Contract;
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(v)    commence any material suit, litigation or arbitration (and excluding, for the avoidance of doubt ordinary course or immaterial disputes arising in the operation of the Business) or settle or agree to settle any pending or threatened material Action, in each case, which involves the Business or relates to the transactions contemplated by this Agreement;
(vi)    prepare or file any Tax Return inconsistent with past practice, make, revoke or change any material Tax election, change any annual Tax accounting period, file any amended income or other material Tax Return, agree to any extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes, initiate or enter into any closing, voluntary disclosure or similar agreement with a Taxing Authority, settle or otherwise compromise any Tax claim, audit or assessment, surrender any right to claim a material refund of Taxes or a material offset or other material reduction in Liability for Taxes, or request any ruling or similar guidance from any Governmental Authority with respect to Taxes;
(vii)    make any material change in any method of financial accounting or financial accounting practice of Seller, the Retained Entities or any of their respective Subsidiaries (including the Purchased Subsidiaries) with respect to the Business, except for any such change required by reason of a change in GAAP or other applicable financial accounting standards;
(viii)    (A) enter into any employment or other similar agreement with any Business Employee or any amendment to any such existing agreement, (B) grant any new severance or termination pay to any Business Employee, (C) increase the compensation payable to any Business Employee, (D) enter into, amend or extend any Collective Bargaining Agreement or recognize any union or other labor organization as the bargaining representative for any Business Employees, or (E) amend or otherwise modify any Retained Plan so that it becomes an Assumed Plan, other than, in the case of clauses (A) through (D): (x) as provided under the terms of an Employee Plan or Purchased Subsidiary Plan in effect on the date hereof, (y) in the ordinary course of business consistent with past practice in all material respects or (z) to the extent uniformly applied to substantially all similarly situated employees of Seller and its Affiliates within a particular country;
(ix)    except for immaterial changes, amend the respective Organizational Documents of any of the Purchased Subsidiaries;
(x)    (A) create or otherwise incur any Lien (other than (I) Liens securing indebtedness outstanding under the Credit Facility (which Liens shall be released as of the Closing upon consummation of the transactions contemplated hereby) or (II) transfer restrictions of general applicability under applicable federal and state securities Laws) on any, or grant, issue or sell any, securities, securities convertible into or exchangeable or exercisable for, or evidencing the right to subscribe for, equity securities, or options, warrants or other rights to purchase equity interests, of any Purchased Subsidiary; (B) split, combine, subdivide or reclassify any equity interests of any Purchased Subsidiary; or (C) redeem, purchase or otherwise acquire any equity interests of any Purchased Subsidiary, or any options, warrants or other rights to purchase equity interests of any Purchased Subsidiary;
(xi)    acquire (by merger, consolidation, acquisition of equity or assets or otherwise) any Person, business line or operating division with a value or purchase price in the aggregate in excess of $7,500,000;
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(xii)    (A) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of any Purchased Subsidiary or (B) with respect to any Purchased Subsidiary, file a petition in bankruptcy under any provision of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(xiii)    enter into any new line of business or abandon or discontinue any existing line of business;
(xiv)     (A) sell, assign, transfer, lease, license, encumber, abandon or permit to lapse any of its material Owned IP, except for non-exclusive licenses granted in the ordinary course of business, or (B) disclose any of its material trade secrets or other material confidential information to a third party who is not obligated to maintain the confidentiality of such trade secrets and confidential information;
(xv)    incur, issue, assume, guarantee or otherwise become liable for any indebtedness for borrowed money, other than (A) in an amount that, individually or in the aggregate, not including any amounts incurred pursuant to the following clauses (B) through (D), does not exceed $5,000,000, (B) intercompany indebtedness between or among the Purchased Subsidiaries, (C) revolving indebtedness pursuant to the Credit Facility and (D) indebtedness that will be included in Closing Date Indebtedness;
(xvi)    make any capital commitments or capital expenditures other than (A) as contemplated by the capital budget of the Business made available to Buyer prior to the date hereof or (B) as incurred in the ordinary course of business consistent with past practices in all material respects;
(xvii)    declare, set aside or pay any dividend or other distribution in respect of any equity interests of any Purchased Subsidiary, whether payable in cash, stock, units, property or otherwise, in each case, other than dividends and distributions (i) payable solely in cash that will be paid in full prior to the Closing or (ii) by a Purchased Subsidiary to another Purchased Subsidiary;
(xviii)    (A) except for terminations for cause or voluntary terminations by the applicable Business Employee, terminate any Business Employee, or (B) hire or engage any individual who provides services primarily in respect of the Business (and if so hired or engaged would be a Business Employee or a Contingent Provider), unless, in each case of clauses (A) and (B), the total annual base salary or base compensation rate payable to such individual or service provider does not exceed $200,000; or
(xix)    agree or commit to do any of the foregoing.
For the avoidance of doubt, from the date hereof until the Closing, Seller shall be permitted to (i) cause each Purchased Subsidiary to dividend, transfer, distribute or otherwise pay to Seller or any of its Affiliates any or all of the Cash and Cash Equivalents of such Purchased Subsidiary; and/or (ii) settle intercompany balances between any Purchased Subsidiary, on the one hand, and Seller or any of its Affiliates, on the other hand, and make capital increases in connection therewith.
(b)    Notwithstanding the foregoing, nothing in this Section 5.01 shall prohibit or otherwise restrict in any way the operation of the businesses of Seller or its Affiliates, except solely with respect to the conduct of the Business by Seller and its Affiliates, including through the Purchased Subsidiaries.
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Section 5.02    Pre-Closing Access. Subject to confidentiality obligations and similar restrictions that may be applicable to information furnished to Seller or any of its Affiliates by third parties that may be in Seller’s any of its Affiliates’ possession from time to time, from the date hereof until the Closing Date, Seller shall, and shall cause its Affiliates to, (a) give Buyer and its Representatives reasonable access to the management and other senior personnel, properties, books, contracts, Tax Returns, records and other documents (including auditor’s work papers (subject to execution of customary access letters)) of Seller and its Affiliates to the extent relating primarily to the Business or the Purchased Subsidiaries, (b) furnish to Buyer and its Representatives such financial and operating data and other information to the extent relating primarily to the Business or the Purchased Subsidiaries as such Persons may reasonably request and (c) use commercially reasonable efforts to cause the appropriate (as determined by Seller) employees and executive officers of Seller and its Affiliates to cooperate with Buyer in its investigation of the Business. Any investigation pursuant to this Section 5.02 shall be conducted (i) in accordance with all applicable Laws (including Competition Laws) and any COVID-19 Measures, (ii) during normal business hours, (iii) in such manner as not to interfere unreasonably with the normal conduct of the Business or any of the Retained Entities, (iv) subject to restrictions under the Leases, if any and (v) at Buyer’s sole cost and expense. Notwithstanding the foregoing, (A) Buyer shall not have access to (x) personnel records of the Business Employees relating to individual performance or evaluation records, medical histories or other information that in Seller’s opinion (in its sole discretion) is sensitive or the disclosure of which could subject Seller, the Retained Entities or any of their respective Subsidiaries to risk of Liability, (y) any real property owned or leased by Seller, the Retained Entities or their respective Subsidiaries for purposes of conducting any environmental sampling or testing or (z) any information to the extent relating to any Tax Return of Seller or any of the Retained Entities that does not constitute a Business Record and (B) Seller and its Affiliates may withhold (y) any information relating to the sale process for the Business and information and analysis (including financial analysis) relating thereto and (z) any document or information, as and to the extent necessary to avoid violation or waiver, if the disclosure of such document or information could reasonably be expected to violate any Contract or any Law or would result in the waiver of any legal privilege or work-product privilege; provided that, to the extent practicable and in accordance with such Contract or Law, and in a manner that does not result in the waiver of any such privilege, Seller and its Affiliates shall make reasonable and appropriate substitute disclosure arrangements under circumstances in which the restrictions of this subclause (z) apply. Notwithstanding anything to the contrary in this Agreement, Seller may satisfy its obligations set forth in this Section 5.02 by electronic means if physical access is not permitted under applicable Law or not practicable as a result of COVID-19 or any COVID-19 Measures. Seller shall have the right to have a Representative present at all times during any such inspections, interviews and examinations. Buyer shall hold in confidence all such information on the terms and subject to the conditions contained in the Confidentiality Agreement.
Section 5.03    Regulatory Filings.
(a)    Subject to the terms and conditions of this Agreement, Buyer and Seller shall each use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under Law to consummate the transactions contemplated by this Agreement, including (i) preparing and filing as promptly as practicable with any Governmental Authority all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority (including under any Competition Law) that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement (collectively, the “Regulatory Approvals”).
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(b)    In furtherance and not in limitation of the foregoing, each of Buyer and Seller shall, Seller shall cause its Affiliates to, and Buyer shall cause its Subsidiaries and the Buyer Controlling Persons to, (i) make or cause to be made all filings required of each of them or any of their respective Affiliates with respect to the transactions contemplated hereby as promptly as practicable and, with respect to filings under the HSR Act, no later than October 29, 2021, (ii) use reasonable best efforts to comply at the earliest practicable date with any request under any Competition Law or related to any Regulatory Approval for additional information, documents or other materials received by each of them or any of their respective Affiliates from any Governmental Authority in respect of such filings or such transactions and (iii) cooperate with each other in connection with any such filing and in connection with resolving any investigation or other inquiry of any Governmental Authority under any such Competition Laws or related to any Regulatory Approval with respect to any such filing or any such transaction. Each Party shall use its reasonable best efforts to furnish to the other Party all information required for any application or other filing to be made pursuant to any Competition Law or related to any Regulatory Approval in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, any Party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other Parties under this Section 5.03 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside counsel of the recipient Party, and the recipient Party shall cause such outside counsel not to disclose such materials or information to any employees, officers, directors or other Representatives of the recipient Party, unless express written permission is obtained in advance from the source of the materials. Each Party shall promptly inform the other Party hereto of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filing or any such transaction. No Party shall independently participate in any meeting with any Governmental Authority in respect of any such filing or any investigation or other inquiry with respect to the transactions contemplated by this Agreement without giving the other Party prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend or participate. Subject to applicable Law, the Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party relating to proceedings under the Competition Laws or related to any Regulatory Approval with respect to the transactions contemplated hereby. Whether or not the Closing occurs, Buyer shall be responsible for all costs, fees and payments (including filing fees) in connection with obtaining the Regulatory Approvals with respect to the transactions contemplated hereby.
(c)    In furtherance and not in limitation of the actions and obligations described in Section 5.03(b), Buyer shall use reasonable best efforts to promptly resolve such objections, if any, as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement under the Competition Laws or related to any Regulatory Approval. In connection therewith, if any Action is instituted (or threatened to be instituted), which Action challenges any transaction contemplated by this Agreement as in violation of any Competition Law or otherwise relates to any Regulatory Approval, Buyer and Seller shall use reasonable best efforts to promptly contest and resist any such Action, and seek to have promptly vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, limits or restricts the consummation of the transactions contemplated by this Agreement, including by pursuing all available avenues of administrative and judicial appeal. Buyer and Seller shall use reasonable best efforts to take such actions as may be required or advisable to cause the expiration or termination of the waiting, notice or review periods under the Competition Laws or with respect to any Regulatory Approval, in each case, with respect to the transactions contemplated by this Agreement as promptly as possible after the execution of this Agreement. Buyer shall not, without the prior written consent of Seller, “pull-and-refile,” pursuant to 16 C.F.R. 803.12, any filing made under the HSR Act or take any similar action
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under the other Competition Laws or with respect to any Regulatory Approval, in each case, with respect to any filing made with any Governmental Authority.
(d)    Without limiting the generality of the foregoing, but subject in all events to the last sentence of this Section 5.03(d), Buyer further agrees that it shall, and shall cause its Subsidiaries to, to the extent necessary to obtain any Regulatory Approval or any waiver, permit, approval, clearance or consent from any Governmental Authority under any Competition Law or which is otherwise required to satisfy the conditions set forth in Section 8.01(a) or Section 8.01(b), as applicable, or to avoid the entry of or have lifted, vacated, reversed or terminated any Closing Legal Impediment, in each case, prior to the Outside Date, to promptly take the following actions: (i) propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order or otherwise, the sale, divestiture, transfer, license or other disposition (including by licensing any Intellectual Property Rights) of any assets or businesses of the Purchased Subsidiaries (including any assets to be held thereby by virtue of the Replacement Contracts and the Pre-Closing Intercompany Assignments); (ii) propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order or otherwise, behavioral limitations on the assets or businesses of the Purchased Subsidiaries (including any assets to be held thereby by virtue of the Replacement Contracts and the Pre-Closing Intercompany Assignments); (iii) propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order or otherwise, the termination, modification, transfer or other action with respect to any existing relationships and contractual rights and obligations of the Purchased Subsidiaries (including any assets to be held thereby by virtue of the Replacement Contracts and the Pre-Closing Intercompany Assignments); (iv) otherwise offer to take or offer to commit to take any action and, if the offer is accepted, take or commit to take such action, with respect to any assets or businesses of the Purchased Subsidiaries (including any assets to be held thereby by virtue of the Replacement Contracts and the Pre-Closing Intercompany Assignments); and (v) in the event that any permanent or preliminary injunction or other Governmental Order is entered or becomes reasonably foreseeable to be entered in any proceeding or other Action that would create a Closing Legal Impediment, any and all steps (including the appeal thereof, the posting of a bond or the taking of the steps contemplated by clauses (i), (ii), (iii) and (iv) of this Section 5.03(d)) necessary to vacate, modify or suspend such Closing Legal Impediment. Notwithstanding anything to the contrary herein, Buyer shall not be obligated under this Section 5.03(d) to sell, divest, transfer, license or otherwise dispose (including by licensing any Intellectual Property Rights) any assets, operations, rights, product lines, businesses or interests therein of the Purchased Subsidiaries (including any assets to be held thereby by virtue of the Replacement Contracts and the Pre-Closing Intercompany Assignments) with an aggregate value in excess of $200,000,000.
(e)    From the date of this Agreement until Closing, Buyer shall not, and shall cause its Subsidiaries and the Buyer Controlling Persons not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing a substantial portion of the assets of or any equity in, or by any other manner, any assets or Person, if the execution and delivery of a definitive agreement relating to, or the consummation of, such acquisition would reasonably be expected to have, or has, the effect of (i) preventing the consummation of the transactions contemplated hereby or (ii) delaying the consummation of the transactions contemplated hereby beyond the Outside Date.
Section 5.04    Shared Contracts. Seller, on the one hand, and Buyer, on the other hand, shall, and shall cause their respective Affiliates to, cooperate with each other and shall use their commercially reasonable efforts to cause the Shared Contracts to be amended and/or replaced with separate contracts (the “Replacement Contracts”) that provide that (a) Seller or any Retained Entity designated by Seller receives contract rights and is bound by obligations under the Replacement Contracts that are substantially similar to those contract rights and obligations
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under the Shared Contracts applicable to the conduct of the Retained Business prior to the Closing and (b) any Purchased Subsidiary receives contract rights and is bound by obligations under the Replacement Contracts that are substantially similar to those contract rights and obligations under the Shared Contracts applicable to the conduct of the Business prior to the Closing. Buyer and Seller shall cooperate and provide each other with reasonable assistance in effecting such separation of the Shared Contracts prior to the Closing and, if not completed by the Closing with respect to any Shared Contract, for a period of six (6) months following the Closing Date. Notwithstanding the foregoing, none of Seller, Buyer or any of their respective Affiliates shall be required to expend any material amount of money, incur any Liabilities, commence any Action, or offer or grant any accommodation (financial or otherwise) to any third party, including any accommodation or arrangement to remain secondarily liable or contingently liable for any Liability of the other, in order to effect the separation of a Shared Contract or obtain any Replacement Contract. If Buyer and Seller are not able to effect the separation of a Shared Contract prior to the Closing, then after the Closing, until any such Shared Contract is separated, to the extent permissible under Law and under the terms of such Shared Contract, Buyer and Seller shall, or shall cause one of their Affiliates to, (i) assume and perform the Liabilities under such Shared Contract relating to (A) in the case of Buyer, the Business and (B) in the case of Seller, the Retained Business (and in each case, the applicable Party shall promptly reimburse the other Party for any reasonable expenses relating thereto incurred by the other Party or its Subsidiaries), (ii) hold in trust for the benefit of the other Party, and shall promptly forward to the other Party, any monies or other benefits received pursuant to such Shared Contract relating to the business of the other Party (or the business of its Subsidiaries) and (iii) use commercially reasonable efforts to institute alternative arrangements intended to put the Parties in a substantially similar economic position as if such Shared Contract was separated as described above; provided that, notwithstanding the foregoing, following the Closing, (x) no Party shall have any obligation to renew any Shared Contract upon the expiration or termination thereof and (y) to the extent any such Shared Contract contains an “evergreen” provision that automatically renews such Shared Contract unless terminated or cancelled by either party thereto, the applicable Party shall not be prohibited from terminating or canceling such Shared Contract as permitted pursuant to the terms thereof. Notwithstanding anything herein to the contrary, with respect to Liabilities arising under or resulting from any Shared Contract (whether first arising prior to or after the Closing, and including any such Liability under a Shared Contract as to which a Replacement Contract is not obtained prior to Closing), including any Liabilities resulting from any products or services provided under such Shared Contract, from and after the Closing (1) to the extent such Liabilities are related exclusively to the Business, Buyer and its Subsidiaries (including the Purchased Subsidiaries) shall be responsible for such Liabilities and shall indemnify and hold harmless Seller and its Affiliates (including the Retained Entities) for such Liabilities, (2) to the extent such Liabilities are related exclusively to the Retained Business, Seller and its Affiliates (including the Retained Entities) shall be responsible for such Liabilities and shall indemnify and hold harmless Buyer and its Affiliates (including the Purchased Subsidiaries) for such Liabilities and (3) to the extent such Liabilities are not clearly exclusively related to either the Business or the Retained Business, such Liabilities shall be allocated between the Business, on the one hand, and the Retained Business, on the other hand, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of such Shared Contract, measured up to the date of the allocation, without duplication) by the Business, on the one hand, or the Retained Business, on the other hand, under such Shared Contract and (A) Buyer and its Subsidiaries (including the Purchased Subsidiaries) shall be responsible for such Liabilities so allocated to the Business and shall indemnify and hold harmless Seller and its Affiliates (including the Retained Entities) for such Liabilities so allocated and (B) Seller and its Affiliates (including the Retained Entities) shall be responsible for such Liabilities so allocated to the Retained Business and shall indemnify and hold harmless Buyer and its Affiliates (including the Purchased Subsidiaries) for such Liabilities so allocated.
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Section 5.05    Pre-Closing Intercompany Assignments and Wrong Pockets; Third Party Approvals.
(a)    Subject to Section 5.05(b) below, prior to the Closing, Seller shall, and shall cause its Affiliates to, (i) cause the Contracts, the Trademark and the Patent set forth in Schedule 5.05(a) and any other Contracts exclusively related to the Business held by Seller and its Affiliates (other than the Purchased Subsidiaries) to be assigned to a Purchased Subsidiary and (ii) in the event that Seller or any of its Affiliates determine that any tangible or intangible assets or properties held by Seller or one of its Affiliates are required to be transferred to a Purchased Subsidiary at or prior to the Closing in order for the Purchased Subsidiaries to be able to operate the Business as of immediately following the Closing in all material respects in the manner in which it is conducted on the date hereof (after giving effect to all other rights of Buyer or the Purchased Subsidiaries pursuant to this Agreement, the Transition Services Agreement, the Commercial Agreements and the other Transaction Documents and after giving effect to all other Pre-Closing Intercompany Assignments and the entry into all Replacement Contracts), Seller shall cause such asset or property to be assigned to a Purchased Subsidiary (the transactions contemplated by clauses (i) and (ii), the “Pre-Closing Intercompany Assignments”).
(b)    Notwithstanding the foregoing Section 5.05(a), this Agreement shall not constitute an agreement to assign any Contract, Trademark, Patent or other asset or property pursuant to the Pre-Closing Intercompany Assignments if such assignment, without the consent of, or other action by, any third party or any Governmental Authority, would constitute a breach or violation of any Contract or applicable Law (or other duty owed to such third party or Governmental Authority) or adversely affect the rights of Buyer or any of its Subsidiaries (including the Purchased Subsidiaries) thereunder (collectively, the “Non-Permitted Transfers”). In the event any Non-Permitted Transfers exist, Seller shall, and shall cause its Affiliates to use commercially reasonable efforts to obtain the consents, waivers, approvals, orders and authorizations necessary to effect the Non-Permitted Transfers (collectively, the “Third Party Approvals”) prior to the Closing, and Buyer shall reasonably cooperate with Seller and its Affiliates in connection therewith. To the extent that any Third Party Approval has not been obtained prior to the Closing, for up to six (6) months after the Closing Date, Seller shall, and shall cause its Affiliates to, use commercially reasonable efforts, at the Buyer’s request, to endeavor to obtain such Third Party Approvals, and Buyer shall reasonably cooperate with Seller and its Affiliates in connection therewith. Notwithstanding the foregoing, none of Seller, Buyer or any of their respective Affiliates shall be required to expend any material amount of money, incur any Liabilities, commence any Action, or offer or grant any accommodation (financial or otherwise) to any third party, in order to obtain any such Third Party Approval. In addition, to the extent permitted by Law and any applicable Contract, in the event any Third Party Approval related to any particular Contract, Trademark, Patent or other asset or property has not been obtained by the Closing, at Buyer’s request, Seller and its Affiliates shall use commercially reasonable efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to Buyer and its Subsidiaries (including the Purchased Subsidiaries) the economic and, to the extent permitted under applicable Law and not prohibited by such Contract, Trademark, Patent or other asset or property, operational equivalent of the transfer of such Contract, Trademark, Patent or other asset or property to Buyer as of the Closing, and shall hold in trust for and pay to Buyer or any Subsidiary of Buyer, as designated by Buyer, promptly upon receipt thereof, all income, proceeds and other monies received by Seller or its Affiliates with respect to such Contract, Trademark, Patent or other asset or property, as applicable, to the extent related to such Contract, Trademark, Patent or other asset or property in connection with the arrangements under this Section 5.06(b) until such time as the Third Party Approval is obtained, but in no event longer than six (6) months after the Closing Date. For the period beginning on the Closing Date and not to exceed six (6) months after the Closing Date, Seller shall comply with all applicable covenants and obligations under any Contract, Trademark, Patent or other asset or property as to which a Third Party Approval has not been obtained,
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including the payment of any costs or expenses in connection therewith, which shall be performed by Seller or its Affiliates for Buyer’s account and Buyer shall promptly (but in no event later than ten (10) Business Days following receipt of an invoice from Seller) reimburse Seller for any actual and documented out-of-pocket costs, expenses or payments made by Seller in respect of such Contract, Trademark, Patent or other asset or property. Notwithstanding the foregoing, following the Closing Date, Seller and its Affiliates shall have no obligation to renew any Contract as to which a Third Party Approval has not been obtained upon the expiration or termination thereof. In addition, to the extent that any such Contract contains an “evergreen” provision that automatically renews such Contract unless terminated or cancelled by either party thereto, Seller and its Affiliates shall not be prohibited from terminating or canceling such Contract as permitted pursuant to the terms thereof. Notwithstanding anything herein to the contrary, with respect to Liabilities arising under or resulting from any Contract, Trademark, Patent or other asset or property required to be assigned pursuant to the Pre-Closing Intercompany Assignments (whether first arising prior to or after the Closing, and including any such Liability under a Contract, Trademark, Patent or other asset or property that is unable to be assigned prior to Closing due to a Non-Permitted Transfer), including any Liabilities resulting from any products or services provided under such Contract, Trademark, Patent or other asset or property, from and after the Closing, Buyer and its Subsidiaries (including the Purchased Subsidiaries) shall be responsible for such Liabilities and shall indemnify and hold harmless Seller and its Affiliates (including the Retained Entities) for such Liabilities, in each case, as long as Seller is in compliance with its obligations under this Section 5.05(b).
Section 5.06    Consents Generally.
(a)    Buyer acknowledges that certain consents and approvals may be required as a result of the transactions contemplated by this Agreement, including from Governmental Authorities or from parties to Contracts to which Seller and its Affiliates, including the Purchased Subsidiaries are a party (including, for the avoidance of doubt, any Third Party Approvals and any consent or approval required in connection with any Shared Contract or Replacement Contract) and that such consents and approvals (collectively, “Change of Control Consents”) have not been obtained and may not be obtained. Seller shall, and shall cause its Affiliates to, use commercially reasonable efforts to obtain the Change of Control Consents prior to the Closing; provided, however, that notwithstanding anything to the contrary herein, the Parties agree and acknowledge that none of Seller, Buyer or any of their respective Affiliates shall be required to expend any material amount of money, incur any Liabilities, commence any Action, or offer or grant any accommodation (financial or otherwise) to any third party, in order to obtain any such Change of Control Consent.
(b)    Notwithstanding anything to the contrary herein, Buyer agrees that Seller, the Retained Entities and their respective Affiliates shall not have any Liability whatsoever to Buyer or its Affiliates (and Buyer and its Affiliates shall not be entitled to assert any claims) arising out of or relating to the failure to obtain any Change of Control Consents, including because of the default, acceleration or termination of or loss of right under any Contract as a result thereof, and that failure to obtain any Change of Control Consent shall not, in and of itself, constitute a condition to Closing. Buyer further agrees that, to the extent Seller has complied with its obligations under Section 5.06(a), no representation, warranty or covenant of Seller contained herein shall be breached or deemed breached, and no condition to Closing shall be deemed not to be satisfied, as a result of the failure to obtain any Change of Control Consent or as a result of any such default, acceleration or termination or loss of right or any Action commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any Change of Control Consent or any such default, acceleration or termination or loss of right.
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Section 5.07    Wrong Pockets. In the event that at any time or from time to time after the Closing Date, Seller or the Retained Entities receives or otherwise possesses any right, property or asset that should belong to Buyer pursuant to this Agreement (including Cash and Cash Equivalents), Seller shall as promptly as reasonably practicable transfer, or cause to be transferred, such right, property or asset to Buyer or the appropriate Purchased Subsidiary, designated by Buyer, for no additional consideration and net of Seller’s and the Retained Entities’ third-party out-of-pocket costs incurred to effectuate such transfer, and to the extent such asset is Cash and Cash Equivalents, Seller shall provide a general explanation or description of such transfer. Prior to any such transfer, Seller shall hold such asset in trust for the benefit of Buyer. In the event that at any time or from time to time after the Closing Date, Buyer or any of its Affiliates, including the Purchased Subsidiaries, receives or otherwise possesses any property or asset that should belong to Seller or any of the Retained Entities pursuant to this Agreement (including Cash and Cash Equivalents), Buyer shall as promptly as reasonably practicable transfer, or cause to be transferred, such asset to Seller or the appropriate Retained Entity, designated by Seller, for no consideration and net of Buyer’s actual and documented out-of-pocket costs to effectuate such transfer, and to the extent such asset is Cash and Cash Equivalents, Buyer shall provide a general explanation or description of such transfer. Prior to any such transfer, Buyer shall hold such asset in trust for the benefit of Seller.
Section 5.08    Intercompany Balances; Affiliate Transactions.
(a)    Except as set forth in Schedule 5.08(a), all intercompany balances between any of the Purchased Subsidiaries, on the one hand, and Seller or any of the Retained Entities, on the other hand, shall be eliminated by discharge or otherwise in their entirety effective at or prior to the Closing.
(b)    Except for the Transaction Documents or the Contracts set forth on Schedule 5.08(b), on or prior to the Closing, Seller shall take all actions necessary to cause any and all Contracts between Seller or any of the Retained Entities, on the one hand, and any Purchased Subsidiary, on the other hand, to have been terminated.
Section 5.09    Business Guarantees.
(a)    Prior to the Closing, Buyer and Seller shall, and shall cause their respective Affiliates to, cooperate and use their respective commercially reasonable efforts to obtain from the respective beneficiary, in form and substance reasonably satisfactory to Seller, on or before the Closing Date, valid and binding written unconditional releases of Seller and any Retained Entity, as applicable, from any Liability, whether arising before, on or after the Closing Date, under any Business Guarantees and any other guarantees, letters of credit, bonds, sureties and other credit support or assurances provided by Seller or any of the Retained Entities in support of any obligation of the Business (other than those set forth on Schedule 1.01(a)) identified in writing by Seller to Buyer following the date of this Agreement (“Additional Business Guaranties”), which shall be effective as of the Closing, including by furnishing letters of credit, instituting escrow arrangements, posting surety or performance bonds or making other arrangements as the counterparty may reasonably request.
(b)    If any Business Guarantee or Additional Business Guarantee has not been fully and unconditionally released as of the Closing, (i) Buyer and Seller shall cooperate and use their respective commercially reasonable efforts to terminate, or, if the Parties are unable to so terminate, cause Buyer or one of its Subsidiaries to be substituted in all respects for Seller or any Retained Entity in respect of, all obligations under such Business Guarantees or Additional Business Guarantees, (ii) to the extent that the Parties are unable to cause such termination or substitution on commercially reasonable terms, the Retained Entities, as applicable, shall continue such Business Guarantees or Additional Business Guarantees for a period of no longer
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than six (6) months following the Closing, and Buyer shall indemnify and hold harmless Seller and the Retained Entities and their respective equityholders or Representatives for any Liabilities arising from or relating to such Business Guarantees or Additional Business Guarantees, including any claim or demand for payment made on Seller or any Retained Entity under, and any fees in connection with the issuance and maintenance of, any letters of credit or surety or performance bonds and (iii) Buyer shall not, and shall not permit any of the Purchased Subsidiaries to (A) renew or extend the term of, (B) increase its obligations under, (C) transfer to another third party or (D) amend in any manner, except (x) as contemplated pursuant to clause (i) above, (y) if such amendment could not reasonably be expected to increase the Liabilities of Seller or the Retained Entities or any of their respective Affiliates and is not otherwise adverse to Seller or any of the Retained Entities or any of their respective Affiliates, or (z) as otherwise required by this Agreement, any loan, Contract or other obligation for which Seller or any Retained Entity is, or would reasonably be expected to be, liable under such Business Guarantee or Additional Business Guarantee. To the extent that Seller or the Retained Entities have performance obligations under any Business Guarantee or Additional Business Guarantee, Buyer will use commercially reasonable efforts to (x) perform such obligations on behalf of Seller and the Retained Entities or (y) otherwise take such action as reasonably requested by Seller so as to put Seller and the Retained Entities in the same position as if Buyer, and not Seller or a Retained Entity, had performed or were performing such obligations.
(c)    Notwithstanding anything to the contrary herein, the Parties acknowledge and agree that (i) at any time on or after the five (5) month anniversary of the Closing Date, Seller and each of the Retained Entities may, in such Person’s sole discretion, take any action to terminate, obtain release of or otherwise limit its Liability under any and all outstanding Business Guarantees or Additional Business Guarantees and (ii) at any time on or after the Closing Date, neither Seller nor any Retained Entity will have any obligation to renew any letters of credit or surety or performance bonds issued on behalf of any Purchased Subsidiary or the Business after the expiration of any such letters of credit or surety or performance bonds.
Section 5.10    Use of Retained Marks.
(a)    Buyer and its Affiliates have, and after the Closing, the Purchased Subsidiaries shall have, no right, title, interest, license or any other right whatsoever in the Retained Marks, and neither Seller nor any of its Affiliates have, pursuant to the Transaction Documents or otherwise, assigned such right, title, interest, license or other right to Buyer, its Affiliates or the Purchased Subsidiaries other than to the extent necessary for the use of the Retained Marks as described in this Section 5.10.
(b)    Subject to the terms of this Section 5.10, as of the Closing, Buyer shall, and shall cause the Purchased Subsidiaries to, cease and discontinue any use of the Retained Marks, refrain from any future application, incorporation, reproduction or display of all Retained Marks, and at Buyer’s sole cost and expense, remove all Retained Marks from any marketing and promotional materials, invoices, business cards, schedules, displays, signs, stationery, technical guidelines, data sheets, product manuals, packing materials, inventory labels and other supplies and similar materials used in the Business (collectively, “Business Materials”), in each case, whether such Business Materials are held by Buyer or the Purchased Subsidiaries or under the control of Buyer or the Purchased Subsidiaries; provided that, Seller hereby grants Buyer and the Purchased Subsidiaries a non-exclusive, non-sublicensable, non-transferable, paid-up royalty-free license, for a period of nine (9) months following the Closing, to continue to use any Business Materials that were previously created and included in the inventory of the Business and that incorporate the Retained Marks, solely in the manner such Business Materials were used in the Business prior to the Closing and solely to the extent that Buyer and the Purchased Subsidiaries maintain the same quality of the goods and services associated with the Retained Marks as was maintained prior to the Closing and in compliance with all applicable laws and
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good trademark practice. All goodwill associated with the Buyer’s and the Purchased Subsidiaries’ use of the Retained Marks shall inure solely to the benefit of Seller and the Retained Entities.
(c)    Before the Closing, (i) Seller and its Affiliates (including the Purchased Subsidiaries) may execute and file all documents as shall be necessary or desirable to change the name of the Purchased Subsidiaries to remove any Retained Marks, including the word “TransUnion” or any derivation or translation thereof, from such names and (ii) to the extent not already changed by Seller or its Affiliates (including the Purchased Subsidiaries) prior to the Closing Date, as promptly as practicable after the Closing but in no event later than thirty (30) days after the Closing Date, Buyer shall, and shall cause the Purchased Subsidiaries to, at Buyer’s sole cost and expense, change the names of the Purchased Subsidiaries to remove any Retained Marks, including the word “TransUnion” or any derivation or translation thereof, including filings with the applicable Governmental Authority of each jurisdiction in which the ownership or the operation of the Purchased Subsidiaries’ assets or the character of its activities is such as to require it to be licensed or qualified in such jurisdiction, and providing notice to all customers, vendors and other suppliers of such name change, which notice in the case of clause (ii) shall be in a form to be agreed between Buyer and Seller in writing, with Seller’s and Buyer’s consent each not to be unreasonably withheld, conditioned, or delayed.
Section 5.11    Representation and Warranty Insurance. In the event that Buyer is issued a representation and warranty insurance policy with respect to this Agreement, Buyer shall cause such policy to provide that (i) the insurer under such policy shall have no right of subrogation, contribution or otherwise against Seller or any of its Affiliates or Representatives, and the insurer under such policy has waived any such right of subrogation, contribution or otherwise except against Seller in the case of Fraud; and (ii) the foregoing provision described in clause (i) shall not be amended or waived without the prior written consent of Seller, and that Seller is an intended third party beneficiary of such provision. Buyer shall not agree to any amendment, variation or waiver of such representation and warranty insurance policy (or do anything that has a similar effect) that would adversely impact Seller or its Affiliates or Representatives without Seller’s prior written consent.
Section 5.12    Insurance. Notwithstanding the acquisition of the Purchased Interests by Buyer, Seller hereby expressly excludes, and does not assign, transfer or convey to Buyer, any rights or benefits of or to any insurance policies of Seller or its Affiliates (excluding any insurance policies of and solely with respect to the Purchased Subsidiaries or their respective predecessors) which might relate to, cover or insure Seller or its Affiliates for loss of or Liability arising from the Business or the use, ownership or operation of the assets of the Purchased Subsidiaries, regardless of whether such assignment, right or benefit arises by statute, agreement or operation of Law, including defense and indemnity benefits attributable to or arising from or under such policies. Following the Closing, Buyer shall not, and shall cause its Affiliates (including the Purchased Subsidiaries) not to, assert any right, claim or interest to or under any insurance policies of Seller or its Affiliates (excluding any insurance policies of and solely with respect to the Purchased Subsidiaries or their respective predecessors) or rights to proceeds thereof in effect on or prior to the Closing Date relating to the Business or the Purchased Subsidiaries. In furtherance thereof, Buyer, on behalf of itself and its Affiliates (including, after the Closing, the Purchased Subsidiaries), hereby waives any and all rights to or under any such insurance policies unless such waiver would be adverse to the interests of Seller or any of its Affiliates.
Section 5.13    Production of Witnesses; Third Party Claims; Split Litigation.
(a)    From and after the Closing, Seller, on the one hand, and Buyer, on the other hand, shall use their commercially reasonable efforts to make available to each other, upon
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reasonable written request, their (and their Affiliates’) respective officers, directors, employees and agents for fact finding, consultation and interviews and as witnesses to the extent that any such individual may reasonably be required in connection with any Actions in which the requesting Party may from time to time be involved relating to the conduct of the Business or the Retained Business prior to or after the Closing. Access to such Persons shall be granted during normal business hours at a location and in a manner reasonably calculated to minimize disruption to such individuals, the Business and the Retained Business, as applicable. Seller and Buyer agree to reimburse each other for reasonable and documented out-of-pocket expenses, including reasonable and documented attorneys’ fees, but excluding officers’ or employees’ salaries or other wages, incurred by any other Party or its Affiliates in connection with providing individuals and witnesses pursuant to this Section 5.13(a). Notwithstanding the foregoing, the provisions in Article VI shall govern with respect to Tax-related matters to the extent any provision in Article VI is in conflict with this Section 5.13(a). For the avoidance of doubt, no Party shall have an obligation to cooperate, make available personnel or disclose any documents or other information pursuant to this Section 5.13(a), Section 5.14(b) or Article VI, if Seller or any of its Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other hand, are adverse parties in any Action and such assistance, testimony, documents or other information is reasonably pertinent thereto; provided that, nothing in this Section 5.13(a) shall limit in any respect any rights a Party may have with respect to discovery or the production of documents or other information in connection with any such Action.
(b)    Following the Closing, in the event of any assertion or commencement of any Action by a third party (i) against Seller or any of its Affiliates (including the Retained Entities), which imposes (or purports to impose) Liabilities on Seller or such Affiliates relating to the conduct of the Business (whether such conduct is prior to or following the Closing), Buyer and its Affiliates (including the Purchased Subsidiaries) shall be responsible for such Liabilities and shall indemnify and hold harmless Seller and its Affiliates (including the Retained Entities) for such Liabilities (a “Buyer Responsible Third Party Claim”); or (ii) against Buyer or any of its Affiliates (including the Purchased Subsidiaries), which imposes (or purports to impose) Liabilities on Buyer or such Affiliates relating to the conduct of the Retained Business (whether such conduct is prior to or following the Closing), Seller and its Affiliates (including the Retained Entities) shall be responsible for such Liabilities and shall indemnify and hold harmless Buyer and its Affiliates (including the Purchased Subsidiaries) for such Liabilities (a “Seller Responsible Third Party Claim” and, together with the Buyer Responsible Third Party Claims, “Third Party Claims”). Each Party will provide the other with prompt written notice of any Third Party Claim; provided that delay or failure to give such notice will not relieve any Party of any Liability for which it is responsible under this Section 5.13(b), unless and to the extent it is materially prejudiced thereby. The Party allegedly responsible for any Liabilities arising out of a Third Party Claim under this Section 5.13(b) (a “Responsible Party”) shall have the right, by giving written notice to the other Party (a “Non-Responsible Party”) within twenty (20) Business Days of being notified by the Non-Responsible Party of such Third Party Claim, to assume the defense of such Non-Responsible Party against any such Third Party Claim with counsel selected by the Responsible Party and reasonably satisfactory to the Non-Responsible Party (it being understood that Seller is hereby deemed to have assumed the defense of the Retained Matters notwithstanding the lack of having provided such notice (and existing counsel to Seller on the Retained Matters is hereby deemed reasonably satisfactory to Buyer)); provided, that (A) such Responsible Party shall cooperate and consult with the Non-Responsible Party in connection with such Third Party Claim, and the Non-Responsible Party shall be entitled to participate in the defense of any such Third Party Claim at its sole cost and expense, (B) the Responsible Party shall not consent to the entry of any judgment, or enter into any settlement or compromise, with respect to the Third Party Claim without the prior written consent of the Non-Responsible Party (which consent shall not be unreasonably withheld, conditioned or delayed), other than a judgment, settlement or compromise that (1) is on exclusively monetary terms with such monetary amounts paid by the Responsible Party concurrently with the effectiveness of the,
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judgment, settlement or compromise, (2) does not involve any finding or admission of violation of Law or admission of wrongdoing by the Non-Responsible Party and, (3) provides in customary form, an unconditional release of, or dismissal with prejudice of, all claims against any the Non-Responsible Party and its Affiliates potentially affected by such Third Party Claim and (C) except with respect to the Retained Matters, the Responsible Party shall not be entitled to assume the defense of any Third Party Claim if the Third Party Claim (x) seeks an order, injunction or other equitable relief, or otherwise brings any criminal or quasi-criminal claims, against the Non-Responsible Party or (y) is a Split Litigation (in which case, Section 5.13(c) shall apply). Notwithstanding anything to the contrary set forth in this Agreement and notwithstanding that each Retained Matter was asserted and commenced prior to the Closing, the parties acknowledge and agree that (x) each Retained Matter shall be deemed to be a Seller Responsible Third Party Claim for all purposes of this Agreement and the provisions of this Section 5.13(b) shall apply to each Retained Matter, mutatis mutandis, (y) Seller and its Affiliates (including the Retained Entities) shall be responsible for any Liabilities relating to any Retained Matter and shall indemnify and hold harmless Buyer and its Affiliates (including the Purchased Subsidiaries) for such Liabilities, and (z) Buyer and its Affiliates (including the Purchased Subsidiaries) shall not be responsible for, and shall not be required to indemnify and hold harmless Seller and its Affiliates for, any Liabilities relating to any Retained Matters.
(c)    In the event of any Third Party Claim which either (I) names as a party to such Third Party Claim both a Retained Entity (or any post-Closing Affiliate thereof) and a Purchased Subsidiary (or any post-Closing Affiliate thereof) or (II) imposes (or purports to impose) Liabilities on a Party (or its Affiliates) relating to the conduct of both the Business and the Retained Business (each of clause (I) and (II), a “Split Litigation”), then each of Buyer and Seller (or their applicable Affiliates) shall be entitled to defend such Split Litigation to the extent of any claims brought against such Party or its Affiliate named thereto or to the extent of any Liabilities for which such Party is responsible under Section 5.13(b) (i.e., Buyer shall be entitled to defend such Split Litigation to the extent of any Liabilities relating to the conduct of the Business, except any Retained Matter, and Seller shall be entitled to defend such Split Litigation to the extent of any Liabilities relating to the conduct of the Retained Business or any Retained Matter). The Parties shall make reasonable efforts to cooperate and consult with each other in connection with the defense of any such Split Litigation (including by providing each other the opportunity to review and comment on any filings, submissions and documentation, or to participate in any conferences and meetings, relating to such Split Litigation which may impact the potential Liability for which the other Party is responsible under this Section 5.13(c)), to the extent possible without waiving the attorney-client privilege, work product doctrine, joint defense privilege, common interest privilege, or other privilege and protection. The Parties may obtain separate counsel of their own choosing and at their own expense, in connection with any Split Litigation. If counsel for the Split Litigation is jointly agreed among the Parties, the costs and expenses of counsel for the Split Litigation shall be allocated among the Parties in the same manner as the other Liabilities for such Split Litigation. No Party shall consent to the entry of any judgment, or enter into any settlement or compromise, with respect to any Split Litigation without the prior written consent of the other Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that (i) each Party shall be entitled to consent to the entry of any judgment, or enter into any settlement or compromise of a portion of such Split Litigation, to the extent solely related to any Liabilities for which such Party is responsible under Section 5.13(b), so long as such judgment, settlement or compromise does not materially and adversely impact the ability of the other Party to defend, settle or compromise any remaining portion of such Split Litigation or otherwise materially increase such other Party’s exposure or Liability under such remaining portion of such Split Litigation and (ii) in the event that either Party or its Affiliates is a named party to such Split Litigation, but such Split Litigation relates solely to Liabilities for which the other Party is responsible under Section 5.13(b) (i.e., Seller or its Affiliates are named parties to a Split Litigation relating solely to the conduct of the Business or Buyer or its Affiliates are named parties to a Split Litigation relating
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solely to the conduct of the Retained Business), then the Parties will cooperate with each other and use commercially reasonable efforts to have the Non-Responsible Party removed and released as a named party to such Split Litigation.
Section 5.14    Retention of Books and Records and Post-Closing Access.
(a)    Seller and its Affiliates may retain a copy of any or all of the Business Records and any other materials that are otherwise in the possession or under the control of Seller or any of its Affiliates relating to the conduct of the Business or to the Purchased Subsidiaries on or before the Closing Date. Buyer agrees to hold at least one copy of all Business Records of the Purchased Subsidiaries that exist as of the Closing and, unless otherwise consented to in writing by Seller and subject to destruction of correspondence in the ordinary course of business consistent with past practice in accordance with customary retention policies and applicable Law, not to destroy or dispose of such copy for a period of seven (7) years from the Closing Date or such longer time as may be required by Law, and if thereafter Buyer proposes to destroy or dispose of such copy, Buyer shall offer first in writing at least sixty (60) days prior to such proposed destruction or disposition to surrender such copy to Seller upon Seller’s request and at Seller’s expense.
(b)    From and after the Closing, Buyer shall, and shall cause its Subsidiaries (including the Purchased Subsidiaries) to, (i) give Seller and its Representatives reasonable access to the Business Records of Buyer and its Subsidiaries, including the Purchased Subsidiaries, to the extent relating to the Business or operations of the Purchased Subsidiaries on or before the Closing Date, (ii) furnish to Seller and its Representatives such financial and operating data and other information relating to the Business or the operations of the Purchased Subsidiaries on or before the Closing Date and (iii) use commercially reasonable efforts to cause the employees of Buyer and its Subsidiaries (including the Purchased Subsidiaries) to cooperate with Seller and its Representatives, in each case, to the extent reasonably requested by Seller in connection with accounting, Tax, U.S. Securities and Exchange Commission (“SEC”) (or other applicable securities Law) reporting and other similar needs. From and after the Closing, Seller shall, and shall cause the Retained Entities to, (A) give Buyer and its Representatives reasonable access to the Business Records of Seller and the Retained Entities to the extent relating to the Business on or before the Closing Date, (B) furnish to Buyer and its Representatives such financial and operating data and other information to the extent relating to the Business on or before the Closing Date and (C) use commercially reasonable efforts to cause the employees of Seller and the Retained Entities to cooperate with Buyer and its Representatives, in each case, to the extent reasonably requested by Buyer in connection with accounting, Tax, SEC (or other applicable securities Law) reporting and other similar needs to the extent relating to the Business on or before the Closing Date. Any such access shall be granted (i) in a manner as not to interfere unreasonably with the conduct of the business of the Party granting such access, (ii) during normal business hours and (iii) at the sole cost and expense of the Party requesting such access. Notwithstanding the foregoing, any Party may withhold such access, as and to the extent necessary to avoid violation or waiver, to any document or information the disclosure of which could reasonably be expected to violate any Contract or any Law or would result in the waiver of any legal privilege or work-product privilege; provided that, to the extent practicable and in accordance with such Contract or Law, and in a manner that does not result in the waiver of any such privilege, such Party shall make reasonable and appropriate substitute disclosure arrangements under circumstances in which these restrictions apply; provided, further, that nothing in this Section 5.14(b) shall limit in any respect any rights any Party may have with respect to discovery or the production of documents or other information in connection with any litigation. Notwithstanding anything to the contrary in this Agreement, Buyer and Seller may satisfy their obligations set forth in this Section 5.14(b) by electronic means if physical access is not permitted under applicable Law or not practicable as a result of COVID-19 or any COVID-19 Measures.
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(c)    Notwithstanding the foregoing, the provisions of Article VI shall govern with respect to Tax-related matters to the extent any provision in Article VI is in conflict with Section 5.14(a) or Section 5.14(b).
Section 5.15    Confidentiality.
(a)    Subject to Section 5.16, Seller shall not, and shall cause the Retained Entities not to, and shall instruct their Representatives not to, directly or indirectly, for a period of three (3) years after the Closing Date, without the prior written consent of Buyer, disclose to any third party (other than each other and their respective Representatives) any confidential information with respect to the Business, the Purchased Subsidiaries, or Buyer or any of its Affiliates; provided that, the foregoing restriction shall not (i) apply to any information (w) pertaining to the Retained Business, (x) generally available to, or known by, the public (other than as a result of disclosure in violation of this Section 5.15(a)), (y) that was independently developed by Seller or any of the Retained Entities (other than by the Business prior to the Closing) without use of or reference to any confidential information with respect to the Business, the Purchased Subsidiaries, or Buyer or any of its Affiliates, or (z) that was made available to Seller by a third party that was not, to Seller’s knowledge, prohibited from disclosing such information, or (ii) prohibit any disclosure (x) required by Law or any listing agreement with any national securities exchange, or required or requested by any Governmental Authority or pursuant to a subpoena, civil investigative demand or other similar process by a court of competent jurisdiction, so long as, to the extent permitted by Law or any such listing agreement and reasonably practicable under the circumstances, Seller provides Buyer with reasonable prior notice of such disclosure and cooperates with Buyer, at Buyer’s request and expense, in connection with any efforts to prevent or limit the scope of such disclosure, (y) necessary to be made in connection with the enforcement of any right or remedy relating to any of the Transaction Documents or the transactions contemplated thereby or (z) of the terms of this Agreement, the Transaction Documents (other than the Commitment Letters and the Limited Guarantee) or the transactions contemplated hereby or thereby (including each Party’s rights and obligations hereunder and thereunder) to any purchaser or prospective purchaser or financing source or underwriter (or any of their respective representatives) of Seller or any of its Affiliates in connection with such Person’s financial, accounting, Tax or similar due diligence of Seller or any of its Affiliates in furtherance of an acquisition, financing or securities issuance, including any disclosure required under the Credit Facility, provided that any Person to whom confidential information is disclosed pursuant to this clause (z) owes a contractual or other professional duty of confidentiality to Seller or its Affiliates with respect to such disclosed information.
(b)    Subject to Section 5.16, Buyer shall not, and shall cause its Subsidiaries (including, after the Closing, the Purchased Subsidiaries) not to, and shall instruct its Representatives not to, directly or indirectly, for a period of three (3) years after the Closing Date, without the prior written consent of Seller, disclose to any third party (other than each other and their respective Representatives) any confidential information with respect to the Retained Business or the Retained Entities; provided that, the foregoing restriction shall not (i) apply to any information (x) generally available to, or known by, the public (other than as a result of disclosure in violation of this Section 5.15(b)), (y) that was independently developed by Buyer or any of its Subsidiaries (other than the Purchased Subsidiaries) without use of or reference to any confidential information with respect to the Retained Business or the Retained Entities or (z) that was made available to Buyer by a third party that was not, to Buyer’s knowledge, prohibited from disclosing such information, or (ii) prohibit any disclosure (y) required by Law or any listing agreement with any national securities exchange, or required or requested by any Governmental Authority or pursuant to a subpoena, civil investigative demand or other similar process by a court of competent jurisdiction, so long as, to the extent permitted by Law or any such listing agreement and reasonably practicable under the circumstances, Buyer provides Seller with reasonable prior notice of such disclosure and cooperates with Seller, at
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Seller’s request and expense, in connection with any efforts to prevent or limit the scope of such disclosure, or (z) necessary to be made in connection with the enforcement of any right or remedy relating to any of the Transaction Documents or the transactions contemplated thereby.
Section 5.16    Public Announcements. Seller and Buyer agree that no public release or announcement concerning the transactions contemplated hereby shall be issued or made by or on behalf of any Party without the prior consent of the other Party, except that (i) each of the Retained Entities and their Subsidiaries, on the one hand, and Buyer and its Subsidiaries (including the Purchased Entities from and after the Closing), on the other hand, may make announcements of information contained in a public announcement previously consented to hereunder from time to time to their respective employees, customers, suppliers and other business relations, and (ii) Seller and Buyer may make announcements as they may reasonably determine is necessary to comply with applicable Law (including SEC requirements) or the requirements of any agreement to which they or any of their Affiliates is a party as of the date hereof, including any listing agreement with any national securities exchange provided, that, to the extent practicable, the disclosing Party will use reasonable efforts to (x) advise and consult with the other Party before making such announcement and (y) provide such other Party a reasonable opportunity to review and comment on such announcement and consider in good faith any such comments. Notwithstanding the foregoing, Buyer and Seller shall cooperate to prepare a press release of each of Buyer and Seller (at the option of such Person) to be issued on or promptly (and in any event within one (1) Business Day) after the date of this Agreement and on the Closing Date. Notwithstanding anything to the contrary contained in this Section 5.16, (A) Buyer and Seller shall be permitted to disclose the execution of this Agreement and the consummation of the transactions contemplated by this Agreement (but not, for the avoidance of doubt, the terms and conditions (including price terms) of the transactions contemplated hereby except to the extent they reasonably determine such disclosure is necessary to comply with applicable Law (including SEC requirements) or the requirements of any listing agreement with any national securities exchange) on their respective websites and (B) Buyer and its Affiliates may disclose the transactions contemplated by this Agreement and any term hereof to its (or its or their respective sponsors’) direct or indirect, current and prospective, limited partners or other investors to the extent required by the governing documents with those limited partners or in connection with their ordinary course business operations, including private equity/fund formation, fundraising, marketing, syndication, informational or reporting activities, in each case, so long as such limited partners or other investors are subject to confidentiality obligations with respect to such information.
Section 5.17    Non-Solicitation; Non-Competition.
(a)    For a period of two (2) years following the Closing Date, Seller shall not, and shall not permit any Retained Entity to, directly or indirectly:
(i)    solicit or hire (or cause to be directly or indirectly solicited or hired) any Transferred Employee listed on Schedule 5.17(a)(i) (each, a “Business Covered Employee”); provided that, the foregoing restriction shall not apply to (A) generalized searches by use of advertising or recruiting efforts (including the use of search firms) that are not specifically targeted at such Business Covered Employees, or hiring any such Business Covered Employee who responds to any such general solicitation; or (B) soliciting or hiring any such Business Covered Employee who is no longer employed by Buyer or any of its Affiliates and has not been so employed by Buyer or its Affiliates for at least one hundred and eighty (180) days (provided, that such one hundred and eighty (180) day period shall not apply with respect to any such Business Covered Employee whose employment has been terminated by Buyer or its Affiliates without cause); or
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(ii)    solicit or hire (or cause to be directly or indirectly solicited or hired) any Transferred Employee (other than any Business Covered Employee); provided that, the foregoing restriction shall not apply to (A) generalized searches by use of advertising or recruiting efforts (including the use of search firms) that are not specifically targeted at such Transferred Employees, or hiring any such Transferred Employee who responds to any such general solicitation; (B) soliciting or hiring any such Transferred Employee who is no longer employed by Buyer or any of its Affiliates and has not been so employed by Buyer or its Affiliates for at least one hundred and eighty (180) days (provided, that such one hundred and eighty (180) day period shall not apply with respect to any such Transferred Employee who is no longer employed by Buyer or its Affiliates as a result of broad-based terminations or layoffs of such Transferred Employees); or (C) soliciting or hiring any such Transferred Employee who contacts Seller or any Retained Entity on his or her own initiative regarding employment without any solicitation or encouragement from Seller or such Retained Entity.
(b)    For a period of two (2) years following the Closing Date, Buyer shall not, and shall not permit any of its Subsidiaries (including, after the Closing, the Purchased Subsidiaries) to, directly or indirectly:
(i)    solicit or hire (or cause to be directly or indirectly solicited or hired) any employee of Seller or any Retained Entity set forth on Schedule 5.17(b)(i)(each, a “Seller Covered Employee”); provided that, the foregoing restriction shall not apply to (A) generalized searches by use of advertising or recruiting efforts (including the use of search firms) that are not specifically targeted at such Seller Covered Employees, or hiring any such Seller Covered Employee who responds to any such general solicitation; or (B) soliciting or hiring any such Seller Covered Employee who is no longer employed by Seller or any Retained Entity and has not been so employed by Seller or any Retained Entity for at least one hundred and eighty (180) days (provided, that such one hundred and eighty (180) day period shall not apply with respect to any such employee whose employment has been terminated by Seller or any Retained Entity without cause); or
(ii)    solicit or hire (or cause to be directly or indirectly solicited or hired) any employee of Seller or any Retained Entity (other than any Seller Covered Employee) who was first introduced to Buyer (x) in connection with the transactions contemplated by this Agreement or (y) prior to the Closing, by any Transferred Employee; provided that, the foregoing restriction shall not apply to (A) generalized searches by use of advertising or recruiting efforts (including the use of search firms) that are not specifically targeted at such employees, or hiring any such employee who responds to any such general solicitation; (B) soliciting or hiring any such employee who is no longer employed by Seller or any Retained Entity and has not been so employed by Seller or any Retained Entity for at least one hundred and eighty (180) days (provided, that such one hundred and eighty (180) day period shall not apply with respect to any such employee who is no longer employed by Seller or any Retained Entity as a result of broad-based terminations or layoffs of such employees); or (C) soliciting or hiring any such employee who contacts Buyer or its Affiliates on his or her own initiative regarding employment without any solicitation or encouragement from Buyer or its Affiliates.
(c)    For a period of three (3) years following the Closing Date, Seller shall not, and shall cause the Retained Entities not to, engage in any Competitive Activity; provided, however, that the foregoing shall not restrict Seller or any Retained Entity from (i) acquiring or owning as an investment, directly or indirectly, securities or any indebtedness of any Person that is engaged in any Competitive Activity if Seller or such Retained Entity does not, directly or indirectly, beneficially own in the aggregate more than ten percent (10%) of the outstanding
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securities or indebtedness of such Person or (ii) acquiring and continuing to hold or own any business or Person engaged in any Competitive Activity if such Competitive Activity accounts for the lesser of (A) less than fifteen percent (15%) of such business’ or Person’s consolidated annual revenues, or (B) less than ten million ($10,000,000) in such annual revenues (regardless of the percentage represented thereby), in each case measured over the trailing twelve (12) months prior to such acquisition being made (or, if earlier, the entry into the definitive agreement providing for the making of such acquisition). In the event Seller or any Retained Entity acquires any business or Person, the acquisition of which would violate this Section 5.17(c) (but for this sentence), such Seller or such Retained Entity shall not be in violation of this Section 5.17(c) if as soon as practicable, but in any event within ninety (90) days after the closing of such acquisition, Seller or such Retained Entity commences efforts to divest, and within twelve (12) months after the closing of such acquisition, Seller or such Retained Entity consummates such divestiture of, the portion of such acquired Person or business required in order to comply with this Section 5.17(c) (but for this sentence). “Competitive Activities” means the operation of the Business as of the Closing Date.
(d)    Notwithstanding anything to the contrary contained in Section 5.17(c), Section 5.17(c) shall not prevent, preclude, restrict or otherwise limit Seller or any Retained Entity from engaging in, conducting or having an ownership interest in the Retained Business, including the utilization of data or other information furnished to it, or received from a supplier or customer of the Business for use in the Retained Business. For the avoidance of doubt, nothing in Section 5.17(c) or anywhere else in this Agreement shall prevent, preclude, restrict or otherwise limit Seller or any other Retained Entity from engaging in or conducting any of the activities set forth in Schedule 5.17(d).
Section 5.18    Resignations. Seller shall, and shall cause its Subsidiaries to, cause to be delivered to Buyer duly signed resignations, effective at the time of Closing, of all directors of the Purchased Subsidiaries named in Schedule 5.18. Buyer shall not make, and shall cause the Purchased Subsidiaries not to make, any claim against any directors or officers of any Purchased Subsidiary relating to their mandate or activities for the respective Purchased Subsidiary up to and including the Closing or in connection with the transactions contemplated by this Agreement.
Section 5.19    Director and Officer Liability and Indemnification.
(a)    Without limiting any additional rights that any Person may have under any other agreement, from the Closing Date through the sixth (6th) anniversary of the Closing Date, Buyer will cause the Purchased Subsidiaries to indemnify, defend and hold harmless each present (as of immediately prior to the Closing) and former officer, director, employee, manager, managing member, member, partner (general or limited), fiduciary or agent of the Purchased Subsidiaries who at or prior to the Closing provided services primarily in respect of the Business (each, an “Indemnified Person”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any action, suit, claim, investigation or proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Indemnified Person is or was an officer, director, employee, manager, managing member, partner (general or limited), fiduciary or agent of the Purchased Subsidiaries at such time that the Indemnified Person provided services primarily in respect of the Business or (ii) matters existing or occurring at or prior to the Closing (including this Agreement and the transactions contemplated hereby), whether asserted or claimed prior to, at or after the Closing, to the fullest extent permitted under applicable Law. In the event of any such action, suit, claim, investigation or proceeding, (x) each Indemnified Person will be entitled to advancement of expenses incurred in the defense of any action, suit, claim, investigation or proceeding from Buyer within ten (10) Business Days of receipt by Buyer from the Indemnified Person of a
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request therefor (provided that any such Indemnified Person to whom expenses are to be advanced must provide a reasonable and customary undertaking to repay such advanced amounts if it is finally determined in a non-appealable ruling by a court of competent jurisdiction that such Person is not entitled to indemnification), (y) Buyer will not, and will cause its Subsidiaries (including the Purchased Subsidiaries) not to, settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, claim, investigation or proceeding in which indemnification could be sought by such Indemnified Person hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Person from all liability arising out of such action, suit, claim, investigation or proceeding (including all attorney’s fees and expenses) or such Indemnified Person otherwise consents and (z) Buyer will, and will cause its Subsidiaries (including the Purchased Subsidiaries) to, reasonably cooperate in the defense of any such matter.
(b)    For a period of six (6) years from the Closing Date, Buyer will not, and will cause each Purchased Subsidiary not to, amend, repeal or modify any provision in such Person’s certificate of incorporation, bylaws, limited liability company agreement or operating agreement (or equivalent organizational documents), or in any agreement set forth on Schedule 5.19(b), relating to the exculpation or indemnification of, or advancement of expenses to, any Indemnified Person as in effect as of the date of this Agreement in any manner adverse to any Indemnified Person, and Buyer will cause all such provisions to be observed by the Purchased Subsidiaries, it being the intent of the parties that any Indemnified Person will continue to be entitled to such exculpation, indemnification and advancement of expenses to the fullest extent permitted under applicable Law.
(c)    At or prior to the Closing, TopCo will (at Buyer’s expense) obtain irrevocable “tail” insurance policies covering directors’ and officers’ liability, employment practices liability and fiduciary liability naming the Indemnified Persons as direct beneficiaries (“D&O Tail Policies”) with a claims period of six (6) years from the Closing Date from an insurance carrier with the same or better credit rating as TopCo’s current insurance carrier with respect to directors’ and officers’ liability, employment practices liability and fiduciary liability insurance covering the Purchased Subsidiaries in an amount and scope at least as favorable as the Purchased Subsidiaries’ existing policies with respect to matters existing or occurring at or prior to the Closing; provided that, in the event that any claim is brought under any such D&O Tail Policy prior to the sixth (6th) anniversary of the Closing Date, such D&O Tail Policies will be maintained until final disposition thereof. Buyer and will not, and will cause the Purchased Subsidiaries not to, cancel or change such D&O Tail Policies in any respect. Notwithstanding anything to the contrary in this Section 5.19(c), Buyer shall not be required to pay any premium for the D&O Tail Policies in excess of two hundred and fifty percent (250%) of the annual premiums currently paid by TopCo for its existing directors’ and officers’ liability, employment practices liability and fiduciary liability insurance policies as of the date of this Agreement; provided that, if the annual premiums currently paid by the Company for such directors’ and officers’ liability, employment practices liability and fiduciary liability insurance policies exceed such amount, TopCo shall cause obtain insurance with the best coverage available for a cost not exceeding such amount.
(d)    The rights of indemnification and to receive advancement of expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which any Indemnified Person may at any time be entitled. No right or remedy herein conferred by this Section 5.19 is intended to be exclusive of any other right or remedy provided pursuant to this Agreement, and every other right and remedy provided pursuant to this Agreement shall be cumulative and in addition to every other right and remedy given pursuant to this Section 5.19. Buyer hereby acknowledges that the Indemnified Persons have or may, in the future, have certain rights to indemnification, advancement of expenses or insurance provided by other Persons (collectively, “Other Indemnitors”). Buyer hereby agrees that, with respect to any advancement
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or indemnification obligation owed, at any time, to a Indemnified Person by Buyer, any of its Subsidiaries or any Other Indemnitor, whether pursuant to any certificate of incorporation, bylaws, partnership agreement, operating agreement, indemnification agreement or other document or agreement set forth on Schedule 5.19(b), or pursuant to this Section 5.19 (any of the foregoing, an “Indemnification Obligation” ), and, after the Closing, Buyer shall cause the Purchased Subsidiaries to (i) jointly and severally, and at all times, be the indemnitors of first resort (i.e., the Purchased Subsidiaries’ obligations to an Indemnified Person shall be primary and any obligation of the Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by an Indemnified Person shall be secondary) and (ii) at all times, be required to advance, and shall be liable, jointly and severally, for, the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement or any Indemnification Obligation, without regard to any rights that an Indemnified Person may have against the Other Indemnitors. Furthermore, Buyer irrevocably waives, relinquishes and releases the Other Indemnitors from any and all claims (x) against the Other Indemnitors for contribution, subrogation, indemnification or any other recovery of any kind in respect thereof and (y) that the Indemnified Person must seek expense advancement, reimbursement or indemnification, from any Other Indemnitor before the Purchased Subsidiaries must perform their expense advancement, reimbursement and indemnification obligations under this Agreement. Buyer hereby further agrees that no advancement, indemnification or other payment by the Other Indemnitors on behalf of an Indemnified Person with respect to any claim for which an Indemnified Person has sought indemnification from the Purchased Subsidiaries shall affect the foregoing, and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement, indemnification or other payment to all of the rights of recovery of such Indemnified Person against the Purchased Subsidiaries, and the Purchased Subsidiaries shall jointly and severally indemnify and hold harmless against such amounts actually paid by the Other Indemnitors to or on behalf of such Indemnified Person to the extent such amounts would have otherwise been payable by the Purchased Subsidiaries under any Indemnification Obligation.
(e)    In the event that Buyer or any of the Purchased Subsidiaries or any of the respective successors or assigns of the foregoing (i) consolidates with or merges into any other Person or (ii) transfers all or substantially all of its properties or assets to any Person, then, in each case, the successors and assigns of such Persons or properties or assets, as the case may be, must expressly assume in writing and be bound by the obligations set forth in this Section 5.19 as a condition of succession of assignment.
(f)    This Section 5.19 is intended to be for the benefit of each of the Indemnified Persons and, after the Closing, may be enforced by any such Indemnified Person as if such Indemnified Person were a party to this Agreement. The obligations of Buyer and the Purchased Subsidiaries under this Section 5.19 will not be terminated or modified in such a manner as to adversely affect any Person to whom this Section 5.19 applies without the consent of such affected Person.
Section 5.20    Further Assurances. Seller and Buyer agree that, from and after the Closing Date, each of them shall, and shall cause their respective Affiliates to, execute and deliver such further instruments of conveyance and transfer and take such other action as may reasonably be requested by such Party to carry out the purposes and intents hereof. Each Party shall bear its own costs and expenses in compliance with this Section 5.20.
Section 5.21    Contact with Employees, Customers and Suppliers
. Until the Closing Date, Buyer shall not, and shall cause its Representatives not to, contact or communicate with the employees (other than the executive officers of Seller and its
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Subsidiaries pursuant to Section 5.02 and the Transferred Employees pursuant to Section 7.01), customers, potential customers, suppliers or licensors of Seller, any Purchased Subsidiary or any Retained Entity, or any other Persons having a business relationship with Seller, any Purchased Subsidiary or any Retained Entity, in each case, concerning the transactions contemplated hereby without the prior written consent of Seller; provided, that, for the avoidance of doubt, the foregoing shall not prohibit Buyer and its Representatives from contacting Buyer’s customers, suppliers, distributors or other material business relations that are also customers, suppliers, distributors or business relations of Seller or any of its Subsidiaries, in the ordinary course of business consistent with past practice in all material respects for matters unrelated to the transactions contemplated hereby, provided that Buyer and its Representatives do not disclose information concerning the transactions contemplated hereby.
Section 5.22    Financing.
(a)    Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary to arrange and obtain the Financing, including to (i) maintain in effect the Commitment Letters until the funding of the applicable Financing thereunder, (ii) satisfy on a timely basis all conditions and covenants applicable to Buyer in the Commitment Letters that are within Buyer’s reasonable control, (iii) negotiate, enter into, execute and deliver definitive agreements with respect thereto on a timely basis on terms and conditions no less favorable to Buyer, as applicable, than those contemplated by the applicable Commitment Letters (including, if applicable, any “market flex” provisions), (iv) enforce its rights under the Debt Commitment Letters in accordance with the terms thereof and (v) upon the satisfaction of the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at Closing, but subject to the fulfillment or waiver of such conditions), consummate the Financing at or prior to the Closing. Without limiting the generality of the foregoing, Buyer shall (A) give Seller prompt notice of any breach or default by any party to any Commitment Letter or definitive document related to the Financing of which Buyer becomes aware and (B) give Seller prompt notice of the receipt of any notice or other communication from any Person with respect to any (1) actual or potential breach, default or termination of the Commitment Letters or the definitive documents related to the Financing by any party thereto or (2) material dispute or disagreement between or among any parties to any Commitment Letter or any definitive document related to the Financing (for the avoidance of doubt, excluding ordinary course negotiations). Notwithstanding the foregoing, nothing herein shall require the Buyer to disclose any information if such disclosure would, in its reasonable discretion (i) jeopardize any attorney-client or other legal privilege or (ii) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which the Buyer or its Affiliates is a party).
(b)    Prior to the Closing, Seller shall, and shall cause the Purchased Subsidiaries and the Business to, use reasonable best efforts to provide to Buyer, at Buyer’s sole expense, reasonable cooperation requested by Buyer in connection with the Financing, including, (i) at reasonable times and upon reasonable notice, preparation for and participation in a reasonable number of meetings, conference calls, presentations, due diligence sessions, drafting sessions and sessions with rating agencies and prospective Financing Sources (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders or holders of, any Debt Financing) or other reasonable and customary debt financing activities, in each case, by officers of customary seniority and expertise of the Business; (ii) cooperating with the marketing efforts of Buyer and the Financing Sources relating to the Debt Financing, including providing reasonable assistance with the preparation of materials for rating agency presentations, information memoranda and packages, a confidential information memorandum and similar documents required in connection with the Debt Financing, including the marketing and syndication thereof (if applicable); (iii) as promptly as
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reasonably practicable, furnishing Buyer with the Required Financial Information; (iv) assisting with the preparation of, and executing and delivering, any customary credit agreements, purchase agreements, amendments, collateral documents, other definitive financing agreements, customary officer’s certificates and other certificates or documents with respect to the Debt Financing (including schedules thereto) as may be reasonably requested by Buyer; provided that such agreements or other documents do not become effective until the Closing; (v) furnishing Buyer promptly, and in any event at least five (5) Business Days prior to the Closing Date (to the extent requested at least ten (10) Business Days prior to the Closing Date), with all documentation and other information that the Financing Sources reasonably determine is required by any Governmental Body under applicable “know your customer”, beneficial ownership and anti-money laundering rules and regulations, including the USA PATRIOT Act; (vi) facilitating the pledge of and obtaining perfection in collateral, solely to the extent, in each case, the effectiveness of which are conditions to the funding of the Debt Financing; and (vii) executing and delivering customary authorization letters authorizing the distribution of information to prospective lenders with respect to the Debt Financing; provided, however, that nothing herein shall require such cooperation to the extent it would interfere unreasonably, in the discretion of Seller, with the business or the other operations of the Business. At Seller’s request, Buyer shall provide Seller’s outside accountants with all offering memoranda and similar information packages prepared in connection with the Debt Financing that contain the materials included in clause (a) of the Required Financial Information. Seller consents to the use of the Business’ logos in connection with the Debt Financing so long as such logos are used solely in a manner that is customary for such purpose and not intended to or reasonably likely to harm or disparage the Business or the reputation or goodwill of the Business.
(c)    Buyer shall indemnify and hold harmless Seller and its Affiliates and Representatives from and against, and shall pay and reimburse Seller and its Affiliates and Representatives for, any and all losses incurred or sustained by, or imposed upon, it in connection with the arrangement of the Financing, except to the extent such losses result from the (i) the gross negligence or willful misconduct of such indemnified Persons, (ii) financial information or data provided by or on behalf of the Business or (iii) Seller’s willful breach of its obligations under this Section 5.22.
(d)    If any portion of the Debt Financing becomes unavailable on the terms and conditions (including any flex provisions in the Debt Fee Letter) contemplated in the applicable Commitment Letter and such amount is required to consummate the transactions contemplated by this Agreement (taking into account any then available debt and equity financing), Buyer shall promptly notify Seller in writing and Buyer shall use its reasonable best efforts to, as promptly as reasonably practicable following the occurrence of such event, obtain such Financing or such portion of the Financing from the same or alternative sources and in an amount at least equal to the applicable Financing or such unavailable and required portion thereof, as the case may be (taking into account any then available debt and equity financing) (the “Alternate Debt Financing”). Buyer will promptly provide a copy of any commitment letter with respect to any Alternate Debt Financing (and any fee letter in connection therewith) to Seller (it being understood and agreed that any such fee letter may be redacted in the same manner as the Debt Fee Letter). Any reference in this Agreement to (i) the “Commitment Letters”, the “Debt Commitment Letter” or the “Debt Fee Letter” will be deemed to include the Debt Commitment Letter to the extent then in effect and any debt commitment letter in respect of any Alternate Debt Financing, (ii) the “Commitment Letters”, the “Debt Commitment Letter” and the “Debt Fee Letter” shall refer to such documents as otherwise amended, supplemented, modified or replaced in accordance with the terms of this Agreement, and (iii) the “Financing” means the financing contemplated by the Commitment Letters as amended, supplemented, modified or replaced in accordance with the terms of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 5.22 shall require, and in no event shall the reasonable best efforts of Buyer be deemed or construed to require, Buyer to
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(i) seek the Equity Financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letter or (ii) pay any fees or any interest rates applicable to the Debt Financing in excess in the aggregate of those contemplated by the Debt Commitment Letter (including the “market flex” provisions), or agree to any “market flex” term less favorable to Buyer than such corresponding “market flex” term contained in or contemplated by the Debt Commitment Letter as of the date hereof (in either case, whether to secure waiver of any conditions contained therein or otherwise).
(e)    Subject to the terms and conditions of this Agreement (and other than (x) as expressly set forth in this Section 5.22 with respect to any Alternate Debt Financing, (y) amendments, modifications or supplements to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties to the Debt Commitment Letter and (z) amendments contemplated by the Debt Commitment Letter as in effect on the date hereof), Buyer will not permit any amendment or modification to be made to, or any waiver of any provision or remedy pursuant to, the Commitment Letters if such amendment, modification or waiver would or would reasonably be expected to (i) reduce the aggregate amount of the Financing (in each case, except as expressly permitted therein) to an amount less than the amount necessary to fund the Financing Purposes; (ii) impose new or additional conditions or other terms or otherwise expand, amend or modify any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to (A) delay or prevent the Closing Date; or (B) make the timely funding of the Financing, or the satisfaction of the conditions to obtaining the Financing, less likely to occur in any respect; or (iii) adversely impact the ability of Buyer to enforce its rights against the other parties to the Commitment Letters or the definitive agreements with respect thereto (including any right to seek or obtain specific performance of the Commitment Letters).
(f)    Buyer acknowledges and agrees that the obtaining of the Financing, or any alternative financing (including the Alternate Debt Financing), is not a condition to the Closing and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing or any alternative financing, subject to fulfillment or waiver of the conditions to the Closing set forth in Article VIII and satisfaction of the Marketing Period. Notwithstanding anything herein to the contrary, in no event shall Seller’s breach of or non-compliance with this Section 5.22 be taken into account or considered for purposes of determining the satisfaction of the condition to Closing set forth in Section 8.02(b) or Buyer’s right of termination under Section 9.01(c), unless it was a willful material breach or non-compliance that proximately resulted in the Debt Financing not being available at Closing.
Section 5.23    Use of Names. Following the Closing, Seller shall, and shall cause the Retained Entities to, use reasonable best efforts to cease all use of the name “TransUnion Healthcare” or any confusingly similar name, including on stationery, business cards or signage, and in event shall not use the name “TransUnion Healthcare” or any confusingly similar name at any time following the four (4) month anniversary of the Closing Date.
Section 5.24    Exclusivity. Seller agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and shall not authorize, permit or instruct any of Affiliates to, and shall direct its and its Affiliates’ officers, directors, employees, investment bankers, attorneys, accountants, agents, advisors and representatives not to, directly or indirectly, (i) solicit, initiate, or purposefully facilitate or purposefully encourage the submission, making or announcement of any Acquisition Proposal, (ii) initiate, engage, participate in or purposefully encourage any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, or (iii) enter
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into or become bound by any letter of intent or other agreement with respect to any Acquisition Proposal. Without limiting the generality of the foregoing, Seller shall, and shall cause its Affiliates to, and shall direct its and its Affiliates’ investment bankers, attorneys, accountants, agents, advisors and representatives to, promptly cease and cause to be terminated any existing discussions or negotiations with any Person conducted prior to the date hereof with respect to any Acquisition Proposal. Promptly following the date hereof, Seller shall, or shall cause a representative of Seller to, instruct any such Person to return or destroy all nonpublic information provided to such Person in connection with such Person’s consideration of any Acquisition Proposal in accordance with the confidentiality agreements entered into between Seller or any of its Affiliates and any such Person. Seller shall promptly (but in any event within twenty-four (24) hours of receipt thereof) notify Buyer of any indication of interest, inquiry, proposal, offer or request for information relating to an Acquisition Proposal that is received by Seller or any of its Affiliates on and after the date hereof and prior to the Closing.
Section 5.25    Ahuja Share Transfer. After the date hereof and prior to the Closing (or, if necessary, for a period of no longer than three (3) months following the Closing), Seller shall, and shall cause its Affiliates to, reasonably cooperate in good faith with Buyer to procure the transfer of ownership of the Ahuja Share from Mr. Pankaj Ahuja to Buyer, a Subsidiary of Buyer (including any Purchased Subsidiary) or a designee of Buyer or one of its Subsidiaries (including any Purchased Subsidiary); provided, however, for the avoidance of doubt, the failure to procure any such transfer shall not, in and of itself, constitute a breach of this Section 5.25 or result in a failed condition to Closing, so long as Seller has cooperated in good faith with Buyer with respect thereto as aforesaid.
Section 5.26    Commercial Agreements. After the date hereof and prior to the Closing, Seller and Buyer shall cooperate with each other and negotiate in good faith to finalize the terms of two (2) master services agreements pursuant to which TRADS and Seller will provide certain services to the Business (collectively, the “Commercial Agreements”). The parties shall negotiate and finalize such Commercial Agreements based initially on the forms of the Commercial Agreements that the parties have previously commenced negotiating, but shall update those forms to include the terms set forth on Schedule 5.26, and to include such other revisions and terms as are mutually agreed.
ARTICLE VI
Tax Matters
Section 6.01    Tax Returns; Allocation of Taxes.
(a)    Tax Returns.
(i)    The Parties acknowledge and agree that, for U.S. federal Income Tax purposes, (x) the taxable year of the Purchased Subsidiaries will end on the Closing Date and (y) the Purchased Subsidiaries that are U.S. corporations will become members of the consolidated group of which Buyer is the common parent, or an Affiliate of Buyer is the common parent and Buyer is a member, beginning on the day after the Closing Date. To the extent required or permitted by Law, the Parties shall elect to close any taxable year of any Purchased Subsidiaries for state, local and foreign Tax purposes as of the close of business on the Closing Date.
(ii)    The Parties agree that any deduction from taxable income of the Purchased Subsidiaries arising in connection with the transactions contemplated by this Agreement shall be allocable to a Pre-Closing Tax Period for purposes of this Agreement and for all Income Tax purposes to the extent allowed pursuant to applicable Law and each Party shall, and shall cause its Affiliates to, prepare all Income Tax returns
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consistent therewith. Buyer shall not, and shall cause its Affiliates and the Purchased Subsidiaries not to, (x) make an election under Treasury Regulations Section 1.1502-76(b)(2)(ii)(D) to ratably allocate items (or any make any similar election or ratably allocate items under any corresponding provision of state, local or foreign Law) or (B) apply the “next day” rule of Treasury Regulation § 1.1502-76(b)(1)(ii)(B) with respect to any deduction from taxable income of the Purchased Subsidiaries arising in connection with the transactions contemplated by this Agreement.
(iii)    Seller shall prepare or cause to be prepared (x) all Tax Returns with respect to the Purchased Subsidiaries which are due on or prior to the Closing and (y) all Combined Tax Returns with respect to any taxable period of any Purchased Subsidiary ending on or before the Closing Date, whether filed before or after the Closing Date. Seller shall pay, or cause to be paid, any Taxes attributable to each Purchased Subsidiary for the taxable period of such Purchased Subsidiary ending on the Closing Date shown as due and payable on any Combined Tax Return that includes such taxable period. Buyer shall be responsible for all other Taxes attributable to the Purchased Subsidiaries.
(iv)    At its own expense, Buyer shall prepare and file, or cause to be prepared and filed, when due (taking into account any extensions of a required filing date), (x) all Tax Returns of the Purchased Subsidiaries for any taxable period ending on or before the Closing Date that are not described in Section 6.01(a)(iii) and (y) all Tax Returns of the Purchased Subsidiaries for any Straddle Tax Period or any Post-Closing Tax Period. Each such Tax Return that is Buyer’s responsibility for a taxable period ending on or before the Closing Date or for a Straddle Tax Period (collectively, the “Buyer-Filed Tax Returns”), shall be prepared in a manner consistent with the most recent past practices of the applicable Purchased Subsidiary with respect to such Tax Returns and without a change of any election or any accounting method, unless otherwise required pursuant to the terms of this Agreement or by applicable Law. Until the Adjustment Amount has been finalized pursuant to Section 2.04, Buyer shall deliver to Seller a draft of each material Buyer-Filed Tax Return, to the extent that any Taxes reported on such Buyer-Filed Tax Return could reasonably be expected to reduce the amount of the Purchase Price, at least twenty (20) days prior to the due date (including any applicable extension) therefor and, to the extent reasonably requested by Seller, use commercially reasonable efforts to promptly deliver to Seller any reasonable supporting documentation with respect to such Buyer-Filed Tax Return. Buyer shall consider in good faith Seller’s reasonable comments to the extent such comments are delivered to Buyer by Seller in writing no later than ten (10) days after Seller’s receipt of such draft; provided, that any disputes with respect to such comments shall be submitted to the Auditor for final resolution.
(b)    Notwithstanding anything to the contrary in this Agreement, all excise, sales, use, value added, registration stamp, recording, documentary, conveyancing, franchise, property, transfer, and similar Taxes, levies, charges and fees arising from the transactions contemplated by the Transaction Documents other than any Taxes incurred in connection with the Pre-Closing Intercompany Assignments (collectively, the “Transfer Taxes”) shall be borne one-half (50%) by Buyer and one-half (50%) by Seller, and Buyer or Seller (as applicable) shall promptly reimburse the other Party for any Transfer Taxes which such Party is required to pay under applicable Law. In addition, Buyer and Seller shall cooperate to prepare and timely file, or cause to be prepared and timely filed, at their shared expense, all Tax Returns that are required to be filed with respect to such Transfer Taxes.
(c)    In the case of any Straddle Tax Period, (i) real, personal and intangible property Taxes and any other similar Taxes levied on a periodic basis of any Person for a Pre-
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Closing Tax Period shall be equal to the amount of such Taxes for the entire Straddle Tax Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Tax Period that are in the Pre-Closing Tax Period and the denominator of which is the total number of days in the Straddle Tax Period and (ii) any other Taxes of any Person for any Pre-Closing Tax Period shall be computed as if such Tax period ended on the Closing Date, except that exemptions, allowances or deductions that are calculated on an annual basis shall be prorated on the basis of the number of days in the Straddle Tax Period elapsed through the Closing Date compared to the total number of days in the entire Straddle Tax Period and any credits with respect to a Straddle Tax Period shall be taken into account as though the relevant Taxable period ended on the Closing Date.
Section 6.02    Cooperation on Tax Matters. Buyer and Seller shall cooperate fully, and Buyer shall cause each of its Subsidiaries, including the Purchased Subsidiaries, to cooperate fully, as and to the extent reasonably requested by the applicable other Party, in connection with the preparation, execution and filing of Tax Returns and any audit, examination, inquiry, assessment, claim for refund, lawsuit, action, claim, arbitration, mediation or other proceeding at law or in equity by or before a Taxing Authority with respect to Taxes relating to the Purchased Subsidiaries (each a “Tax Claim”). Such cooperation shall include access to records and information which are reasonably relevant to any such Tax Return or Tax Claim, making personnel available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, executing Tax Returns and executing powers of attorney. Buyer shall cause its Affiliates, including the Purchased Subsidiaries, (i) to retain all books and records with respect to Tax matters pertinent to the Business and the Purchased Subsidiaries relating to any taxable period beginning on or before the Closing Date until the expiration of the applicable statute of limitations of the respective taxable periods (including any extensions thereof) and (ii) to abide by all record retention agreements entered into with any Taxing Authority. If Seller so requests, Buyer shall, and Buyer shall cause its Subsidiaries, including the Purchased Subsidiaries or the Business, to, provide Seller with copies of such books and records. Notwithstanding anything to the contrary in this Agreement, Seller shall not be required to (x) transfer to Buyer any Tax Returns or other Tax work papers of or including Seller or any of the Retained Entities or (y) except to the extent relating primarily to the Purchased Subsidiaries, provide to Buyer any right to access or review any Tax Return, Tax work papers or other similar documents or records of any Retained Entity or any Affiliate of any Retained Entity, including for the avoidance of doubt, any Combined Tax Return; provided that Seller shall be entitled to provide Buyer such access or review on a pro forma or redacted basis to the extent such information does not relate exclusively to the Purchased Subsidiaries or the Business.
Section 6.03    Buyer Covenants. Buyer covenants that it shall not, solely to the extent that such action could give rise to any Tax Liability or reduce any asset or benefit of Seller or any of its Affiliates with respect to Taxes, cause or permit any Purchased Subsidiary or any Affiliate of Buyer to (a) take any action on the Closing Date other than in the ordinary course of business; (b) make, change or revoke any Tax election or deemed Tax election (other than the Section 338(h)(10) Election) or change any accounting period for Tax purposes (including for non-U.S. tax reporting purposes) that would be effective for any Pre-Closing Tax Period; (c) file or amend or otherwise modify any Tax Return of any Purchased Subsidiary relating to a Pre-Closing Tax Period; (d) extend or waive the applicable statute of limitations with respect to any Taxes or Tax Return of any Purchased Subsidiary for a Pre-Closing Tax Period; (e) file any ruling or request with any Taxing Authority that relates to Taxes or Tax Returns of any Purchased Subsidiary for a Pre-Closing Tax Period; or (f) enter into any voluntary disclosure with any taxing authority regarding any Tax or Tax Returns of any Purchased Subsidiary for a Pre-Closing Tax Period, in each case, without the consent of Seller (such consent not to be unreasonably withheld, conditioned or delayed).
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Section 6.04    Tax Sharing Agreements. Any and all existing Tax sharing, Tax allocation or Tax indemnity agreements, except for this Agreement, between any Purchased Subsidiary, on the one hand, and Seller, any of the Retained Entities or any of their respective Affiliates (other than any Purchased Subsidiary), on the other hand, shall be terminated as of the Closing Date to the extent they relate to the Purchased Subsidiaries.
Section 6.05    Tax Claims.
(a)    Each of Buyer and Seller shall notify the other within fifteen (15) days of receipt of notice of any Tax Claim with respect to any Taxes or Tax Return of any Purchased Subsidiary.
(b)    Seller Parent shall control all proceedings and may make all decisions taken in connection with any Tax Claim for Combined Taxes or any Combined Tax Return, and Buyer shall have no right to participate in any such Tax Claim; provided, however, that (i) Seller shall keep Buyer reasonably informed of material developments relating to any such Tax Claim to the extent such development specifically relates to any Purchased Subsidiary and (ii) Seller shall not settle or compromise any such Tax Claim without Buyer’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed) if such settlement or compromise would reasonably be expected to result in any liability with respect to Taxes for Buyer or any of its Affiliates.
(c)    With respect to any Tax Claim not described in Section 6.05(b) relating to a Pre-Closing Tax Period and for which Seller or any of its Affiliates could reasonably be expected to have any liability, Buyer shall have the right to control, at its own expense, all proceedings and may make all decisions taken in connection with such Tax Claim (including selection of counsel). Buyer shall (i) keep Seller reasonably informed of material developments relating to any such Tax Claim and (ii) not settle or compromise any such Tax Claim without Seller’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed).
(d)    In the event of any conflict between this Section 6.05 and any other provision of this Agreement, including Section 5.13, this Section 6.05 shall control.
Section 6.06    Section 338(h)(10) Election. Seller Parent, Seller and Buyer shall jointly make and file elections under Section 338(h)(10) of the Code (and any comparable provisions of state, local or non-U.S. Tax Law) with respect to the deemed sale of the assets of TopCo and each of its Subsidiaries eligible for such election and, at the Closing, the parties shall execute an IRS Form 8023 (or successor form and any similar state, local or foreign forms), with all attachments (collectively, the “Section 338 Forms”). The Parties shall cooperate with each other to take all actions reasonably necessary and appropriate (including filing such additional forms, returns, elections, schedules and other documents as may be required) to effect and preserve timely elections in accordance with the provisions of Treasury Regulations Section 1.338(h)(10)-1 (or any comparable provisions of state, local or non-U.S. Tax Law) or any successor provisions.
Section 6.07    Allocation of Purchase Price.
(a)    Within ninety (90) days following the final determination of the Adjustment Amount pursuant to Section 2.04, Seller shall deliver a statement allocating the “aggregate deemed sales price” (as such term is defined in Treasury Regulations Section 1.338-4) with respect to each applicable Purchased Subsidiary in accordance with the Treasury Regulations promulgated under Section 338(h)(10) (the “Allocation Statement” ). If, within 20 days after the delivery of the Allocation Statement, Buyer notifies Seller in writing that Buyer objects to any
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allocation set forth thereon, Buyer and Seller shall negotiate in good faith to resolve such objection. If the Parties are unable to resolve their disagreement within the 20 days following any such notification by Buyer, then the Parties shall submit all such disputed items for resolution to an independent accounting firm of recognized national standing and mutually selected by Buyer and Seller. The decisions of such accounting firm with respect such disagreement between Buyer and Seller shall be final and binding upon the Parties, and the Allocation Statement shall be revised, as applicable, to incorporate such decision (such revised Allocation Statement, the “Final Allocation Statement” ). The fees and expenses of such accounting firm shall be borne equally by the Parties.
(b)    Seller Parent, Buyer and their respective Affiliates shall (i) be bound by the Final Allocation Statement for purposes of determining any Taxes and (ii) prepare and file their Tax Returns on a basis consistent with the Final Allocation Statement. Seller Parent, Buyer and their respective Affiliates shall not take any Tax position inconsistent with the Final Allocation Statement; provided, however, that nothing contained herein shall prevent Seller Parent, Buyer or any of their respective Affiliates from settling any proposed deficiency or adjustment by any Tax authority based upon or arising out of the allocation in the Final Allocation Statement, and neither Seller Parent, Buyer or any of their respective Affiliates shall be required to litigate before any court, any proposed deficiency or adjustment by any Taxing Authority challenging such allocation.
Section 6.08    Post-Closing Payments. The Parties agree that any payment of the Adjustment Amount pursuant to Section 2.04(e) shall be treated as an adjustment to the Purchase Price and to treat such adjustments consistently therewith for U.S. federal income and other applicable Tax purposes, to the extent permitted by applicable Law.
ARTICLE VII
Employee Matters
Section 7.01    Employee Communications and Consultations. From and after the date hereof until the Closing Date, Buyer and Seller shall cooperate in good faith regarding any written communications to be distributed to any Business Employees relating to the transactions contemplated by this Agreement or post-Closing terms of employment, and, until the Closing Date (or, with respect to communications relating to offers of employment by Buyer to the Business Employees pursuant to Section 7.02 below, until the date on which Buyer delivers such offers), Buyer shall consult with Seller and obtain Seller’s consent (such consent not to be unreasonably withheld and to be provided within three (3) Business Days following the request) before distributing any such communications to any Business Employees. In addition, Buyer and Seller will reasonably cooperate and provide such information as either Party may reasonably request from time to time in connection with any information and consultation processes relating to the transactions contemplated by this Agreement.
Section 7.02    Offers of Employment. To the extent that the employment of any Business Employee does not transfer to Buyer or one of its Affiliates upon the transfer of the Purchased Subsidiaries, not less than seven (7) calendar days prior to the Closing Date, Buyer shall, or shall cause one of its Affiliates to, offer employment, effective at 12:01 a.m., local time, on the Closing Date (the “Transfer Time”), to each Business Employee in accordance with this Agreement. Notwithstanding the foregoing, with respect to any Business Employee who, as of the Closing Date, is on short-term or long-term disability or who is otherwise designated as inactive (an “Inactive Employee”), Buyer shall, or shall cause one of its Affiliates to, offer employment upon such Inactive Employee’s return to active employment at Seller, provided that such employee returns to active employment at Seller before the date that is one hundred and twenty (120) days after the Closing Date. Offers pursuant to this Section 7.02 shall (a) be for a substantially comparable position at the same or a nearby geographic work location, in each case,
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to those as of the Closing Date, (b) be sufficient to avoid statutory (if any), common Law (if any), or contractual severance obligations that have been disclosed in Schedule 7.02 and (c) otherwise comply in all respects with this Article VII and applicable Law. In any jurisdiction where the employment of a Business Employee can transfer to Buyer or one of its Affiliates upon the transfer of the Purchased Subsidiaries, Buyer and Seller agree to take, or cause their respective Affiliates to take, all actions required under applicable Law and all other actions as are reasonably necessary or appropriate such that the employment of such Business Employee will transfer to Buyer or one of its Affiliates automatically as of the Transfer Time. Nothing herein shall be construed as a representation or guarantee by Seller that any particular employee shall accept Buyer’s offer of employment and become a Transferred Employee or shall continue in an employment relationship with Buyer or one or more of its Affiliates following Closing. Notwithstanding anything to the contrary in this Section 7.02 or this Agreement, in Buyer’s sole discretion, such offers of employment may be made contingent on the Business Employee satisfying Buyer’s generally applicable background checks, drug screens, work authorization verification, and similar requirements imposed upon similarly situated Buyer employees and other requirements to execute and deliver confidentiality and restrictive covenant agreements in the same form used by Buyer for its similarly situated employees.
Section 7.03    Effect of Transfer. Seller and Buyer intend that the transactions contemplated by this Agreement should not constitute a separation, termination or severance of employment of any Business Employee prior to or upon the occurrence of the Transfer Time, and that such employee will have continuous and uninterrupted employment immediately before and immediately after the Transfer Time. To the extent Buyer fails to offer employment to the Business Employees in accordance with Section 7.02 above and Section 7.04(a) below, and except as set forth in Section 7.19 below, Buyer shall bear all the Liabilities, obligations and costs relating to, and shall indemnify and hold harmless Seller and its Affiliates from and against, any claims made by any such Business Employee for any statutory or common law severance, gratuity or other separation benefits, any contractual or other severance or separation benefits and any other legally mandated payment obligations (including any compensation payable during a mandatory termination notice period and any payments pursuant to a judgment of a court having jurisdiction over the Parties) and for any other claim, cost, liability or obligation (whether related to compensation, benefits or otherwise), in each case, arising out of or in connection with (i) the termination of employment of any such Business Employee by Seller or any of the Retained Entities on or within fourteen (14) calendar days after the Closing Date; or (ii) the failure of Buyer or its Affiliates to continue the employment of any Business Employee who is entitled to transfer to Buyer or its Affiliates pursuant to the transfer of the Purchased Subsidiaries, in each case, in accordance with this Agreement or applicable Law, including to the extent such severance or other Liabilities arise out of or relate to the agreements (or sections of the agreements) set forth on Schedule 7.03. In addition, and without limiting the generality of the foregoing, to the extent that Seller is obligated to pay severance or other Liabilities in accordance with the agreements (or sections of the agreements) set forth on Schedule 7.03, Buyer agrees to reimburse Seller for one hundred percent (100%) of the severance or other Liabilities actually paid, provided that Seller confirms to Buyer in writing that (i) all requirements to receive severance or other Liabilities pursuant to the applicable agreement set forth on Schedule 7.03 have been satisfied (and including that the Buyer and its Affiliates must be included as released parties in any required release of claims) and (ii) Seller has paid such amounts. Buyer shall promptly notify Seller in the event that a Business Employee who is a party to an agreement set forth on Schedule 7.03 incurs a termination of employment with Buyer on or prior to the date that is twelve (12) months following the Closing Date. Effective as of 11:59 p.m. local time on the Closing Date, and except as provided for in the Transition Services Agreement, each Transferred Employee shall cease all active participation in and accrual of benefits under the Employee Plans that are not Assumed Plans.
Section 7.04    Continuation of Benefits.
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(a)    With respect to each Transferred Employee, following the Closing until the one-year anniversary of the Closing Date (such period, the “Benefits Continuation Period”), Buyer shall, and shall cause its Affiliates to (and shall cause any other Person providing compensation and benefits on their behalf to), except as set forth in Section 7.06: (i) provide to such Transferred Employee no less favorable base salary and wage rates, as applicable, than the base salary and wage rates provided by Seller and the Retained Entities immediately prior to the Closing; (ii) provide to such Transferred Employee an annual cash bonus opportunity that is no less favorable than the annual cash bonus opportunity provided by Seller and the Retained Entities to such Transferred Employee immediately prior to the Closing; and (iii) maintain employee benefits under plans, programs and arrangements that will provide benefits to such Transferred Employee that are no less favorable, in the aggregate, than the benefits provided to similarly situated employees of Buyer or its Subsidiaries. Notwithstanding the foregoing, nothing contemplated by this Agreement shall be construed as (x) limiting the obligations of Buyer or any of its Affiliates under applicable Law, or as necessary to preclude claims from Business Employees for severance, notice or termination pay, to maintain the terms, conditions and employee benefits of any Business Employees for any period of time, or (y) requiring either Buyer or any of its Affiliates to continue the employment of any Transferred Employee for any period after the Closing Date.
(b)    Following the Closing, Buyer shall establish a retention bonus pool in an aggregate amount of up to $3,000,000 (the “Retention Pool”) for purposes of issuing retention bonus awards to eligible participants; provided, that, such retention bonus awards will vest over the twelve-month period following the Closing Date, subject to such participant remaining an employee or service provider of Buyer or its Subsidiaries (including the Purchased Subsidiaries). The allocation, amounts, recipients and terms and conditions of awards under the Retention Pool will be determined by mutual agreement between Buyer and Seller. The Retention Pool shall be funded equally by Buyer and Seller. Notwithstanding the foregoing, (i) in the event that the full amount of the Retention Pool has not been allocated within sixty (60) days following the Closing Date (such unallocated amount, the “Unallocated Retention Pool”), Buyer shall, not later than thirty (30) days thereafter, pay Seller an amount equal to fifty percent (50%) of the Unallocated Retention Pool, and (ii) in the event that the full amount of the awarded Retention Pool has not been paid or become payable upon the completion of the vesting period of such retention bonus awards (such unpaid and non-payable amount, the “Unpaid Retention Pool”), Buyer shall, not later than thirty (30) days following the completion of the vesting period of such retention bonus awards, pay Seller an amount equal to fifty percent (50%) of the Unpaid Retention Pool.
Section 7.05    Closing Year Annual Bonus. In the event that the Closing occurs after the first quarter of a calendar year, Seller and the Retained Entities shall pay each Transferred Employee a pro rata amount, if any, earned under Seller’s and/or the Retained Entities’ annual cash bonus plan or program through the Closing Date for the fiscal year in which the Closing occurs, on or within thirty (30) days following the Closing (the “Seller Bonus Payment” ). Buyer shall assume, or cause its Affiliates to assume, all obligations with respect to bonus amounts payable to Transferred Employees under any Assumed Plan with respect to the performance period in which the Closing occurs, other than the Seller Bonus Payments.
Section 7.06    Severance Benefits. With the exception of any Transferred Employee that is eligible for severance benefits or other termination benefits pursuant to the agreements set forth on Schedule 7.03, with respect to each other Transferred Employee who is involuntarily terminated by Buyer or any of its Affiliates without cause during the Benefits Continuation Period, Buyer shall, or shall cause its Affiliates to, provide severance or termination benefits to each such Transferred Employee that are no less favorable than those severance or termination benefits that such Transferred Employee is eligible for as of immediately prior to the Closing Date under an Employee Plan identified in Schedule 7.06 or any Assumed Subsidiary Plan identified in Schedule 7.06, provided that such Transferred Employee first executes and does not
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revoke a general release of claims in favor of Seller, Buyer, and each of their respective Affiliates.
Section 7.07    Assumption of Agreements. Buyer agrees to honor and assume, or to cause its Subsidiaries to honor and assume, in accordance with their current terms, each agreement and arrangement between Seller and any of the Seller Affiliates, on the one hand, and a Business Employee, on the other hand, in each case that is listed on Schedule 7.07(a), each employment agreement with a Business Employee who primarily works and resides in India and each Purchased Subsidiary Plan. In connection with the assumption of the agreements listed on Schedule 7.07(a), Buyer agrees that in the event that a Business Employee that is a party to such agreement is involuntarily terminated by Buyer or any of its Affiliates without cause prior to the date of the final payment thereunder to such Business Employee, and such Business Employee executes and allows to become effective a general release of claims, Buyer shall, within thirty (30) days following the date of such termination, pay such final payment to such Business Employee. For the avoidance of doubt except as set forth in Section 7.03, Buyer shall have no liability with respect to any agreement and arrangement listed on Schedule 7.07(b).
Section 7.08    Service Credit. With respect to each Transferred Employee, effective from and after the Closing, Buyer shall, and shall cause its Affiliates to, (a) recognize, for all purposes (other than benefit accrual under a defined benefit pension plan and other than for all purposes in connection with equity compensation) under all plans, programs and arrangements established or maintained by Buyer or its Affiliates for the benefit of such Transferred Employees, service with Seller and the Retained Entities prior to the Closing to the extent such service was recognized under the corresponding Employee Plan or Purchased Subsidiary Plan covering such Transferred Employee, including for purposes of eligibility, vesting and benefit levels and accruals, in each case, except where it would result in a duplication of benefits, (b) use commercially reasonable efforts to waive any pre-existing condition exclusion, actively-at-work requirement or waiting period under all employee health and other welfare benefit plans established or maintained by Buyer or its Affiliates for the benefit of the Transferred Employees, except to the extent such pre-existing condition, exclusion, requirement or waiting period would have applied to such individual under the corresponding Employee Plan or Purchased Subsidiary Plan covering such Transferred Employee and (c) use commercially reasonable efforts to provide full credit for any co-payments, deductibles or similar payments made or incurred by such Transferred Employee under a corresponding Employee Plan or Purchased Subsidiary Plan covering such Transferred Employee prior to the Closing for the plan year in which the Closing occurs.
Section 7.09    Work Authorization. If any Business Employee requires a work permit, employment pass, visa or other legal or regulatory approval for his or her employment with Buyer or its Subsidiaries, Buyer shall, and shall cause its Subsidiaries to, use their commercially reasonable efforts to cause any such permit, pass, visa or other approval to be obtained and in effect prior to the Transfer Time. Buyer agrees to serve as the successor-in-interest with respect to Seller’s U.S. immigration related filings submitted on behalf of applicable Business Employees, with no material changes in the positions, geographic work locations, and base salaries reflected in the immigrant petitions, nonimmigrant filings, and labor certification applications.
Section 7.10    Vacation. Seller shall pay to each Business Employee in the United States (“US Business Employee”) an amount sufficient to compensate such US Business Employee for the accrued and unused paid time off which has accrued to such US Business Employee through the Closing Date, with such payments to be made by Seller on or following the Closing in a manner consistent with Seller’s past practices for the payment of accrued, unused paid time off upon termination of employment or as required by applicable Law.
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Section 7.11    Retirement Plans. Buyer shall cause a defined contribution plan maintained by Buyer or its Affiliates that includes a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code (and a related trust exempt from tax under Section 501(a) of the Code) (as applicable, the “Buyer 401(k) Plan”) to allow each Transferred Employee to make a “direct rollover” to the Buyer 401(k) Plan of the account balances of such Transferred Employee (including promissory notes evidencing any outstanding loans) under the Employee Plan that is a defined contribution plan that includes a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code (a “Seller 401(k) Plan”) in which such Transferred Employee participated prior to the Closing if such direct rollover is elected in accordance with applicable Law by such Transferred Employee. The rollovers described herein shall comply with applicable Law, and each party shall make all filings and take any actions required of such party under applicable Law in connection therewith.
Section 7.12    Health and Welfare Benefits. Other than with respect to any Assumed Plan and except as set forth in the Transition Services Agreement, Seller shall be, or shall cause the Retained Entities to be, responsible for all (a) medical, vision, dental and prescription drug claims incurred by any Transferred Employee or his or her dependents, (b) claims for short-term and long-term disability income benefits incurred by any Transferred Employee and (c) claims for group life, travel and accident and accidental death and dismemberment insurance benefits incurred by any Transferred Employee, in each case, on or prior to the Transfer Time. Without limiting any obligations under any Assumed Plan and except as set forth in the Transition Services Agreement, Buyer shall be, or shall cause its Affiliates to be, responsible for all (i) medical, vision, dental and prescription drug claims for expenses incurred by any Transferred Employee or his or her dependents, (ii) claims for short-term and long-term disability income benefits incurred by any Transferred Employee and (iii) claims for group life, travel and accident and accidental death and dismemberment insurance benefits incurred by any Transferred Employee, in each case, after the Transfer Time. Except in the event of any claim for workers compensation benefits, for purposes of this Agreement, the following claims and liabilities shall be deemed to be incurred as follows: (x) medical, vision, dental or prescription drug benefits (including hospital expenses), upon provision of the services, materials or supplies comprising any such benefits and (y) short- and long-term disability, life, accidental death and dismemberment and business travel accident insurance benefits, upon the death, illness, injury or accident first giving rise to such benefits.
Section 7.13    COBRA. Seller and the Retained Entities shall be solely responsible for compliance with the requirements of Section 4980B of the Code and Part 6 of Subtitle I of ERISA, including provision of continuation coverage (within the meaning of COBRA), with respect to all Business Employees, and their respective eligible spouses and dependents, for whom a qualifying event (within the meaning of COBRA) occurs at any time on or prior to the Closing Date (including qualifying events that occur in connection with the transactions contemplated by this Agreement). Buyer shall be responsible for compliance with such health care continuation requirements with respect to all Business Employees and their respective eligible spouses and dependents for whom a qualifying event (within the meaning of COBRA) occurs after the Closing Date.
Section 7.14    Workers’ Compensation. Other than with respect to any Assumed Plan, Seller and the Retained Entities shall be responsible for all claims for workers compensation benefits that are incurred prior to the Transfer Time by any Transferred Employee to the extent such claims are covered under a workers’ compensation plan or policy maintained or owned by Seller or one of the Retained Entities. Without limiting any obligations under any Assumed Plan, Buyer and its Affiliates shall be responsible for all claims for workers compensation benefits that are incurred on or after the Transfer Time by any Transferred Employee. A claim for workers compensation benefits shall be deemed to be incurred when the event giving rise to the claim (the “Workers Compensation Event”) occurs. If the Workers Compensation Event occurs over a
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period both preceding and following the Transfer Time, the claim shall be the joint responsibility and liability of Seller and Buyer and shall be equitably apportioned between Seller, on the one hand, and Buyer, on the other, based upon the relative periods of time that the Workers Compensation Event transpired preceding and following the Transfer Time.
Section 7.15    Buyer Benefit Plans. No later than the Closing Date and except as set forth on the Transaction Services Agreement, Buyer shall establish, maintain or cause to be established or maintained, at its own expense, all retirement, pension, employee welfare and employee benefit plans for Transferred Employees as are necessary to comply with its obligations pursuant to this Article VII (each, a “Buyer Plan”), as applicable. Buyer shall indemnify and hold harmless Seller and its Affiliates from any liabilities, obligations, commitments, claims and losses incurred by Seller or any of its Affiliates relating to any Assumed Plan or, except as set forth on the Transition Services Agreement, any delay in establishing any such Buyer Plan. Effective as of the Transfer Time and except as set forth in the Transition Services Agreement, each Transferred Employee shall cease to participate in any Employee Plan (other than any Assumed Plan) as an active employee.
Section 7.16    Employment Tax Reporting Responsibility. Seller and Buyer hereby agree to follow the standard procedure for employment tax withholding as provided in Section 4 of Rev. Proc. 2004-53, I.R.B. 2004-35. Accordingly, Seller shall have employment tax reporting responsibilities for the wages and other compensation they pay to Business Employees and Buyer shall have employment tax reporting responsibilities for the wages and other compensation it pays to Transferred Employees.
Section 7.17    WARN. Seller agrees to provide any required notice under and to otherwise comply with, and to retain all Liabilities relating to, the federal Worker Adjustment and Retraining Notification Act, and any similar state, local or foreign laws, and the regulations implemented thereto (“WARN”), with respect to any event affecting Business Employees on or prior to the Closing Date (including as a result of the transactions contemplated by this Agreement), except that Buyer shall retain all Liability under WARN arising out of or resulting from Buyer’s failure to offer employment to the Business Employees in accordance with Section 7.02. Further, Buyer agrees to provide any required notice under and to otherwise comply with, and to assume all Liabilities relating to WARN with respect to any event affecting Transferred Employees after the Closing Date.
Section 7.18    Third-Party Rights. The provisions contained in this Agreement with respect to any Business Employee are included for the sole benefit of the Parties and shall not create any right in any other Person, including any Business Employee (or dependent or beneficiary of any of the foregoing). Nothing herein shall be deemed an amendment to or creation of any plan providing benefits to any Business Employee or shall be deemed to prohibit or restrict Buyer or any of its Subsidiaries from terminating the employment of any Transferred Employee following the Transfer Time.
Section 7.19    No Buyer Liability for Seller Parent Equity Awards. Notwithstanding anything contained herein, in no event shall Buyer have any Liability or obligation (under Section 7.03 above or otherwise) with respect to any equity award granted to any Business Employee pursuant to the TransUnion Amended and Restated 2015 Omnibus Incentive Plan or any severance or other payment in respect of any such equity award.
ARTICLE VIII
Conditions to Closing
Section 8.01    Conditions to the Obligations of Buyer and Seller. The obligations of Buyer and Seller to consummate, or cause to be consummated, the transactions contemplated by
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this Agreement are subject to the satisfaction of the following conditions at or prior to the Closing, any one or more of which may be waived in writing by the Parties:
(a)    all waiting periods under the HSR Act relating to the transactions contemplated hereby shall have expired or been terminated; and
(b)    other than with respect to any Regulatory Approval not described in Section 8.01(a), no Law or Governmental Order shall be in effect enjoining, making illegal or otherwise prohibiting the consummation of the transactions contemplated by this Agreement (each, a “Closing Legal Impediment”); provided, however, that the foregoing shall not be a condition to Buyer’s obligations to consummate, or cause to be consummated, the transactions contemplated by this Agreement unless Buyer shall have taken all actions required by Section 5.03 (as qualified by any “reasonable best efforts” or similar standards set forth therein) to prevent the occurrence or entry of any such Closing Legal Impediment and to remove or appeal as promptly as possible any such Closing Legal Impediment.
Section 8.02    Conditions to the Obligations of Buyer. The obligations of Buyer to consummate, or cause to be consummated, the transactions contemplated by this Agreement are also subject to the satisfaction of the following conditions at or prior to the Closing, any one or more of which may be waived in writing by Buyer:
(a)    Seller shall have performed in all material respects all of its obligations hereunder, and complied in all material respects with all of its covenants hereunder, in each case required to be performed or complied with by it at or prior to the Closing;
(b)    (i) the Fundamental Representations (other than the first three sentences of Section 3.05(b) shall be true and correct in all material respects at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that by their terms address matters only as of an earlier specified date, which shall be true and correct in all material respects only as of such date), (ii) the representations and warranties of Seller contained in the first three sentences of Section 3.05(b) shall be true and correct in all respects (subject to de minimis inaccuracies) at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that by their terms address matters only as of an earlier specified date, which shall be true and correct in all respects (subject to de minimis inaccuracies) only as of such date), (iii) the representations and warranties of Seller contained in Section 3.07(b) shall be true and correct in all respects at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that by their terms address matters only as of an earlier specified date, which shall be true and correct in all respects only as of such date) and (iv) the representations and warranties of Seller contained in Article III of this Agreement (other than the Fundamental Representations and those contained in Section 3.07(b)), without giving effect to materiality or Material Adverse Effect qualifications, shall be true and correct at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that by their terms address matters only as of an earlier specified date, which shall be true and correct only as of such date), except where the failure of such representations and warranties described in this clause (iv) to be so true and correct would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect; and
(c)    Seller shall have delivered to Buyer a certificate signed by an officer of Seller, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 8.02(a) and Section 8.02(b) have been fulfilled.
Section 8.03    Conditions to the Obligations of Seller. The obligations of Seller to consummate, or cause to be consummated, the transactions contemplated by this Agreement are
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also subject to the satisfaction of the following conditions at or prior to the Closing, any one or more of which may be waived in writing by Seller:
(a)    Buyer shall have performed, in all material respects, all of its obligations hereunder, and complied in all material respects with all its covenants hereunder, in each case required to be performed or complied with by it at or prior to the Closing;
(b)    (i) the representations and warranties of Buyer contained in Section 4.01 (Existence and Power), Section 4.02 (Authorization), Section 4.05 (Financial Ability), Section 4.07 (Solvency) and Section 4.09 (Finders’ Fees) shall be true and correct in all material respects at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that by their terms address matters only as of an earlier specified date, which shall be true and correct in all material respects only as of such date) and (ii) the other representations and warranties of Buyer contained in Article IV of this Agreement, without giving effect to materiality or similar qualifications, shall be true and correct at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that by their terms address matters only as of an earlier specified date, which shall be true and correct only as of such date), except where the failure of such representations and warranties described in this clause (ii) to be so true and correct would not reasonably be expected to, individually or in the aggregate, interfere with, prevent or delay the ability of Buyer to enter into and perform its obligations under the Transaction Documents to which it is a party or consummate the transactions contemplated thereby; and
(c)    Buyer shall have delivered to Seller a certificate signed by an officer of Buyer, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 8.03(a) and Section 8.03(b) have been fulfilled.
Section 8.04    Frustration of Conditions. Neither Buyer nor Seller may rely on the failure of any condition set forth in Section 8.02 or Section 8.03 to be satisfied if such failure was primarily caused by the failure of Buyer, on the one hand, or Seller, on the other hand, respectively, to comply with its covenants contained in Section 5.03.
ARTICLE IX
Termination
Section 9.01    Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing:
(a)    by mutual written agreement of Seller and Buyer;
(b)    by written notice from either Party to the other Party, if any Governmental Authority under the HSR Act has issued a final, non-appealable Governmental Order (other than a temporary restraining order) or Law permanently enjoining or otherwise prohibiting the transactions contemplated by this Agreement; provided that, this right of termination shall not be available to any Party whose failure to comply with its obligations under this Agreement has been the primary cause of, or has primarily resulted in, such Governmental Order or Action;
(c)    by written notice from Buyer to Seller, if there is a material breach of any representation or warranty set forth in Article III hereof or any covenant or agreement to be complied with or performed by Seller pursuant to the terms of this Agreement, in each case, that would cause the failure of a condition set forth in Section 8.02(a) or Section 8.02(b), as applicable, to be satisfied at the Closing; provided that, in each case under this clause (c), Buyer may not terminate this Agreement unless (i) Buyer has given written notice of such material breach to Seller and Seller has not cured such material breach by the earlier of thirty (30) days
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after receipt of such notice and one (1) Business Day prior to the Outside Date or (ii) such breach is not capable of being cured; provided, further, that Buyer is not then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement;
(d)    by written notice from Seller to Buyer, if there is a material breach of any representation or warranty set forth in Article IV hereof or any covenant or agreement to be complied with or performed by Buyer pursuant to the terms of this Agreement, in each case, that would cause the failure of a condition set forth in Section 8.03(a) or Section 8.03(b), as applicable, to be satisfied at the Closing; provided that, in each case under this clause (d), Seller may not terminate this Agreement unless (i) Seller has given written notice of such material breach to Buyer and Buyer has not cured such material breach by the earlier of thirty (30) days after receipt of such notice and one (1) Business Day prior to the Outside Date or (ii) such breach is not capable of being cured; provided, further, that Seller is not then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement;
(e)    by written notice from either Buyer to Seller or Seller to Buyer, if any of the conditions set forth in Sections 8.01, 8.02 or 8.03 of this Agreement (other than those conditions that, by their nature, are to be satisfied at the Closing), as applicable, have not been satisfied or waived on or before April 26, 2022 (the “Outside Date”); provided, however, that this right of termination shall not be available to any Party whose failure to comply with its obligations under this Agreement has been the primary cause of, or has primarily resulted in, the failure of the conditions provided in Sections 8.01, 8.02 or 8.03, as applicable, to be satisfied before such date; or
(f)    by Seller, if (i) all of the conditions to the obligations of Buyer to consummate the Closing set forth in Section 8.01 and Section 8.02 (other than those conditions that by their terms are to be satisfied by the delivery of documents or taking of any other action at the Closing, but subject to such conditions being capable of being satisfied at the Closing) have been satisfied or waived and the date on which the Closing should have taken place pursuant to Section 2.03 (taking into account, for the avoidance of doubt, the requirement set forth in Section 2.03 that the Marketing Period shall have ended) has occurred, (ii) Seller has delivered to Buyer a written notice confirming that, if Buyer performed its obligations hereunder to consummate the Closing and the Financing was funded, Seller is ready, willing and able to consummate the Closing and (iii) Buyer has failed to consummate the Closing pursuant to Section 2.03 within one (1) Business Days after the delivery of the written notice specified in clause (ii) above; provided, that Seller remains ready to consummate the Closing as of immediately prior to the expiration of such one (1) Business Day period.
Section 9.02    Effect of Termination. Except as otherwise set forth in this Section 9.02, in the event of the termination of this Agreement pursuant to Section 9.01, this Agreement shall forthwith become void and have no effect, without any Liability on the part of any Party or its Affiliates, or its or their respective Representatives or equityholders, other than Liability of Seller or, subject to Section 9.03 (with respect to payment of the Reverse Termination Fee and any associated Termination Fee Collection Costs), Buyer, as the case may be, for any willful and material breach of this Agreement occurring prior to such termination; provided, however, that a failure of Buyer to consummate the acquisition of the Purchased Interests in breach of this Agreement shall be deemed to be willful and material whether or not Buyer had sufficient funds to consummate such transactions. Subject to Section 9.03 (with respect to payment of the Reverse Termination Fee and any associated Termination Fee Collection Costs), in determining losses or damages payable to Seller for Buyer’s willful and material breach, the Parties acknowledge and agree that such losses and damages shall not be limited to reimbursement of expenses or out-of-pocket costs, and shall include the benefit of the bargain lost by Seller (taking into consideration relevant matters, including other combination opportunities and the time value of money), which shall be deemed to be damages payable to Seller. The provisions of Section
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5.16, Section 5.22(c), this Section 9.02, Section 9.03, Article X (other than Section 10.14), the Limited Guaranty and the Confidentiality Agreement shall survive any termination of this Agreement.
Section 9.03    Termination Fees.
(a)    In the event that this Agreement is validly terminated (i) by Seller pursuant to Section 9.01(d) (arising from a material breach of Buyer’s covenants set forth in Section 5.22 or a material breach of Buyer’s representations or warranties set forth in Section 4.05) or Section 9.01(f) or (ii) by Buyer or Seller pursuant to Section 9.01(e), if at the time of, or prior to, such termination pursuant to Section 9.01(e), Seller would have been entitled to terminate this Agreement pursuant to Section 9.01(d) (arising from a material breach of Buyer’s covenants set forth in Section 5.22 or a material breach of Buyer’s representations or warranties set forth in Section 4.05) or Section 9.01(f)), then Buyer shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Seller or its designee, a nonrefundable fee in an amount equal to $112,775,000 (the “Reverse Termination Fee”) by wire transfer of immediately available funds. Solely for the purposes of establishing the basis for the amount thereof, the Parties hereby agree that the payment of the Reverse Termination Fee is a liquidated damage and not a penalty and the payment of the Reverse Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. Under no circumstances will Buyer be required to pay the Reverse Termination Fee, or any portion thereof, more than once, it being understood that in no event will the Reverse Termination Fee be payable on more than one (1) occasion.
(b)    If Buyer fails to timely pay the Reverse Termination Fee when due pursuant to this Section 9.03 and, in order to obtain such payment, Seller commences an Action that results in a judgment against Buyer or the Guarantors for the Reverse Termination Fee, Buyer shall pay to Seller or its designee by wire transfer of immediately available funds Seller’s and its Affiliates’ reasonable and documented out-of-pocket costs of collection and reasonable and documented out-of-pocket fees and expenses (including reasonable attorneys’ fees) actually incurred in connection with such Action (the “Termination Fee Collection Costs”).
(c)    Notwithstanding anything to the contrary in this Agreement, in the event this Agreement is terminated in circumstances where the Reverse Termination Fee is payable and is paid by Buyer pursuant to Section 9.03(a), then the sole and exclusive remedy of Seller and its Affiliates and each of its and its Affiliates’ respective current, former or future shareholders, partners, members, officers, directors, managers, employees, agents, advisors and other Representatives, and their respective assignees (collectively, the “Seller Related Parties”), whether at law, in equity, in contract, in tort or otherwise, against any of Buyer, the Guarantors, any Equity Financing Source, any Financing Source, any of their respective Affiliates, any of their and their Affiliates’ respective direct or indirect current, former or future shareholders, partners, members, officers, directors, managers, employees, agents, advisors and other Representatives, and their respective assignees (collectively, the “Buyer Related Parties”)) for any breach, loss or damage in connection with this Agreement, any other Transaction Document, or the transactions contemplated hereby (and the termination of this Agreement or any matter forming the basis for such termination (including for any assertion of any willful and material breach or otherwise) shall be to receive payment of the Reverse Termination Fee plus the Termination Fee Collection Costs, if any, and Buyer will not (nor will any other Buyer Related Party) have any liability or obligation to Seller or any other Seller Related Party relating to or arising out of this Agreement or any other Transaction Document, or in respect of any other document or theory of law or equity or in respect of any oral representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise, in each case, other than any obligations of the Guarantors under the Guarantee. Notwithstanding anything to the contrary herein, (i) this Section 7.3 shall not relieve Buyer or its
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Affiliates from any liability for any breaches of the Confidentiality Agreement and (ii) it is agreed and understood that, notwithstanding anything herein to the contrary, Seller shall be entitled, under all circumstances, to pursue claims for both specific performance or other injunctive or equitable relief under Section 10.14 as well as any Reverse Termination Fee hereunder, but in no event shall Seller be entitled to both specific performance to consummate the Closing and payment of the Reverse Termination Fee. Upon receipt of the Reverse Termination Fee plus the Termination Fee Collection Costs, if any, by Seller, Seller agrees to cause any Action pending in connection with this Agreement or the transactions contemplated hereby by any of Seller or its Affiliates, and to use its reasonable best efforts to cause any such Action by any other Seller Related Party against Buyer or any Buyer Related Party, to be dismissed with prejudice promptly, and in any event within three (3) Business Days, after receipt of the Reverse Termination Fee plus the Termination Fee Collection Costs, if any.
(d)    Notwithstanding anything herein to the contrary, Seller (on behalf of itself and the Seller Related Parties) hereby waives any rights or claims against any Financing Source or any of its Affiliates or any of its or their respective direct or indirect current, former or future shareholders, partners, members, officers, directors, managers, employees, agents, advisors or other Representatives, or their respective assignees (collectively, including the Financing Sources, the “Financing Source Related Parties”) in connection with this Agreement, the Debt Financing or the Debt Commitment Letter, whether at law or equity, in contract, in tort or otherwise, and Seller (on behalf of itself and the Seller Related Parties) agrees not to commence (and if commenced, agrees to dismiss or otherwise terminate) any Action against any Financing Source Related Party in connection with this Agreement, the Debt Financing or the Debt Commitment Letter, other than, for the avoidance of doubt, from and after the Closing Date, under any definitive agreements executed in connection with the Debt Financing (but not, for the avoidance of doubt, under this Agreement) to the extent Seller and/or its Affiliates are party thereto. In furtherance and not in limitation of the foregoing waiver, it is agreed that no Financing Source Related Party shall have any liability for any claims, losses, settlements, damages, costs, expenses, fines or penalties to Seller or the Seller Related Parties in connection with this Agreement or the transactions contemplated by this Agreement, other than, for the avoidance of doubt, from and after the Closing Date, under any definitive agreements executed in connection with the Debt Financing (but not, for the avoidance of doubt, under this Agreement) to the extent Seller and/or its Affiliates are party thereto. Notwithstanding the foregoing, nothing in this Section 9.03 shall in any way limit or modify the rights and obligations of Buyer (or its permitted assignee) under the Debt Commitment Letter.
ARTICLE X
Miscellaneous
Section 10.01    Survival; Certain Waivers. The Parties, intending to modify any otherwise applicable statute of limitations, agree that:
(a)    Each of (i) the representations and warranties (other than those set forth in Section 3.24 and Section 4.10, which shall survive the Closing until the expiration of the statute of limitation applicable to a claim for Fraud under the Laws of the State of Delaware) and (ii) the covenants and agreements (to the extent such covenant or agreement contemplates or requires performance by such party prior to the Closing) of the parties, in each case, set forth in this Agreement or any other document contemplated hereby, or in any certificate delivered hereunder or thereunder, will terminate effective immediately as of the Closing (and there shall be no liability after the Closing in respect thereof), except, in the case of clause (i) for any claim of Fraud against the Party committing such Fraud. Each covenant and agreement requiring performance at or after the Closing, will, in each case, expressly survive Closing until fully performed or complied with, and nothing in this Section 10.01(a) will be deemed to limit any rights or remedies of any Person for breach of any such surviving covenant or agreement (with it
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being understood that (A) Buyer will also be liable for breach of any covenant or agreement requiring performance by the Purchased Subsidiaries after the Closing, and (B) nothing herein will limit or affect Buyer’s or its Affiliates’ liability for the failure to pay the Estimated Purchase Price or any Adjustment Amount (in whole or in part) or pay any other amounts payable by them (in whole or in part) as and when required by this Agreement).
(b)    Each Party knowingly, willingly, irrevocably and expressly acknowledges and agrees that the agreements contained in this Section 10.01 are an integral part of the transactions contemplated hereby and that, without the agreements set forth in this Section 10.01, Seller would not enter into this Agreement.
(c)    Notwithstanding anything to the contrary contained herein, Section 5.22, Section 9.03(c) (solely with respect to the Financing Sources), Section 9.03(d), Section 10.07, Section 10.09, Section 10.11 and this Section 10.01 (or any other provision of this Agreement to the extent a waiver of such provision would modify the substance of the foregoing) may not be waived, in whole or in part, in a manner adverse to any of the Financing Sources without the prior written consent of the adversely affected Financing Sources.
Section 10.02    Notices. All notices and other communications between the Parties shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) when delivered by FedEx or other nationally recognized overnight delivery service; or (c) when sent by email (without receipt of an automated notice of failure of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, addressed as follows:
if to Buyer, to:
nThrive, Inc.
200 North Point Center
Suite 400
Alpharetta, Georgia 30022
Attention:    Hemant Goel
        Dan Mulligan
Email:     hemant.goel@nthrive.com
        dmulligan@nthrive.com

with a copy (which shall not constitute notice) to:
Sidley Austin LLP
1999 Avenue of the Stars, 17th Floor
Los Angeles, California 90067
Attention:    Mehdi Khodadad
        Nicolai M. Schwarz-Gondek
Email:    mkhodadad@sidley.com
        nschwarz@sidley.com

if to Seller, to:
Trans Union LLC
555 W. Adams St.
Chicago, Illinois 60661
Attention:     Heather Russell
    Rachel Mantz
Email:     Heather.Russell@transunion.com
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    Rachel.Mantz@transunion.com

with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
330 North Wabash Ave, Suite 2800
Chicago, Illinois 60611
Attention:    Jonathan P. Solomon
    Nathan J. Davis
Email:    Jonathan.Solomon@lw.com
    Nathan.Davis@lw.com

or to such other address or addresses as a Party may from time to time designate in writing.
Section 10.03    Waiver. No waiver by any Party of any default, misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation or breach or affect in any way any rights arising by virtue of any prior or subsequent occurrence. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and executed by the Party sought to be charged with such waiver.
Section 10.04    Expenses. Except as otherwise provided in this Agreement (including Section 2.04, Section 5.03(b), Section 5.11(a), Section 5.19(c), Section 5.22(b) and Section 6.01) each Party shall bear its own expenses incurred in connection with this Agreement and the transactions contemplated hereby, whether or not such transactions shall be consummated, including all fees of its legal counsel, financial advisers and accountants; provided, however, that Buyer may pay any such fees or expenses incurred by Buyer or on its behalf directly or through one of its Affiliates (including the Purchased Subsidiaries following the Closing).
Section 10.05    Assignment. No Party shall assign this Agreement or any part hereof without the prior written consent of the other Party; provided, however, that, without obtaining the written consent of Seller, (a) Buyer may assign some or all of its rights hereunder (including its rights to acquire the Purchased Interests) to one or more of its Affiliates or one or more of its direct or indirect wholly owned Subsidiaries as of the Closing and (b) each of Buyer and its Affiliates may assign, at any time and in their sole discretion, their respective rights under this Agreement to any Financing Source pursuant to the terms of the Debt Financing for purposes of creating a security interest herein or otherwise assigning as collateral in respect of the Debt Financing; provided, further, that (i) no such assignment shall relieve Buyer of its Liabilities hereunder and (ii) Buyer shall not be entitled to assign rights hereunder to the extent such assignment could result in any Tax or other expense for Seller and its Affiliates and their respective equityholders or Representatives. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
Section 10.06    Governing Law. This Agreement, and all issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement and the exhibits and schedules hereto, and all claims and disputes arising hereunder or in connection herewith, whether purporting to sound in contract or tort, or at law or in equity, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, including its statutes of limitation, without giving effect to any choice of Law or conflict of Law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.
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Section 10.07    Jurisdiction; Waiver of Jury Trial.
(a)    The Parties hereby irrevocably agree and consent to be subject to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, to the extent such court declines jurisdiction, first to any federal court, or second, to any state court, each located in Wilmington, Delaware, and hereby waive the right to assert the lack of personal or subject matter jurisdiction or improper venue in connection with any Action or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby brought by any Party or its Affiliates against the other Party or its Affiliates. In furtherance of the foregoing, each of the parties hereto (a) waives the defense of inconvenient forum, (b) agrees not to commence any Action arising out of this Agreement or any transactions contemplated hereby other than in any such court and (c) agrees that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit or judgment or in any other manner provided by Law. Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and irrevocably agree (i) that any legal proceeding, whether in law or in equity, in contract, in tort or otherwise, involving the Financing Sources arising out of, or relating to, this Agreement, the Debt Financing or the performance of services thereunder or related thereto will be subject to the exclusive jurisdiction of any state or federal court sitting in the State of New York in the borough of Manhattan and any appellate court thereof, and each Party submits for itself and its property with respect to any such proceeding to the exclusive jurisdiction of such court; (ii) not to bring or permit any of their Affiliates to bring or support anyone else in bringing any such legal proceeding in any other court; (iii) that service of process, summons, notice or document by registered mail addressed to them at their respective addresses provided in any applicable debt commitment letter will be effective service of process against them for any such legal proceeding brought in any such court; (iv) to waive and hereby waive, to the fullest extent permitted by law, any objection which any of them may now or hereafter have to the laying of venue of, and the defense of an inconvenient forum to the maintenance of, any such Action in any such court; (v) any such legal proceeding will be governed and construed in accordance with the Laws of the State of New York; and (vi) agrees that no Financing Sources shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature.
(b)    EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE DEBT FINANCING. EACH PARTY (I) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND EACH OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 10.07(b).
Section 10.08    Captions; Counterparts. The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or e-mail shall be as effective as delivery of a manually executed counterpart of the Agreement. Minor variations in the form of the signature page, including footers from earlier versions of this Agreement or any such other document, will be disregarded in determining a Party’s intent or the effectiveness of such signature.
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Section 10.09    Rights of Third Parties. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the entities expressly named as parties hereto, any right or remedies under or by reason of this Agreement; provided, however, that, notwithstanding the foregoing (a) the past, present and future directors, officers, employees, incorporators, members, partners, equityholders, Affiliates, agents, attorneys, advisors and other Representatives of the Parties, and any Affiliate of any of the foregoing (and their successors, heirs and representatives), are intended third-party beneficiaries of, and may enforce, Section 10.15, (b) Prior Business Counsel and the Designated Persons shall be intended third party beneficiaries of, and may enforce, Section 10.16, (c) after the Closing, the Indemnified Persons shall be intended third party beneficiaries of, and may enforce, Section 5.19, (d) Seller’s Affiliates and Representatives shall be intended third party beneficiaries of, and may enforce, Section 5.22(c) (e) the Buyer Related Parties, the Seller Related Parties, and the Financing Source Related Parties shall be intended third party beneficiaries of, and may enforce, Section 9.03(c) and Section 9.03(d), and (f) the Financing Sources shall be intended third party beneficiaries of, and may enforce, this Section 10.09 and Sections 5.22, 10.01, 10.05, 10.07 and 10.11.
Section 10.10    Entire Agreement. The Transaction Documents and the Confidentiality Agreement constitute the entire agreement between the Parties relating to the transactions contemplated hereby and supersede any other agreements, whether written or oral, that may have been made or entered into by any of the Parties or any of their respective Affiliates or Representatives relating to the transactions contemplated hereby; provided, however, that the Confidentiality Agreement is hereby amended to automatically terminate in its entirety, effective as of the Closing, except for Section 12 (Standstill) thereto, which shall terminate on the date that is eighteen (18) months following the date of the Confidentiality Agreement. No representations, warranties, covenants, understandings or agreements, oral or otherwise, relating to the transactions contemplated by the Transaction Documents exist between the Parties except, in each case, as expressly set forth in the Transaction Documents and the Confidentiality Agreement.
Section 10.11    Amendments. This Agreement may be amended or modified in whole or in part, only by a duly authorized agreement in writing executed in the same manner and by the same Parties (but not necessarily by the same individuals) as this Agreement and which makes reference to this Agreement. Notwithstanding anything to the contrary contained herein, any modification, waiver or termination of this Section 10.11 or Sections 5.22, 9.03(c), 9.03(d), 10.01(c), 10.05, 10.07, 10.09 or the definition of “Financing Sources” (or any other provision of this Agreement to the extent such modification, waiver or termination would modify the substance of such Sections or such definition) that is adverse to any Financing Sources will not be effective without the prior written consent of such Financing Sources.
Section 10.12    Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The Parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the Parties.
Section 10.13    Disclosure Schedules. Inclusion of a matter in any section of the Disclosure Schedules in relation to a representation, warranty, or covenant which addresses matters having a material adverse effect, or which is qualified by materiality, shall not be deemed an indication that such matter does or does not, or may or may not, have a material adverse
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effect, or that such matter is or is not material. Likewise, the inclusion of a matter in any section of the Disclosure Schedules in relation to a representation or warranty shall not be deemed an indication that such matter necessarily would or would not, or may or may not, breach such representation or warranty absent its inclusion on such section of the Disclosure Schedules. Neither the specification of any dollar amount in the representations and warranties contained in the Agreement nor the inclusion of any specific item in any Disclosure Schedule is intended to imply that such amounts (or any higher or lower amounts), or the items so included in such Disclosure Schedule (or any other items), in each case, are or are not material or within or outside the ordinary course of business. The Parties acknowledge and agree that (a) the inclusion of any item, information or other matter in the Disclosure Schedules that is not required by this Agreement to be so included is solely for the convenience of Buyer, (b) the disclosure by Seller of any item, information or other matter in the Disclosure Schedules shall not be deemed to constitute an acknowledgement by Seller that such item, information or other matter is required to be disclosed by the terms of this Agreement or that such item, information or other matter is material, (c) if any section of the Disclosure Schedules lists an item or information in such a way as to make its relevance to the disclosure required by or provided in another section of the Disclosure Schedules or the statements contained in any Section of Article III reasonably apparent from the face of such disclosure, such item or information shall be deemed to have been disclosed in or with respect to such other section, notwithstanding the omission of an appropriate cross-reference to such other section or the omission of a reference in the particular representation and warranty to such section of the Disclosure Schedules, (d) except as provided in clause (c) above, headings have been inserted in the Disclosure Schedules for convenience of reference only, (e) the Disclosure Schedules are qualified in their entirety by reference to specific provisions of this Agreement and (f) the Disclosure Schedules and the information and statements contained therein are not intended to broaden or constitute, and shall not be construed as broadening or constituting, representations, warranties or covenants of Seller except as and to the extent provided in this Agreement. The information contained in the Disclosure Schedules is provided solely for purposes of making disclosures to Buyer under the Agreement. Seller does not assume any responsibility to any Person that is not a party to the Agreement for the accuracy or completeness of any information therein. Except for the Parties, without the prior written consent of Seller, no Person may rely on the Disclosure Schedules for any purpose. In disclosing such information, Seller does not waive any attorney-client privilege to the extent applicable to such information or any protection afforded by the work-product doctrine to the extent applicable to any of the matters disclosed in these Schedules. Any item or information disclosed in the Disclosure Schedules shall be subject to the terms of the Confidentiality Agreement.
Section 10.14    Enforcement. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy would occur in the event that the Parties do not perform the provisions of this Agreement (including any Party failing to take such actions as are required of it hereunder in order to consummate this Agreement) in accordance with its specified terms or otherwise breach such provisions. The Parties acknowledge and agree that (A) the Parties shall be entitled, in addition to any other remedy to which they are entitled at Law or in equity, to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof; and (B) the right of specific enforcement is an integral part of the transactions contemplated by this Agreement and without that right, neither Seller nor Buyer would have entered into this Agreement; provided, however, that, except as set forth in the following sentence of this Section 10.14, in no event shall Seller have the right to seek specific performance to cause the Closing to occur. Notwithstanding anything to the contrary contained in this Agreement (but subject to and without limiting Section 9.03), it is explicitly agreed that Seller shall have the right to an injunction, specific performance or other equitable remedies in connection with enforcing Buyer’s obligations to consummate the transactions contemplated by this Agreement and to cause Buyer to enforce the obligations of the Equity Financing Sources under the Equity Commitment Letter in order to cause the Equity Financing to be funded to fund
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the Financing Purposes in accordance with and subject to the terms and conditions set forth in the Equity Commitment Letter if, and only if, each of the following conditions has been satisfied: (i) all of the conditions set forth in Section 8.01 and Section 8.02 (other than those conditions that by their terms are to be satisfied by the delivery of documents or taking of any other action at the Closing, but subject to such conditions being capable of being satisfied at the Closing) have been satisfied or waived and remain satisfied or waived at the time when the Closing would have occurred but for the failure of the Equity Financing to be funded, (ii) Buyer shall have failed to complete the Closing by the date the Closing is required to have occurred pursuant to Section 2.03, (iii) the Debt Financing has been funded or will be funded pursuant to the terms of the Debt Commitment Letter or the definitive debt agreements, as applicable, if the Equity Financing is funded in accordance with the terms of the Equity Commitment Letter at the Closing and (iv) Seller has confirmed in a written notice delivered to Buyer that if specific performance is granted and the Financing is funded, Seller is ready, willing and able to consummate the Closing. For the avoidance of doubt, (A) in no event shall Seller be entitled to both specific performance to consummate the Closing and payment of the Reverse Termination Fee (but Seller shall be entitled to pursue all such remedies concurrently), and (B) in no event shall Seller or its Affiliates be entitled to seek the remedy of specific performance of this Agreement directly against any Financing Source Related Parties. Each Party agrees to waive any requirement for the securing or posting of any bond in connection with such equitable remedies. The Parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, nor to assert that a remedy of monetary damages would provide an adequate remedy.
Section 10.15    Non-Recourse. This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of or related to this Agreement or the transactions contemplated hereby may only be brought against, the entities that are expressly named as Parties (together with any assignee of Buyer pursuant to Section 10.05 and the Guarantors) and then only with respect to the specific obligations set forth herein with respect to such named Party. No past, present or future director, officer, employee, incorporator, member, partner, equityholder, Affiliate, agent, attorney, advisor or other Representative of any Party, or Affiliate of any of the foregoing (excluding Seller, Buyer and the Guarantors), shall have any Liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or Liabilities of Seller or Buyer under this Agreement (whether for indemnification or otherwise) or of or for any claim based on, arising out of or related to this Agreement. Nothing in this Section 10.15 (or elsewhere in this Agreement (including Sections 3.24, 4.10 or 10.01) shall be deemed to limit, prohibit or impact any rights or claims of any party to (or third party beneficiary of) a Transaction Document or the Confidentiality Agreement against any other party thereto pursuant to the terms thereof.
Section 10.16    Privileged Matters; Conflicts of Interest.
(a)    The Parties agree that their respective rights and obligations to maintain, preserve, assert or waive any attorney-client and work product privileges belonging to the other Parties with respect to the Business and the Retained Businesses (collectively, “Privileges”) shall be governed by the provisions of this Section 10.16(a). With respect to matters relating to the Retained Businesses, and with respect to all Business Records, documents, communications or other information (collectively, “Information”) of Seller or any of its Affiliates prepared in connection with this Agreement or the transactions contemplated hereby, Seller shall have sole authority to determine whether to assert or waive any Privileges, including the right to assert any Privilege against Buyer and its Subsidiaries. Buyer shall not, and shall cause its Subsidiaries (including, after the Closing, the Purchased Subsidiaries) not to, take any action without the prior written consent of Seller that would reasonably be expected to result in any waiver of any such Privileges of Seller. After the Closing, Buyer shall have sole authority to determine whether to
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assert or waive any Privileges with respect to matters relating to or belonging to the Business (except for Information prepared in connection with this Agreement, the other Transaction Documents or the transactions contemplated hereby and thereby). However, Buyer may not assert any such Privileges of the Business related to pre-Closing advice or communications relating to the Business against Seller and its Affiliates. Seller shall not, and shall cause the Retained Entities not to, take any action after the Closing without the prior written consent of Buyer that would reasonably be expected to result in any waiver of any such Privileges of Buyer or the Business. The rights and obligations created by this Section 10.16 shall apply to all documents and information as to which Seller or its Affiliates or Buyer or its Subsidiaries (including, after Closing, the Purchased Subsidiaries) would be entitled to assert or has asserted a Privilege without regard to the effect, if any, of the transactions contemplated hereby (the “Privileged Information”). Upon receipt by Seller or its Affiliates, or Buyer or its Subsidiaries (including, after the Closing, the Purchased Subsidiaries), as the case may be, of any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other or if Seller or its Affiliates or Buyer or its Subsidiaries (including, after the Closing, the Purchased Subsidiaries), as the case may be, obtains knowledge that any current or former employee of Seller, its Affiliates or the Purchased Subsidiaries has received any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other Party, such Party shall promptly notify the other of the existence of the request and shall provide the other a reasonable opportunity to review the Privileged Information and to assert any rights it may have under this Section 10.16 or otherwise to prevent the production or disclosure of Privileged Information. Seller’s transfer of any Business Records or other Information to Buyer in accordance with this Agreement and Seller’s agreement to permit Buyer to obtain Information existing prior to the Closing are made in reliance on the Parties’ respective agreements, as set forth in Section 5.15 and this Section 10.16, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by Seller or its Affiliates, or Buyer or its Subsidiaries (including, after the Closing, the Purchased Subsidiaries), as the case may be. The access to Business Records and other Information being granted pursuant to Sections 5.02, 5.13 and 5.14 and Article VI, the agreement to provide witnesses and individuals pursuant to Section 5.13 and the disclosure to Seller or its Affiliates, or Buyer or its Subsidiaries (including, after the Closing, the Purchased Subsidiaries) of Privileged Information relating to the Business or the Retained Businesses pursuant to this Agreement in connection with the transactions contemplated hereby shall not be asserted by Seller or Buyer to constitute, or otherwise be deemed, a waiver of any Privilege that has been or may be asserted under this Section 10.16 or otherwise.
(b)    Conflicts of Interest. Buyer hereby waives and agrees not to assert, and after the Closing, Buyer shall cause the Purchased Subsidiaries to waive and not assert, any conflict of interest arising out of or relating to the representation, after the Closing, of Seller or any of the Retained Entities or Seller’s other Affiliates, or any of their respective officers, employees or directors (any such person, a “Designated Person”) in any matter involving this Agreement or any of the other Transaction Documents or transactions contemplated hereby or thereby, by any legal counsel (“Prior Business Counsel”) currently representing any Designated Person in connection with this Agreement or any of the other Transaction Documents or transactions contemplated hereby or thereby. Without limiting the foregoing, Buyer and Seller agree that, following the Closing, Prior Business Counsel may serve as counsel to any Designated Person in connection with any matters related to this Agreement and the transactions contemplated hereby, including any litigation, claim or obligation arising out of or relating to this Agreement or the transactions contemplated by this Agreement notwithstanding any representation by Prior Business Counsel prior to the Closing, and Buyer (on behalf of itself and its Subsidiaries (including, after the Closing, the Purchased Subsidiaries)) hereby agrees that, in the event that a dispute arises after the Closing between Buyer or any of its Subsidiaries (including, after the Closing, the Purchased Subsidiaries), on the one hand, and any Designated
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Person, on the other hand, Prior Business Counsel may represent one or more Designated Persons in such dispute even though the interests of such Person(s) may be directly adverse to Buyer or its Subsidiaries (including, after the Closing, the Purchased Subsidiaries) and even though Prior Business Counsel may have represented such Purchased Subsidiary in a matter substantially related to such dispute.
Section 10.17    Currency. Unless otherwise specified in this Agreement or as required by applicable Law, all references to currency, monetary values and dollars set forth herein shall mean United States (U.S.) dollars and all payments hereunder shall be made in U.S. dollars. The parties agree that to the extent this Agreement provides for any valuation, measurement or test as of a given date based on an amount specified in U.S. dollars and the subjects of such valuation, measurement or test are comprised of items or matters that are, in whole or in part, denominated other than in U.S. dollars, such non-U.S. dollar amounts shall be converted into U.S. dollars using the foreign exchange rates published by Bloomberg as the Composite 5:00 p.m. New York closing rates (CMPN) one (1) Business Day prior to the date in question; provided, however, that for purposes of any calculation or estimate to be provided by one Party to another Party hereunder, such calculation or estimate shall be made using the foreign exchange rates published by Bloomberg as the Composite 5:00 p.m. New York closing rates (CMPN) one (1) Business Day prior to the delivery of such calculation or estimate.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized directors or officers as of the day and year first above written.

TRANS UNION LLC
By: /s/ Christopher Cartwright
Name: Christopher A. Cartwright
Title: President and Chief Executive Officer




NTHRIVE, INC.
By: /s/ Hemant Goel
Name: Hemant Goel
Title: President & Chief Executive Officer
Exhibit 10.7
Execution Version
AMENDMENT NO. 19 TO CREDIT AGREEMENT
AMENDMENT NO. 19 TO CREDIT AGREEMENT, dated as of December 1, 2021 (this “Amendment No. 19”), by and among TRANSUNION INTERMEDIATE HOLDINGS, INC., a Delaware corporation (“Holdings”), TRANS UNION LLC, a Delaware limited liability company (the “Borrower”), the Guarantors party hereto, DEUTSCHE BANK AG NEW YORK BRANCH, as administrative agent (in such capacity, the “Administrative Agent”) and collateral agent (in such capacity, the “Collateral Agent”), each Lender with a 2021 Incremental Term B-6 Commitment (as defined below) (each, a “2021 Incremental Term B-6 Lender”) and each other Lender party hereto. Unless otherwise indicated, all capitalized terms used herein but not otherwise defined herein shall have the same meanings as specified in the Amended Credit Agreement (as defined below).
WITNESSETH:
WHEREAS, Holdings, the Borrower, the Administrative Agent, the Guarantors party thereto from time to time and each lender from time to time party thereto (the “Lenders”) have previously entered into that certain Third Amended and Restated Credit Agreement, dated as of August 9, 2017 (as amended, amended and restated, supplemented and/or otherwise modified through, but not including, the date hereof, including pursuant to Amendment No. 14, dated as of May 2, 2018, Amendment No. 15, dated as of June 19, 2018, Amendment No. 16, dated as of June 29, 2018, Amendment No. 17, dated as of November 15, 2019, and Amendment No. 18, dated as of December 10, 2019, collectively, the “Credit Agreement”; the Credit Agreement as amended by this Amendment No. 19, the “Amended Credit Agreement”);
WHEREAS, the Borrower has appointed Deutsche Bank Securities Inc. (“DBSI”), Capital One, N.A. (“Capital One”), RBC Capital Markets1 (“RBCCM”) and BofA Securities, Inc. (“BofAS”), and DBSI, Capital One, RBCCM and BofAS have agreed, to act as joint lead arrangers and joint bookrunners (in such capacities, collectively, the “Amendment No. 19 Lead Arrangers”) with respect to this Amendment No. 19 and the 2021 Incremental Term B-6 Loans provided for hereunder;
WHEREAS, the Borrower, the Amendment No. 19 Lead Arrangers and the other commitment parties thereto are party to that certain amended and restated commitment letter, dated September 30, 2021 (the “Commitment Letter”);
WHEREAS, the Borrower intends to acquire (the “Acquisition”) all of the issued and outstanding share capital of Aerial Ultimate Holdings Corp., a Delaware corporation (the “Target”), from Aerial Investors LLC, a Delaware limited liability company (the “Seller”), pursuant to and in accordance with the requirements of that certain Securities Purchase Agreement, dated as of September 11, 2021 (the “Acquisition Agreement”), by and among the Borrower and the Seller;
WHEREAS, pursuant to and in accordance with Section 2.14 of the Credit Agreement, the Borrower has obtained commitments (each, an “2021 Incremental Term B-6 Commitment”) to provide 2021 Incremental Term B-6 Loans (as defined below) in an aggregate principal amount of $3,100,000,000;
WHEREAS, the proceeds of the 2021 Incremental Term B-6 Loans incurred pursuant to this Amendment No. 19, together with cash on hand at the Borrower and its subsidiaries and the Target and its subsidiaries on the Amendment No. 19 Effective Date (as defined below) shall be applied by the Borrower to (i) pay the cash consideration for the Acquisition, (ii) pay fees and expenses incurred in
1     RBC Capital Markets is a brand name for the capital markets business of Royal Bank of Canada and its affiliates.


connection with the Acquisition and (iii) substantially concurrently with the closing of the Acquisition, refinance, repay, redeem and/or terminate in its entirety each of that certain (x) First Lien Credit Agreement, dated as of August 8, 2017, among Aerial Acquisition Corp., a Delaware corporation, as guarantor, Neustar, Inc. (“Neustar”), as borrower, the lenders party thereto and Bank of America, N.A., as administrative agent and (y) Second Lien Credit Agreement, dated as of August 8, 2017, among Aerial Acquisition Corp., a Delaware corporation, as guarantor, Neustar, as borrower, the lenders party thereto and UBS AG, Stamford Branch, as administrative agent, including terminating and/or releasing all commitments to lend and guarantees and security granted in connection therewith (collectively, the “Refinancing”) (the transactions set forth in immediately preceding clauses (i) through (iii), collectively, the “Amendment No. 19 Transactions”);
WHEREAS, subject to the terms and conditions set forth in Section 2.14 of the Credit Agreement and Section 3 hereof, each 2021 Incremental Term B-6 Lender hereby severally agrees to provide a 2021 Incremental Term B-6 Commitment in the amount set forth opposite its name on Exhibit A attached hereto; and
WHEREAS, immediately after giving effect to the incurrence of the 2021 Incremental Term B-6 Loans, Holdings, the Borrower, the Administrative Agent and Lenders constituting the Required Lenders have agreed to make certain other amendments to the Credit Agreement contained herein, in accordance with the provisions of Section 10.01 of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and receipt of all of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1.    2021 Incremental Term B-6 Loans.
(a)Each 2021 Incremental Term B-6 Lender, the Borrower and the Administrative Agent acknowledge and agree that the 2021 Incremental Term B-6 Commitments provided pursuant to this Amendment No. 19 shall constitute Term Commitments of such 2021 Incremental Term B-6 Lenders under the Credit Agreement.
(b)Subject to the satisfaction (or waiver) of the conditions set forth in Section 3 hereof, the 2021 Incremental Term B-6 Lenders severally agree to make a new term loan to the Borrower on the Amendment No. 19 Effective Date 2021 (each, an “Incremental Term B-6 Loan”) in Dollars in a principal amount equal to the amount opposite such 2021 Incremental Term B-6 Lender’s name on Exhibit A hereto, which shall constitute Incremental Term Loans and a new Class of Term Loans under the Credit Agreement and have the terms set forth herein and in the Amended Credit Agreement.
(c)The 2021 Incremental Term B-6 Loans shall (a) be incurred on the Amendment No. 19 Effective Date in accordance with Section 2.14 of the Credit Agreement and (b) rank pari passu in right of payment and pari passu in right of security with the Revolving Credit Loans, the 2019 Replacement Term B-5 Loans and the 2019 Replacement Term A-3 Loans.
SECTION 2.    Amendments. Subject to the satisfaction (or waiver) of the conditions set forth in Section 3 hereof, effective as of the Amendment No. 19 Effective Date and subject to the terms and conditions set forth herein, (a) the Credit Agreement is hereby amended by deleting the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold underlined text (indicated textually in the same manner as the following example: underlined text) as set forth in Exhibit B hereto, (b) a new Exhibit D-7 is hereby added to the Credit Agreement as set forth in Exhibit C hereto and (c) a new Schedule 2.08(g) is hereby added to the Credit Agreement as set forth in Exhibit D hereto; provided, however, that the amendments set forth in the Amended Credit Agreement
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effected pursuant to Section 2(a) relating to the definitions of “Applicable Disposition Percentage”, “Available RP Capacity Amount”, “Excluded Asset Sales” and “Net Proceeds” and Sections 2.05(b), 7.01(aa), 7.03(e), 7.06 and 7.13 thereof (collectively, the “Additional Required Lender Amendments”) shall not become effective (and the Amendment No. 19 Effective Date shall not occur with respect to the Additional Required Lender Amendments) until the Additional Amendment No. 19 Conditions (as defined below) have been satisfied or waived. 
SECTION 3.    Conditions to Effectiveness of Amendment No. 19. Sections 1 and 2 hereof shall become effective immediately on the date (the “Amendment No. 19 Effective Date”) upon the satisfaction (or waiver) of the following conditions:
(a)the Administrative Agent (or its counsel) shall have received from (i) each 2021 Incremental Term B-6 Lender, (ii) the Loan Parties and (iii) the Administrative Agent, a counterpart of this Amendment No. 19 (whether the same or different counterparts) executed on behalf of each such Person (which may be transmitted by facsimile or electronic transmission);
(b)the Acquisition shall have been consummated, or substantially simultaneously with the initial borrowings of the 2021 Incremental Term B-6 Loans shall be consummated, in all material respects in accordance with the terms of the Acquisition Agreement after giving effect to any modifications, amendments, consents or waivers by the Borrower thereto, other than those modifications, amendments, consents or waivers that are materially adverse to the interests of the Lenders or the Commitment Parties (as defined in the Commitment Letter) in their capacities as such, unless consented to in writing by the Amendment No. 19 Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned);
(c)except as set forth on the “Material Adverse Effect Schedule” to the Acquisition Agreement, since December 31, 2020, there shall not have been a Material Adverse Effect (as defined in the Acquisition Agreement as in effect on September 11, 2021);
(d)all documents and instruments required to create and perfect the Administrative Agent’s security interest in the Collateral acquired in the Acquisition shall have been executed and delivered and, if applicable, be in proper form for filing (provided that to the extent any security interest in any Collateral acquired in the Acquisition is not or cannot be provided and/or perfected on the Amendment No. 19 Effective Date (other than the pledge and perfection of the security interests (1) in the certificated equity securities, if any, of the Target to the extent required to be pledged under the terms of the Credit Agreement and (2) in other assets with respect to which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code; provided that certificated equity securities of the Target will only be required to be delivered on the Amendment No. 19 Effective Date to the extent received from the Target so long as the Borrower has used commercially reasonable efforts to obtain them on the Amendment No. 19 Effective Date) after your use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent for the purposes of this Section 3, but instead shall be required to be delivered after the Amendment No. 19 Effective Date pursuant to the requirements of the Amended Credit Agreement;
(e)each wholly-owned Domestic Subsidiary (other than an Excluded Subsidiary) acquired pursuant to the Acquisition shall have duly executed and delivered to the Administrative Agent joinders to the Amended Credit Agreement as Guarantors consistent with the Collateral and Guarantee Requirement;
(f)substantially simultaneously with the initial borrowings of the 2021 Incremental Term B-6 Loans and the consummation of the Acquisition, the Refinancing shall be consummated;
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(g)the Amendment No. 19 Lead Arrangers shall have received (a) a consolidated balance sheet for the Business (as defined in the Acquisition Agreement as in effect on September 11, 2021) as of December 31, 2020 and the related consolidated statements of income, comprehensive income, cash flows and changes in equity for the year ended December 31, 2020 (including the related notes), which shall have been prepared in accordance with GAAP (as defined in the Acquisition Agreement as in effect on September 11, 2021) and audited by the Target’s independent auditors in accordance with AICPA auditing standards, (b) a consolidated balance sheet for the Business (as defined in the Acquisition Agreement as in effect on September 11, 2021) as of September 30, 2021 and the related consolidated statement of income for the nine month period then ended, which shall have been prepared in accordance with GAAP (as defined in the Acquisition Agreement as in effect on September 11, 2021) and consistent with the preparation of the financial statements in the foregoing clause (a) and either shall have been reviewed or shall be reviewable by the Target’s independent auditors in accordance with the procedures specified by AICPA AU-C Section 930, (c) audited consolidated balance sheets and the related audited statements of operations, stockholder’s equity and cash flows of each of the Borrower and its subsidiaries the two most recently completed fiscal years of the Borrower, ended at least 90 days before the Closing Date and (d) unaudited consolidated balance sheets and the related unaudited statements of operations and cash flows of each of the Borrower and its subsidiaries for any subsequent fiscal quarter of the Borrower ending at 60 days prior to the Closing Date and the portion of the fiscal year through the end of such fiscal quarter;
(h)the Borrower shall have paid, by wire transfer of immediately available funds, all fees and reasonable out-of-pocket expenses (including the reasonable fees and expenses of White & Case LLP) to the extent invoiced at least three days prior to the Amendment No. 19 Effective Date, incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Amendment No. 19 and required to be paid in connection with this Amendment No. 19 pursuant to Section 10.04 of the Credit Agreement and that certain amended and restated fee letter, dated September 30, 2021, by and among the Borrower and the Commitment Parties (as defined in the Commitment Letter);
(i)(i) each of the representations and warranties made by, or with respect to, the Target and its subsidiaries in the Acquisition Agreement as are material to the interests of the 2021 Incremental Term B-6 Lenders (in their capacities as such), but only to the extent that the Borrower has the right (taking into account any applicable cure provisions) to terminate its obligations under the Acquisition Agreement or decline to consummate the Acquisition (in each case, in accordance with the terms thereof) as a result of a breach of such representations in the Acquisition Agreement and (ii) the Specified Representations (as defined below) are true and correct in all material respects on the Amendment No. 19 Effective Date, both before and after giving effect to this Amendment No. 19, with the same effect as though such representations and warranties had been made on and as of the Amendment No. 19 Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date) (it being understood and agreed that “Specified Representations” means (x) the Credit Agreement Representation (as defined in the Commitment Letter) and (y) those representations and warranties of the Borrower, and to the extent applicable, the other Loan Parties, set forth in Section 5.01(a), Section 5.01(b) (as it relates to the organizational power and authority to execute, deliver and perform obligations under each Loan Document to which each applicable Person is a party after giving effect to the Amendment No. 19 Transactions), Section 5.02(a), Section 5.02(b)(i), Section 5.04, Section 5.12, Section 5.16, Section 5.17 (as it relates to the creation, validity and perfection of the security interests in the Collateral) and Section 5.18 of the Amended Credit Agreement);
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(j)immediately after giving effect to the incurrence of the 2021 Incremental Term B-6 Loans and the consummation of the Acquisition, no Event of Default pursuant to Section 8.01(a), (f) or (g) of the Amended Credit Agreement exists;
(k)the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, certifying that the condition precedent set forth in clause (j) of this Section 3 has been satisfied;
(l)the Administrative Agent shall have received a duly completed Committed Loan Notice from the Borrower with respect to the 2021 Incremental Term B-6 Loans in accordance with the terms of the Credit Agreement;
(m)the Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of such Loan Party’s organization, and a certificate as to the good standing (where relevant) of each Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority, and (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Amendment No. 19 Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Amendment No. 19 Effective Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of this Amendment No. 19 and, if applicable, the Guarantor Consent and Reaffirmation, in each case, to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing this Amendment No. 19 on behalf of such Loan Party and countersigned by another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above;
(n)the Administrative Agent shall have received a certificate, dated the Amendment No. 19 Effective Date and signed by a financial officer of the Borrower, certifying that Holdings and its Subsidiaries and the Borrower and its Subsidiaries, in each case on a consolidated basis after giving effect to the incurrence of the 2021 Incremental Term B-6 Loans on the Amendment No. 19 Effective Date and the other transactions contemplated hereby, are Solvent as of the Amendment No. 19 Effective Date;
(o)the Administrative Agent shall have received a Guarantor Consent and Reaffirmation, substantially in the form attached hereto as Annex A, duly executed and delivered by each Guarantor (the terms of which are hereby incorporated by reference herein);
(p)the Administrative Agent shall have received from (i) Simpson Thacher & Bartlett LLP, special counsel to the Loan Parties, (ii) Nelson Mullins Riley & Scarborough LLP, local counsel to the Loan Parties organized under the laws of the state of Georgia and (iii) Arnold Gallagher P.C., local counsel to the Loan Parties organized under the laws of the state of Oregon, an opinion addressed to the Administrative Agent and the 2021 Incremental Term B-6 Lenders and dated the Amendment No. 19 Effective Date, which opinions shall be in form and substance reasonably satisfactory to the Administrative Agent; and
(q)the Administrative Agent shall have received at least three (3) Business Days prior to the Amendment No. 19 Effective Date, to the extent requested at least ten (10) Business Days prior to the Amendment No. 19 Effective Date, (x) all documentation and other information about the
5

Loan Parties reasonably requested in writing by it that the Administrative Agent and the Amendment No. 19 Lead Arrangers reasonably determined are required by United States regulatory authorities under the applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act and (y) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver to the Administrative Agent a Beneficial Ownership Certification (it being understood and agreed that, upon the execution and delivery of a signature page to this Amendment No. 19 by a 2021 Incremental Term B-6 Lender, such condition shall be deemed to be satisfied with respect to such 2021 Incremental Term B-6 Lender) (it being agreed, that for purposes of this clause (q), (i) “Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation; and (ii) “Beneficial Ownership Regulation” means 31 CFR § 1010.230);
provided, however, that the Additional Required Lender Amendments shall not become effective until (x) the conditions in preceding clauses (a) through (q) of this Section 3 have been satisfied (or waived) and (y) the Administrative Agent (or its counsel) shall have received from the Lenders constituting the Required Lenders a counterpart of this Amendment No. 19 (whether the same or different counterparts) executed by such Persons (which may be transmitted by facsimile or electronic transmission) (collectively, the “Additional Amendment No. 19 Conditions”).
SECTION 4.    Representations and Warranties. Holdings, the Borrower and each of the other Loan Parties represent and warrant to each of the Lenders, the Administrative Agent and the Collateral Agent as follows as of the date hereof:
(a)The execution, delivery of this Amendment No. 19 (which, for purposes of this Section 4, shall include the Guarantor Consent and Reaffirmation delivered pursuant to Section 3(o) hereof) and performance of this Amendment No. 19 and the Credit Agreement (as modified hereby) are within such Loan Party’s corporate or other powers and have been duly authorized by all necessary corporate or other organizational action. None of the execution, delivery or performance by each Loan Party of this Amendment No. 19 or the Credit Agreement (as modified hereby) will (i) contravene the terms of such Person’s Organization Documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien (other than Permitted Liens) under (x) any Contractual Obligation to which such Person is a party or by which it or any of its properties of such Person or any of its Restricted Subsidiaries is bound or by which it may be subject or (y) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate any applicable material Law, in each case, except to the extent that any such violation, conflict, breach, contravention or payment could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b)This Amendment No. 19 has been duly executed and delivered by each Loan Party that is a party hereto and constitutes a legal, valid and binding obligation of each Loan Party that is a party hereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity.
SECTION 5.    Reference to and Effect on the Credit Agreement and the Loan Documents.
(a)On and after the Amendment No. 19 Effective Date, (i) each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended by this Amendment No. 19, (ii) each 2021 Incremental Term B-6 Lender shall constitute a “Lender” as defined in the Credit Agreement and (iii) the 2021 Incremental Term B-6 Loans shall constitute “Incremental Term Loans” and “Term Loans” as defined in the Credit Agreement.
6

(b)The Credit Agreement and each of the other Loan Documents, as specifically amended by this Amendment No. 19, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case, as amended by this Amendment No. 19.
(c)The execution, delivery and effectiveness of this Amendment No. 19 shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. On and after the effectiveness of this Amendment No. 19, this Amendment No. 19 shall for all purposes constitute a Loan Document.
SECTION 6.    Assignments. It is understood and agreed that the Borrower’s consent shall not be required for any assignments of 2021 Incremental Term B-6 Loans made by any 2021 Incremental Term B-6 Lender in connection with the primary syndication of the 2021 Incremental Term B-6 Loans (to the extent the applicable assignee is an Eligible Assignee that has been identified on a list approved by the Borrower on or prior to the Amendment No. 19 Effective Date).
SECTION 7.    Execution in Counterparts; Electronic Delivery. This Amendment No. 19 may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by facsimile or electronic transmission of an executed counterpart of a signature page to this Amendment No. 19 shall be effective as delivery of an original executed counterpart of this Amendment No. 19. The words “execution”, “execute”, “signed”, “signature”, and words of like import in or related to any document to be signed in connection with this Amendment No. 19 shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by us, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 8.    Governing Law; Miscellaneous.
(a)THIS AMENDMENT NO. 19 SHALL BE SUBJECT TO, AND CONSTRUED IN ACCORDANCE WITH, SECTIONS 10.15 AND 10.16 OF THE CREDIT AGREEMENT, WHICH ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AMENDMENT NO. 19.
(b)Nothing in this Amendment No. 19 shall be deemed to be a novation of any obligations under the Credit Agreement or any other Loan Document.
SECTION 9.    Successors and Assigns. This Amendment No. 19 shall inure to the benefit of, and shall be binding upon, the respective successors and assigns of the parties hereto.
[The remainder of this page is intentionally left blank.]

7

IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 19 to be executed by their respective officers thereunto duly authorized, as of the date first above written.
TRANSUNION INTERMEDIATE HOLDINGS, INC.
By: /s/ Rachel Mantz            
Name:    Rachel Mantz
Title:    Senior Vice President, Corporate
Secretary
TRANS UNION LLC
By: /s/ Rachel Mantz            
Name:    Rachel Mantz
Title:    Senior Vice President, Deputy
General Counsel and Corporate
Secretary
TRANSUNION GLOBAL HOLDINGS LLC
By: /s/ Rachel Mantz            
Name:    Rachel Mantz
Title:    Vice President, Secretary
TRANSUNION INTERACTIVE, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
TRANSUNION RENTAL SCREENING SOLUTIONS, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary

[Signature Page to Amendment No. 19 to Trans Union Credit Agreement]

VISIONARY SYSTEMS, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
TRANSUNION TELEDATA LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
DIVERSIFIED DATA DEVELOPMENT CORPORATION
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
TRANSUNION FINANCING CORPORATION
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
TRANSUNION RISK AND ALTERNATIVE DATA SOLUTIONS, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
TRANSUNION HEALTHCARE, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary

[Signature Page to Amendment No. 19 to Trans Union Credit Agreement]

eBUREAU, LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
FACTORTRUST, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
IOVATION INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
SIGNAL DIGITAL, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
TRU OPTIK DATA CORP.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
FT HOLDINGS, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary

[Signature Page to Amendment No. 19 to Trans Union Credit Agreement]

AERIAL ULTIMATE HOLDINGS CORP.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
AERIAL INTERMEDIATE HOLDINGS CORP.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
AERIAL ACQUISITION CORP.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
NEUSTAR, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
ADMINISTRATIVE SERVICES, LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
AGGREGATE KNOWLEDGE, LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary

[Signature Page to Amendment No. 19 to Trans Union Credit Agreement]

DATA SOLUTION SERVICES, LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
LSSI DATA CORP.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
MARKETSHARE HOLDINGS, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary
MARKETSHARE ACQUISITION CORPORATION
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary
MARKETSHARE PARTNERS, LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary
NEUSTAR INTERNATIONAL SERVICES, INC.
By: /s/ Rachel Mantz            
Name:    Rachel Mantz
Title:     Senior Vice President, Secretary

[Signature Page to Amendment No. 19 to Trans Union Credit Agreement]

NEUSTAR INFORMATION SERVICES, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary
NEUSTAR DATA SERVICES, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary
NEUSTAR IP INTELLIGENCE, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary
TRUSTID, INC.
By: /s/ Rachel Mantz            
Name:    Rachel Mantz
Title:     Senior Vice President, Secretary

[Signature Page to Amendment No. 19 to Trans Union Credit Agreement]

EZS PARENT, INC.
By: /s/ Rachel Mantz            
Name:    Rachel Mantz
Title:    Senior Vice President, Secretary
EZSHIELD GROUP PARENT, LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary
SONTIQ, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary




[Signature Page to Amendment No. 19 to Trans Union Credit Agreement]


DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent, Collateral Agent and a 2021 Incremental Term B-6 Lender
By: /s/ Philip Tancorra            
Name:     Philip Tancorra
Title:     Vice President
By: /s/ Suzan Onal                
Name:     Suzan Onal
Title:     Vice President


[Signature Page to Amendment No. 19 to Trans Union Credit Agreement]

BANK OF AMERICA, N.A., as a Lender
By: /s/ Vikas Singh                
Name:     Vikas Singh
Title:     Managing Director

[Signature Page to Amendment No. 19 to Trans Union Credit Agreement]


CAPITAL ONE, N.A., as a Lender
By: /s/ Paul Isaac                
Name:     Paul Isaac
Title:     Duly Authorized Signatory

[Signature Page to Amendment No. 19 to Trans Union Credit Agreement]


JPMORGAN CHASE BANK, N.A., as a Lender
By: /s/ Peter B. Thauer            
Name:     Peter B. Thauer
Title:     Managing Director

[Signature Page to Amendment No. 19 to Trans Union Credit Agreement]


ROYAL BANK OF CANADA, as a Lender
By: /s/ Alfonse Simone            
Name:     Alfonse Simone
Title:     Authorized Signatory

[Signature Page to Amendment No. 19 to Trans Union Credit Agreement]


WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ Justin Arena                
Name:     Justin Arena
Title:     Managing Director
[Signature Page to Amendment No. 19 to Trans Union Credit Agreement]

ANNEX A
GUARANTOR CONSENT AND REAFFIRMATION
December 1, 2021
Reference is made to (a) the Third Amended and Restated Credit Agreement, dated as of August 9, 2017 (as amended, amended and restated, supplemented and/or otherwise modified pursuant to Amendment No. 14, dated as of May 2, 2018, Amendment No. 15, dated as of June 19, 2018, Amendment No. 16, dated as of June 29, 2018, Amendment No. 17, dated as of November 15, 2019, and Amendment No. 18, dated as of December 10, 2019, the “Credit Agreement”; the Credit Agreement as amended by Amendment No. 19, the “Amended Credit Agreement”), among TRANSUNION INTERMEDIATE HOLDINGS, INC., a Delaware corporation (“Holdings”), TRANS UNION LLC, a Delaware limited liability company (the “Borrower”), the Guarantors party thereto from time to time, DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent and Collateral Agent and each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and (b) Amendment No. 19 to Credit Agreement, dated as of December 1, 2021 (“Amendment No. 19”), among Holdings, the Borrower, the Guarantors party thereto, DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent and Collateral Agent, each 2021 Incremental Term B-6 Lender and each other Lender party thereto. Capitalized terms used but not otherwise defined in this Guarantor Consent and Reaffirmation (this “Consent”) are used with the meanings attributed thereto in the Amended Credit Agreement or Amendment No. 19, as the context requires.
Each Guarantor hereby consents to the execution, delivery and performance of Amendment No. 19 and the performance of the Amended Credit Agreement and agrees that each reference to the Credit Agreement in the Loan Documents shall, on and after the Amendment No. 19 Effective Date, be deemed to be a reference to the Credit Agreement as amended by Amendment No. 19.
Each Guarantor hereby acknowledges and agrees that, after giving effect to Amendment No. 19, all of its respective Obligations under the Loan Documents to which it is a party, as such Obligations have been amended by Amendment No. 19, are reaffirmed, and remain in full force and effect.
After giving effect to Amendment No. 19, each Guarantor reaffirms each Lien granted by it to the Administrative Agent for the benefit of the Secured Parties under each of the Loan Documents to which it is a party, which Liens shall continue in full force and effect during the term of the Credit Agreement as amended by Amendment No. 19, and shall continue to secure the Secured Obligations (after giving effect to Amendment No. 19), in each case, on and subject to the terms and conditions set forth in the Credit Agreement, as amended by Amendment No. 19, and the other Loan Documents.
Nothing in this Consent shall create or otherwise give rise to any right to consent on the part of the Guarantors to the extent not required by the express terms of the Loan Documents.
This Consent is a Loan Document and this Consent, and the rights and obligations of the parties hereunder, including but not limited to, the validity, interpretation, construction, breach, enforcement or termination hereof, and whether arising in contract or tort or otherwise, shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
[Signature Pages Follow]


IN WITNESS WHEREOF, the parties hereto have duly executed this Consent as of the date first set forth above.

TRANSUNION INTERMEDIATE HOLDINGS, INC.
By:______________________________
Name:
Title:
[SUBSIDIARY GUARANTORS]
By:______________________________
Name:
Title:


[Signature Page to Guarantor Consent and Reaffirmation to Amendment No.19]


EXHIBIT A
COMMITMENTS

2021 Incremental Term B-6 Loan Commitments

Name of 2021 Incremental Term B-6 Lender2021 Incremental Term B-6 Loan Commitment
Deutsche Bank AG New York Branch$3,100,000,000
Total$3,100,000,000



EXHIBIT B

AMENDED CREDIT AGREEMENT

[ATTACHED]



THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 9, 2017
as amended by Amendment No. 14 on May 2, 2018, Amendment No. 15 on June 19, 2018, Amendment No. 16 on June 29, 2018, Amendment No. 17 on November 15, 2019 and, Amendment No. 18 on December 10, 2019 and Amendment No. 19 on December 1, 2021,
among
TRANSUNION INTERMEDIATE HOLDINGS, INC. (f/k/a TRANSUNION CORP.),
as Holdings,
TRANS UNION LLC,
as the Borrower,
THE GUARANTORS PARTY HERETO FROM TIME TO TIME,
DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative and Collateral Agent,
THE OTHER LENDERS PARTY HERETO FROM TIME TO TIME,
__________________________________________________
DEUTSCHE BANK SECURITIES INC.,
CAPITAL ONE, N.A.,
GOLDMAN SACHS LENDING PARTNERS LLC,
JPMORGAN CHASE BANK,
N.A., MERRILL LYNCH PIERCE, FENNER & SMITH INCORPORATED,
RBC CAPITAL MARKETS2
and
WELLS FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Joint Bookrunners











2 RBC Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates.




Table of Contents

Page

ARTICLE I Definitions and Accounting Terms    4
Section 1.01    Defined Terms    4
Section 1.02    Other Interpretive Provisions.    7668
Section 1.03    Accounting Terms    7769
Section 1.04    Rounding    7769
Section 1.05    References to Agreements, Laws, Etc    7769
Section 1.06    Times of Day    7769
Section 1.07    Timing of Payment of Performance    7769
Section 1.08    Available Additional Basket Transactions    7769
Section 1.09    Pro Forma Calculations    7870
Section 1.10    Letter of Credit Amounts    7971
Section 1.11    Certifications    7971
Section 1.12    Currency Translation    7971
Section 1.13    Limited Condition Transactions    7971
Section 1.14    Divisions    8072
ARTICLE II The Commitments and Credit Extensions    8172
Section 2.01    The Loans    8172
Section 2.02    Borrowings, Conversions and Continuations of Loans    8476
Section 2.03    Letters of Credit    8677
Section 2.04    [Reserved].    9685
Section 2.05    Prepayments.    9685
Section 2.06    Termination or Reduction of Commitments    10492
Section 2.07    Repayment of Loans    10593
Section 2.08    Interest    10795
Section 2.09    Fees    10897
Section 2.10    Computation of Interest and Fees    10998
Section 2.11    Evidence of Indebtedness    10998
Section 2.12    Payments Generally    11099
Section 2.13    Sharing of Payments    112101
Section 2.14    Incremental Credit Extensions    113101
Section 2.15    Extensions of Term Loans and Revolving Credit Commitments    117105
Section 2.16    Refinancing Amendments    120107
Section 2.17    Defaulting Lenders    122109
ARTICLE III Taxes, Increased Costs Protection and Illegality    124110
Section 3.01    Taxes    124110
Section 3.02    Illegality    127113
Section 3.03    Inability to Determine Rates    127113
Section 3.04    Increased Cost and Reduced Return; Capital Adequacy    128114
Section 3.05    Funding Losses    129115
Section 3.06    Matters Applicable to All Requests for Compensation    130115
Section 3.07    Replacement of Lenders Under Certain Circumstances    131116
Section 3.08    Survival    132117

AMERICAS 109913374
(i)


Table of Contents
(continued)
Page


ARTICLE IV Conditions Precedent to Credit Extensions    132118
Section 4.01    All Credit Events After the Closing Date    132118
Section 4.02    [Reserved]    133118
Section 4.03    Amendment No. 13 Effective Date    133118
ARTICLE V Representations and Warranties    133118
Section 5.01    Existence, Qualification and Power; Compliance with Laws    133118
Section 5.02    Authorization; No Contravention    134119
Section 5.03    Governmental Authorization; Other Consents    134119
Section 5.04    Binding Effect    134119
Section 5.05    Financial Statements; No Material Adverse Effect    135120
Section 5.06    Litigation    136120
Section 5.07    Ownership of Property; Liens    136121
Section 5.08    Environmental Matters    136121
Section 5.09    Taxes    137121
Section 5.10    ERISA Compliance    137122
Section 5.11    Subsidiaries; Equity Interests    138122
Section 5.12    Margin Regulations; Investment Company Act    138122
Section 5.13    Disclosure    138123
Section 5.14    Labor Matters    139123
Section 5.15    Intellectual Property; Licenses, Etc    139123
Section 5.16    Solvency    140124
Section 5.17    Security Documents    140124
Section 5.18    USA PATRIOT Act; OFAC; FCPA    141125
ARTICLE VI Affirmative Covenants    142126
Section 6.01    Financial Statements    142126
Section 6.02    Certificates; Other Information    145128
Section 6.03    Notices    146129
Section 6.04    Payment of Obligations    146129
Section 6.05    Preservation of Existence, Etc    146129
Section 6.06    Maintenance of Properties    147130
Section 6.07    Maintenance of Insurance    147130
Section 6.08    Compliance with Laws    147130
Section 6.09    Books and Records    147130
Section 6.10    Inspection Rights    148130
Section 6.11    Additional Collateral; Additional Guarantors    148131
Section 6.12    Compliance with Environmental Laws    150133
Section 6.13    Further Assurances and Post-Closing Conditions    150133
Section 6.14    Designation of Subsidiaries    151133
Section 6.15    Maintenance of Ratings    152134
Section 6.16    Compliance with Sanctions    152134
ARTICLE VII Negative Covenants    152134
Section 7.01    Liens    153135
Section 7.02    Investments    157138
ii
(ii)


Table of Contents
(continued)
Page


Section 7.03    Indebtedness    162143
Section 7.04    Fundamental Changes    166146
Section 7.05    Dispositions    168148
Section 7.06    Restricted Payments    171150
Section 7.07    Change in Nature of Business    175154
Section 7.08    Transactions with Affiliates    175154
Section 7.09    Burdensome Agreements    176155
Section 7.10    Use of Proceeds    177156
Section 7.11    Financial Covenant    177156
Section 7.12    Accounting Changes    177156
Section 7.13    Prepayments, Etc. of Indebtedness    178156
Section 7.14    Permitted Activities    178157
ARTICLE VIII Events of Default and Remedies    179157
Section 8.01    Events of Default    179157
Section 8.02    Remedies upon Event of Default    182160
Section 8.03    Exclusion of Immaterial Subsidiaries    183161
Section 8.04    Application of Funds    183161
Section 8.05    Borrower’s Right to Cure    184162
ARTICLE IX Administrative Agent and Other Agents    185162
Section 9.01    Appointment and Authorization of Agents    185162
Section 9.02    Nature of Duties    186163
Section 9.03    Lack of Reliance on Agent-Related Persons    186163
Section 9.04    Certain Rights of Agent-Related Persons    187164
Section 9.05    Reliance    187164
Section 9.06    Indemnification    187164
Section 9.07    Agents in their Individual Capacities    187165
Section 9.08    Holders    188165
Section 9.09    Resignation by the Agents    188165
Section 9.10    Administrative Agent May File Proofs of Claim    189166
Section 9.11    Collateral and Guaranty Matters    190166
Section 9.12    Delivery of Information    191168
Section 9.13    Appointment of Supplemental Agents    192168
Section 9.14    Withholding Tax Indemnity    192169
Section 9.15    Certain ERISA Matters    193169
ARTICLE X Miscellaneous    194170
Section 10.01    Amendments, Etc    194170
Section 10.02    Notices and Other Communications; Facsimile Copies    198173
Section 10.03    No Waiver; Cumulative Remedies    199174
Section 10.04    Attorney Costs and Expenses    199174
Section 10.05    Indemnification by the Borrower    200175
Section 10.06    Payments Set Aside    201176
Section 10.07    Successors and Assigns    202176
Section 10.08    Confidentiality    209183
Section 10.09    Setoff    210183
iii
(iii)


Table of Contents
(continued)
Page


Section 10.10    Interest Rate Limitation    210184
Section 10.11    Counterparts    211184
Section 10.12    Integration; Termination    211184
Section 10.13    Survival of Representations and Warranties    211185
Section 10.14    Severability    211185
Section 10.15    Governing Law    212185
Section 10.16    Waiver of Right to Trial by Jury    212185
Section 10.17    Binding Effect    212186
Section 10.18    USA Patriot Act    213186
Section 10.19    No Advisory or Fiduciary Responsibility    213186
Section 10.20    Schedules and Exhibits    214187
Section 10.21    Effect of Amendment and Restatement    214187
ARTICLE XI Guarantee    214187
Section 11.01    The Guarantee    214187
Section 11.02    Obligations Unconditional    215188
Section 11.03    Reinstatement    216189
Section 11.04    Subrogation; Subordination    216189
Section 11.05    Remedies    217189
Section 11.06    Instrument for the Payment of Money    217189
Section 11.07    Continuing Guarantee    217190
Section 11.08    General Limitation on Guarantee Obligations    217190
Section 11.09    Release of Guarantors    217190
Section 11.10    Right of Contribution    218190
Section 11.11    Acknowledgement and Consent to Bail-In of EEA Financial Institutions    218190
Section 11.12    Acknowledgement Regarding Any Supported QFCs    219191

iv
(iv)


SCHEDULES
1.01A    --    Commitments
1.01B    --    Unrestricted Subsidiaries
2.08(g)    --    Alternate Rate of Interest for 2021 Incremental Term B-6 Loans
4.02(c)    --    Local Counsel Opinions
5.07    --    Ownership of Property
5.08(a)    --    Environmental Matters
5.11    --    Subsidiaries and Other Equity Investments
5.17(c)    --    Mortgaged Properties
7.01(b)    --    Existing Liens
7.02(f)    --    Existing Investments
7.03(b)    --    Existing Indebtedness
7.05(k)    --    Dispositions
7.08    --    Transactions with Affiliates
7.09    --    Certain Contractual Obligations
10.02    --    Administrative Agent’s Office, Certain Addresses for Notices

EXHIBITS
Form of
A    --    Committed Loan Notice
B    --    [Reserved]
C    --    Letter of Credit Request
D-1    --    [Reserved]
D-2    --    Revolving Credit Note
D-3    --    [Reserved]
D-4    --    [Reserved]
D-5    --    Term B-5 Note
D-6    --    Term A-3 Note
D-7    --    Term B-6 Note
E    --    Compliance Certificate
F    --    Assignment and Assumption
G    --    Security Agreement
H    --    Pledge Agreement
I    --    United States Tax Compliance Certificate
J    --    Discounted Prepayment Option Notice
K    --    Lender Participation Notice
L    --    Discounted Voluntary Prepayment Notice
M    --    Affiliated Lender Assignment Assumption
N    --    Perfection Certificate
O    --    Intercompany Subordination Provisions

v
(v)




THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of August 9, 2017, among TRANSUNION INTERMEDIATE HOLDINGS, INC. (f/k/a TRANSUNION CORP.), a Delaware corporation (“Holdings”), TRANS UNION LLC, a Delaware limited liability company (the “Borrower”), the Guarantors party hereto from time to time, DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent and Collateral Agent, each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), DEUTSCHE BANK AG NEW YORK BRANCH, as an L/C Issuer and the other parties party hereto from time to time.
PRELIMINARY STATEMENTS
On June 15, 2010, Holdings effected a merger and redemption (collectively, the “Repurchase Merger”), pursuant to which certain Sellers (as defined below) and certain members of Holdings’ management received rollover stock in Holdings, as the surviving entity of such Repurchase Merger, and certain of Holdings’ other stockholders received cash proceeds, all as more fully described in the Purchase Agreement (as defined below).
Immediately following the consummation of the Repurchase Merger, an affiliate of the Sponsor (as defined below), MDCPVI TU Holdings, LLC, a Delaware limited liability company (the “Purchaser”) acquired (the “Acquisition”) 51.0% of the total fully diluted shares of common stock of Holdings, from certain of Holdings’ stockholders for cash, pursuant to the terms of that certain Stock Purchase Agreement, dated as of April 28, 2010 (as amended, modified or supplemented from time to time in accordance with the terms thereof and hereof, the “Purchase Agreement”), by and among (i) Karl J. Breyer, Marshall E. Eisenberg and Thomas J. Pritzker, not individually, but solely as co-trustees of those certain separate and distinct trusts listed on Annex A-1 thereto, and CIBC Trust Company (Bahamas) Limited, solely as trustee of those certain separate and distinct trusts listed on Annex A-2 thereto (collectively, the “Sellers”), (ii) solely for purposes of Article 10 thereof, The Pritzker Organization, L.L.C. and International Financial Advisors, Inc., (iii) Holdings, and (iv) the Purchaser.
To fund a portion of the Repurchase Merger and the other transactions contemplated by the Purchase Agreement, the Borrower issued and sold Senior Notes on the Closing Date in an aggregate initial principal amount of $645,000,000 pursuant to the terms of the Senior Note Documents.
On the Closing Date, pursuant to the Original Credit Agreement, the Lenders extended credit to the Borrower in the form of (i) Term Loans in an initial aggregate amount of $950,000,000 and (ii) Revolving Credit Commitments in an initial aggregate amount of $200,000,000.
On February 10, 2011, pursuant to Amendment No. 1, (i) the Borrower incurred Replacement Term Loans the proceeds of which were used to refinance in full the original Term Loans, (ii) certain Revolving Credit Lenders converted all or a portion of their original Revolving Credit Commitments into Extended Revolving Credit Commitments and (iii) Holdings, the Borrower and the Required Lenders agreed to amend and restate the Original Credit Agreement as set forth in the Amended and Restated Credit Agreement, dated as of February 11, 2011 (the “First Amended and Restated Credit Agreement”).
On February 27, 2012, pursuant to Amendment No. 2, the First Amended and Restated Credit Agreement was amended to reflect, among other things, the Sponsor Acquisition pursuant to the Sponsor Acquisition Agreement.


On April 17, 2012, pursuant to Amendment No. 3, certain Revolving Credit Lenders agreed to provide a Revolving Commitment Increase and to convert certain Extended Revolving Credit Commitments into a new tranche of Extended Revolving Credit Commitments.
On February 5, 2013, pursuant to Amendment No. 4, (i) the Borrower incurred the 2013 Replacement Term Loans to refinance in full all of the then-outstanding Term Loans and (ii) certain other amendments to the First Amended and Restated Credit Agreement were effected.
On November 22, 2013, pursuant to Amendment No. 5, the Borrower incurred certain Incremental Term Loans.
On December 16, 2013, pursuant to Amendment No. 6, the Borrower incurred certain Incremental Term Loans.
On April 9, 2014, pursuant to Amendment No. 7, (i) the Borrower incurred the 2014 Replacement Term Loans the proceeds of which were used (x) to refinance in full the Term Loans outstanding on the Amendment No. 7 Effective Date and to pay fees and expenses in connection therewith (y) to repay all Revolving Credit Loans outstanding immediately prior to the Amendment No. 7 Effective Date and (z) to satisfy and discharge the Senior Notes and to pay fees, expenses and premiums in connection therewith; (ii) the existing Lenders under the Revolving Credit Facility agreed to convert the existing Revolving Credit Facility into a new Revolving Credit Facility; (iii) DBNY replaced DBTCA in its roles as Administrative Agent, Collateral Agent, L/C Issuer and Swing Line Lender (as defined prior to giving effect to Amendment No. 9 and the amendment of this Agreement on the Amendment No. 9 Effective Date) and (iv) Holdings, the Borrower and the Required Lenders agreed to amend and restate the First Amended and Restated Credit Agreement as set forth in the Second Amended and Restated Credit Agreement, dated as of April 9, 2014 (the “Second Amended and Restated Credit Agreement”).
On June 2, 2015, pursuant to Amendment No. 8, (i) the Borrower incurred the 2015 Term B-2 Loans to refinance in full all of the then-outstanding Term Loans and (ii) Required Lender consent was obtained (the “Amendment No. 8 Required Lender Consent”) to amend the Second Amended and Restated Credit Agreement to, inter alia, provide for a new Term-A Facility and a New Revolving Credit Facility (in each case, as defined in Amendment No. 8) in the form of a Pro Rata Facilities Amendment (as defined in Amendment No. 8).
Effective as of June 30, 2015, in furtherance of the Amendment No. 8 Required Lender Consent and pursuant to Amendment No. 9, which constitutes a Pro Rata Facilities Amendment (as defined in Amendment No. 8), (i) the Borrower may incur the 2015 Term A Loans prior to the 2015 Term A Commitment Termination Date, the proceeds of which shall be used to redeem (directly or indirectly) through the making of Restricted Payments to Parent all or a portion of the portion of certain senior PIK toggle notes issued by Parent that remained outstanding upon consummation of the TransUnion IPO and the application of the proceeds therefrom and to pay fees and expenses incurred in connection with Amendment No. 9; (ii) the existing Lenders under the Revolving Credit Facility agreed to convert the existing Revolving Credit Facility into a new Revolving Credit Facility; and (iii) the Second Amended and Restated Credit Agreement was amended as more specifically set forth herein and in Amendment No. 9.
On March 31, 2016, pursuant to Amendment No. 10, the Borrower incurred 2016 Incremental Term B-2 Loans.
On May 31, 2016, pursuant to Amendment No. 11, the Borrower incurred 2016 Incremental Term A Loans.
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On January 31, 2017, pursuant to Amendment No. 12, the Borrower repriced and extended the Maturity Date of the 2015 Term B-2 Loans.
On August 9, 2017, pursuant to Amendment No. 13, (i) the Borrower incurred the 2017 Replacement Term B-3 Loans the proceeds of which were used (x) to refinance in full the 2015 Term B-2 Loans outstanding on the Amendment No. 13 Effective Date and to pay fees and expenses in connection therewith and (y) the Borrower incurred the 2017 Replacement Term A-2 Loans the proceeds of which were used (I) to refinance in full the 2015 Term A Loans outstanding on the Amendment No. 13 Effective Date and (II) to pay fees and expenses in connection therewith; (ii) the existing Lenders under the Revolving Credit Facility agreed to convert the existing Revolving Credit Facility into a new Revolving Credit Facility; and (iii) Holdings, the Borrower and the Required Lenders agreed to amend and restate the Second Amended and Restated Credit Agreement as set forth in the Third Amended and Restated Credit Agreement, dated as of August 9, 2017 (the “Third Amended and Restated Credit Agreement”) (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time, including pursuant to Amendment No. 13, this “Agreement”).
On May 2, 2018, pursuant to Amendment No. 14, this Agreement was amended as more specifically set forth in Amendment No. 14.
On June 19, 2018, pursuant to Amendment No. 15, the Borrower incurred 2018 Incremental Term B-4 Loans and 2018 Incremental Term A-2 Loans.
On June 29, 2018, pursuant to Amendment No. 16, the Borrower incurred 2018 Additional Incremental Term B-4 Loans.
On November 15, 2019, pursuant to Amendment No. 17, (i) the Borrower incurred the 2019 Replacement Term B-5 Loans, the proceeds of which were used (x) to refinance in full the existing 2017 Term B-3 Loans, the 2018 Incremental Term B-4 Loans and the 2018 Additional Incremental Term B-4 Loans outstanding on the Amendment No. 17 Effective Date and (y) to pay fees and expenses in connection therewith and (ii) the Third Amended and Restated Credit Agreement was amended as more specifically set forth herein and in Amendment 17.
On December 10, 2019, pursuant to Amendment No. 18, (i) the Borrower incurred the 2019 Replacement Term A-3 Loans, the proceeds of which were used (x) to refinance in full the existing 2018 Replacement Term A-2 Loans and 2019 Incremental Term A-2 Loans outstanding on the Amendment No. 18 Effective Date and (y) to pay fees and expenses in connection therewith and (ii) the existing Lenders under the Revolving Credit Facility agreed to convert the existing Revolving Credit Commitments into a new Revolving Credit Facility.
On December 1, 2021, pursuant to Amendment No. 19, (i) the Borrower incurred the 2021 Incremental Term B-6 Loans, the proceeds of which were used to finance the Amendment No. 19 Transactions (as defined in Amendment No. 19) and (ii) the Third Amended and Restated Credit Agreement was amended as more specifically set forth herein and in Amendment 19.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree and the Third Amended and Restated Credit Agreement, as amended prior to the date hereof, is hereby further amended and restated, as follows:
8

ARTICLE I

Definitions and Accounting Terms
Section 1.01     Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“2013 Replacement Term Loan” has the meaning set forth in Amendment No. 4.
“2014 Replacement Term Lender” has the meaning set forth in Amendment No. 7.
“2014 Replacement Term Loans” has the meaning set forth in Amendment No. 7.
“2015 Term A Commitment” has the meaning set forth in Amendment No. 9.
“2015 Term A Commitment Termination Date” means August 31, 2015.
“2015 Term A Facility” has the meaning set forth in Amendment No. 9.
“2015 Term A Lender” has the meaning set forth in Amendment No. 9.
“2015 Term A Loan Funding Date” means the date after the Amendment No. 9 Effective Date and on or prior to the 2015 Term A Commitment Termination Date on which the conditions precedent in this Agreement are satisfied or waived in accordance with Section 4.02 and the 2015 Term A Loans are incurred.
“2015 Term A Loans” has the meaning set forth in Amendment No. 9.
“2015 Term B-2 Commitment” has the meaning set forth in Amendment No. 8.
“2015 Term B-2 Lender” has the meaning set forth in Amendment No. 8.
“2015 Term B-2 Loans” has the meaning set forth in Amendment No. 8.
“2016 Incremental Term A Lender” means each Lender or Additional Lender party to Amendment No. 11.
“2016 Incremental Term A Loan Commitment” means, for each 2016 Incremental Term A Lender, the amount set forth opposite its name on Exhibit I of Amendment No. 11.
“2016 Incremental Term A Loans” means the 2016 Incremental Term A Loans in an aggregate principal amount of $55,000,000 provided to the Borrower on the Amendment No. 11 Effective Date pursuant to the terms of Amendment No. 11.
“2016 Incremental Term B-2 Lender” means each Lender or Additional Lender party to Amendment No. 10.
“2016 Incremental Term B-2 Loan Commitment” means, for each 2016 Incremental Term B-2 Lender, the amount set forth opposite its name on Exhibit I of Amendment No. 10.
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“2016 Incremental Term B-2 Loans” means the 2016 Incremental Term B-2 Loans in an aggregate principal amount of $150,000,000 provided to the Borrower on the Amendment No. 10 Effective Date pursuant to the terms of Amendment No. 10.
“2017 Converting Term A-2 Lender” has the meaning assigned to such term in Amendment No. 13.
“2017 Converting Term B-3 Lender” has the meaning assigned to such term in Amendment No. 13.
“2017 Replacement Term A-2 Lender” has the meaning set forth in Amendment No. 13.
“2017 Replacement Term A-2 Loan Commitment” has the meaning set forth in Amendment No. 13.
“2017 Replacement Term A-2 Loan Conversion” has the meaning assigned to such term in Amendment No. 13.
“2017 Replacement Term A-2 Loan Conversion Amount” shall mean, with respect to each 2017 Converting Term A-2 Lender, the amount determined by the Administrative Agent and the Borrower as the final amount of such 2017 Converting Term A-2 Lender’s 2017 Replacement Term A-2 Loan Conversion on the Amendment No. 13 Effective Date and notified to each such 2017 Converting Term A-2 Lender by the Administrative Agent on or prior to the Amendment No. 13 Effective Date. The “2017 Replacement Term A-2 Loan Conversion Amount” of any 2017 Converting Term A-2 Lender shall not exceed (but may be less than) the outstanding principal amount of such 2017 Converting Term A-2 Lender’s Existing Term A Loans (determined immediately prior to the Amendment No. 13 Effective Date). All such determinations made by the Administrative Agent and the Borrower shall, absent manifest error, be final, conclusive and binding on the Borrower and the Lenders, and the Administrative Agent and the Borrower shall have no liability to any Person with respect to such determination absent gross negligence or willful misconduct (in each case, as determined by a court of competent jurisdiction in a final and non-appealable judgment).
“2017 Replacement Term A-2 Loan Increase Commitment” has the meaning assigned to such term in Amendment No. 13.
“2017 Replacement Term A-2 Loans” has the meaning set forth in Amendment No. 13.
“2017 Replacement Term B-3 Lender” has the meaning assigned to such term in Amendment No. 13.
“2017 Replacement Term B-3 Loan” has the meaning assigned to such term in Section 2.01(a).
“2017 Replacement Term B-3 Loan Commitment” has the meaning assigned to such term in Amendment No. 13.
“2017 Replacement Term B-3 Loan Conversion” has the meaning assigned to such term in Amendment No. 13.
“2017 Replacement Term B-3 Loan Conversion Amount” shall mean, with respect to each 2017 Converting Term B-3 Lender, the amount determined by the Administrative Agent and the Borrower as the final amount of such 2017 Converting Term B-3 Lender’s 2017 Replacement Term B-3
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Loan Conversion on the Amendment No. 13 Effective Date and notified to each such 2017 Converting Term B-3 Lender by the Administrative Agent on or prior to the Amendment No. 13 Effective Date. The “2017 Replacement Term B-3 Loan Conversion Amount” of any 2017 Converting Term B-3 Lender shall not exceed (but may be less than) the outstanding principal amount of such 2017 Converting Term B-3 Lender’s Existing Term B-2 Loans (determined immediately prior to the Amendment No. 13 Effective Date). All such determinations made by the Administrative Agent and the Borrower shall, absent manifest error, be final, conclusive and binding on the Borrower and the Lenders, and the Administrative Agent and the Borrower shall have no liability to any Person with respect to such determination absent gross negligence or willful misconduct (in each case, as determined by a court of competent jurisdiction in a final and non-appealable judgment).
“2018 Additional Incremental Term B-4 Commitment” means, for each 2018 Additional Incremental Term B-4 Lender, the amount set forth opposite its name on Exhibit I of Amendment No. 16.
“2018 Additional Incremental Term B-4 Lender” means each Lender or Additional Lender party to Amendment No. 16.
“2018 Additional Incremental Term B-4 Loans” means the 2018 Additional Incremental B-4 Term Loans in an aggregate principal amount of $400,000,000 provided to the Borrower on the Amendment No. 16 Effective Date pursuant to the terms of Amendment No. 16.
“2018 Incremental Term A-2 Lender” means each Lender or Additional Lender party to Amendment No. 15.
“2018 Incremental Term A-2 Loan Commitment” means, for each 2018 Incremental Term A-2 Lender, the amount set forth opposite its name on Exhibit I of Amendment No. 15.
“2018 Incremental Term A-2 Loans” means the 2018 Incremental Term A-2 Loans in an aggregate principal amount of $800,000,000 provided to the Borrower on the Amendment No. 15 Effective Date pursuant to the terms of Amendment No. 15.
“2018 Incremental Term B-4 Lender” means each Lender party to Amendment No. 15.
“2018 Incremental Term B-4 Loan Commitment” means, for each 2018 Incremental Term B-4 Lender, the amount set forth opposite its name on Exhibit I of Amendment No. 15.
“2018 Incremental Term B-4 Loans” means the 2018 Incremental Term B-4 Loans in an aggregate principal amount of $600,000,000 provided to the Borrower on the Amendment No. 15 Effective Date pursuant to the terms of Amendment No. 15.
“2019 Converting Term A-3 Lender” has the meaning assigned to such term in Amendment No. 18.
“2019 Replacement Term A-3 Lender” has the meaning assigned to such term in Amendment No. 18.
“2019 Replacement Term A-3 Loan” has the meaning assigned to such term in Section 2.01(a).
“2019 Replacement Term A-3 Loan Commitment” has the meaning assigned to such term in Amendment No. 18.
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“2019 Replacement Term A-3 Loan Conversion” has the meaning assigned to such term in Amendment No. 18.
“2019 Replacement Term A-3 Loan Conversion Amount” shall mean, with respect to each 2019 Converting Term A-3 Lender, the amount determined by the Administrative Agent and the Borrower as the final amount of such 2019 Converting Term A-3 Lender’s 2019 Replacement Term A-3 Loan Conversion on the Amendment No. 18 Effective Date and notified to each such 2019 Converting Term A-3 Lender by the Administrative Agent on or prior to the Amendment No. 18 Effective Date. The “2019 Replacement Term A-3 Loan Conversion Amount” of any 2019 Converting Term A-3 Lender shall not exceed (but may be less than) the outstanding principal amount of such 2019 Converting Term A-3 Lender’s Existing 2018 Replacement Term A-2 Loans and/or Existing 2018 Incremental Term A-2 Loans, as applicable, (determined immediately prior to the Amendment No. 18 Effective Date). All such determinations made by the Administrative Agent and the Borrower shall, absent manifest error, be final, conclusive and binding on the Borrower and the Lenders, and the Administrative Agent and the Borrower shall have no liability to any Person with respect to such determination absent gross negligence or willful misconduct (in each case, as determined by a court of competent jurisdiction in a final and non-appealable judgment).
“2019 Replacement Term A-3 Loan Maturity Date” has the meaning set forth in the definition of “Maturity Date.”
“2019 Converting Term B-5 Lender” has the meaning assigned to such term in Amendment No. 17.
“2019 Replacement Term B-5 Lender” has the meaning assigned to such term in Amendment No. 17.
“2019 Replacement Term B-5 Loan” has the meaning assigned to such term in Section 2.01(a).
“2019 Replacement Term B-5 Loan Commitment” has the meaning assigned to such term in Amendment No. 17.
“2019 Replacement Term B-5 Loan Conversion” has the meaning assigned to such term in Amendment No. 17.
“2019 Replacement Term B-5 Loan Conversion Amount” shall mean, with respect to each 2019 Converting Term B-5 Lender, the amount determined by the Administrative Agent and the Borrower as the final amount of such 2019 Converting Term B-5 Lender’s 2019 Replacement Term B-5 Loan Conversion on the Amendment No. 17 Effective Date and notified to each such 2019 Converting Term B-5 Lender by the Administrative Agent on or prior to the Amendment No. 17 Effective Date. The “2019 Replacement Term B-5 Loan Conversion Amount” of any 2019 Converting Term B-5 Lender shall not exceed (but may be less than) the outstanding principal amount of such 2019 Converting Term B-5 Lender’s Existing Term B-3 Loans and/or Existing Term B-4 Loans, as applicable, (determined immediately prior to the Amendment No. 17 Effective Date). All such determinations made by the Administrative Agent and the Borrower shall, absent manifest error, be final, conclusive and binding on the Borrower and the Lenders, and the Administrative Agent and the Borrower shall have no liability to any Person with respect to such determination absent gross negligence or willful misconduct (in each case, as determined by a court of competent jurisdiction in a final and non-appealable judgment).
“2019 Replacement Term B-5 Loan Maturity Date” has the meaning set forth in the definition of “Maturity Date.”.
12

“2021 Incremental Term B-6 Lender” means each Lender party to Amendment No. 19 with a 2021 Incremental Term B-6 Loan Commitment.
“2021 Incremental Term B-6 Loan Commitment” means, for each 2021 Incremental Term B-6 Lender, the amount set forth opposite its name on Exhibit B of Amendment No. 19.
“2021 Incremental Term B-6 Loans” means the 2021 Incremental Term B-6 Loans in an aggregate principal amount of $3,100,000,000 provided to the Borrower on the Amendment No. 19 Effective Date pursuant to the terms of Amendment No. 19.
“2021 Incremental Term B-6 Loan Maturity Date” has the meaning set forth in the definition of “Maturity Date”.
“Acceptable Price” has the meaning set forth in Section 2.05(c)(iii).
“Acceptance Date” has the meaning set forth in Section 2.05(c)(ii).
“Acquisition” has the meaning set forth in the preliminary statements hereto.
“Additional Lender” has the meaning set forth in Section 2.14(a).
“Additional Refinancing Lender” means, at any time, any bank, financial institution or other institutional lender or investor (other than any such bank, financial institution or other institutional lender or investor that is a Lender at such time) that agrees to provide any portion of Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance with Section 2.16, provided that each Additional Refinancing Lender shall be subject to the approval of (i) the Administrative Agent, such approval not to be unreasonably withheld, conditioned or delayed, to the extent that each such Additional Refinancing Lender is not then an existing Lender, an Affiliate of a then-existing Lender or an Approved Fund and (ii) the Borrower.
“Adjusted Total Assets” means the total assets of Holdings and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP, but calculated as if purchase accounting had been applied with respect to the Transactions or the Sponsor Acquisition with resulting adjustments to goodwill and other intangible assets.
“Administrative Agent” means (i) prior to the Amendment No. 7 Effective Date, DBTCA, in its capacity as administrative agent under any of the Loan Documents, and (ii) after the Amendment No. 7 Effective Date, DBNY, in its capacity as administrative agent under any of the Loan Documents, or any permitted successor in such capacity in accordance with Section 9.09.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Advent” means Advent International Corporation, a Delaware corporation.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
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“Affiliated Lender Assignment and Assumption” has the meaning set forth in Section 10.07(k)(i)(B).
“Agent-Related Persons” means the Agents, together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
“Agents” means, collectively, the Administrative Agent, the Collateral Agent, the Syndication Agent, the Documentation Agents and the Supplemental Agents (if any).
“Aggregate Commitments” means the Commitments of all the Lenders.
“Agreement” has the meaning set forth in the preliminary statements hereto.
“AHYDO Interest Payment” has the meaning set forth in Section 2.05(b)(v).
“Amendment No. 1” means Amendment No. 1 to the Original Credit Agreement, dated as of February 10, 2011, among Holdings, the Borrower, the other Loan Parties, DBTCA, as the Administrative Agent and as the Replacement Term Lender (as defined in Amendment No. 1), and the other Lenders party thereto.
“Amendment No. 1 Effective Date” means February 10, 2011 or, if different, the date of the effectiveness of the Replacement Term Loan Amendment in accordance with Section 4 of Amendment No. 1.
“Amendment No. 2” means Amendment No. 2 to the Original Credit Agreement, dated as of February 27, 2012, among Holdings, the Borrower, the other Loan Parties, DBTCA, as the Administrative Agent, and the other Lenders party thereto.
“Amendment No. 2 Effective Date” means February 27, 2012.
“Amendment No. 3” means Amendment No. 3 to the Original Credit Agreement, dated as of April 17, 2012, among Holdings, the Borrower, the other Loan Parties, the Additional Lender (as defined in therein), the Administrative Agent and the other Lenders party thereto.
“Amendment No. 4” means Amendment No. 4 to the Original Credit Agreement, dated as of February 5, 2013, among Holdings, the Borrower, the other Loan Parties, DBTCA, as the Administrative Agent and the other Lenders party thereto.
“Amendment No. 4 Effective Date” means March 1, 2013.
“Amendment No. 5” means Amendment No. 5 to the Original Credit Agreement, dated as of November 22, 2013, among Holdings, the Borrower, the other Loan Parties, DBTCA, as the Administrative Agent and the First Incremental Term Lenders party thereto.
“Amendment No. 6” means Amendment No. 6 to the Original Credit Agreement, dated as of December 16, 2013, among Holdings, the Borrower, the other Loan Parties, DBTCA, as the Administrative Agent and the Second Incremental Term Lenders (as defined in Amendment No. 6) party thereto.
“Amendment No. 7” means Amendment No. 7 to the Original Credit Agreement, dated as of April 9, 2014, among Holdings, the Borrower, the other Loan Parties, DBTCA, as Existing Administrative Agent, Existing Collateral Agent, Existing Swing Line Lender and Existing L/C Issuer
14

(each as defined therein), DBNY, as Successor Administrative Agent, Successor Collateral Agent, Successor Swing Line Lender, Successor L/C Issuer and 2014 Replacement Term Lender (each as defined therein) and the other Lenders party thereto.
“Amendment No. 7 Effective Date” means April 9, 2014.
“Amendment No. 8” means Amendment No. 8 to Credit Agreement, dated as of June 2, 2015, among Holdings, the Borrower, the other Loan Parties, DBNY, as Administrative Agent, Collateral Agent, Swing Line Lender (as defined prior to giving effect to Amendment No. 9 and the amendment of this Agreement on the Amendment No. 9 Effective Date), L/C Issuer, the Revolving Credit Lenders party thereto and the 2015 Term B-2 Lenders party thereto.
“Amendment No. 8 Effective Date” means June 2, 2015.
“Amendment No. 8 Required Lender Consent” has the meaning set forth in the preliminary statements hereto.
“Amendment No. 9” means Amendment No. 9 to Credit Agreement, dated as of June 30, 2015, among Holdings, the Borrower, the other Loan Parties, DBNY, as Administrative Agent, Collateral Agent and an L/C Issuer, the Revolving Credit Lenders party thereto, the 2015 Term A Lenders party thereto and the other parties party thereto.
“Amendment No. 9 Effective Date” means June 30, 2015 or, the date of the effectiveness of Amendment No. 9 in accordance with Section 2 thereof.
“Amendment No. 10” means Amendment No. 10 to this Agreement, dated as of March 31, 2016, among Holdings, the Borrower, the other Loan Parties, DBNY, as the Administrative Agent and the 2016 Incremental Term B-2 Lenders party thereto.
“Amendment No. 10 Effective Date” means March 31, 2016 or, if different, the date of the effectiveness of Amendment No. 10 in accordance with Section 2 thereof.
“Amendment No. 11” means Amendment No. 11 to this Agreement, dated as of May 31, 2016, among Holdings, the Borrower, the other Loan Parties, DBNY, as the Administrative Agent and the 2016 Incremental Term A Lenders party thereto.
“Amendment No. 11 Effective Date” means May 31, 2016 or, if different, the date of the effectiveness of Amendment No. 11 in accordance with Section 2 thereof.
“Amendment No. 12” means Amendment No. 12 to the Credit Agreement, dated as of January 31, 2017, among Holdings, the Borrower, the other Loan Parties, the Amendment No. 12 Lead Arrangers, DBNY, as Administrative Agent and Collateral Agent, and the 2015 Term B-2 Lenders party thereto.
“Amendment No. 12 Lead Arrangers” has the meaning set forth in Amendment No. 12.
“Amendment No. 13” shall mean the Amendment No. 13 to Credit Agreement, dated as of August 9, 2017, by and among the Loan Parties, the Administrative Agent, the 2017 Replacement Term B-3 Lenders, the Revolving Credit Lenders and the 2017 Replacement Term A-2 Lenders.
“Amendment No. 13 Effective Date” has the meaning assigned to such term in the Amendment No. 13.
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“Amendment No. 14” shall mean the Amendment No. 14 to Credit Agreement, dated as of May 2, 2018, by and among the Loan Parties, the Administrative Agent and the Lenders party thereto.
“Amendment No. 14 Effective Date” has the meaning assigned to such term in the Amendment No. 14.
“Amendment No. 15” means Amendment No. 15 to this Agreement, dated as of June 19, 2018, among Holdings, the Borrower, the other Loan Parties, DBNY, as the Administrative Agent, the 2018 Incremental Term A-2 Lenders party thereto and the 2018 Incremental Term B-4 Lenders party thereto.
“Amendment No. 15 Effective Date” means the date of the effectiveness of Amendment No. 15 in accordance with Section 3 thereof.
“Amendment No. 16” means Amendment No. 16 to this Agreement, dated as of June 29, 2018, among Holdings, the Borrower, the other Loan Parties, DBNY, as the Administrative Agent and the 2018 Additional Incremental Term B-4 Lenders party thereto.
“Amendment No. 16 Effective Date” means the date of the effectiveness of Amendment No. 16 in accordance with Section 3 thereof.
“Amendment No. 17” means Amendment No. 17 to this Agreement, dated as of November 15, 2019, among Holdings, the Borrower, the other Loan Parties, DBNY as the Administrative Agent and the 2019 Replacement Term B-5 Lenders and other Lenders party thereto (which Lenders, together, constitute Required Lenders).
“Amendment No. 17 Effective Date” means the date of effectiveness of Amendment No. 17 in accordance with Section 3 thereof.
“Amendment No. 18” means Amendment No. 18 to this Agreement, dated as of December 10, 2019, among Holdings, the Borrower, the other Loan Parties, DBNY as the Administrative Agent, each Revolving Credit Lender, each L/C Issuer and the 2019 Replacement Term A-3 Lenders.
“Amendment No. 18 Effective Date” means the date of effectiveness of Amendment No. 18 in accordance with Section 4 thereof.
“Amendment No. 19” means Amendment No. 19 to this Agreement, dated as of December 1, 2021, among Holdings, the Borrower, the other Loan Parties party thereto, DBNY, as the Administrative Agent, the 2021 Incremental Term B-6 Lenders and the other Lenders party thereto (which Lenders, together, constitute the Required Lenders).
“Amendment No. 19 Effective Date” means the date of the effectiveness of Amendment No. 19 in accordance with Section 2 thereof.
“Applicable Discount” has the meaning set forth in Section 2.05(c)(iii).
“Applicable Disposition Percentage” means (a) 100% if the Total Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, is greater than 4.50:1.00, (b) 50.0% if the Total Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, is less than or equal to 4.50:1.00 but greater than 3.50:1.00 and (c) 0% if the Total Net Leverage Ratio as of the last day of the most recently
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ended Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, is less than or equal to 3.50:1.00.
“Applicable ECF Percentage” means, for any Excess Cash Flow Period, (a) 50.0% if the Senior Secured Net Leverage Ratio as of the last day of the applicable Excess Cash Flow Period is greater than 3.50:1.00, (b) 25.0% if the Senior Secured Net Leverage Ratio as of the last day of the applicable Excess Cash Flow Period is less than or equal to 3.50:1.00 and greater than 3.00:1:00 and (c) 0% if the Senior Secured Net Leverage Ratio as of the last day of the applicable Excess Cash Flow Period is less than or equal to 3.00:1.00.
“Applicable Rate” means a percentage per annum equal to:
(a)    with respect to 2021 Incremental Term B-6 Loans at any time on or after the Amendment No. 19 Effective Date, (x) until delivery of financial statements for the first fiscal quarter ending after the Amendment No. 19 Effective Date pursuant to Section 6.01, (A) for LIBOR Loans, 2.25% and (B) for Base Rate Loans, 1.25% and (y) thereafter, the following percentages per annum, based upon the Senior Secured Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):
Applicable Rate
Pricing LevelSenior Secured Net Leverage RatioLIBOR LoansBase Rate
1>3.25:12.25%1.25%
2≤3.25:1,
2.00%1.00%

(ab)    with respect to 2019 Replacement Term B-5 Loans at any time on or after the Amendment No. 17 Effective Date, (A) for LIBOR Loans. 1.75% and (B) for Base Rate Loans, 0.75%,
(bc)    with respect to 2019 Replacement Term A-3 Loans, on or after the Amendment No. 18 Effective Date, (x) until delivery of financial statements for the first fiscal quarter ending after the Amendment No. 18 Effective Date pursuant to Section 6.01, (A) for LIBOR Loans, 1.50% and (B) for Base Rate Loans, 0.50% and (y) thereafter, the following percentages per annum, based upon the Total Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):
Applicable Rate
Pricing LevelTotal Net Leverage RatioLIBOR LoansBase Rate
1>3.75:11.75%0.75%
2≤3.75:1,
but > 3.00:1		1.50%0.50%
3
< 3.00:1
1.25%0.25%

(cd)(i) with respect to Revolving Credit Loans, unused Revolving Credit Commitments and Letter of Credit fees prior to the Amendment No. 18 Effective Date in respect of Revolving Credit
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Lenders with Revolving Credit Commitments (each as defined prior to giving effect to Amendment No. 18 and the amendment of this Agreement on the Amendment No. 18 Effective Date), the rates, as applicable, set forth in clause (c)(ii) of the definition of “Applicable Rate” (as defined prior to giving effect to Amendment No. 18 on the Amendment No. 13 Effective Date), and
(ii) with respect to Revolving Credit Loans, unused Revolving Credit Commitments and Letter of Credit fees in respect of Revolving Credit Lenders with Revolving Credit Commitments established pursuant to Amendment No. 18, (x) until delivery of financial statements for the first fiscal quarter ending after the Amendment No. 18 Effective Date pursuant to Section 6.01, (A) for LIBOR Loans and Letter of Credit fees, 1.50%, (B) for Base Rate Loans, 0.50% and (C) for unused commitment fees, 0.25% and (y) thereafter, the following percentages per annum, based upon the Total Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):
Applicable Rate
Pricing LevelTotal Net Leverage RatioLIBOR and Letter of
Credit Fees		Base RateUnused Commitment
Fee Rate
1>3.75:11.75%0.75%0.30%
2
≤3.75:1, but > 3.00:1
1.50%0.50%0.25%
3
< 3.00:1
1.25%0.25%0.20%

In the case of each of immediately preceding clauses (ba)(y), (c)(y) and (cd)(ii)(y), as applicable, any increase or decrease in the Applicable Rate resulting from a change in the Total Net Leverage Ratio or the Senior Secured Net Leverage Ratio, as applicable, shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided that, at the option of the Administrative Agent (at the direction of the Required Lenders and upon notice to the Borrower of such determination), the highest pricing level shall apply (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue to so apply to and including the date immediately prior to the date on which such Compliance Certificate is so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the pricing level otherwise determined in accordance with this definition shall apply).
In the case of each of immediately preceding clauses (ba)(y), (c)(y) and (cd)(ii)(y), as applicable, in the event that any financial statements under Section 6.01 or a Compliance Certificate is shown to be inaccurate at any time and such inaccuracy, if corrected, would have led to a higher Applicable Rate for any period (an “Applicable Period”) than the Applicable Rate applied for such Applicable Period, then (i) the Borrower shall promptly (and in no event later than five (5) Business Days thereafter) deliver to the Administrative Agent a correct Compliance Certificate for such Applicable Period, (ii) the Applicable Rate shall be determined by reference to the corrected Compliance Certificate (but in no event shall the Lenders owe any amounts to the Borrower), and (iii) the Borrower shall pay to the Administrative Agent promptly upon written demand (and in no event later than five (5) Business Days after written demand) any additional interest owing as a result of such increased Applicable Rate for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with the terms hereof. Notwithstanding anything to the contrary in this Agreement, any
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additional interest hereunder shall not be due and payable until written demand is made for such payment pursuant to clause (iii) above and accordingly, any nonpayment of such interest as a result of any such inaccuracy shall not constitute a Default (whether retroactively or otherwise), and no such amounts shall be deemed overdue (and no amounts shall accrue interest at the Default Rate), at any time prior to the date that is five (5) Business Days following such written demand.
Notwithstanding the foregoing, (x) (I) after the Amendment No. 18 Effective Date, the Applicable Rate in respect of any tranche of Extended Revolving Credit Commitments or (II) any Extended Term Loans made after the Amendment No. 18 Effective Date or (III) Revolving Credit Loans made pursuant to any Extended Revolving Credit Commitments created after the Amendment No. 18 Effective Date shall be the applicable percentages per annum set forth in the relevant Extension Offer and (y) the Applicable Rate shall be increased as, and to the extent, necessary to comply with the provisions of Section 2.15(b).
“Appropriate Lender” means, at any time, (a) with respect to Loans of any Class, the Lenders of such Class and (b) with respect to Letters of Credit, (i) the relevant L/C Issuer and (ii) the Revolving Credit Lenders.
“Approved Bank” has the meaning set forth in clause (c) of the definition of “Cash Equivalents.”
“Approved Fund” means any Fund that is administered, advised or managed by a Lender or an Affiliate of the entity that administers, advises or manages any Fund that is a Lender.
“Arrangers” means, (i) as of the Amendment No. 18 Effective Date, Deutsche Bank Securities Inc., RBC Capital Markets, BofA Securities, Inc., Capital One, N.A., Wells Fargo Securities, LLC and JPMorgan Chase Bank, N.A., in their respective capacities as joint lead arrangers in connection with Amendment No. 18 and this Agreement. and (ii) as of the Amendment No. 19 Effective Date, Deutsche Bank Securities Inc., Capital One, N.A., RBC Capital Markets and BofA Securities, Inc., in their respective capacities as joint lead arrangers in connection with Amendment No. 19 and this Agreement.
“Assignees” has the meaning set forth in Section 10.07(b).
“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit F and accepted by the Administrative Agent and the Borrower, as and to the extent required by Section 10.07.
“Attorney Costs” means and includes all reasonable fees, expenses and disbursements of any law firm or other external legal counsel.
“Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP as in effect on the Amendment No. 7 Effective Date.
“Audited Financial Statements” means the audited consolidated balance sheet of Holdings and its Subsidiaries as of each of December 31, 2008 and 2009, and the related audited consolidated statements of operations and of cash flows for Holdings and its Subsidiaries for the fiscal years ended December 31, 2008 and 2009.
“Auto-Extension Letter of Credit” has the meaning set forth in Section 2.03(b)(iii).
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“Available Additional Basket” means, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to, without duplication:
(a)    $40,000,000; plus
(b)    the Cumulative CNI Amount at such time (provided that, other than in connection with determining the Available Additional Basket for the purpose of Section 7.06(g) hereof, this clause (b) shall be deemed to be zero at any time when the Senior Secured Net Leverage Ratio on a Pro Forma Basis for the then most recently ended Test Period is equal to or greater than 4.50:1.00), plus
(c)    the cumulative amount of cash and Cash Equivalent proceeds from (i) the sale of Equity Interests of Holdings or of any direct or indirect parent of Holdings (other than Disqualified Equity Interests) after the Closing Date and on or prior to such time (including upon exercise of warrants or options) which proceeds have been contributed as common equity to the capital of the Borrower and (ii) the Equity Interests of Holdings (or any direct or indirect parent of Holdings) (other than Disqualified Equity Interests of Holdings) issued upon conversion of Indebtedness issued after the Closing Date of Holdings or any Restricted Subsidiary of Holdings owed to a Person other than a Loan Party or a Restricted Subsidiary of a Loan Party, in the case of each of subclause (i) and subclause (ii), not previously applied for a purpose (including a Specified Equity Contribution applied pursuant to Section 8.05) other than use in the Available Additional Basket, plus
(d)    100.0% of the aggregate amount of contributions to the common capital of Holdings (other than from a Restricted Subsidiary) received in cash and Cash Equivalents after the Closing Date other than from a Specified Equity Contribution pursuant to Section 8.05 which contributions have been contributed as common equity to the capital of the Borrower, plus
(e)    without duplication of any amounts that otherwise increased the amount available for Investments pursuant to Section 7.02, 100.0% of the aggregate amount received after the Closing Date by the Borrower or any Restricted Subsidiary of the Borrower in cash and Cash Equivalents from:
(i)    the sale (other than to the Borrower or any such Restricted Subsidiary) of any Equity Interests of an Unrestricted Subsidiary or any minority Investments, or
(ii)    any dividend or other distribution by an Unrestricted Subsidiary or received in respect of any minority Investments, or
(iii)    any interest, returns of principal, repayments and similar payments by such Unrestricted Subsidiary or received in respect of any minority Investments, plus
(f)    in the event any Unrestricted Subsidiary has been re-designated as a Restricted Subsidiary or has been merged, consolidated or amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary after the Closing Date, the fair market value of the Investments of the Borrower and the Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable), plus
(g)    an amount equal to any returns in cash and Cash Equivalents (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received by the Borrower or any Restricted Subsidiary after the Closing Date in respect of any Investments made pursuant to Section 7.02(l)(y), minus
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(h)    any amount of the Available Additional Basket used to make Investments pursuant to Section 7.02(l)(y) after the Closing Date and prior to such time, minus
(i)    any amount of the Available Additional Basket used to make Restricted Payments pursuant to Section 7.06(g) after the Closing Date and prior to such time, minus
(j)    any amount of the Available Additional Basket used to make payments or distributions in respect of Junior Financings pursuant to Section 7.13 after the Closing Date and prior to such time.
“Available RP Capacity Amount” means, at any time of determination, the amount of Restricted Payments that may be made at such time pursuant to Section 7.06(f) and Section 7.06(j).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Base Incremental Amount” has the meaning set forth in Section 2.14(a).
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1.00%, (b) the Prime Lending Rate at such time and (c) LIBOR for an Interest Period of one month commencing on such day (giving effect to any applicable “floor”) plus 1.00% per annum; provided that in no event shall the Base Rate be less than zero (or, in the case of 2021 Incremental Term B-6 Loans, 1.50% per annum). For purposes of this definition, LIBOR shall be determined using LIBOR as otherwise determined by the Administrative Agent in accordance with the definition of LIBOR, except that (x) if a given day is a Business Day, such determination shall be made on such day (rather than two Business Days prior to the commencement of an Interest Period) or (y) if a given day is not a Business Day, LIBOR for such day shall be the rate determined by the Administrative Agent pursuant to preceding clause (x) for the most recent Business Day preceding such day. Any change in the Base Rate due to a change in the Prime Lending Rate, the Federal Funds Effective Rate or such LIBOR shall be effective as of the opening of business on the day of such change in the Prime Lending Rate, the Federal Funds Effective Rate or such LIBOR, respectively.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
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“Borrower” has the meaning set forth in the preamble hereto.
“Borrower Corporate Headquarters” means the Mortgaged Property located at 555 West Adams Street, Chicago, Illinois.
“Borrower Materials” has the meaning set forth in Section 6.01.
“Borrowing” means a Revolving Credit Borrowing or a Term Borrowing, as the context may require.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, New York, New York or Chicago, Illinois and if such day relates to any LIBOR Loan, means any such day on which dealings in deposits are conducted by and between banks in the London interbank eurodollar market.
“Callcredit Acquisition” means that certain acquisition of Equity Interests pursuant to the Share Purchase Agreement, dated as of April 20, 2018, by and among Crown Acquisition Topco Limited, a private limited company incorporated and registered in England and Wales, Crown Holdco S.à r.l., a private limited company (société à responsabilité limitée) organised under the laws of the Grand Duchy of Luxembourg, the Persons set forth on the Schedule of EBT Beneficiary Sellers attached thereto, the Persons set forth on the Schedule of Individual Sellers attached thereto, Estera Trust (Jersey) Limited in its capacity as the trustee of the Callcredit Employee Benefit Trust, a trust organized under the laws of Jersey, Channel Islands, each other Person, if any, who becomes party thereto by executing and delivering a joinder thereto pursuant to Section 7.17 thereof, Vail Holdings UK Ltd, a private limited company incorporated and registered in England and Wales, as the purchaser, and TransUnion, a Delaware corporation, solely for purposes of Section 11.21 thereof.
“Canadian Dollars” and “Cdn.” mean freely transferable lawful money of Canada (expressed in Canadian Dollars).
“Capital Expenditures” means, for any period, the aggregate, without duplication, of (a) all expenditures (whether paid in cash or accrued as liabilities) by Holdings and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment and other deferred charges included in Capital Expenditures reflected in the consolidated balance sheet of Holdings and its Restricted Subsidiaries and (b) the value of all assets under Capitalized Leases incurred by Holdings and its Restricted Subsidiaries during such period (other than as a result of purchase accounting); provided that the term “Capital Expenditures” shall not include (i) expenditures made in connection with the replacement, substitution, restoration, repair or improvement of assets to the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, restored, repaired or improved or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced, (ii) the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment solely to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time, (iii) the purchase of plant, property or equipment or software to the extent financed with the proceeds of Dispositions that are not required to be applied to prepay Term Loans pursuant to Section 2.05(b), (iv) expenditures that are accounted for as capital expenditures by Holdings or any Restricted Subsidiary and that actually are paid for by a Person other than Holdings or any Restricted Subsidiary and for which neither Holdings nor any Restricted Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such Person or any other Person (whether before, during or after such period), (v) expenditures that constitute operating lease expenses in accordance with GAAP, (vi) expenditures that constitute Permitted Acquisitions, the Repurchase Merger, the Acquisition or other investments that
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consist of the purchase of a business unit, line of business or a division of a Person or all or substantially all of the assets of a Person, (vii) any capitalized interest expense reflected as additions to property, plant or equipment in the consolidated balance sheet of Holdings and the Restricted Subsidiaries or (viii) any non-cash compensation or other non-cash costs reflected as additions to property, plant or equipment in the consolidated balance sheet of Holdings and the Restricted Subsidiaries.
“Capitalized Leases” means all leases that have been or are required to be, in accordance with GAAP as in effect on the Amendment No. 7 Effective Date, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability on a balance sheet (excluding the notes thereto) in accordance with GAAP as in effect on the Amendment No. 7 Effective Date.
“Cash Collateral” has the meaning set forth in Section 2.03(g).
“Cash Collateral Account” means a blocked account at DBNY (or another commercial bank selected in compliance with Section 9.09) in the name of the Administrative Agent and under the sole dominion and control of the Administrative Agent, and otherwise established in a manner reasonably satisfactory to the Administrative Agent.
“Cash Collateralize” has the meaning set forth in Section 2.03(g).
“Cash Equivalents” means any of the following types of Investments, to the extent owned by Holdings or any Restricted Subsidiary:
(a)    Dollars, Pounds Sterling, Canadian Dollars, Euro, or any national currency of any participating member state of the EMU;
(b)    readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of the United States having average maturities of not more than 24 months from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;
(c)    time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) is a Lender or (ii) (A) is organized under the Laws of the United States, any state thereof, the District of Columbia or any member nation of the Organization for Economic Cooperation and Development or is the principal banking Subsidiary of a bank holding company organized under the Laws of the United States, any state thereof, the District of Columbia or any member nation of the Organization for Economic Cooperation and Development, and is a member of the Federal Reserve System, and (B) has combined capital and surplus of at least $250,000,000 in the case of U.S. banks or $100,000,000 (or the Dollar equivalent as of the date of determination) in the case of non-U.S. banks (any such bank in the foregoing clauses (i) or (ii) being an “Approved Bank”), in each case with maturities not exceeding 12 months from the date of acquisition thereof;
(d)    commercial paper and variable or fixed rate notes issued by an Approved Bank (or by the parent company thereof) or any variable or fixed rate note issued by, or guaranteed by, a corporation (other than structured investment vehicles and other than corporations used in structured financing transactions) rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s, in each case with average maturities of not more than 12 months from the date of acquisition thereof;
(e)    marketable short-term money market and similar funds having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall
23

be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Borrower);
(f)    repurchase agreements entered into by any Person with a bank or trust company (including any of the Lenders) or recognized securities dealer, in each case, having capital and surplus in excess of $250,000,000 for direct obligations issued by or fully guaranteed or insured by the government or any agency or instrumentality of the United States or $100,000,000 (or the Dollar equivalent as of the date of determination) in the case of non-U.S. banks, in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100.0% of the amount of the repurchase obligations;
(g)    securities with average maturities of 24 months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government having an investment grade rating from either S&P or Moody’s (or the equivalent thereof);
(h)    Investments (other than in structured investment vehicles and structured financing transactions) with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s;
(i)    Investments, classified in accordance with GAAP as current assets of Holdings or any Restricted Subsidiary, in money market investment programs which are registered under the Investment Company Act of 1940 or which are administered by financial institutions having capital of at least $250,000,000, and, in either case, the portfolios of which are limited such that substantially all of such Investments are of the character, quality and maturity described in clauses (a) through (h) of this definition;
(j)    investment funds investing at least 95.0% of their assets in securities of the types (including as to credit quality and maturity) described in clauses (a) through (i) above; and
(k)    in the case of any Foreign Subsidiary, (x) such local currencies in those countries in which such Foreign Subsidiary transacts business from time to time in the ordinary course of business and (y) investments of comparable tenor and credit quality to those described in the foregoing clauses (a) through (j) customarily utilized in countries in which such Foreign Subsidiary operates for short term cash management purposes.
“Cash Management Bank” has the meaning set forth in the definition of “Cash Management Obligations.”
“Cash Management Obligations” means obligations owed by Holdings or any Loan Party to any Lender or any Affiliate of a Lender (or Person that was a Lender or an Affiliate of a Lender at the time such arrangement was entered into or at the time immediately prior to the Amendment No. 7 Effective Date) (a “Cash Management Bank”) in respect of any overdraft and related liabilities arising from treasury, depository, credit card, debit card, purchase card and cash management services or any automated clearing house transfers of funds, in each case, to the extent designated by the Borrower and such Lender or such Affiliate of a Lender as “Cash Management Obligations” in writing to the Collateral Agent. The designation of any Cash Management Obligations shall not create in favor of the Lender or Affiliate thereof any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Collateral Documents.
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“Casualty Event” means any event that gives rise to the receipt by Holdings or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace, restore or repair such equipment, fixed assets or real property.
“Change of Control” shall be deemed to occur if:
(a)    at any time prior to a Qualified IPO, any combination of Permitted Holders shall fail to own beneficially (within the meaning of Rule 13d-5 of the Exchange Act as in effect on the Closing Date), directly or indirectly, in the aggregate Equity Interests representing at least a majority of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings;
(b)    at any time after a Qualified IPO (including the TransUnion IPO), any person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date), other than any “group” including any Permitted Holders (provided, that in the case of any such “group,” the Permitted Holders hold a majority of all voting interest in Holdings’ Equity Interests held by all members of such “group”), shall have acquired beneficial ownership of 35.0% or more on a fully diluted basis of the voting interest in Holdings’ Equity Interests and the Permitted Holders shall own, directly or indirectly, less than such person or “group” on a fully diluted basis of the voting interest in Holdings’ Equity Interests;
(c)    a “change of control” (or similar event) shall occur under (i) any Senior Note Document (other than in connection with the Sponsor Acquisition) or (ii) any Junior Financing or Credit Agreement Refinancing Indebtedness, in each case with an aggregate principal amount in excess of the Threshold Amount, or any Permitted Refinancing Indebtedness in respect of any of the foregoing with an aggregate principal amount in excess of the Threshold Amount; or
(d)    Holdings shall cease to own directly or indirectly 100.0% of the Equity Interests of the Borrower.
“Class” (a) when used with respect to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments, (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Credit Commitments, Extended Revolving Credit Commitments, Refinancing Revolving Credit Commitments, 2019 Replacement Term B-5 Loan Commitments, 2019 Replacement Term A-3 Loan Commitments, 2021 Incremental Term B-6 Loan Commitments, Refinancing Term Commitments or Commitments in respect of Replacement Term Loans and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Revolving Credit Loans, revolving credit loans under Extended Revolving Credit Commitments, revolving credit loans under Refinancing Revolving Credit Commitments, 2019 Replacement Term B-5 Loans, 2019 Replacement Term A-3 Loans, 2021 Incremental Term B-6 Loans, Refinancing Term Loans or Replacement Term Loans. Commitments (and in each case, the Loans made pursuant to such Commitments) that have different terms and conditions shall be construed to be in different Classes. Commitments (and, in each case, the Loans made pursuant to such Commitments) that have the same terms and conditions shall be construed to be in the same Class.
“Closing Date” means June 15, 2010.
“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means the “Collateral” as defined in the Security Agreement, the “Collateral” as defined in the Pledge Agreement and any other assets pledged or in which a Lien is
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granted pursuant to any Collateral Document, including, without limitation, the Mortgaged Property (if any).
“Collateral Agent” means (i) prior to the Amendment No. 7 Effective Date, DBTCA, in its capacity as collateral agent or pledgee in its own name under any of the Loan Documents, and (ii) after the Amendment No. 7 Effective Date, DBNY, in its capacity as collateral agent or pledgee in its own name under any of the Loan Documents, or any permitted successor collateral agent appointed in accordance with Section 9.09.
“Collateral and Guarantee Requirement” means, at any time, the requirement that:
(a)    on the Closing Date the Administrative Agent shall have received each Collateral Document to the extent required to be delivered on the Closing Date pursuant to Section 4.02(e) of the Original Credit Agreement, subject to the limitations and exceptions of this Agreement, duly executed by each Loan Party thereto;
(b)    the Secured Obligations shall have been secured by a first-priority (subject to Permitted Liens under Section 7.01(c)) security interest in (i) all the Equity Interests of the Borrower, (ii) all Equity Interests of each Restricted Subsidiary of Holdings that is not an Excluded Subsidiary directly owned by any Loan Party, (iii) 65.0% of the voting and non-voting Equity Interests collectively issued by Trans Union International, Inc. to any Loan Party and (iv) 65.0% of any voting Equity Interests of any “first-tier” wholly owned Foreign Subsidiary and 100.0% of any non-voting Equity Interests of any “first-tier” wholly owned Foreign Subsidiary held by any Loan Party, in each case, subject to Permitted Liens under Section 7.01(c), exceptions and limitations otherwise set forth in this Agreement and the Collateral Documents pursuant to documents governed by applicable state law; provided, that in no event shall any Loan Party be required to deliver a pledge (i) in excess of 65.0% of any voting Equity Interests of any “first-tier” Foreign Subsidiary or (ii) of any Equity Interest of any “second-tier” or lower Subsidiary that is a Foreign Subsidiary;
(c)    the Secured Obligations shall have been secured by a perfected security interest in, or Mortgage on, as applicable, substantially all tangible and intangible assets of the Borrower and each Guarantor (including intercompany debt, accounts, inventory, equipment, investment property, contract rights, intellectual property in the United States, other general intangibles, Material Real Property and proceeds of the foregoing), in each case, subject to Permitted Liens, exceptions and limitations otherwise set forth in this Agreement (for the avoidance of doubt, including the limitations and exceptions set forth in the proviso of Section 4.02(e) of the Original Credit Agreement) and the Collateral Documents pursuant to documents governed by applicable state law;
(d)    subject to limitations and exceptions of this Agreement (for the avoidance of doubt, including the limitations and exceptions set forth in the proviso of Section 4.02(e) of the Original Credit Agreement) and the Collateral Documents, to the extent a security interest in and Mortgages on any Material Real Property is required under Section 6.11 or 6.13 (together with any Material Real Property that is subject to a Mortgage on the Closing Date, each, a “Mortgaged Property”), the Administrative Agent shall have received (i) counterparts of a Mortgage with respect to such Mortgaged Property duly executed and delivered by the record owner of such property in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may reasonably deem necessary to create a valid and subsisting perfected first-priority Lien (subject only to Permitted Liens and other Liens permitted in the relevant Mortgage) on the property and/or rights described therein in favor of the Collateral Agent for the benefit of the Secured Parties, and evidence that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (it being understood that if a mortgage tax will be owed on the entire amount of the indebtedness evidenced hereby, then the amount secured by the Mortgage shall be limited to 100.0% of the fair market
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value of the property at the time the Mortgage is entered into if such limitation results in such mortgage tax being calculated based upon such fair market value), (ii) fully paid policies of title insurance (or marked-up title insurance commitments having the effect of policies of title insurance) on the Mortgaged Property naming the Collateral Agent as the insured for its benefit and that of the Secured Parties and respective successors and assigns (the “Mortgage Policies”) issued by a nationally recognized title insurance company reasonably acceptable to the Administrative Agent in form and substance and in an amount reasonably acceptable to the Administrative Agent (not to exceed 100.0% of the fair market value of the real properties covered thereby), insuring the Mortgages to be valid subsisting first-priority Liens on the property described therein, free and clear of all Liens other than Permitted Liens, which shall include (A) such reinsurance arrangements (to the extent reasonably necessary, and with provisions for direct access, if reasonably necessary) and endorsements as shall be reasonably acceptable to the Collateral Agent, (B) a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), and (C) such endorsements as shall be reasonably requested by the Collateral Agent (including, to the extent reasonably requested by the Collateral Agent, endorsements on matters relating to usury, first loss, zoning, contiguity, revolving credit (if available after the applicable Loan Party uses commercially reasonable efforts), doing business, non-imputation, public road access, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot and so-called comprehensive coverage over covenants and restrictions), (iii) legal opinions, addressed to the Administrative Agent and the Collateral Agent, reasonably acceptable to the Administrative Agent and the Collateral Agent, (iv) a survey or express map of each Mortgaged Property sufficient in form to delete the standard survey exception in the title insurance policy insuring the Mortgage and provide Collateral Agent with endorsements to such policy as shall be reasonably requested by the Collateral Agent and (v) a completed “life of the loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property duly executed and acknowledged by the appropriate Loan Parties; and
(e)    after the Closing Date, each Restricted Subsidiary of Holdings that is not an Excluded Subsidiary shall become a Guarantor and signatory to this Agreement pursuant to a joinder agreement in accordance with Section 6.11 and a party to the applicable Collateral Documents in accordance with Section 6.11; provided that notwithstanding the foregoing provisions, any Subsidiary of Holdings that Guarantees the Senior Notes shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary:
(A)    the foregoing definition shall not require, unless otherwise stated in this clause (A), the creation or perfection of pledges of, security interests in, Mortgages on, or the obtaining of title insurance or taking other actions with respect to, (i) any fee owned real property (other than Material Real Properties) and any leasehold rights and interests in real property (including landlord waivers, estoppels and collateral access letters), (ii) (A) motor vehicles and other assets subject to certificates of title and (B) commercial tort claims where the amount of damages claimed by the applicable Loan Party is less than $5,000,000, (iii) any particular asset, if the pledge thereof or the security interest therein is prohibited by Law other than to the extent such prohibition is expressly deemed ineffective under the Uniform Commercial Code or other applicable Law notwithstanding such prohibition, (iv) Margin Stock and, solely to the extent prohibited by the Organization Documents or any shareholders agreement with shareholders that are not direct or indirect wholly owned Restricted Subsidiaries of Holdings, Equity Interests in any Person other than wholly owned Restricted Subsidiaries, (v) any rights of any Loan Party with respect to any lease, license or other agreement to the extent a grant of security interest therein is prohibited by such lease, license or other agreement, would result in an invalidation thereof or would create a right of termination in favor of any other party thereto (other than a Loan Party) after giving
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effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable Laws or principle of equity notwithstanding such prohibition, (vi) any property or assets that would result in adverse tax consequences to Holdings, the Borrower or any of its Subsidiaries, as determined by the Borrower (it being understood that the Lenders shall not require Holdings or any of its Subsidiaries to enter into any security agreements or pledge agreements governed under foreign law), (vii) intellectual property to the extent a security interest is not perfected by filing of a UCC financing statement or in respect of registered intellectual property, a filing in the USPTO (if required) or the U.S. Copyright Office (it being understood that such assets are intended to constitute Collateral, though perfection beyond UCC, USPTO and U.S. Copyright Office filings is not required), (viii) Equity Interests of Unrestricted Subsidiaries, (ix) assets specifically requiring perfection solely through control agreements (e.g., deposit accounts and securities accounts) and (x) any particular assets if, in the reasonable judgment of the Administrative Agent and the Borrower, the burden, cost or consequences of creating or perfecting such pledges or security interests in such assets or obtaining title insurance is excessive in relation to the benefits to be obtained therefrom by the Lenders under the Loan Documents;
(B)    (i) the foregoing definition shall not require control agreements and perfection by “control” with respect to any Collateral (including deposit accounts, securities accounts, etc.) other than certificated Equity Interests of the Borrower and, to the extent constituting Collateral, its Restricted Subsidiaries; (ii) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required in order to create any security interests in assets located or titled outside of the U.S. or to perfect such security interests (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction other than the UK Security Agreement; and (iii) except to the extent that perfection and priority may be achieved by the filing of a financing statement under the Uniform Commercial Code with respect to the Borrower or a Guarantor, or, with respect to real property and the recordation of Mortgages in respect thereof, as contemplated by clauses (c) and (d) above, the Loan Documents shall not contain any requirements as to perfection or priority with respect to any assets or property described in this clause (B);
(C)    the foregoing definition shall not require the creation of security interests in any assets of, or Equity Interests of, any Unrestricted Subsidiaries;
(D)    the Administrative Agent in its reasonable discretion may grant extensions of time for the creation or perfection of security interests in, and Mortgages on, or obtaining of title insurance or taking other actions with respect to, particular assets (including extensions beyond the Closing Date) or any other compliance with the requirements of this definition where it and the Borrower reasonably determine that the creation or perfection of security interests and Mortgages on, or obtaining of title insurance or taking other actions, or any other compliance with the requirements of this definition cannot be accomplished without undue delay, burden or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents; provided that the Collateral Agent shall have received on or prior to the Closing Date, (i) UCC financing statements in appropriate form for filing under the UCC in the jurisdiction of incorporation or organization of each Loan Party, and (ii) any certificates or instruments representing or evidencing Equity Interests of the Borrower and any Subsidiary Guarantors accompanied by instruments of transfer and stock powers undated and endorsed in blank;
(E)    in no event shall the Administrative Agent or any Lender be entitled to exercise the voting power in respect of more than 65.0% of the voting Equity Interests of any “first-tier” Foreign Subsidiary; and
(F)    Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in this Agreement and the Collateral Documents.
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“Collateral Documents” means, collectively, the Security Agreement, the Pledge Agreement, the UK Security Agreement, each of the Mortgages, collateral assignments, security agreements, pledge agreements, intellectual property security agreements or other similar agreements delivered to the Administrative Agent pursuant to Section 4.02 of the Original Credit Agreement, and Section 4.03, Section 6.11 or Section 6.13 hereof, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.
“Commitment” means a Term Commitment, a Revolving Credit Commitment or an Extended Revolving Credit Commitment of any Class, as the context may require.
“Committed Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of LIBOR Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Compensation Period” has the meaning set forth in Section 2.12(c)(ii).
“Competitors” means any Person for whom a primary focus of their business is providing one or more of the following data and information management services: credit reports, credit scores, analytical services, risk management, portfolio review, direct marketing, credit monitoring, identification management, fraud detection, resources to help consumers manage their credit, auto information solutions, and receivables management services. Competitors include, but are not limited to, any of those companies currently operating under the following corporate umbrellas: Equifax Inc.; Experian Group Ltd.; Fair Isaac Corporation; RELX plc.; First Advantage Corporation; Innovis Inc.; Intersections, Inc.; Moody’s Corp.; LiveRamp Holdings, Inc.; Dun & Bradstreet Corp.; Fiserv Inc.; The McGraw-Hill Companies, Inc.; Thomson Reuters Corporation; Wolters Kluwer N.V.; Accenture plc; Automatic Data Processing, Inc.; Alliance Data Systems Corporation; CyberSource Corporation; Fidelity National Information Services Inc.; Paychex Inc.; SunGard Data Systems Inc.; and Volt Information Sciences, Inc.; and Verisk Analytics, Inc.
“Compliance Certificate” means a certificate substantially in the form of Exhibit E.
“Consolidated EBITDA” means, for any period, the Consolidated Net Income for such period, plus:
(a)    without duplication and, except with respect to clause (v) or (viii) below, to the extent deducted (and not added back) in arriving at such Consolidated Net Income, the sum of the following amounts for such period with respect to Holdings and its Restricted Subsidiaries:
(i)    total interest expense determined in accordance with GAAP (including, to the extent deducted and not added back in computing Consolidated Net Income, (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers’ acceptances, (c) non-cash interest payments, (d) the interest component of Capitalized Leases, (e) net payments, if any, pursuant to interest rate Swap Contracts with respect to Indebtedness, (f) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, (g) any expensing of bridge, commitment and other financing fees and (h) commissions, discounts, yield and other fees and charges (including related interest expenses) related to any Receivables Facility) and, to the extent not reflected in such total interest expense, any losses on hedging obligations or other derivative instruments entered into for the purpose of
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hedging interest rate risk, net of interest income and gains on such hedging obligations, and costs of surety bonds in connection with financing activities (whether amortized or immediately expensed),
(ii)    provision for taxes based on income, profits or capital of Holdings and the Restricted Subsidiaries, including, without limitation, federal, state, franchise and similar taxes (such as Delaware franchise tax) and foreign withholding taxes paid or accrued during such period including penalties and interest related to such taxes or arising from any tax examinations,
(iii)    depreciation and amortization (including amortization of intangible assets, deferred financing fees, debt issuance costs, commissions, fees and expenses, bridge, commitment and other financing fees, discounts, yield and other fees and charges (including interest expense) related to any Receivables Facility, and amortization of unrecognized prior service costs and actuarial gains and losses related to pensions and other post-employment benefits, of Holdings and its Restricted Subsidiaries),
(iv)    severance and signing bonuses, stock options and other equity based compensation expenses, management fees and expenses, including, without limitation, any one time expense relating to enhanced accounting function or other transaction costs, including those associated with becoming a public company, relocation costs and expenses, Transaction Expenses, fees and expenses incurred directly in connection with the Sponsor Acquisition, integration costs, transition costs, consolidation and closing costs for facilities, costs incurred in connection with any non-recurring strategic initiatives, costs incurred in connection with acquisitions and non-recurring intellectual property development after the Closing Date, other business optimization expenses (including costs and expenses relating to business optimization programs and new systems design and implementation costs), project start-up costs and other restructuring charges, accruals or reserves (including restructuring costs related to acquisitions after the Closing Date and to closure/consolidation of facilities, retention charges, systems establishment costs and excess pension charges),
(v)    the portion attributable to Holdings and its Restricted Subsidiaries (based on their percentage ownership) of the net income (loss) for such period of any Person that is not a Subsidiary, or that is accounted for by the equity method of accounting (but in any event excluding any Unrestricted Subsidiary), to the extent that the same was not included or otherwise deducted (and not added back) in such period in computing Consolidated Net Income,
(vi)    the amount of (A) management, consulting, monitoring and advisory fees and related expenses paid to the Permitted Holders in an amount not to exceed $5,000,000 in the aggregate in any calendar year and (B) payments by Holdings or any of its Restricted Subsidiaries to any of the Permitted Holders made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by a majority of the Board of Directors of the Borrower in good faith,
(vii)    any costs or expenses incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of Holdings or net cash proceeds of an issuance of Equity Interests of Holdings (other than Disqualified Equity Interests),
(viii)    the amount of cost savings, operating expense reductions, other operating improvements and synergies projected by the Borrower in good faith to be realized in connection with the Transactions or any Specified Transaction or the implementation of an operational initiative after the Closing Date (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions,
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other operating improvements and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, other operating improvements and synergies were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) a duly completed certificate signed by a Responsible Officer of the Borrower shall be delivered to the Administrative Agent together with the Compliance Certificate required to be delivered pursuant to Section 6.02(a), certifying that (x) such cost savings, operating expense reductions, other operating improvements and synergies are reasonably anticipated to be realized and factually supportable in the good faith judgment of the Borrower, and (y) such actions are to be taken within (I) in the case of any such cost savings, operating expense reductions, other operating improvements and synergies in connection with the Transactions, 12 months after the Closing Date and (II) in all other cases, within 12 months after the consummation of the acquisition, Disposition or the implementation of an initiative, which is expected to result in such cost savings, expense reductions, other operating improvements or synergies, (B) no cost savings, operating expense reductions and synergies shall be added pursuant to this clause (viii) to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period, (C) to the extent that any cost savings, operating expense reductions, other operating improvements and synergies are not associated with the Transactions or a Specified Transaction following the Closing Date, all steps shall have been taken for realizing such savings and (D) projected amounts (and not yet realized) may no longer be added in calculating Consolidated EBITDA pursuant to this clause (viii) to the extent occurring more than four full fiscal quarters after the specified action taken in order to realize such projected cost savings, operating expense reductions, other operating improvements and synergies,
(ix)    any net loss from disposed, abandoned or discontinued operations,
(x)    any non-cash increase in expenses resulting from the revaluation of inventory (including any impact of changes to inventory valuation policy methods including changes in capitalization and variances),
(xi)    proceeds of business interruption insurance,
(xii)    other accruals, payments and expenses (including legal, tax, structuring and other costs and expenses) incurred during such period, or any amortization thereof for such period, in connection with any acquisition, investment, asset disposition, issuance or repayment of debt, issuance of equity securities, refinancing transaction or amendment or other modification of any debt instrument (in each case, including any such transaction consummated on the Closing Date and any such transaction undertaken but not completed); provided, that for the avoidance of doubt, the effects of expensing all transaction related expenses in accordance with Financial Accounting Standards No. 141(R) and gains or losses associated with FASB Interpretation No. 45 shall be excluded,
(xiii)    cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (b) below for any previous period and not added back,
(xiv)    the amount of loss on sales of Receivables Assets to a Receivables Subsidiary in connection with a Receivables Facility, and
(xv)    non-cash expenses, charges and losses (including impairment charges or asset write-offs, losses from investments recorded using the equity method, stock-based awards compensation expense or expenses relating to the vesting of warrants), in each case other than (A) any non-cash charge representing amortization of a prepaid cash item that was paid and not expensed in a prior period and (B) any non-cash charge relating to write-offs, write-downs or reserves with respect to accounts receivable or
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inventory; provided that if any non-cash charges referred to in this clause (xv) represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA in such future period to such extent paid, and
(xvi)    the amount of any non-controlling interest consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly-owned Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income,
less (b) without duplication and to the extent included in arriving at such Consolidated Net Income, (i) extraordinary, unusual or non-recurring gains, (ii) non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period) and (iii) any net gain from disposed, abandoned or discontinued operations; provided that, for the avoidance of doubt, any gain representing the reversal of any non-cash charge referred to in clause (a)(xv)(B) above for a prior period shall be added (together with, without duplication, any amounts received in respect thereof to the extent not increasing Consolidated Net Income) to Consolidated EBITDA in any subsequent period to such extent so reversed (or received);
provided that:
(A)    to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA (x) currency translation gains and losses related to currency remeasurements of Indebtedness (including the net loss or gain (i) resulting from Swap Contracts for currency exchange risk and (ii) resulting from intercompany indebtedness) and (y) gains or losses on Swap Contracts,
(B)    to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period any adjustments resulting from the application of Statement of Financial Accounting Standards No. 133 and International Accounting Standard No. 39 and their respective related pronouncements and interpretations,
(C)    to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period any income (loss) for such period attributable to the early extinguishment of (i) Indebtedness, (ii) obligations under any Swap Contracts or (iii) other derivative instruments, and
(D)    there shall be excluded in determining Consolidated EBITDA for any period any after-tax effect of non-recurring items (including gains or losses and all fees and expenses relating thereto) relating to curtailments or modifications to pension and post-retirement employee benefit plans for such period.
“Consolidated Interest Expense” means, for any period, (1) total interest expense of Holdings, the Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP (including, to the extent deducted and not added back in computing Consolidated Net Income, (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers’ acceptances, (c) non-cash interest payments (but excluding (i) any non-cash interest expense attributable to the movement in the mark to market valuation of Swap Contracts or other derivative instruments pursuant to GAAP and (ii) any non-cash imputed interest expense associated with non-interest bearing Indebtedness issued at par to the extent not included in Consolidated EBITDA), (d) the interest component of Capitalized Leases and (e) net payments, if any, pursuant to interest rate Swap Contracts with respect to Indebtedness, and excluding (x) amortization of deferred financing fees, debt
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issuance costs, commissions, fees and expenses, (y) any expenses associated with bridge, commitment and other financing fees and (z) commissions, discounts, yield and other fees and charges (including related interest expenses) related to any Receivables Facility); plus (2) consolidated capitalized interest of Holdings, the Borrower and the Restricted Subsidiaries for such period, whether paid or accrued; less (3) interest income for such period. For purposes of this definition, interest on a Capitalized Lease shall be deemed to accrue at an interest rate reasonably determined by the Borrower to be the rate of interest implicit in such Capitalized Lease in accordance with GAAP.
“Consolidated Net Income” means, for any period, the net income (loss) of Holdings, the Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, provided, however, that, without duplication,
(a)    any pro forma after-tax effect (using a reasonable estimate based on applicable tax rates) of extraordinary, non-recurring or unusual items (including gains or losses and less all fees and expenses relating thereto) for such period shall be excluded, provided that solely for the purpose of calculating Consolidated Net Income in connection with determining the Available Additional Basket for Section 7.06(g) hereof, the after-tax effect of severance, relocation costs and curtailments or modifications to pension and post-retirement benefits plans shall also be excluded,
(b)    the cumulative effect of a change in accounting principles during such period to the extent included in Consolidated Net Income shall be excluded,
(c)    accruals and reserves that are established or adjusted within twelve months after the Closing Date that are so required to be established or adjusted as a result of the Transactions in accordance with GAAP or changes as a result of adoption or modification of accounting policies in accordance with GAAP shall be excluded,
(d)    any net pro forma after-tax gains or losses on disposal of abandoned, disposed or discontinued operations shall be excluded,
(e)    any net pro forma after-tax effect of gains or losses (less all fees, expenses and charges) attributable to asset dispositions or the sale or other disposition of any Equity Interests of any Person in each case other than in the ordinary course of business, as determined in good faith by the Borrower, shall be excluded,
(f)    the net income (loss) for such period of any Person that is not a Subsidiary of Holdings, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of Holdings shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents (or to the extent subsequently converted into cash or Cash Equivalents) to Holdings or a Restricted Subsidiary thereof in respect of such period,
(g)    any impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP shall be excluded,
(h)    any non-cash compensation charge or expense, including any such charge or expense arising from the grants of stock appreciation or similar rights, stock options, restricted stock or other rights or equity incentive programs shall be excluded, and any cash charges associated with the rollover, acceleration or payout of Equity Interests by management of Holdings or any of its direct or indirect Restricted Subsidiaries in connection with the Transactions, shall be excluded,
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(i)    any expenses, charges or losses that are covered by indemnification or other reimbursement provisions in connection with any Investment, Permitted Acquisition or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement, to the extent actually reimbursed, or, so long as the Borrower has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days), shall be excluded,
(j)    to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is in fact reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses with respect to liability or casualty events or business interruption shall be excluded,
(k)    the income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary of Holdings or is merged into or consolidated with Holdings or any of its Subsidiaries or that Person’s assets are acquired by Holdings or any of its Restricted Subsidiaries shall be excluded (except to the extent required for any calculation of Consolidated EBITDA on a Pro Forma Basis in accordance with Section 1.09 and Section 1.13), and
(l)    solely for the purpose of calculating Consolidated Net Income in connection with determining the Available Additional Basket for Section 7.06(g) hereof, (i) any fees and expenses incurred directly in connection with the Sponsor Acquisition shall be excluded, (ii) fees and expenses incurred, or any amortization thereof, in connection with any Investment, Permitted Acquisition or any sale, conveyance, transfer or other disposition of assets, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case to the extent not prohibited under this Agreement shall be excluded and (iii) the after-tax effect of any gains or losses from the early extinguishment of Indebtedness or any hedging obligation or other derivative obligation, shall be excluded.
For the avoidance of doubt, revenue will be accounted for on a GAAP basis and the recognition of any deferred revenue will be included in Consolidated Net Income in the same period as recognized for GAAP.
There shall be excluded from Consolidated Net Income for any period the purchase accounting effects of adjustments (including the effects of such adjustments pushed down to Holdings and its Restricted Subsidiaries) in component amounts required or permitted by GAAP (including in the inventory, property and equipment, software, goodwill, intangible assets, in-process research and development, deferred revenue and debt line items thereof) and related authoritative pronouncements (including the effects of such adjustments pushed down to Holdings and the Restricted Subsidiaries), as a result of the Transactions, any acquisition consummated prior to the Closing Date, any Permitted Acquisitions or other Investments, the Sponsor Acquisition, or the amortization or write-off of any amounts thereof. However, to the extent that deferred revenue is reduced as a result of the application of purchase accounting rules, revenue will be increased in subsequent periods to reflect the amount of revenue that would be recognized each period if there were no purchase accounting adjustments to deferred revenue.
“Consolidated Total Net Debt” means, as of any date of determination, (a) the aggregate principal amount of Indebtedness of Holdings and its Restricted Subsidiaries outstanding on such date, in
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an amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP (but (x) excluding the impact on Indebtedness resulting from the application of purchase accounting in connection with the Transactions, the Sponsor Acquisition or any Permitted Acquisition and (y) any Indebtedness that is issued at a discount to its initial principal amount shall be calculated based on the entire principal amount thereof), consisting of Indebtedness for borrowed money, Attributable Indebtedness, and debt obligations evidenced by promissory notes or similar instruments, minus (b) the aggregate amount of cash and Cash Equivalents (other than Restricted Cash), in each case, that is held by Holdings and its Restricted Subsidiaries as of such date free and clear of all Liens, other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Section 7.01(a), clauses (i), (ii) and (iii) of Section 7.01(k) and Section 7.01(p), provided that Consolidated Total Net Debt shall not include Indebtedness in respect of (i) letters of credit (including Letters of Credit), except to the extent of unreimbursed amounts thereunder, provided that any unreimbursed amount under trade letters of credit shall not be counted as Consolidated Total Net Debt until three (3) Business Days after such amount is drawn and (ii) Unrestricted Subsidiaries; it being understood, for the avoidance of doubt, that obligations under Swap Contracts entered into for non-speculative purposes do not constitute Consolidated Total Net Debt.
“Consolidated Working Capital” means, with respect to Holdings and its Restricted Subsidiaries on a consolidated basis at any date of determination, Current Assets at such date of determination minus Current Liabilities at such date of determination; provided that increases or decreases in Consolidated Working Capital shall be calculated without regard to any changes in Current Assets or Current Liabilities as a result of (a) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent, (b) the effects of purchase accounting or (c) the effect of fluctuations in the amount of accrued or contingent obligations, assets or liabilities under Swap Contracts.
“Contract Consideration” has the meaning set forth in the definition of “Excess Cash Flow.”
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“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 or by contract. “Controlling” and “Controlled” have meanings correlative thereto.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Credit Agreement Refinancing Indebtedness” means (a) Permitted Pari Passu Refinancing Debt, (b) Permitted Junior Refinancing Debt, (c) Permitted Unsecured Refinancing Debt or (d) other Indebtedness incurred pursuant to a Refinancing Amendment, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or part, any Class of existing Term Loans or any Class of existing Revolving Credit Loans (or unused Revolving Credit Commitments) or any then-existing Credit Agreement Refinancing Indebtedness (the “Refinanced Debt”); provided that (i) such Indebtedness has a maturity no earlier, and a Weighted Average Life to Maturity equal to or greater, than the Refinanced Debt, (ii) such Indebtedness shall not have a greater principal amount than the principal amount (or accreted value, if applicable) of the Refinanced Debt plus accrued interest, fees,
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premiums (if any) and penalties thereon and fees and expenses associated with the refinancing, plus an amount equal to any existing commitments unutilized thereunder, (iii) the terms and conditions of such Indebtedness (except as otherwise provided in clause (ii) above, but including with respect to pricing and optional prepayment or redemption terms) reflect market terms and conditions (as reasonably determined by the Borrower) at the time of incurrence or issuance of such Credit Agreement Refinancing Indebtedness, (iv) the “effective” yield with respect such Credit Agreement Refinancing Indebtedness shall be determined by the Borrower and the lenders providing such Credit Agreement Refinancing Indebtedness, (v) such Refinanced Debt shall be repaid, repurchased, retired, defeased or satisfied and discharged, and all accrued interest, fees, premiums (if any) and penalties in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained, (vi) such Indebtedness is not at any time guaranteed by any Person other than Guarantors, (vii) to the extent secured, such Indebtedness is not secured by property other than the Collateral, (viii) if the Refinanced Debt is subordinated in right of payment to, or to the Liens securing, the Obligations, then any Credit Agreement Refinancing Indebtedness shall be subordinated in right of payment to, or to the Liens securing, the Obligations, as applicable, on terms (A) at least as favorable (taken as a whole) (as reasonably determined by the Borrower) to the Lenders as those contained in the documentation governing the Refinanced Debt or (B) otherwise reasonably acceptable to the Administrative Agent, (ix) any Credit Agreement Refinancing Indebtedness shall be pari passu or junior in right of payment and, if secured, secured on a pari passu or junior basis with respect to security, with respect to the Revolving Credit Facility and the Term Loans, to the extent outstanding, (x) if such Credit Agreement Refinancing Indebtedness is secured, the requirements in the proviso at the end of Section 7.03 have been satisfied, and (xi) no Credit Agreement Refinancing Indebtedness that is a Term Loan shall be voluntarily or mandatorily prepaid prior to repayment in full of (or, if junior in right of payment or as to security, on a junior basis with respect to) any Class of then-existing Term Loans unless, solely in the case such Credit Agreement Refinancing Indebtedness that is pari passu in right of payment and security with such Class of then-existing Term Loans, accompanied by at least a ratable payment of such Class of then-existing Term Loans, and any such Credit Agreement Refinancing Indebtedness that is pari passu in right of payment and security with any Class of then-existing Term Loans may participate on a pro rata basis or on less than a pro rata basis (but not greater than pro rata basis) in any mandatory prepayments hereunder.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Cumulative CNI Amount” means (a) at any time prior to the date on which financial statements have been delivered pursuant to Section 6.01(b) in respect of the fiscal quarter ending September 30, 2010, zero, and (b) at any time thereafter, 50.0% of the aggregate amount of Consolidated Net Income accrued during the period (treated as one accounting period) from July 1, 2010 to the end of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 6.01(a) or (b).
“Current Assets” means, with respect to Holdings and the Restricted Subsidiaries on a consolidated basis at any date of determination, all assets (other than cash and Cash Equivalents) that would, in accordance with GAAP, be classified on a consolidated balance sheet of Holdings and its Restricted Subsidiaries as current assets at such date of determination, other than amounts related to current or deferred Taxes based on income or profits (but excluding (i) assets held for sale, (ii) loans (permitted) to third parties, (iii) Pension Plan assets, (iv) deferred bank fees, (v) derivative financial instruments and (vi) in the event that a Receivables Facility is accounted for off-balance sheet, (x) gross accounts receivable comprising a part of the Receivables Assets subject to such Receivables Facility less (y) collection against the amount sold pursuant to clause (x)).
“Current Liabilities” means, with respect to Holdings and the Restricted Subsidiaries on a consolidated basis at any date of determination, all liabilities that would, in accordance with GAAP, be
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classified on a consolidated balance sheet of Holdings and its Restricted Subsidiaries as current liabilities at such date of determination, other than (a) the current portion of any Indebtedness, (b) the current portion of interest, (c) accruals for current or deferred Taxes based on income or profits, (d) accruals of any costs or expenses related to restructuring reserves, (e) deferred revenue, (f) any Revolving Credit Exposure and (g) the current portion of pension liabilities.
“DBNY” means Deutsche Bank AG New York Branch and its successors.
“DBTCA” means Deutsche Bank Trust Company Americas and its successors.
“Debtor Relief Laws” means the Bankruptcy Code of the United States and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declined Proceeds” has the meaning set forth in Section 2.05(b)(vii).
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2.0% per annum; provided that with respect to a LIBOR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2.0% per annum, in each case, to the fullest extent permitted by applicable Laws.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means, subject to Section 2.17(b), any Lender that, as reasonably determined by the Administrative Agent (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of L/C Obligations, within one Business Day of the date required to be funded by it hereunder (unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in writing) has not been satisfied), (b) has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations hereunder or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after request by the Administrative Agent or the Borrower, to confirm in a manner satisfactory to the Administrative Agent and the Borrower that it will comply with its funding obligations, (d) has failed, within two Business Days after request by the Administrative Agent, to pay any amounts owing to the Administrative Agent or the other Lenders or (e) has, or has a direct or indirect parent company that has (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment or (iv) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of
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any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
“Designated Non-cash Consideration” means the fair market value of non-cash consideration (including, without limitation, services) received by Holdings or a Restricted Subsidiary in connection with a Disposition that is so designated as Designated Non-cash Consideration pursuant to an officer’s certificate, setting forth the basis of such valuation, executed by a Responsible Officer of the Borrower, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.
“Designation Date” has the meaning set forth in Section 6.14.
“Discount Range” has the meaning set forth in Section 2.05(c)(ii).
“Discounted Prepayment Option Notice” has the meaning set forth in Section 2.05(c)(ii).
“Discounted Voluntary Prepayment” has the meaning set forth in Section 2.05(c)(i).
“Discounted Voluntary Prepayment Notice” has the meaning set forth in Section 2.05(c)(v).
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any Sale-Leaseback Transaction and any sale or issuance of Equity Interests in a Restricted Subsidiary of Holdings) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable (including pursuant to any Receivables Facility) or any rights and claims associated therewith.
“Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests or solely at the direction of the issuer), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than if the issuer has the option to settle for Qualified Equity Interests and cash in lieu of fractional shares), in whole or in part, (c) requires the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the latest Maturity Date applicable to any then-outstanding Term Loans on the date of issuance of such Equity Interest; provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of Holdings (or any direct or indirect parent thereof), the Borrower or the Restricted Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Borrower or if its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.
“Dollar” and “$” mean lawful money of the United States.
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“Domestic Restricted Subsidiary” means any direct or indirect Restricted Subsidiary of Holdings which is a Domestic Subsidiary.
“Domestic Subsidiary” means any Subsidiary (i) that is organized under the Laws of the United States, any state thereof or the District of Columbia or (ii) otherwise designated by Holdings as a “Domestic Subsidiary” in an officer’s certificate delivered by a Responsible Officer of Holdings to the Administrative Agent (such Subsidiary being deemed a “Domestic Subsidiary” until such time, if any, that a Responsible Officer of Holdings shall deliver to the Administrative Agent a subsequent officer’s certificate certifying that such Subsidiary is no longer deemed a “Domestic Subsidiary”. Notwithstanding the foregoing, for purposes of clause (ii) of the immediately preceding sentence, Holdings may only deem that any such Subsidiary is no longer a “Domestic Subsidiary” if (x) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing and (y) all transactions involving such Subsidiary since the Closing Date (including, without limitation, all Investments in such Subsidiary) would have been permitted if such Subsidiary was not deemed to be a “Domestic Subsidiary” at all times from and after the Closing Date.
“ECF Test Date” has the meaning set forth in Section 2.05(b).
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means and includes a commercial bank, an insurance company, a finance company, a financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act) (other than a natural person) but in any event excluding (x) any Competitor and (y) except to the extent provided in Section 2.05(c), 10.07(k) and 10.07(n), the Sponsor, Holdings or any Subsidiary of Holdings.
“Embargoed Person” has the meaning set forth in Section 6.16.
“EMU” shall mean economic and monetary union as contemplated in the Treaty on European Union.
“Environment” means indoor air, ambient air, surface water, groundwater, drinking water, land surface, subsurface strata, and natural resources such as wetlands, flora and fauna.
“Environmental Laws” means the common law and any applicable Laws, in any case, relating to pollution or the protection of the Environment, or the protection of human health (to the extent relating to exposure to Hazardous Materials) and safety as it relates to the environment, including any applicable provisions of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Clean Water Act, 33 U.S.C. §
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1251 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., and the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq., and all analogous state or local statutes, and the regulations promulgated pursuant thereto.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of investigation and remediation, fines, penalties or indemnities), of the Loan Parties or any Restricted Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.
“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities); provided, that any instrument evidencing Indebtedness convertible or exchangeable for Equity Interests shall not be deemed to be Equity Interests, unless and until any such instruments are so converted or exchanged.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is under common control with a Loan Party or any Restricted Subsidiary within the meaning of Section 414 of the Code or Section 4001 of ERISA.
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by a Loan Party, any Restricted Subsidiary or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Loan Party, any Restricted Subsidiary or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization or insolvency, or the receipt by any Loan Party, any Restricted Subsidiary or any ERISA Affiliate of any notice that a Multiemployer Plan is in endangered or critical status under Section 305 of ERISA; or the failure to make any required contribution to a Multiemployer Plan; (d) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) 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) with respect to a Pension Plan, the failure to satisfy the minimum funding standard of Section 412 of the Code, whether or not waived; a determination that any Pension Plan is, or is expected to be, considered an at-risk plan within the meaning of Section 430 of the Code or Section 303 of ERISA; a Loan Party or any Restricted Subsidiary or any ERISA Affiliate incurring any liability under Section 436 of the Code, or a violation of Section 436 of the Code with respect to a Pension Plan; (g) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could result in liability to a Loan Party or any Restricted Subsidiary; or (h) the imposition
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of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Loan Party, any Restricted Subsidiary or any ERISA Affiliate.
“Euros” and the sign “€” mean the currency introduced on January 1, 1999 at the start of the third stage of European Economic and Monetary Union pursuant to the Treaty establishing the European Community being the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1986, the Maastricht Treaty (which was signed at Maastricht on February 7, 1992) and the Treaty of Amsterdam (which was signed in Amsterdam on October 2, 1997).
“EU-Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning set forth in Section 8.01.
“Excess Cash Flow” means, for any period, an amount equal to (a) the sum, without duplication, of (i) Consolidated Net Income for such period, (ii) an amount equal to the amount of all non-cash charges (including depreciation and amortization) to the extent deducted in arriving at such Consolidated Net Income, (iii) decreases in Consolidated Working Capital and long-term accounts receivable of Holdings and its Restricted Subsidiaries for such period (other than any such decreases arising from acquisitions or dispositions by Holdings and its Restricted Subsidiaries completed during such period) and (iv) an amount equal to the aggregate net non-cash loss on Dispositions by Holdings and its Restricted Subsidiaries during such period (other than sales in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income minus (b) the sum, without duplication, of (i) an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income and cash charges included in clauses (a) through (k) of the definition of Consolidated Net Income, (ii) without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Capital Expenditures or acquisitions of intellectual property to the extent not expensed during such period, to the extent that such Capital Expenditures or acquisitions were financed with internally generated cash or borrowings under the Revolving Credit Facility and were not made by utilizing the Cumulative CNI Amount, (iii) the aggregate amount of all principal payments of Indebtedness of Holdings or its Restricted Subsidiaries (including (A) the principal component of payments in respect of Capitalized Leases, (B) the amount of any scheduled repayment of Term Loans pursuant to Section 2.07 and (C) any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase, but excluding (X) all other voluntary and mandatory prepayments of Term Loans, (Y) all other prepayments of Revolving Credit Loans, in each case, made during such period and (Z) all payments in respect of any other revolving credit facility made during such period, except in the case of clause (Z) to the extent there is an equivalent permanent reduction in commitments thereunder), to the extent financed with internally generated cash, (iv) an amount equal to the aggregate net non-cash gain on Dispositions by Holdings and its Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income, (v) increases in Consolidated Working Capital and long-term accounts receivable of Holdings and its Restricted Subsidiaries for such period (other than any such increases arising from acquisitions or dispositions by Holdings and its Restricted Subsidiaries during such period), (vi) cash payments by Holdings and its Restricted Subsidiaries during such period in respect of long-term liabilities of Holdings and its Restricted Subsidiaries other than Indebtedness, (vii) without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Investments and acquisitions made during such period by Holdings and its Restricted Subsidiaries on a consolidated basis pursuant to Section 7.02 to the extent that such Investments and acquisitions were financed with internally generated cash and were not made by utilizing the Cumulative CNI Amount, (viii) the amount of Restricted Payments paid during such period pursuant to Section 7.06(f) to the extent such Restricted Payments were financed with internally generated cash or borrowings under the Revolving Credit Facility, (ix) the
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aggregate amount of expenditures actually made by Holdings and its Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period, (x) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by Holdings and its Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness, (xi) without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by Holdings and its Restricted Subsidiaries pursuant to binding contracts or executed letters of intent (the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions, acquisitions, Investments or Capital Expenditures or acquisitions of intellectual property (to the extent not expensed) to be consummated or made, plus any restructuring cash expenses, pension payments or tax contingency payments that have been added to Excess Cash Flow pursuant to clause (a)(ii) above required to be made, in each case during the period of four consecutive fiscal quarters of Holdings following the end of such period, provided that to the extent the aggregate amount of internally generated cash not utilizing the Cumulative CNI Amount actually utilized to finance such Permitted Acquisitions, acquisitions, Investments, Capital Expenditures or acquisitions of intellectual property during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters, (xii) the amount of cash taxes (including penalties and interest) or the tax reserves set aside in a prior period to the extent paid in cash in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period, (xiii) cash expenditures in respect of Swap Contracts during such fiscal year to the extent not deducted in arriving at such Consolidated Net Income, (xiv) any payment of cash to be amortized or expensed over a future period and recorded as a long-term asset, (xv) reimbursable or insured expenses incurred during such fiscal year to the extent that reimbursement has not yet been received, and (xvi) cash expenditures for costs and expenses in connection with acquisitions or Investments, dispositions and the issuance of equity interests or Indebtedness to the extent not deducted in arriving at such Consolidated Net Income. Notwithstanding anything in the definition of any term used in the definition of Excess Cash Flow to the contrary, all components of Excess Cash Flow shall be computed for Holdings and its Restricted Subsidiaries on a consolidated basis.
“Excess Cash Flow Period” means each fiscal year of Holdings commencing with the fiscal year ending December 31, 2014.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Affiliate” means, with respect to any Person, Affiliates of such Person that are (i) engaged as principals primarily in private equity, mezzanine financing or venture capital, (ii) customers of Holdings and its Subsidiaries or (iii) Competitors.
“Excluded Asset Sale Proceeds” has the meaning set forth in Section 2.05(b)(ii).
“Excluded Information” has the meaning set forth in Section 2.05(c)(i).
“Excluded Subsidiary” means (a) any Subsidiary that is not directly or indirectly a wholly owned Subsidiary of Holdings, (b) any Subsidiary (an “Immaterial Subsidiary”) that does not have (i) the greater of (A) assets representing 1.0% or more of the Adjusted Total Assets of Holdings or (B) total assets in excess of $15,000,000 or more, in each case, excluding intercompany indebtedness, or (ii) revenues representing the greater of (A) 1.0% or more of the consolidated revenues of Holdings or (B) $15,000,000, in each case, as of the end of or for the most recent period of four consecutive fiscal quarters of Holdings for which financial statements have been delivered pursuant to Section 6.01(a) or (b) (or, prior to the first delivery of any such financial statements, as of the end of or for the period of four consecutive fiscal quarters of Holdings most recently ended prior to the date of this Agreement), (c) any
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Subsidiary that is prohibited by applicable Law or Contractual Obligations that are in existence on the Closing Date or at the time of acquisition of such Subsidiary and not entered into in contemplation thereof from guaranteeing the Obligations or if guaranteeing the Obligation would require governmental (including regulatory) consent, approval, license or authorization (unless such consent, approval license or authorization has been obtained), (d) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower, the burden or cost or other consequences (including any material adverse tax consequences) of providing a Guarantee shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (e) any Foreign Subsidiary, (f) any non-for-profit Subsidiaries, (g) any Unrestricted Subsidiaries, (h) any special purpose securitization vehicle or a captive insurance subsidiary, (i) any direct or indirect Domestic Subsidiary all or substantially all of the assets of which consist of the Equity Interests of one or more Foreign Subsidiaries, (j) any Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary and (k) any Receivables Subsidiary; provided that no Subsidiary that guarantees the Senior Notes or any Junior Financing shall be deemed to be an Excluded Subsidiary at any time any such guarantee is in effect.
“Excluded Swap Obligation” means, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, and only for so long as all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a Lien to secure, as applicable, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Loan Parties and counterparty applicable to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.
“Excluded Taxes” means, with respect to any Agent, any Lender (including any L/C Issuer), or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) any Taxes imposed on (or measured by) its net income or net profits (or any franchise or similar Taxes in lieu thereof) by the jurisdiction under the laws of which such recipient is organized, in which its principal office is located or in which it is otherwise doing business or as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Loan or Loan Document) or, in the case of any Lender, in which its Lending Office is located, (b) any Taxes in the nature of branch profits tax within the meaning of section 884(a) of the Code or any similar tax imposed by any jurisdiction described in (a), (c) other than in the case of an assignee pursuant to a request by the Borrower under Section 3.07, any withholding Tax that is imposed on any interest payable to any Lender pursuant to any Law in effect at the time such Lender becomes a party to this Agreement (or designates a new Lending Office), except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new applicable Lending Office (or assignment), to receive additional amounts with respect to such United States federal withholding Tax pursuant to Section 3.01(a), (d) any withholding tax (including backup withholding tax) that is attributable to such Lender’s failure to comply with Section 3.01(d), or (e) any United States federal withholding tax imposed under FATCA.
“Executive Order” has the meaning set forth in Section 6.16.
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“Existing Indebtedness” has the meaning set forth in Section 4.02(h) of the Original Credit Agreement.
“Existing Term A Loans” has the meaning set forth in Amendment No. 18.
“Existing 2018 Incremental Term A-2 Loans” has the meaning set forth in Amendment No. 18.
“Existing 2018 Replacement Term A-2 Loans” has the meaning set forth in Amendment No. 18.
“Existing Term B Loans” has the meaning set forth in Amendment No. 17.
“Existing Term B-2 Loans” has the meaning set forth in Amendment No. 13.
“Existing 2017 Term B-3 Loans” has the meaning set forth in Amendment No. 17.
“Existing 2018 Incremental Term B-4 Loans” has the meaning set forth in Amendment No. 17.
“Extended Revolving Credit Commitment” means, on and after the Amendment No. 18 Effective Date, any Revolving Credit Commitment which is deemed to be an “Extended Revolving Credit Commitment” pursuant to Section 2.15 hereof.
“Extending Revolving Credit Lender” means on and after the Amendment No. 18 Effective Date, any Revolving Credit Lender which is deemed to be an “Extending Revolving Credit Lender” pursuant to Section 2.15 hereof.
“Extending Term Lender” has the meaning set forth in Section 2.15(a).
“Extended Term Loans” has the meaning set forth in Section 2.15(a).
“Extension” has the meaning set forth in Section 2.15(a).
“Extension Offer” has the meaning set forth in Section 2.15(a).
“Facility” means the 2021 Incremental Term B-6 Loans, the 2019 Replacement Term B-5 Loans, the 2019 Replacement Term A-3 Loans, the Revolving Credit Facility, the Extended Term Loans, or Loans extended pursuant to any Extended Revolving Credit Commitment, as the context may require.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any law, regulation, rule, promulgation, guidance notes, practices or official agreement implementing an official governmental agreement with respect to the foregoing.
“FCPA” has the meaning set forth in Section 5.18.
“Federal Funds Rate” means, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day
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(or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent in its reasonable judgment (rounded upward, if necessary, to a whole multiple of 1/100 of 1.00%).
“FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended.
“First Amended and Restated Credit Agreement” has the meaning set forth in the preliminary statements hereto.
“First Incremental Term Lender” means each Lender or Additional Lender party to Amendment No. 5.
“Fixed Charge Coverage Ratio” means as of any date of determination, the ratio of (a) Consolidated EBITDA for the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), to (b) the Fixed Charges for such Test Period; provided that the Fixed Charge Coverage Ratio shall be determined for the relevant Test Period on a Pro Forma Basis.
“Fixed Charges” shall mean, with respect to Holdings for any period, the sum, without duplication, of:
(a)    Consolidated Interest Expense of Holdings and its Restricted Subsidiaries that was paid or payable in cash during such period,
(b)    all cash dividend payments or other distributions paid (excluding items eliminated in consolidation) on any series of preferred stock during such period (other than distributions paid in Equity Interests (other than Disqualified Equity Interests) of Holdings and its Subsidiaries, and
(c)    all cash dividend payments or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Equity Interests during such period (other than distributions paid in Equity Interests (other than Disqualified Equity Interests) of Holdings and its Subsidiaries.
“Flood Insurance Laws” shall mean, collectively, (i) the 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) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign Casualty Event” has the meaning set forth in Section 2.05(b)(x).
“Foreign Disposition” has the meaning set forth in Section 2.05(b)(x).
“Foreign Subsidiary” means any direct or indirect Restricted Subsidiary of Holdings which is not a Domestic Subsidiary.
“Foreign Subsidiary Excess Cash Flow” has the meaning set forth in Section 2.05(b)(ix).
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“Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to an L/C Issuer, such Defaulting Lender’s pro rata share of the outstanding L/C Obligations to such L/C Issuer other than L/C Obligations to such L/C Issuer as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“Fund” means 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.
“GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that (a) the amount of any Indebtedness under GAAP with respect to a Capitalized Lease shall be determined in accordance with the definition of Capitalized Leases and (b) if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Granting Lender” has the meaning set forth in Section 10.07(h).
“GS” means GS Capital Partners VI, L.P., a Delaware limited partnership.
“Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness of another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness of any other Person, whether or not such Indebtedness is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any contractual arrangement, including, but not limited to, any acquisition, capital expenditure, investment or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
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stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guaranteed Obligations” has the meaning set forth in Section 11.01.
“Guarantors” means Holdings and the Subsidiaries of Holdings (including the Borrower (solely with respect to its Obligations other than its direct Obligations as a primary obligor (as opposed to a guarantor) under the Loan Documents or any Secured Hedge Agreement) and excluding any Excluded Subsidiary) and any other Domestic Subsidiary that, at the option of the Borrower, issues a Guarantee of the Obligations after the Closing Date. Notwithstanding any provision set forth herein or in any other Loan Documents to the contrary, and for avoidance of doubt, in no event shall (x) any Subsidiary that is not a Domestic Subsidiary (or an entity that is a direct or indirect Subsidiary of such Subsidiary) be required to guarantee the obligations of the Borrower or any Domestic Subsidiary, (y) the assets of any Subsidiary that is not a Domestic Subsidiary (or an entity that is a direct or indirect Subsidiary of such Subsidiary) directly or indirectly constitute security or secure payment of the obligations of the Borrower or any Domestic Subsidiary, or (z) a Loan Party deliver a pledge (A) in excess of 65.0% of any voting Equity Interest of any “first-tier” Subsidiary that is not a Domestic Subsidiary or (B) of any Equity Interest of any “second-tier” or lower Subsidiary that is not a Domestic Subsidiary.
“Guaranty” means, collectively, the guaranty of the Obligations by the Guarantors pursuant to this Agreement.
“Hazardous Materials” means all materials, pollutants, contaminants, chemicals, compounds, constituents, substances or wastes, in any form, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, mold, electromagnetic radio frequency or microwave emissions, that are regulated pursuant to, or which could give rise to liability under, applicable Environmental Law.
“Hedge Bank” has the meaning specified in the definition of Secured Hedge Agreement.
“Holdings” has the meaning set forth in the preamble hereto.
“Honor Date” has the meaning set forth in Section 2.03(c)(i).
“Immaterial Subsidiary” has the meaning set forth in the definition of “Excluded Subsidiary.”
“Incremental Amendment” has the meaning set forth in Section 2.14(a).
“Incremental Maturity Carveout Amount” means up to the greater of $300,000,000 and (y) 30.0% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available.
“Incremental Term A Loans” has the meaning set forth in Section 2.14(a).
“Incremental Term B Loans” has the meaning set forth in Section 2.14(a).
“Incremental Term Loans” has the meaning set forth in Section 2.14(a).
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“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following:
(a)    all obligations of such Person for borrowed money and all monetary obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b)    the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all outstanding letters of credit (including standby and trade), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;
(c)    net obligations of such Person under any Swap Contract;
(d)    all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course of business, (ii) any earn-out obligation until such obligation becomes a non-contingent liability on the balance sheet of such Person in accordance with GAAP and (iii) liabilities and expenses accrued in the ordinary course);
(e)    indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f)    all Attributable Indebtedness; and
(g)    all obligations of such Person in respect of Disqualified Equity Interests;
if and to the extent that the foregoing would constitute indebtedness or a liability in accordance with GAAP; and
(h)    to the extent not otherwise included above, all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall (A) include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner, except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would be included in the calculation of Consolidated Total Net Debt and (B) shall exclude obligations in respect of Receivables Facilities. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.
“Indemnified Liabilities” has the meaning set forth in Section 10.05.
“Indemnified Taxes” means any Taxes other than Excluded Taxes.
“Indemnitees” has the meaning set forth in Section 10.05.
“Information” has the meaning set forth in Section 10.08.
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“Initial Lenders” means DBTCA, Bank of America, N.A., JPMorgan Chase Bank, N.A., Credit Suisse AG, Cayman Islands and U.S. Bank National Association.
“Intellectual Property Security Agreement” means any agreement substantially in the form of Annex A, B or C to the Security Agreement.
“Intercreditor Agreement” means an intercreditor agreement by and among the Collateral Agent and the collateral agents or other representatives for the holders of Indebtedness secured by Liens on the Collateral that are intended to rank junior to the Liens securing the Obligations and that are otherwise Permitted Liens providing that all proceeds of Collateral shall first be applied to repay the Secured Obligations in full prior to being applied to any obligations under the Indebtedness secured by such junior Liens and that until the termination of the Aggregate Commitments and the repayment in full (or cash collateralization of Letters of Credit) of all Secured Obligations (other than contingent obligations not then due and payable), the Collateral Agent shall have the sole right to exercise remedies against the Collateral (subject to customary exceptions and the expiration of any standstill provisions) and otherwise in form and substance reasonably satisfactory to the Collateral Agent.
“Interest Determination Date” means, with respect to any LIBOR Loan, the second Business Day prior to the commencement of any Interest Period relating to such LIBOR Loan.
“Interest Payment Date” means, (a) as to any LIBOR Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided that if any Interest Period for a LIBOR Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made.
“Interest Period” means, as to each LIBOR Loan, the period commencing on the date such LIBOR Loan is disbursed or converted to or continued as a LIBOR Loan and ending on the date one, two, three or six months thereafter or, to the extent agreed by each Lender of such LIBOR Loan, twelve months or any other date thereafter (or such period of less than one month as may be consented to by the Administrative Agent), as selected by the Borrower in its Committed Loan Notice; provided that:
(i)    any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(ii)    any Interest Period (other than an Interest Period having a duration of less than one month) that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(iii)    no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division
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of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment but giving effect to any returns or distributions received by such Person with respect thereto.
“IP Rights” has the meaning set forth in Section 5.15.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Request, and any other document, agreement and instrument entered into by an L/C Issuer and the Borrower (or any Subsidiary) or in favor of an L/C Issuer and relating to such Letter of Credit.
“Joint Venture Basket Amount” has the meaning set forth in Section 7.02(r)(i).
“Junior Financing” has the meaning set forth in Section 7.13(a).
“Junior Financing Documentation” means any documentation governing any Junior Financing.
“Junior Lien Incremental Facility” has the meaning set forth in Section 2.14(a).
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.
“L/C Cash Collateral Account” has the meaning set forth in Section 2.03(g).
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the face amount thereof.
“L/C Issuer” means, as of the Amendment No. 9 Effective Date, each of (1) DBNY, (2) JPMorgan Chase Bank, N.A., (3) Bank of America, N.A., and (4) any other Revolving Credit Lender that becomes an L/C Issuer in accordance with Section 2.03(k) or 10.07(j), in each case, in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder; provided that, if any Extension or Extensions of Revolving Credit Commitments is or are effected in accordance with Section 2.15, then on the occurrence of the Revolving Credit Maturity Date and on each later date which is or was at any time a Maturity Date with respect to Revolving Credit Commitments (each, an “L/C Issuer Termination Date”), each L/C Issuer at such time shall have the right to resign as an L/C Issuer on, or on any date within twenty (20) Business Days after, the respective L/C Issuer Termination Date, in each case upon not less than ten (10) days’ prior written notice thereof to the Borrower and the
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Administrative Agent and, in the event of any such resignation and upon the effectiveness thereof, the respective entity so resigning shall retain all of its rights hereunder and under the other Loan Documents as an L/C Issuer with respect to all Letters of Credit theretofore issued by it (which Letters of Credit shall remain outstanding in accordance with the terms hereof until their respective expirations) but shall not be required to issue any further Letters of Credit hereunder. If at any time and for any reason (including as a result of resignations as contemplated by the last proviso to the preceding sentence), each L/C Issuer has resigned in such capacity in accordance with the preceding sentence, then no Person shall be a L/C Issuer hereunder obligated to issue Letters of Credit unless and until (and only for so long as) a Revolving Credit Lender (or affiliate of a Lender) reasonably satisfactory to the Administrative Agent and the Borrower agrees to act as L/C Issuer hereunder. Notwithstanding anything to the contrary, for the purposes of this Agreement, the term “L/C Issuer” as used herein shall refer to (w) each L/C Issuer, (x) the L/C Issuers, (y) the applicable L/C Issuer or (z) with respect to any Letter of Credit, the L/C Issuer of such Letter of Credit, in each case determined as the context requires.
“L/C Issuer Termination Date” has the meaning set forth in the definition of “L/C Issuer.”
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.10. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“LCT Election” has the meaning set forth in Section 1.13.
“LCT Test Date” has the meaning set forth in Section 1.13.
“Lender” has the meaning set forth in the preamble to this Agreement and, as the context requires, includes each L/C Issuer and their respective permitted successors and assigns as permitted hereunder, each of which is referred to herein as a “Lender.”
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
“Letter of Credit” means any letter of credit issued hereunder. A Letter of Credit may be a trade letter of credit or a standby letter of credit.
“Letter of Credit Commitment” means as to each L/C Issuer, the commitment of such L/C Issuer to issue Letters of Credit expressed as an amount representing the maximum possible aggregate amount of such L/C Issuer’s L/C Obligations hereunder, as such commitment may be reduced, terminated or increased from time to time pursuant to the provisions of this Agreement. The initial amount of each L/C Issuer’s L/C Commitment is (a) the lesser of (x) $25,000,000 and (y) such L/C Issuer’s Revolving Credit Commitment or (b) as set forth in the Assignment and Assumption pursuant to which such L/C Issuer becomes party hereto.
“Letter of Credit Expiration Date” means the latest scheduled Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
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“Letter of Credit Request” means an application and agreement pursuant to which the Borrower shall request the issuance or amendment of a Letter of Credit in the form of Exhibit C hereto, appropriately completed (or in such other form as from time to time in use by the respective L/C Issuer).
“Letter of Credit Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b) the aggregate amount of the Revolving Credit Commitments. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.
“LIBOR” means, with respect to any Borrowing of LIBOR Loans for any Interest Period, (a) the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two (2) Business Days prior to the commencement of such Interest Period by reference to the Reuters Screen LIBOR01 for deposits in Dollars (or such other comparable page as may, in the opinion of the Administrative Agent, replace such page for the purpose of displaying such rates) for a period equal to such Interest Period; provided that to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition (but subject to Schedule 2.08(g) in the case of 2021 Incremental Term B-6 Loans), the “LIBOR” shall be the interest rate per annum (rounded upward to the next 1/100th of 1.00%) determined by the Administrative Agent to be the average of the rates per annum at which deposits in Dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two (2) Business Days prior to the beginning of such Interest Period, in each case, divided by (b) a percentage equal to 100.0% minus the then stated maximum rate of all reserve requirements (including, without limitation, any marginal, emergency, supplemental, special or other reserves required by applicable law) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency funding or liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D), and; provided, further, that (i) in the case of a Borrowing of 2021 Incremental Term B-6 Loans, LIBOR shall not be less than 0.50% per annum and (ii) in the case of any other Borrowing, if LIBOR, as determined above, shall at any time be less than zero, LIBOR shall be deemed to be zero at such time for all purposes of this Agreement.
“LIBOR Loan” means a Loan that bears interest at a rate based on LIBOR.
“Lien” means any mortgage, pledge, hypothecation, collateral 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 Capitalized Lease having substantially the same economic effect as any of the foregoing). For the avoidance of doubt, “Lien” shall not be deemed to include any licenses of IP Rights.
“Limited Condition Transaction” means (i) any Permitted Acquisition or Investment by the Borrower or one or more of its Restricted Subsidiaries whose consummation is not conditioned upon the availability of, or on obtaining, third party financing or any asset sale, (ii) any repayment, repurchase or refinancing of Indebtedness with respect to which an irrevocable notice of repayment (or similar irrevocable notice) is required to be delivered or (iii) any dividends or distributions on, or redemptions of equity interests permitted to be issued pursuant to this Agreement requiring irrevocable notice in advance thereof. For the avoidance of doubt, “Limited Condition Transaction” shall include the Callcredit Acquisition for which the LCT Test Date occurred prior to the Amendment No. 14 Effective Date.
“Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan or a Revolving Credit Loan (including any Incremental Term Loan and any extensions of credit under any Revolving Commitment Increase and any Extended Term Loans and any extensions of credit under any Extended Revolving Credit Commitment).
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“Loan Documents” means, collectively, (i) this Agreement, (ii) the Notes, (iii) the Collateral Documents, (iv) each Letter of Credit Request, (v) any Refinancing Amendment, (vi) any Intercreditor Agreement and any pari passu intercreditor and/or subordination agreements and (vii) any amendment, modification or supplement to any of the foregoing (including any Incremental Amendment).
“Loan Parties” means, collectively, the Borrower, each Guarantor and, without duplication, each Pledgor under and as defined in the Pledge Agreement.
“Management Stockholders” means the members of management of Holdings, the Borrower or any of its Subsidiaries who are investors in Holdings or any direct or indirect parent thereof.
“Margin Stock” has the meaning set forth in Regulation U.
“Master Agreement” has the meaning set forth in the definition of “Swap Contract.”
“Material Adverse Effect” means (i) on or prior to the Closing Date, a Company Material Adverse Effect and (ii) after the Closing Date, (a) a material adverse effect on the business, operations, assets, liabilities or financial condition of Holdings and its Restricted Subsidiaries, taken as a whole; (b) a material adverse effect on the ability of the Loan Parties (taken as a whole) to fully and timely perform any of their payment obligations under any Loan Document to which Holdings or any of the Loan Parties is a party; or (c) a material adverse effect on the material rights and remedies available to the Lenders or the Collateral Agent under any Loan Document.
“Material Real Property” means any fee owned real property owned by any Loan Party (other than any owned real property subject to a Lien permitted by clause (t) or (v) of Section 7.01 to the extent and for so long as the documentation governing such Lien prohibits the granting of a Mortgage thereon to secure the Obligations) with a fair market value in excess of $5,000,000 (at the Closing Date or, with respect to real property acquired after the Closing Date, at the time of acquisition, in each case, as reasonably estimated by the Borrower in good faith); provided that if at any time the fair market value of all fee owned real properties that are not “Material Real Property” owned by the Loan Parties would exceed $20,000,000 in the aggregate, the Loan Parties shall designate additional fee owned real properties as “Material Real Property” and comply with the Collateral and Guarantee Requirement with respect thereto such that such threshold is no longer exceeded.
“Maturity Date” means (i) (a) with respect to the 2019 Replacement Term A-3 Loans that have not been extended pursuant to Section 2.15, December 10, 2024 (the “2019 Term A-3 Loan Maturity Date”), (b) with respect to the Revolving Credit Commitments that have not been extended pursuant to Section 2.15, December 10, 2024 (the “Revolving Credit Maturity Date”) and, (c) with respect to the 2019 Replacement Term B-5 Loans that have not been extended pursuant to Section 2.15, November 15, 2026 (the “2019 Replacement Term B-5 Loan Maturity Date”) and (d) with respect to the 2021 Incremental Term B-6 Loans that have not been extended pursuant to Section 2.15, December 1, 2028 (the “2021 Incremental Term B-6 Loan Maturity Date”), and (ii) with respect to any other tranche of Extended Term Loans or Extended Revolving Credit Commitments, the final maturity date as specified in the applicable Extension Offer accepted by the respective Lender or Lenders; provided that if any such day is not a Business Day, the applicable Maturity Date shall be the Business Day immediately succeeding such day.
“Maximum Accrual” has the meaning set forth in Section 2.05(b)(v).
“Maximum Rate” has the meaning set forth in Section 10.10.
“Minimum Extension Condition” has the meaning set forth in Section 2.15(c).
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“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Mortgage Policies” has the meaning set forth in the definition of “Collateral and Guarantee Requirement.”
“Mortgaged Properties” has the meaning set forth in the definition of “Collateral and Guarantee Requirement.”
“Mortgages” means, collectively, the deeds of trust, trust deeds, hypothecs and mortgages made by the Loan Parties in favor or for the benefit of the Collateral Agent on behalf of the Secured Parties creating and evidencing a Lien on a Mortgaged Property, in form and substance reasonably satisfactory to the Collateral Agent and the Borrower.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Loan Party or any Restricted Subsidiary makes or is obligated to make contributions, or has any liability or contingent liability (including liability or contingent liability on account of any ERISA Affiliate).
“Net Proceeds” means:
(a)    100.0% of the cash proceeds actually received by Holdings or any of the Restricted Subsidiaries (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards, but in each case only as and when received) from any Disposition (other than sales of Receivables Assets pursuant to a Receivables Facility) or Casualty Event, net of (i) attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (ii) any amount required to repay (x) Indebtedness (other than pursuant to the Loan Documents) that is secured by a Lien on the assets disposed of and, if such assets constitute Collateral, which Lien ranks prior to the Lien securing the Obligations or (y) Indebtedness or other obligations of any Subsidiary that is disposed of in such transaction, (iii) in the case of any Disposition or Casualty Event by a non-wholly owned Restricted Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (iii)) attributable to minority interests and not available for distribution to or for the account of Holdings or a wholly owned Restricted Subsidiary as a result thereof, (iv) taxes paid or reasonably estimated to be payable as a result thereof, (v) any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition (provided that to the extent that any amounts are released from such escrow to Holdings or a Restricted Subsidiary, such amounts net of any related expenses shall constitute Net Proceeds) and (vi) without duplication of clause (v) above, the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any taxes deducted pursuant to clause (i) above) (x) related to any of the applicable assets and (y) retained by Holdings or any of the Restricted Subsidiaries including, without limitation, Pension Plan and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (however, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such Disposition or Casualty Event occurring on the date of such reduction); provided that, if no Event of Default exists, Holdings and its Restricted Subsidiaries may reinvest any portion of such proceeds in assets useful for their businesses within 1218 months of such receipt, such portion of such proceeds shall not constitute Net Proceeds except to the extent not, within 1218 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds are not so used within such 1218-month period but within
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such 1218-month period are contractually committed to be used, then upon the termination of such contract or if such Net Proceeds are not so used within 1824 months of initial receipt, such remaining portion shall constitute Net Proceeds as of the date of such termination or expiry without giving effect to this proviso; it being understood that such proceeds shall constitute Net Proceeds notwithstanding any investment notice if there is a Specified Default at the time of a proposed reinvestment unless such proposed reinvestment is made pursuant to a binding commitment entered into at a time when no Specified Default was continuing); provided, further, that no proceeds realized in a single transaction or series of related transactions shall constitute Net Proceeds unless the aggregate net proceeds exceed $25,000,00050,000,000 (and only net cash proceeds in excess of such amount shall constitute Net Proceeds under this clause (a)),
(b)    100.0% of the cash proceeds from the incurrence, issuance or sale by Holdings or any of the Restricted Subsidiaries of any Indebtedness for borrowed money, net of all taxes paid or reasonably estimated to be payable as a result thereof and fees (including investment banking fees and discounts), commissions, costs and other expenses, in each case incurred in connection with such issuance or sale, and
(c)    with respect to any Receivables Facility, 100.0% of the cash proceeds of (i) any sale of Receivables Assets by Holdings or any of its Restricted Subsidiaries, (ii) the repayment by Holdings or any of its Restricted Subsidiaries of any loan solely to finance the purchase from Holdings or any Restricted Subsidiary of Receivables Assets and (iii) any return of capital invested by Holdings or any Restricted Subsidiary in the Receivables Subsidiary for such Receivables Facility, in each case (x) to the extent funded by a “borrowing” or increase in investment under such Receivables Facility and (y) net of upfront fees (including investment banking fees and discounts), commissions, costs and other expenses, in each case incurred in connection with the Receivables Facility.
For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to Holdings or any Restricted Subsidiary shall be disregarded.
“New 2017 Replacement Term A-2 Lender” has the meaning assigned to such term in Amendment No. 13.
“New 2017 Replacement Term A-2 Loan” has the meaning assigned to such term in Amendment No. 13.
“New 2017 Replacement Term B-3 Lender” has the meaning assigned to such term in Amendment No. 13.
“New 2017 Replacement Term B-3 Loan” has the meaning assigned to such term in Amendment No. 13.
“New 2019 Replacement Term A-3 Lender” has the meaning assigned to such term in Amendment No. 18.
“New 2019 Replacement Term A-3 Loan” has the meaning assigned to such term in Amendment No. 18.
“New 2019 Replacement Term B-5 Lender” has the meaning assigned to such term in Amendment No. 17.
“New 2019 Replacement Term B-5 Loan” has the meaning assigned to such term in Amendment No. 17.
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“Non-Consenting Lender” has the meaning set forth in Section 3.07(d).
“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender.
“Non-extension Notice Date” has the meaning set forth in Section 2.03(b)(iii).
“Not Otherwise Applied” means, with reference to any amount of Net Proceeds of any transaction or event, that such amount (a) was not required to be applied to prepay the Loans pursuant to Section 2.05(b), and (b) was not previously applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was (or may have been) contingent on receipt of such amount or utilization of such amount for a specified purpose. The Borrower shall promptly notify the Administrative Agent of any application of such amount as contemplated by (b) above.
“Note” means a Term A-3 Note, a Term B-5 Note, a Term B-6 Note or a Revolving Credit Note, as the context may require.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party and its Restricted Subsidiaries arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit or under any Secured Hedge Agreement, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or Restricted Subsidiary of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and of their Restricted Subsidiaries to the extent they have obligations under the Loan Documents) include (a) the obligation (including guarantee obligations) to pay principal, interest, Letter of Credit fees, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document and (b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that the Administrative Agent, the Collateral Agent or any Lender, in its sole discretion consistent with the Loan Documents, may elect to pay or advance on behalf of such Loan Party; provided that, for purposes of determining any Obligations of any Guarantor under Article XI of this Agreement, the definition of “Obligations” shall not create any guarantee by any Guarantor of any Excluded Swap Obligations of such Guarantor.
“OFAC” has the meaning set forth in Section 5.18.
“Offered Loans” has the meaning set forth in Section 2.05(c)(iii).
“Other Applicable Indebtedness” has the meaning set forth in Section 2.05(b)(ii).
“Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
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“Original Credit Agreement” means the Credit Agreement, dated as of June 15, 2010, by and among Holdings, the Borrower, the Guarantors party thereto, DBTCA, as Administrative Agent and Collateral Agent, and each Lender from time to time party thereto.
“Other Taxes” has the meaning set forth in Section 3.01(b).
“Outstanding Amount” means (a) with respect to Term Loans, Revolving Credit Loans, Extended Term Loans or Loans made under any Extended Revolving Credit Commitment, as applicable, on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Credit Loans (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing), Extended Term Loans or Loans made under any Extended Revolving Credit Commitment, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes thereto as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.
“Parent” means TransUnion (f/k/a TransUnion Holding Company, Inc.).
“Participant” has the meaning set forth in Section 10.07(e).
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV or Section 302 of ERISA or Section 412 of the Code and is sponsored or maintained by any Loan Party or any Restricted Subsidiary or to which any Loan Party or any Restricted Subsidiary contributes or has an obligation to contribute, or has any liability or contingent liability (including liability or contingent liability on account of an ERISA Affiliate).
“Perfection Certificate” means a certificate in the form of Exhibit N or any other form reasonably approved by the Collateral Agent and the Borrower, as the same shall be supplemented from time to time.
“Permitted Acquisition” has the meaning set forth in Section 7.02(g).
“Permitted Holders” means each of the Sponsor and the Management Stockholders; provided that if the Management Stockholders own beneficially or of record more than ten percent (10.0%) of the outstanding voting Equity Interests of Holdings in the aggregate, they shall be treated as Permitted Holders of only ten percent (10.0%) of the outstanding voting Equity Interests of Holdings at such time.
“Permitted Junior Refinancing Debt” means secured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower or any other Loan Party in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans; provided that (i) such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis to the Liens securing the Obligations and the obligations in respect of any Permitted Pari Passu Refinancing Debt, (ii) such Indebtedness otherwise meets the requirements contained in the proviso to the definition of “Credit Agreement Refinancing Indebtedness” and (iii) such Indebtedness meets the
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Permitted Other Debt Conditions. Permitted Junior Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Liens” means those Liens permitted pursuant to Section 7.01 hereof.
“Permitted Other Debt Conditions” means that such applicable Indebtedness (i) other than with respect to the Incremental Maturity Carveout Amount, does not mature or have scheduled amortization payments or payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligations (except (x) customary asset sale, initial public offering or change of control or similar event provisions that provide for the prior repayment in full of the Loans and all other Obligations, (y) maturity payments for a customary bridge financing which, subject to customary conditions, provides for automatic conversion or exchange into Indebtedness that otherwise complies with the requirements of this definition or (z) AHYDO payments), in each case prior to 91 days following the latest Maturity Date at the time such Indebtedness is incurred.
“Permitted Pari Passu Refinancing Debt” means any secured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower or any other Loan Party in the form of one or more series of senior secured notes or loans; provided that such Indebtedness meets the requirements contained in the proviso to the definition of “Credit Agreement Refinancing Indebtedness”. Permitted Pari Passu Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, restructuring, refunding, renewal, replacement or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, restructured, refunded, renewed, replaced or extended except by an amount equal to unpaid accrued interest and premium thereon plus other amounts owing or paid related to such Indebtedness, and fees (including original issue discount) and expenses incurred, in connection with such modification, refinancing, restructuring, refunding, renewal, replacement or extension plus an amount equal to any existing commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.03(e), such modification, refinancing, restructuring, refunding, renewal, replacement or extension at the time of incurrence has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, restructure, refunded, renewed, replaced or extended, (c) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Sections 7.03(e) or (f), at the time thereof, no Event of Default shall have occurred and be continuing and (d) if such Indebtedness being modified, refinanced, restructured, refunded, renewed, replaced or extended is Indebtedness permitted pursuant to Section 7.03(b), 7.03(o) or 7.13(a) or is otherwise a Junior Financing, (i) to the extent such Indebtedness being modified, refinanced, restructured, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, such modification, refinancing, restructuring, refunding, renewal, replacement or extension is subordinated in right of payment to the Obligations (x) on terms (taken as a whole) at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, restructured, refunded, renewed, replaced or extended or (y) on terms reasonably satisfactory to the Administrative Agent, (ii) the terms and conditions (including, if applicable, as to collateral but excluding as to subordination, interest rate and redemption premium) of any such modified, refinanced, restructure, refunded, renewed, replaced or extended Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, restructured, refunded, renewed, replaced or extended, taken as a whole; provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts
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of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees) and (iii) such modification, refinancing, restructuring, refunding, renewal, replacement or extension is incurred by the Person who is the obligor or guarantor of the Indebtedness being modified, refinanced, restructured, refunded, renewed, replaced or extended.
“Permitted Unsecured Ratio Debt” means unsecured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower or any other Loan Party in the form of one or more series of senior unsecured notes or loans; provided that (i) such Indebtedness is either (x) pari passu or (y) subordinated in right of payment to the Obligations; (ii) such Indebtedness meets the Permitted Other Debt Conditions; (iii) such Indebtedness has a Weighted Average Life to Maturity equal to or greater than the 2019 Replacement Term B-5 Loans outstanding on the Amendment No. 17 Effective Date; (iv) immediately after giving effect thereto and the use of proceeds thereof on a Pro Forma Basis, (x) no Default of Event of Default shall exist or result therefrom and (y) the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable) shall be no less than 2.00:1.00; (v) such Indebtedness is not issued with covenants that are more restrictive (taken as a whole) (as reasonably determined by the Borrower) with respect to Holdings and the Restricted Subsidiaries than the covenants in this Agreement; and (vi) such Indebtedness complies with the requirements of the proviso at the end of Section 7.03 and (vii) the aggregate amount of any such Indebtedness incurred or guaranteed by a Restricted Subsidiary that is not a Loan Party (including any Permitted Refinancing thereof, to the extent incurred or guaranteed by a Restricted Subsidiary that is not a Loan Party) pursuant to Section 7.03(cc) outstanding at the time of incurrence thereof and calculated on a Pro Forma Basis does not exceed the greater of (x) $100,000,000 and (y) 10% of Consolidated EBITDA.
“Permitted Unsecured Refinancing Debt” means unsecured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower or any other Loan Party in the form of one or more series of senior unsecured notes or loans; provided that (i) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness and (ii) meets the Permitted Other Debt Conditions. Permitted Unsecured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established, maintained or contributed to by any Loan Party, any Restricted Subsidiary or, with respect to any such plan that is subject to Section 412 of the Code or Title IV or Section 302 of ERISA, any ERISA Affiliate.
“Platform” has the meaning set forth in Section 6.01.
“Pledge Agreement” means the Pledge Agreement substantially in the form of Exhibit H, as amended, amended and restated, modified, supplemented or extended from time to time in accordance with the terms thereof and hereof.
“Pounds Sterling” and the sign “£” mean freely transferable lawful money of the United Kingdom (expressed in Pounds Sterling).
“Prime Lending Rate” means the rate which the Administrative Agent announces from time to time as its prime lending rate, the Prime Lending Rate to change when and as such prime lending
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rate changes. The Prime Lending Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer by the Administrative Agent, which may make commercial loans or other loans at rates of interest at, above or below the Prime Lending Rate.
“Principal L/C Issuer” means DBNY and any other L/C Issuer that has issued Letters of Credit having an aggregate Outstanding Amount in excess of $10,000,000.
“Pro Forma Balance Sheet” has the meaning set forth in Section 5.05(a)(i).
“Pro Forma Basis” means, with respect to compliance with any test or covenant or calculation of any ratio hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section 1.09.
“Pro Forma Compliance” means, with respect to the covenant in Section 7.11, compliance on a Pro Forma Basis with such covenant in accordance with Section 1.09.
“Pro Forma Financial Statements” has the meaning set forth in Section 5.05(a).
“Pro Rata Facilities” means the Revolving Credit Facility and the 2017 Replacement Term A-2 Loans.
“Pro Rata Lenders” means the Revolving Credit Lenders and the 2017 Replacement Term A-2 Lenders.
“Pro Rata Share” means, with respect to each Lender at any time a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments of such Lender under the applicable Facility or Facilities at such time and the denominator of which is the amount of the Aggregate Commitments under the applicable Facility or Facilities at such time; provided that if such Commitments have been terminated, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.
“Proposed Discounted Prepayment Amount” has the meaning set forth in Section 2.05(c)(ii).
“Public Lender” has the meaning set forth in Section 6.01.
“Purchase Agreement” has the meaning set forth in the preliminary statements hereto.
“Purchase Documents” means the Purchase Agreement and all other material operative agreements relating to the Repurchase Merger and the Acquisition, as the same may be amended, modified and/or supplemented from time to time in accordance with the terms hereof and thereof.
“Purchaser” has the meaning set forth in the preliminary statements hereto.
“Purchasing Borrower Party” means Holdings or any Subsidiary of Holdings that makes a Discounted Voluntary Prepayment pursuant to Section 2.05(c).
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
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“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.
“Qualified IPO” means the issuance by Holdings or any direct or indirect parent of Holdings of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) (i) pursuant to an effective registration statement filed with the U.S. Securities and Exchange Commission in accordance with the Securities Act (whether alone or in connection with a secondary public offering) or (ii) after which the common Equity Interests of Holdings or any direct or indirect parent of Holdings are listed on an internationally recognized securities exchange or dealer quotation system. The TransUnion IPO shall constitute a Qualified IPO for all purposes hereunder.
“Qualifying Lenders” has the meaning set forth in Section 2.05(c)(iv).
“Qualifying Loans” has the meaning set forth in Section 2.05(c)(iv).
“Ratio-Based Incremental Facility” has the meaning set forth in Section 2.14(a).
“Real Property” means, collectively, all right, title and interest (including any leasehold, mineral or other estate) in and to any and all parcels of or interests in real property owned or leased by any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment.
“Receivables Assets” means any accounts receivable owed to Holdings or any Restricted Subsidiary (whether now existing or arising or acquired in the future) arising in the ordinary course of business from the sale of goods or services, all collateral securing such accounts receivable, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable, all proceeds of such accounts receivable and other assets (including contract rights) which are of the type customarily transferred or in respect of which security interests are customarily granted in connection with securitizations of accounts receivable and which are sold, conveyed, assigned or otherwise transferred by Holdings or a Restricted Subsidiary to either (A) a Person that is not a Restricted Subsidiary or (B) a Receivables Subsidiary that in turn sells its Receivables Assets to a Person that is not a Restricted Subsidiary.
“Receivables Facility” means any of one or more receivables financing facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to Holdings or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which Holdings or any of its Restricted Subsidiaries sells, conveys, assigns, grants an interest in or otherwise transfers their Receivables Assets to either (A) a Person that is not a Restricted Subsidiary or (B) a Receivables Subsidiary that in turn sells its Receivables Assets to a Person that is not a Restricted Subsidiary.
“Receivables Fees” means distributions or payments made directly or by means of discounts with respect to any Receivables Assets or participation interests therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Facility.
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“Receivables Subsidiary” means any Subsidiary formed for the purpose of, and that solely engages in one or more Receivables Facilities and other activities reasonably related thereto.
“Refinanced Debt” has the meaning set forth in the definition of “Credit Agreement Refinancing Indebtedness”.
“Refinanced Term Loans” has the meaning set forth in Section 10.01.
“Refinancing” means the refinancing transactions described in Section 4.02(h) of the Original Credit Agreement.
“Refinancing Amendment” means an amendment to this Agreement executed by each of (a) the Borrower, (b) the Administrative Agent, (c) each Additional Refinancing Lender and (d) each Lender that agrees to provide any portion of Refinancing Term Loans, Refinancing Term Commitments, Refinancing Revolving Credit Commitments or Refinancing Revolving Credit Loans incurred pursuant thereto, in accordance with Section 2.16.
“Refinancing Revolving Credit Commitments” means one or more Classes of revolving credit commitments hereunder that result from a Refinancing Amendment.
“Refinancing Revolving Credit Loans” means one or more Classes of revolving credit loans that result from a Refinancing Amendment.
“Refinancing Series” means all Refinancing Term Loans, Refinancing Term Commitments, Refinancing Revolving Credit Loans, or Refinancing Revolving Credit Commitments that are established pursuant to the same Refinancing Amendment (or any subsequent Refinancing Amendment to the extent such Refinancing Amendment expressly provides that the Refinancing Term Loans, Refinancing Term Commitments, Refinancing Revolving Credit Loans, or Refinancing Revolving Credit Commitments provided for therein are intended to be a part of any previously established Refinancing Series) and that provide for the same “effective” yield (other than, for this purpose, any original issue discount or upfront fees), if applicable, and amortization schedule.
“Refinancing Term Commitments” means one or more term loan commitments hereunder that fund Refinancing Term Loans of the applicable Refinancing Series hereunder pursuant to a Refinancing Amendment.
“Refinancing Term Loans” means one or more Classes of term loans hereunder that result from a Refinancing Amendment.
“Register” has the meaning set forth in Section 10.07(d).
“Registered Equivalent Notes” means, with respect to any notes originally issued in an offering pursuant to Rule 144A under the Securities Act or other private placement transaction under the Securities Act, substantially identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect.
“Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect.
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“Rejection Notice” has the meaning set forth in Section 2.05(b)(vii).
“Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing or migrating in, into, onto or through the Environment.
“Replacement Term Loan Amendment” has the meaning set forth in Amendment No. 1.
“Replacement Term Loans” has the meaning set forth in Section 10.01.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived.
“Representative” means, with respect to any series of Permitted Pari Passu Refinancing Debt or Permitted Junior Refinancing Debt, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
“Repricing Transaction” means (1) the incurrence by Holdings or any of its Restricted Subsidiaries of any Indebtedness (including, without limitation, any new or additional term loans under this Agreement (including Replacement Term Loans), whether incurred directly or by way of the conversion of 2019 Replacement Term B-5 Loans into a new tranche of replacement term loans under this Agreement) that is broadly marketed or syndicated to banks and other institutional investors in financings similar to the facilities provided for in this Agreement (i) having an “effective” yield for the respective Type of such Indebtedness that is less than the “effective” yield for 2019 Replacement Term B-5 Loans of the respective Type (with the comparative determinations to be made in the reasonable judgment of the Administrative Agent consistent with generally accepted financial practices, after giving effect to, among other factors, margin, upfront or similar fees or “original issue discount”, in each case, shared with all lenders or holders of such Indebtedness or 2019 Replacement Term B-5 Loans, as the case may be, but excluding the effect of any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all lenders or holders of such Indebtedness or 2019 Replacement Term B-5 Loans, as the case may be, and without taking into account any fluctuations in LIBOR or comparable rate), but excluding Indebtedness incurred in connection with a Change of Control, and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of 2019 Replacement Term B-5 Loans or (2) any effective reduction in the Applicable Rate for 2019 Replacement Term B-5 Loans (e.g., by way of amendment, waiver or otherwise) (with such determination to be made in the reasonable judgment of the Administrative Agent, consistent with generally accepted financial practices). Any such determination by the Administrative Agent as contemplated by preceding clauses (1) and (2) shall be conclusive and binding on all Lenders holding 2019 Replacement Term B-5 Loans.
“Repurchase Merger” has the meaning set forth in the preliminary statements hereto.
“Request for Credit Extension” means (a) with respect to a Borrowing, continuation or conversion of Term Loans or Revolving Credit Loans, a Committed Loan Notice and (b) with respect to an L/C Credit Extension, a Letter of Credit Request.
“Required Lenders” means, as of any date of determination and subject to the limitations set forth in Section 10.07(l), Lenders having more than 50.0% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Lender for purposes of this definition), (b) aggregate unused
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Term Commitments and (c) aggregate unused Revolving Credit Commitments; provided that the unused Term Commitment and unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Required Pro Rata Lenders” means, as of any date of determination, 2019 Replacement Term A-3 Lenders and Revolving Credit Lenders having more than 50% of the sum of the (a) Outstanding Amount of 2019 Replacement Term A-3 Loans, (b) the aggregate unused 2019 Replacement Term A-3 Loan Commitments and (c)(i) the aggregate unused Revolving Credit Commitments or (ii) after the termination of the Revolving Credit Commitments, the Revolving Credit Exposure; provided that the unused 2019 Replacement Term A-3 Loan Commitment and unused Revolving Credit Commitment of, and the Outstanding Amount of 2019 Replacement Term A-3 Loans and the Revolving Credit Exposure held or deemed held by, any Defaulting Lender shall be excluded for purposes of making any determination of Required Pro Rata Lenders.
“Required Revolving Credit Lenders” means, as of any date of determination, Lenders having more than 50.0% of (a) the Revolving Credit Commitments or (b) after the termination of the Revolving Credit Commitments, the Revolving Credit Exposure; provided that the unused Revolving Credit Commitment and the Revolving Credit Exposure of any Defaulting Lender shall be excluded for the purposes of making a determination of Required Revolving Credit Lenders.
“Required Term A-3 Lenders” means, as of any date of determination, 2019 Replacement Term A-3 Lenders having more than 50.0% of the sum of the (a) Outstanding Amount of 2019 Replacement Term A-3 Loans and (b) aggregate unused 2019 Replacement Term A-3 Loan Commitments; provided that the unused 2019 Replacement Term A-3 Loan Commitment of, and the Outstanding Amount of 2019 Replacement Term A-3 Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making any determination of Required Term A-3 Lenders.
“Required Term B-5 Lenders” means, as of any date of determination and subject to the limitations set forth in Section 10.07(l), 2019 Replacement Term B-5 Lenders having more than 50.0% of the sum of the (a) Outstanding Amount of 2019 Replacement Term B-5 Loans and (b) aggregate unused 2019 Replacement Term B-5 Loan Commitments; provided that the unused 2019 Replacement Term B-5 Loan Commitment of, and the Outstanding Amount of 2019 Replacement Term B-5 Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making any determination of Required Term B-5 Lenders.
“Required Term B-6 Lenders” means, as of any date of determination and subject to the limitations set forth in Section 10.07(l), 2021 Incremental Term B-6 Lenders having more than 50.0% of the sum of the (a) Outstanding Amount of 2021 Incremental Term B-6 Loans and (b) aggregate unused 2021 Incremental Term B-6 Loan Commitments; provided that the unused 2021 Incremental Term B-6 Loan Commitment of, and the Outstanding Amount of 2021 Incremental Term B-6 Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making any determination of Required Term B-6 Lenders.
“Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer or other similar officer of a Loan Party and, as to any document delivered on the Closing Date, any secretary or assistant secretary of such Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
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“Restricted Cash” means cash and Cash Equivalents held by Restricted Subsidiaries that is contractually restricted from being distributed to the Borrower; provided, that cash or Cash Equivalents maintained by any Foreign Subsidiary that is subject to minority shareholder approval before being distributed to Borrower (a “Shareholder Restriction”) shall not be deemed “Restricted Cash” as a result of such Shareholder Restriction.
“Restricted Payment” means any dividend, payment or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of Holdings or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to Holdings’ or a Restricted Subsidiary’s stockholders, partners or members (or the equivalent Persons thereof).
“Restricted Subsidiary” means any Subsidiary of Holdings other than an Unrestricted Subsidiary.
“Restricted Subsidiary Investment Basket Amount” has the meaning set forth in Section 7.02(g)(vi).
“Revolving Commitment Increase” has the meaning set forth in Section 2.14(a).
“Revolving Commitment Increase Lender” has the meaning set forth in Section 2.14(a).
“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of LIBOR Loans, having the same Interest Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(b).
“Revolving Credit Commitment” means, (i) as to each Revolving Credit Lender immediately prior to the Amendment No. 18 Effective Date, its obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01(b) and (b) purchase participations in L/C Obligations in respect of Letters of Credit in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01A (as in effect immediately prior to the Amendment No. 18 Effective Date), or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including Section 2.14 and Section 10.07(b)) and (ii) as to each Revolving Credit Lender on and after the Amendment No. 18 Effective Date after giving effect to Amendment No. 18, its obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01(b) and (b) purchase participations in L/C Obligations in respect of Letters of Credit, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01A as amended and restated by Amendment No. 18 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including Section 2.14 and Section 10.07(b)). The aggregate Revolving Credit Commitments of all Revolving Credit Lenders shall be $300,000,000 as of the Amendment No. 18 Effective Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement.
“Revolving Credit Exposure” means, as to each Revolving Credit Lender, the sum of the amount of the outstanding principal amount of such Revolving Credit Lender’s Revolving Credit Loans and its Pro Rata Share of the L/C Obligations at such time.
“Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time.
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“Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit Commitment at such time or, if the Revolving Credit Commitments have terminated, Revolving Credit Exposure.
“Revolving Credit Loans” has the meaning set forth in Section 2.01(b).
“Revolving Credit Maturity Date” has the meaning set forth in the definition of “Maturity Date.”
“Revolving Credit Note” means a promissory note of the Borrower payable to any Revolving Credit Lender or its registered assigns, in substantially the form of Exhibit D-2 hereto (as amended as of the Amendment No. 18 Effective Date), evidencing the aggregate Indebtedness of the Borrower to such Revolving Credit Lender resulting from the Revolving Credit Loans made by such Revolving Credit Lender to the Borrower.
“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and any successor thereto.
“Sale-Leaseback Transaction” means an arrangement relating to property owned by Holdings, the Borrower or any other Restricted Subsidiary whereby Holdings, the Borrower or such Restricted Subsidiary sells or transfers such property to any Person in contemplation of Holdings, the Borrower or any other Subsidiary leasing such property from such Person or its Affiliates.
“Same Day Funds” means immediately available funds.
“Sanctions” has the meaning set forth in Section 5.18.
“Scheduled Incremental Repayments” has the meaning set forth in Section 2.07(a).
“Scheduled Repayments” has the meaning set forth in Section 2.07(a).
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second Amended and Restated Credit Agreement” has the meaning set forth in the preliminary statements hereto.
“Secured Hedge Agreement” means any Swap Contract (other than an Excluded Swap Obligation) permitted under Article VII that is entered into by and between any Loan Party and any Person that is a Lender or an Affiliate of a Lender (or was a Lender or an Affiliate of a Lender at the time such Swap Contract was entered into or at the time immediately prior to the Amendment No. 9 Effective Date (a “Hedge Bank”)), in each case, to the extent designated by the Borrower and such Lender as a Secured Hedge Agreement in writing to the Collateral Agent (it being understood that one notice with respect to a specified Master Agreement may designate all transactions thereunder as being “Secured Hedge Agreements,” without the need for separate notices for each individual transaction thereunder). The designation of any hedge agreement as a Secured Hedge Agreement shall not create in favor of the Lender or Affiliate thereof that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Collateral Documents.
“Secured Obligations” means, collectively, the Obligations, the Cash Management Obligations and all obligations owing to the Secured Parties by Holdings or any Loan Party under any Secured Hedge Agreement.
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“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Hedge Banks, the Cash Management Banks, the Supplemental Agents and each co-agent or sub-agent appointed by the Administrative Agent or Collateral Agent from time to time pursuant to Section 9.02.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Agreement” means a Security Agreement substantially in the form of Exhibit G, as amended, amended and restated, modified, supplemented or extended from time to time in accordance with the terms thereof and hereof.
“Security Agreement Supplement” has the meaning set forth in the Security Agreement.
“Sellers” has the meaning set forth in the preliminary statements hereto.
“Senior Exchange Notes” has the meaning specified in the definition of Senior Notes.
“Senior Note Documents” means the Senior Notes, the Senior Note Indenture and all other documents executed and delivered with respect to the Senior Notes or Senior Note Indenture (other than the Senior Exchange Notes), as in effect on the Closing Date, and the Senior Exchange Notes, in each case as the same may be amended, amended and restated, modified, supplemented and/or extended from time to time in accordance with the terms hereof and thereof.
“Senior Note Indenture” means the Indenture, dated as of June 15, 2010, among Holdings, the Borrower, TransUnion Financing, the Subsidiary Guarantors and Wells Fargo, National Bank, as trustee, as in effect on the Closing Date and as thereafter amended, amended and restated, modified, supplemented and/or extended from time to time in accordance with the terms hereof and thereof.
“Senior Notes” means the Borrower’s and TransUnion Financing’s 113/8% Senior Notes due 2018, issued pursuant to the Senior Note Indenture, as in effect on the Closing Date and as the same may be amended, amended and restated, modified, supplemented and/or extended from time to time in accordance with the terms hereof and thereof, and any notes issued in exchange or replacement of the foregoing on substantially identical terms (the “Senior Exchange Notes”).
“Senior Secured Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) the Consolidated Total Net Debt (other than (x) the Senior Notes (or any Permitted Refinancing thereof, if unsecured) and (y) any portion of Consolidated Total Net Debt that is unsecured or is secured solely by a Lien that is subordinated to the Liens securing the Obligations pursuant to an Intercreditor Agreement) as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period.
“Separate Facility” has the meaning set forth in Section 2.14(a).
“Separate Facility Loan Documents” means any documents or agreements executed in connection with Indebtedness incurred pursuant to a Separate Facility as contemplated by Section 2.14.
“Shareholder Agreement” means, (i) prior to the Amendment No. 2 Effective Date, collectively, (a) that certain TransUnion Corp. 2010 U.S. Stockholders’ Agreement, dated as of June 15, 2010, by and among Holdings, each Person (used in this clause (a) as defined therein) identified on Schedule 1 thereto, each Person identified on Schedule 2 thereto, and any other Person who becomes a party to such agreement pursuant to the provisions thereof and (b) that certain TransUnion Corp. 2010 Non-U.S. Stockholders’ Agreement, dated as of June 15, 2010, by and among Holdings, each Person
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(used in this clause (b) as defined therein) identified on Schedule 1 thereto, each Person identified on Schedule 2 thereto, and any other Person who becomes a party to such agreement pursuant to the provisions thereof, in each case, as amended, amended and restated, modified or supplemented from time to time and (ii) after the Amendment No. 2 Effective Date, the shareholder agreement entered into in connection with the Sponsor Acquisition.
“Shareholder Restriction” has the meaning specified in the definition of Restricted Cash.
“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“SPC” has the meaning set forth in Section 10.07(h).
“Specified Default” means an Event of Default under Section 8.01(a), (f) or (g).
“Specified Equity Contribution” means any cash contribution to the common equity of Holdings and/or any purchase or investment in an Equity Interest of Holdings other than Disqualified Equity Interests.
“Specified Transaction” means any incurrence or repayment of Indebtedness (other than for working capital purposes) or Incremental Term Loan or Revolving Commitment Increase or Investment that results in a Person becoming a Restricted Subsidiary or an Unrestricted Subsidiary, any Permitted Acquisition or any Disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary of the Borrower, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person or any Disposition of a business unit, line of business or division of the Borrower or a Restricted Subsidiary, in each case whether by merger, consolidation, amalgamation or otherwise.
“Sponsor” means (i) prior to the Amendment No. 2 Effective Date, Madison Dearborn Partners, LLC and its Affiliates (other than their respective portfolio companies and natural persons) and (ii) after the Amendment No. 2 Effective Date, Advent, GS and their respective Affiliates (other than their respective portfolio companies and natural persons).
“Sponsor Acquisition” means the acquisition directly or indirectly by Advent and GS (and/or their respective affiliates) of the Equity Interests of Holdings pursuant to the terms of the Sponsor Acquisition Agreement on the Amendment No. 2 Effective Date.
“Sponsor Acquisition Agreement” means the Agreement and Plan of Merger, dated as of February 17, 2012, by and among Spartan Parent Holdings Inc., Spartan Acquisition Sub Inc., Holdings and MDCPVI TU Holdings, LLC, solely in its capacity as Stockholder Representative pursuant to Article 11 thereof (as may amended, supplemented or modified in accordance with the terms thereof).
“Subsequent Transaction” has the meaning set forth in Section 1.13.
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“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which (i) a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, (ii) more than half of the issued share capital is at the time beneficially owned or (iii) the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Holdings.
“Subsidiary Guarantor” means any Guarantor other than Holdings.
“Successor Company” has the meaning set forth in Section 7.04(d).
“Supplemental Agent” has the meaning set forth in Section 9.13(a) and “Supplemental Agents” shall have the corresponding meaning.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the maximum aggregate amount (giving effect to any netting agreements) that would be required to be paid if such Swap Contract were terminated at such time.
“Tax Group” has the meaning set forth in Section 7.06(h)(iii).
“Taxes” means any and all present or future taxes, duties, levies, imposts, assessments, deductions, withholdings or other charges imposed by any Governmental Authority in the nature of a tax, whether computed on a separate, consolidated, unitary, combined or other basis and any and all liabilities (including interest, fines, penalties or additions to tax) with respect to the foregoing.
“Term A-3 Note” means a promissory note of the Borrower payable to any 2019 Replacement Term A-3 Lender or its registered assigns, in substantially the form of Exhibit D-6 hereto, evidencing the aggregate Indebtedness of the Borrower to such 2019 Replacement Term A-3 Lender
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resulting from the 2019 Replacement Term A-3 Loans made by such 2019 Replacement Term A-3 Lender.
“Term B-5 Note” means a promissory note of the Borrower payable to any 2019 Replacement Term B-5 Lender or its registered assigns, in substantially the form of Exhibit D-5 hereto, evidencing the aggregate Indebtedness of the Borrower to such 2019 Replacement Term B-5 Lender resulting from the 2019 Replacement Term B-5 Loans made by such 2019 Replacement Term B-5 Lender.
“Term B-6 Note” means a promissory note of the Borrower payable to any 2021 Incremental Term B-6 Lender or its registered assigns, in substantially the form of Exhibit D-7 hereto, evidencing the aggregate Indebtedness of the Borrower to such 2021 Incremental Replacement Term B-6 Lender resulting from the 2021 Incremental Term B-6 Loans made by such 2021 Incremental Replacement Term B-6 Lender.
“Term B-6 Repricing Transaction” means (1) the incurrence by Holdings or any of its Restricted Subsidiaries of any Indebtedness (including, without limitation, any new or additional term loans under this Agreement (including Replacement Term Loans), whether incurred directly or by way of the conversion of 2021 Incremental Term B-6 Loans into a new tranche of replacement term loans under this Agreement) that is broadly marketed or syndicated to banks and other institutional investors in financings similar to the facilities provided for in this Agreement (i) having an “effective” yield for the respective Type of such Indebtedness that is less than the “effective” yield for 2021 Incremental Term B-6 Loans of the respective Type (with the comparative determinations to be made in the reasonable judgment of the Administrative Agent consistent with generally accepted financial practices, after giving effect to, among other factors, margin, upfront or similar fees or “original issue discount”, in each case, shared with all lenders or holders of such Indebtedness or 2021 Incremental Term B-6 Loans, as the case may be, but excluding the effect of any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all lenders or holders of such Indebtedness or 2021 Incremental Term B-6 Loans, as the case may be, and without taking into account any fluctuations in LIBOR or comparable rate), but excluding Indebtedness incurred in connection with a Change of Control, and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of 2021 Incremental Term B-6 Loans or (2) any effective reduction in the Applicable Rate for 2021 Incremental Term B-6 Loans (e.g., by way of amendment, waiver or otherwise) (with such determination to be made in the reasonable judgment of the Administrative Agent, consistent with generally accepted financial practices). Any such determination by the Administrative Agent as contemplated by preceding clauses (1) and (2) shall be conclusive and binding on all Lenders holding 2021 Incremental Term B-6 Loans.
“Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Class and Type and, in the case of LIBOR Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(a), Section 2.15 or under any Incremental Amendment or Refinancing Amendment.
“Term Commitment” means, (a) with respect to each 2021 Incremental Term B-6 Lender on the Amendment No. 19 Effective Date, its obligation to make the 2021 Incremental Term B-6 Loans to the Borrower pursuant to Amendment No. 19, or in the Assignment and Assumption pursuant to which a 2021 Incremental Term B-6 Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including Section 2.14), Amendment No. 19, any Refinancing Amendment or the incurrence of Replacement Term Loans, (b) with respect to each 2019 Replacement Term B-5 Lender on the Amendment No. 17 Effective Date, its obligation to make the 2019 Replacement Term B-5 Loans to the Borrower pursuant to Amendment No. 17, or in the Assignment and Assumption pursuant to which a 2019 Replacement Term B-5 Lender becomes a party
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hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including Section 2.14), Amendment No. 17, any Refinancing Amendment or the incurrence of Replacement Term Loans and (bc) with respect to each 2019 Replacement Term A-3 Lender on or after the Amendment No. 18 Effective Date, its obligation to make the 2019 Replacement Term A-3 Loans to the Borrower pursuant to Amendment No. 18, or in the Assignment and Assumption pursuant to which a 2018 Replacement Term A-3 Lender becomes a party hereto, as applicable, as such amounts may be adjusted from time to time in accordance with this Agreement (including Section 2.14), Amendment No. 18, any Refinancing Amendment or the incurrence of Replacement Term Loans,
“Term Facilities” means the 2021 Incremental Term B-6 Loans, 2019 Replacement Term A-3 Loans, the 2019 Replacement Term B-5 Loans and any Incremental Term Loans.
“Term Lender” means, at any time, any Lender that has a Term Commitment or a Term Loan at such time.
“Term Loan” means (a) prior to the Amendment No. 18 Effective Date, (i) the 2017 Replacement Term A-2 Loans, (ii) the 2018 Incremental Term A-2 Loans and (iii) the 2019 Replacement Term B-5 Loans, as the context may require;, and (b) on or after the Amendment No. 18 Effective Date, (i) the 2019 Replacement Term B-5 Loans, (ii) the 2019 Replacement Term A-3 Loans and, (iii) if also on or after the Amendment No. 19 Effective Date, the 2021 Incremental Term B-6 Loans and (iv) Extended Term Loans, Incremental Term Loans, Refinancing Term Loans or Replacement Term Loans, as the context may require.
“Test Period” means, for any date of determination under this Agreement, the then most recently ended period of four consecutive fiscal quarters of Holdings.
“Threshold Amount” means $50,000,000.
“Total Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Net Debt as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
“Trading with the Enemy Act” means the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq.
“tranche” has the meaning set forth in Section 2.15(a).
“Transaction Expenses” means any costs, fees or expenses incurred or paid by the Sponsor, the Purchaser, Holdings, the Borrower or any of its (or their) Subsidiaries in connection with the Transactions (including expenses in connection with hedging transactions), this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby.
“Transactions” means, collectively, (a) the Repurchase Merger, the Acquisition and other related transactions contemplated by the Purchase Agreement, (b) the execution, delivery and performance by each Loan Party of the Senior Note Documents to which it is a party, the issuance of the Senior Notes and the use of proceeds thereof, in each case, on the Closing Date, (c) the funding of the Loans on the Closing Date and the execution and delivery of Loan Documents to be entered into on the Closing Date, (d) the funding of any amounts into escrow on the Closing Date in connection with any escrow identified to the Initial Lenders on or prior to the Closing Date, (e) the repayment of certain
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Indebtedness of Holdings and its subsidiaries existing on the Closing Date pursuant to the Refinancing and (g) the payment of Transaction Expenses.
“Transferred Guarantor” has the meaning set forth in Section 11.09.
“TransUnion Financing” means TransUnion Financing Corporation, a Delaware corporation.
“TransUnion IPO” means a Qualified IPO by Parent in an underwritten primary public offering pursuant to the registration statement on Form S-1 (File No. 333-203110) filed with the U.S. Securities and Exchange Commission in accordance with the Securities Act, as such Form S-1 may be amended.
“Type” means, with respect to a Loan, its character as a Base Rate Loan or a LIBOR Loan.
“UK Security Agreement” means that certain Security Agreement, dated as of October 29, 2019, between Trans Union International, Inc. and TransUnion Global Holdings LLC, as Chargors and Deutsche Bank AG New York Branch, as Security Trustee.
“Unaudited Financial Statements” means (a) the unaudited consolidated balance sheet of Holdings and its Subsidiaries as of March 31, 2010 and (b) the related unaudited consolidated statements of income and cash flows for Holdings and its Subsidiaries for the fiscal quarter ended March 31, 2010.
“Unfunded Pension Liability” of any Pension Plan means the amount, if any, by which the value of the accumulated plan benefits under the Pension Plan, determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value of all plan assets of such Pension Plan (excluding any accrued but unpaid contributions).
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.
“United States” and “U.S.” mean the United States of America.
“United States Tax Compliance Certificate” has the meaning set forth in Section 3.01(d)(ii)(C) and is in substantially the form of Exhibit I hereto.
“Unreimbursed Amount” has the meaning set forth in Section 2.03(c)(i).
“Unrestricted Subsidiary” means (i) each Subsidiary of Holdings listed on Schedule 1.01B as of the Closing Date and (ii) any Subsidiary of Holdings designated by the board of directors of Holdings as an Unrestricted Subsidiary pursuant to Section 6.14 subsequent to the Closing Date.
“Unsecured Incremental Facility” has the meaning set forth in Section 2.14(a).
“USA Patriot Act” means the USA PATRIOT Improvement and Reauthorization Act, Pub. L. 109-177 (signed into law March 9, 2009) (as amended from time to time).
“Vail” has the meaning set forth in Section 6.11(d).
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“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness.
“wholly owned” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (x) director’s qualifying shares and (y) shares issued to other Persons to the extent required by applicable Law) are owned by such Person and/or by one or more wholly owned Subsidiaries of such Person.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
Section 1.02     Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)    The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b)    The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.
(c)    Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.
(d)    The term “including” is by way of example and not limitation.
(e)    The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
(f)    In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including.”
(g)    Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(h)    All references to “knowledge” of any Loan Party or a Restricted Subsidiary of Holdings means the actual knowledge of a Responsible Officer.
(i)    The words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
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(j)    All references to any Person shall be constructed to include such Person’s successors and assigns (subject to any restriction on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all of the functions thereof.
Section 1.03     Accounting Terms. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, except as otherwise specifically prescribed herein. Notwithstanding anything to the contrary contained herein, all financial statements shall be prepared, and all financial covenants and other financial calculations contained herein or in any other Loan Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof.
Section 1.04     Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number).
Section 1.05     References to Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, amendments and restatements, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, amendments and restatements, restatements, extensions, supplements and other modifications are permitted by the Loan Documents; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law (including by succession of comparable successor laws).
Section 1.06     Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
Section 1.07     Timing of Payment of Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day.
Section 1.08     Available Additional Basket Transactions. If more than one action occurs on any given date the permissibility of the taking of which is determined hereunder by reference to the amount of the Available Additional Basket immediately prior to the taking of such action, the permissibility of the taking of each such action shall be determined independently and in no event may any two or more such actions be treated as occurring simultaneously.
Section 1.09     Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein, the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio and the Fixed Charge Coverage Ratio shall be calculated in the manner prescribed by this Section 1.09; provided that notwithstanding anything to the contrary in clauses (b), (c) or (d) of this Section 1.09, when calculating the Total Net Leverage Ratio and the Senior Secured Net Leverage Ratio, as applicable, for purposes of (i) the Applicable ECF Percentage of Excess Cash Flow and, (ii) determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with Section 7.11 and (iii) calculating the
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Applicable Rate for 2021 Incremental Term B-6 Loans, the events described in this Section 1.09 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.
(b)    For purposes of calculating the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio and the Fixed Charge Coverage Ratio, Specified Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been made (i) during the applicable Test Period and (ii) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into Holdings or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio and the Fixed Charge Coverage Ratio shall be calculated to give pro forma effect thereto in accordance with this Section 1.09.
(c)    Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and include, for the avoidance of doubt, the amount of cost savings, operating expense reductions, other operating improvements and synergies projected by the Borrower in good faith to be reasonably anticipated to be realized within 12 months after the closing date of such Specified Transaction (provided, that to the extent any such operational changes are not associated with a transaction, such changes shall be limited to those for which all steps have been taken for realizing such savings and are factually supportable, reasonably identifiable and supported by an officer’s certificate delivered to the Administrative Agent) (calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements and synergies had been realized on the first day of such period as if such cost savings, operating expense reductions, other operating improvements and synergies were realized during the entirety of such period) relating to such Specified Transaction, net of the amount of actual benefits realized during such period from such actions; provided that any increase in Consolidated EBITDA as a result of cost savings, operating expense reductions, other operating improvements and synergies shall be subject to the limitations set forth in the definition of Consolidated EBITDA.
(d)    In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio and the Fixed Charge Coverage Ratio, as the case may be (in each case, other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), (i) during the applicable Test Period and (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio and the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
Section 1.10     Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such
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Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
Section 1.11     Certifications. All certifications to be made hereunder by an officer or representative of a Loan Party shall be made by such person in his or her capacity solely as an officer or a representative of such Loan Party, on such Loan Party’s behalf and not in such Person’s individual capacity.
Section 1.12     Currency Translation. For purposes of determining compliance as of any date with Sections 7.01, 7.02, 7.03, 7.04, 7.05, 7.06 or 7.08, amounts incurred or outstanding in currencies other than Dollars shall be translated into Dollars at the exchange rates in effect on the first Business Day of the fiscal quarter in which such determination occurs or in respect of which such determination is being made, as such exchange rates shall be determined in good faith by the Borrower based on commonly used financial reporting sources. No Default or Event of Default shall arise as a result of any limitation or threshold set forth in Dollars in Section 7.01, 7.02, 7.03, 7.04, 7.05, 7.06 or 7.08 or paragraph (e) or (h) of Section 8.01 being exceeded solely as a result of changes in currency exchange rates from those applicable on the first day of the fiscal quarter in which such determination occurs or in respect of which such determination is made (it being understood that such changes shall nonetheless be taken into account in determining the remaining availability (if any) under any such limitation or threshold).
Section 1.13     Limited Condition Transactions Notwithstanding anything to the contrary herein, in connection with any action being taken solely in connection with a Limited Condition Transaction, for purposes of:
(a)    determining compliance with any provision of this Agreement which requires the calculation of any financial ratio or test, including the Senior Secured Net Leverage Ratio, Total Net Leverage Ratio and Fixed Charge Coverage Ratio (and, for the avoidance of doubt, the financial ratios set forth in Sections 2.14, 7.02(x) and 7.03(g)); or
(b)    testing availability under baskets set forth in this Agreement;
in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (or, in respect of any transaction described in clauses (ii) or (iii) of the definition of a Limited Condition Transaction, the date of delivery of irrevocable notice, declaration of dividend or similar event (and not at the time of consummation of such Limited Condition Transaction)) (the “LCT Test Date”), and if, after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) on a Pro Forma Basis as if they had occurred at the beginning of the most recent Test Period for which financial statements were (or were required to be) delivered pursuant to Section 6.01(a) or (b) ending prior to the LCT Test Date (for income statement purposes) or at the end of such most recent Test Period (for balance sheet purposes), the Borrower would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA or Adjusted Total Assets of the Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any calculation of any ratio, test or basket
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availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any permitted Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement or irrevocable notice, declaration of dividend or similar event for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated; provided, that with respect to any such Subsequent Transaction that is a Restricted Payment, any such ratio or basket shall also be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated. It is understood and agreed that the Borrower shall be deemed to have made an LCT Election in respect of the Callcredit Acquisition, and the LCT Test Date applicable thereto shall be April 20, 2018.
Section 1.14     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 II

The Commitments and Credit Extensions
Section 2.01     The Loans.
(a)    The Term Borrowings. (i) 2015 Term A Loans. Subject to and upon the terms and conditions set forth herein, each 2015 Term A Lender with a 2015 Term A Commitment severally, and not jointly with the other 2015 Term A Lenders, agrees to make 2015 Term A Loans to the Borrower, which 2015 Term A Loans (i) may be incurred at any time after the Amendment No. 9 Effective Date and on or before the 2015 Term A Commitment Termination Date pursuant to a single drawing on the 2015 Term A Loan Funding Date, (ii) except as hereinafter provided, shall, if incurred, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or LIBOR Loans, provided that except as otherwise specifically provided in Section 3.06(c), all 2015 Term A Loans comprising the same Borrowing shall at all times be of the same Type; and (iii) shall be made by each such 2015 Term A Lender in that aggregate principal amount which does not exceed the lesser of (x) the 2015 Term A Commitment of such Lender on the 2015 Term A Loan Funding Date and (y) such 2015 Term A Lender’s 2015 Term A Commitment as set forth on Schedule 1.01A.  Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed.
(ii)    2015 Term B-2 Loans. (A) Subject to the terms and conditions set forth in Amendment No. 8, each of the 2015 Term B-2 Lenders severally, and not jointly with the other 2015 Term B-2 Lenders, agrees to make to the Borrower on the Amendment No. 8 Effective Date term loans denominated in Dollars in an aggregate amount not to exceed the amount of such Lender’s 2015 Term B-2 Commitment. Amounts borrowed under this Section
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2.01(a)(ii)(A) pursuant to Amendment No. 8 and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
(B)    On the Amendment No. 8 Effective Date, the aggregate outstanding principal amount of all Term Loans held by a Term Lender that committed to convert its Term Loans into 2015 Term B-2 Loans pursuant to such Lender’s executed counterpart of Amendment No. 8 delivered to the Administrative Agent in accordance with the terms thereof shall be automatically converted into 2015 Term B-2 Loans of the Borrower in a like principal amount denominated in Dollars.
(iii)    2016 Incremental Term B-2 Loans. Subject to the terms and conditions set forth in Amendment No. 10, each of the 2016 Incremental Term B-2 Lenders severally, and not jointly with the other 2016 Incremental Term B-2 Lenders, agrees to make to the Borrower on the Amendment No. 10 Effective Date a 2016 Incremental Term B-2 Loan denominated in Dollars in a principal amount equal to such 2016 Incremental Term B-2 Lender’s 2016 Incremental Term B-2 Loan Commitment. Amounts borrowed under this Section 2.01(a)(iii) pursuant to Amendment No. 10 and repaid or prepaid may not be reborrowed. 2016 Incremental Term B-2 Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
(iv)    2016 Incremental Term A Loans. Subject to the terms and conditions set forth in Amendment No. 11, each of the 2016 Incremental Term A Lenders severally, and not jointly with the other 2016 Incremental Term A Lenders, agrees to make to the Borrower on the Amendment No. 11 Effective Date a 2016 Incremental Term A Loan denominated in Dollars in a principal amount equal to such 2016 Incremental Term A Lender’s 2016 Incremental Term A Loan Commitment. Amounts borrowed under this Section 2.01(a)(iii) pursuant to Amendment No. 11 and repaid or prepaid may not be reborrowed. 2016 Incremental Term A Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
(v)    2017 Replacement Term B-3 Loans. Subject to the terms and conditions set forth in Amendment No. 13, on the Amendment No 13 Effective Date, (A) each 2017 Replacement Term B-3 Lender that is a 2017 Converting Term B-3 Lender severally agrees that, without further action by any party to this Agreement, a portion of such 2017 Replacement Term B-3 Lender’s 2017 Replacement Term B-3 Loans equal to such 2017 Replacement Term B-3 Lender’s 2017 Replacement Term B-3 Loan Conversion Amount shall automatically be converted into a 2017 Replacement Term B-3 Loan to the Borrower in dollars and in like principal amount and (B) each New 2017 Replacement Term B-3 Lender severally agrees to make a New 2017 Replacement Term B-3 Loan to the Borrower on the Amendment No. 13 Effective Date denominated in dollars in a principal amount not to exceed its 2017 Replacement Term B-3 Loan Commitment. Each New 2017 Replacement Term B-3 Lender’s 2017 Replacement Term B-3 Loan Commitment shall terminate immediately and without further action on the Amendment No. 13 Effective Date after giving effect to the funding of such 2017 Replacement Term B-3 Lender’s 2017 Replacement Term B-3 Loan Commitment on such date. Amounts borrowed under this Section 2.01(a)(v) pursuant to Amendment No. 13 and repaid or prepaid may not be reborrowed.  2017 Replacement B-3 Term Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
(vi)    2017 Replacement Term A-2 Loans. Subject to the terms and conditions set forth in Amendment No. 13, on the Amendment No 13 Effective Date, (A) each 2017 Replacement Term A-2 Lender that is a 2017 Converting Term A-2 Lender severally agrees that, without further action by any party to this Agreement, a portion of such 2017 Replacement Term A-2 Lender’s 2017 Replacement Term A-2 Loans equal to such 2017 Replacement Term
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A-2 Lender’s 2017 Replacement Term A-2 Loan Conversion Amount shall automatically be converted into a 2017 Replacement Term A-2 Loan to the Borrower in dollars and in like principal amount, (B) each New 2017 Replacement Term A-2 Lender severally agrees to make a New 2017 Replacement Term A-2 Loan to the Borrower on the Amendment No. 13 Effective Date denominated in dollars in a principal amount not to exceed its 2017 Replacement Term A-2 Loan Commitment and (C) immediately following the 2017 Replacement Term A-2 Loan Conversion and the incurrence of the New 2017 Replacement Term A-2 Loans pursuant to the preceding clause (B) (and the application of the proceeds thereof as provided in Amendment No. 13), each applicable New 2017 Replacement Term A-2 Lender severally agrees to make a 2017 Replacement Term A-2 Loan to the Borrower on the Amendment No. 13 Effective Date denominated in dollars in a principal amount not to exceed its 2017 Replacement Term A-2 Loan Increase Commitment. Each New 2017 Replacement Term A-2 Lender’s 2017 Replacement Term A-2 Loan Commitment and 2017 Replacement Term A-2 Loan Increase Commitment shall terminate immediately and without further action on the Amendment No. 13 Effective Date after giving effect to the funding of such New 2017 Replacement Term A-2 Lender’s 2017 Replacement Term A-2 Loan Commitment and its 2017 Replacement Term A-2 Loan Increase Commitment. Amounts borrowed under this Section 2.01(a)(vi) pursuant to Amendment No. 13 and repaid or prepaid may not be reborrowed.  2017 Replacement A-2 Term Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
(vii)    2018 Incremental Term B-4 Loans. Subject to the terms and conditions set forth in Amendment No. 15, each of the 2018 Incremental Term B-4 Lenders severally, and not jointly with the other 2018 Incremental Term B-4 Lenders, agrees to make to the Borrower on the Amendment No. 15 Effective Date a 2018 Incremental Term B-4 Loan denominated in Dollars in a principal amount equal to such 2018 Incremental Term B-4 Lender’s 2018 Incremental Term B-4 Loan Commitment. Amounts borrowed under this Section 2.01(a)(vii) pursuant to Amendment No. 15 and repaid or prepaid may not be reborrowed. 2018 Incremental Term B-4 Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
(viii)    2018 Incremental Term A-2 Loans. Subject to the terms and conditions set forth in Amendment No. 15, each of the 2018 Incremental Term A-2 Lenders severally, and not jointly with the other 2018 Incremental Term A-2 Lenders, agrees to make to the Borrower on the Amendment No. 15 Effective Date a 2018 Incremental Term A-2 Loan denominated in Dollars in a principal amount equal to such 2018 Incremental Term A-2 Lender’s 2018 Incremental Term A-2 Loan Commitment. Amounts borrowed under this Section 2.01(a)(viii) pursuant to Amendment No. 15 and repaid or prepaid may not be reborrowed. 2018 Incremental Term A-2 Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
(ix)    2018 Additional Incremental Term B-4 Loans. Subject to the terms and conditions set forth in Amendment No. 16, each of the 2018 Additional Incremental Term B-4 Lenders severally, and not jointly with the other 2018 Additional Incremental Term B-4 Lenders, agrees to make to the Borrower on the Amendment No. 16 Effective Date a 2018 Additional Incremental Term B-4 Loan denominated in Dollars in a principal amount equal to such 2018 Additional Incremental Term B-4 Lender’s 2018 Additional Incremental Term B-4 Commitment. Amounts borrowed under this Section 2.01(a)(ix) pursuant to Amendment No. 16 and repaid or prepaid may not be reborrowed. 2016 Additional Incremental Term B-4 Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
(x)    2019 Replacement Term B-5 Loans. Subject to the terms and conditions set forth in Amendment No. 17, on the Amendment No 17 Effective Date, (A) each 2019
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Replacement Term B-5 Lender severally agrees that, without further action by any party to this Agreement, such 2019 Replacement Term B-5 Lender’s Existing Term B Loans equal to such 2019 Replacement Term B-5 Lender’s 2019 Replacement Term B-5 Loan Conversion Amount shall automatically be converted into a 2019 Replacement Term B-5 Loan to the Borrower in dollars and in like principal amount. Amounts borrowed under this Section 2.01(a)(v) pursuant to Amendment No. 17 and repaid or prepaid may not be reborrowed.  2019 Replacement B-5 Term Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
(xi)    2019 Replacement Term A-3 Loans. Subject to the terms and conditions set forth in Amendment No. 18, on the Amendment No 18 Effective Date, (A) each 2019 Replacement Term A-3 Lender that is a 2019 Converting Term A-3 Lender severally agrees that, without further action by any party to this Agreement, a portion of such 2019 Replacement Term A-3 Lender’s 2019 Replacement Term A-3 Loans equal to such 2019 Replacement Term A-3 Lender’s 2019 Replacement Term A-3 Loan Conversion Amount shall automatically be converted into a 2019 Replacement Term A-3 Loan to the Borrower in dollars and in like principal amount and (B) each New 2019 Replacement Term A-3 Lender severally agrees to make a New 2019 Replacement Term A-3 Loan to the Borrower on the Amendment No. 18 Effective Date denominated in dollars in a principal amount not to exceed its 2019 Replacement Term A-3 Loan Commitment. Each New 2019 Replacement Term A-3 Lender’s 2019 Replacement Term A-3 Loan Commitment shall terminate immediately and without further action on the Amendment No. 18 Effective Date after giving effect to the funding of such New 2018 Replacement Term A-3 Lender’s 2019 Replacement Term A-3 Loan Commitment. Amounts borrowed under this Section 2.01(a)(xi) pursuant to Amendment No. 18 and repaid or prepaid may not be reborrowed.  2019 Replacement Term A-3 Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
(xii)    2021 Incremental Term B-6 Loans. Subject to the terms and conditions set forth in Amendment No. 18, each of the 2021 Incremental Term B-6 Lenders severally, and not jointly with the other 2021 Incremental Term B-6 Lenders, agrees to make to the Borrower on the Amendment No. 19 Effective Date a 2021 Incremental Term B-6 Loan denominated in Dollars in a principal amount equal to such 2021 Incremental Term B-6 Lender’s 2021 Incremental Term B-6 Loan Commitment. Amounts borrowed under this Section 2.01(a)(xii) pursuant to Amendment No. 19 and repaid or prepaid may not be reborrowed. 2021 Incremental Term B-6 Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
(b)    The Revolving Credit Borrowings. On and after the Amendment No. 18 Effective Date, subject to the terms and conditions set forth herein each Revolving Credit Lender severally agrees to make revolving loans denominated in Dollars pursuant to Section 2.02 to the Borrower from its applicable Lending Office (each such revolving loan, a “Revolving Credit Loan”) from time to time, on any Business Day during the period from the Closing Date until the latest Maturity Date of the Revolving Credit Facility, in an aggregate principal amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment; provided that after giving effect to any Revolving Credit Borrowing, the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations shall not exceed such Lender’s Revolving Credit Commitment. Within the limits of each Lender’s Revolving Credit Commitments, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(b), prepay under Section 2.05 (without premium or penalty (other than as set forth in Section 3.05), and reborrow under this Section 2.01(b). Revolving Credit Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
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Section 2.02     Borrowings, Conversions and Continuations of Loans. (a) Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or Revolving Credit Loans from one Type to the other, and each continuation of LIBOR Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than (i) 11:00 a.m. (New York City time) three (3) Business Days prior to the requested date of any Borrowing or continuation of LIBOR Loans or any conversion of Base Rate Loans to LIBOR Loans, and (ii) 11:00 a.m. (New York City time) one (1) Business Day prior to the requested date of any Borrowing of Base Rate Loans. Notwithstanding the foregoing, a Revolving Credit Borrowing of Base Rate Loans may be made on a same-day basis; provided that (i) the aggregate principal amount of the Revolving Credit Loans made pursuant to such a Revolving Credit Borrowing shall not exceed $35,000,000 and (ii) the Borrower’s irrevocable notice in respect of such Revolving Credit Borrowing must be received by the Administrative Agent not later than 11:00 a.m. (New York City time) on the requested Business Day of such Revolving Credit Borrowing of Base Rate Loans.  Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Except as provided in Section 2.14(a), each Borrowing of, conversion to or continuation of LIBOR Loans shall be in a minimum principal amount of $2,500,000 or a whole multiple of $500,000, in excess thereof. Except as provided in Section 2.03(c), 2.14(a) or the last sentence of this paragraph, each Borrowing of or conversion to Base Rate Loans shall be in a minimum principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (unless the remaining unutilized Revolving Credit Commitments is less). Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Term Borrowing, a Revolving Credit Borrowing, a conversion of Term Loans or Revolving Credit Loans from one Type to the other, or a continuation of LIBOR Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans or Revolving Credit Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Committed Loan Notice or fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans or Revolving Credit Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of LIBOR Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month.
(b)    Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Pro Rata Share of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation described in Section 2.02(a). In the case of each Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 1:00 p.m. (New York City time) on the Business Day specified in the applicable Committed Loan Notice. The Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of DBNY with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided that if, on the date the Committed Loan Notice with respect to such Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in full of any such L/C Borrowing and second, to the Borrower as provided above.
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(c)    Except as otherwise provided herein, a LIBOR Loan may be continued or converted only on the last day of an Interest Period for such LIBOR Loan unless the Borrower pays the amount due, if any, under Section 3.05 in connection therewith. During the existence of an Event of Default, the Administrative Agent or the Required Lenders may require that no Loans may be converted to or continued as LIBOR Loans.
(d)    The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for LIBOR Loans upon determination of such interest rate on each Interest Determination Date. The determination of LIBOR by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in the Prime Lending Rate used in determining the Base Rate promptly following the public announcement of such change.
(e)    After giving effect to all Term Borrowings, all Revolving Credit Borrowings, all conversions of Term Loans or Revolving Credit Loans from one Type to the other, and all continuations of Term Loans or Revolving Credit Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect with respect to all Revolving Credit Borrowings, not more than five (5) Interest Periods in effect with respect to all Term Borrowings in respect of 2019 Replacement Term A-3 Loans and, not more than five (5) Interest Periods in effect with respect to all Term Borrowings in respect of 2019 Replacement Term B-5 Loans and not more than five (5) Interest Periods in effect with respect to all Term Borrowings in respect of 2021 Incremental Term B-6 Loans.
(f)    The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
Section 2.03     Letters of Credit.
(a)    The Letter of Credit Commitment. (i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower (provided that any Letter of Credit may be for the benefit of any Subsidiary of the Borrower) and to amend, renew or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03 (including, for avoidance of doubt, that certain Letter of Credit issued to the Borrower on February 21, 2014 by DBNY); provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Lender’s Revolving Credit Commitment or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Letters of Credit shall be issued on a sight basis only. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii)    An L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A)    any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such
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Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B)    except for an Auto-Extension Letter of Credit, the expiry date of such requested Letter of Credit would occur (x) in the case of a standby Letter of Credit, more than twelve months after the date of issuance or last renewal, and (y) in the case of a trade Letter of Credit, more than 180 days after the date of issuance, unless, in each case, the Lenders holding a majority of the Revolving Credit Commitments have approved such expiry date;
(C)    the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Credit Lenders have approved such expiry date (or such Letter of Credit is cash collateralized in accordance with Section 2.03(g) prior to the Letter of Credit Expiration Date);
(D)    the issuance of such Letter of Credit would violate any Laws binding upon such L/C Issuer;
(E)    such Letter of Credit is denominated in a currency other than Dollars;
(F)    any Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion;
(G)    such Letter of Credit is in an initial amount less than $100,000 (or such lesser amount as approved by such L/C Issuer in its sole discretion); or
(H)    unless otherwise agreed by the applicable L/C Issuer in its sole discretion, the amount of such Letter of Credit exceeds such L/C Issuer’s Letter of Credit Commitment.
(iii)    An L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(b)    Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to an L/C Issuer (with a copy to the Administrative Agent) substantially in the form of a Letter of Credit Request, appropriately completed and signed by a Responsible Officer of
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the Borrower. Such Letter of Credit Request must be received by the relevant L/C Issuer and the Administrative Agent not later than 11:00 a.m. (New York City time) at least five (5) Business Days prior to the proposed issuance date or date of amendment, as the case may be; or, in each case, such later date and time as the relevant L/C Issuer may agree in a particular instance in its reasonable discretion. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Request shall specify in form and detail reasonably satisfactory to the relevant L/C Issuer: (a) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (b) the amount thereof; (c) the expiry date thereof; (d) the name and address of the beneficiary thereof; (e) the documents to be presented by such beneficiary in case of any drawing thereunder; (f) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (g) such other matters as the relevant L/C Issuer may reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Request shall specify in form and detail reasonably satisfactory to the relevant L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the relevant L/C Issuer may reasonably request.
(ii)    Promptly after receipt of any Letter of Credit Request, the relevant L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Request from the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by the relevant L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be. Immediately upon the issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the relevant L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Letter of Credit.
(iii)    If the Borrower so requests in any applicable Letter of Credit Request in respect of a standby Letter of Credit, the relevant L/C Issuer shall agree to issue a standby Letter of Credit that has provisions that automatically extend the expiry date of such standby Letter of Credit for successive periods of up to twelve months (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the relevant L/C Issuer to prevent any such extension at least once in each twelve month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the relevant L/C Issuer, the Borrower shall not be required to make a specific request to the relevant L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the relevant L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided that the relevant L/C Issuer shall (A) not be required to permit any such extension if the relevant L/C Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its extended form under the terms hereof (by reason of the provisions of Section 2.03(a)(ii) or otherwise), and (B) shall not permit any such extension if it has received notice (which may be by telephone or in writing) on or before the day that is five (5) Business Days before the Non-extension Notice Date from the Administrative Agent, the Required Lenders or the Borrower that one or more of the applicable conditions specified in Section 4.01 is not then satisfied.
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(iv)    Promptly after issuance of any Letter of Credit or any amendment to a Letter of Credit, the relevant L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c)    Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the relevant L/C Issuer shall notify promptly the Borrower and the Administrative Agent thereof. The Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing in Dollars not later than 2:00 p.m. (New York City time) on the Business Day immediately following the date of any such payment (the “Honor Date”). The relevant L/C Issuer shall notify the Borrower of the occurrence of such Honor Date on such Honor Date and of the amount of the drawing paid on such date. If the Borrower fails to so reimburse such L/C Issuer by such time, the Administrative Agent shall promptly notify each Appropriate Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Appropriate Lender’s Pro Rata Share thereof. In such event, the Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans but subject to the amount of the unutilized portion of the Revolving Credit Commitments of the Appropriate Lenders and the conditions set forth in Section 4.01 (other than the delivery of a Committed Loan Notice). Any notice given by an L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii)    Each Appropriate Lender (including any Lender acting as an L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the relevant L/C Issuer in Dollars at the Administrative Agent’s Office for payments in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. (New York City time) on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Appropriate Lender that so makes funds available shall be deemed to have made a Revolving Credit Loan that is a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the relevant L/C Issuer.
(iii)    With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.01 cannot be satisfied or for any other reason within one Business Day of the Honor Date, the Borrower shall be deemed to have incurred from the relevant L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate for Revolving Credit Loans. In such event, each Appropriate Lender’s payment to the Administrative Agent for the account of the relevant L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.
(iv)    Until each Appropriate Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the relevant L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the account of the relevant L/C Issuer.
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(v)    Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse an L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the relevant L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Credit Lender’s obligation to make Revolving Credit Loans (but not L/C Advances) pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.01 (other than delivery by the Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the relevant L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi)    If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the relevant L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), such L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by such L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing. A certificate of the relevant L/C Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive absent manifest error.
(d)    Repayment of Participations. (i) If, at any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Credit Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the amount received by the Administrative Agent.
(ii)    If any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Appropriate Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e)    Obligations Absolute. The obligation of the Borrower to reimburse the relevant L/C Issuer for each drawing under each Letter of Credit issued by it and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
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(i)    any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other agreement or instrument relating thereto;
(ii)    the existence of any claim, counterclaim, setoff, defense or other right that any Loan Party may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the relevant L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii)    any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv)    any payment by the relevant L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the relevant L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;
(v)    any exchange, release or non-perfection of any Collateral, or any release or amendment or waiver of or consent to departure from the Guaranty or any other guarantee, for all or any of the Obligations of any Loan Party in respect of such Letter of Credit; or
(vi)    any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Loan Party (other than payment or performance);
provided that the foregoing shall not excuse any L/C Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are waived by the Borrower to the extent permitted by applicable Law) suffered by the Borrower that are caused by such L/C Issuer’s gross negligence, bad faith or willful misconduct as determined in a final and non-appealable judgment by a court of competent jurisdiction when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.
(f)    Role of L/C Issuers. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the relevant L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, any Agent-Related Person nor any of the respective correspondents, participants or assignees of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Lenders holding a majority of the Revolving Credit Commitments, as applicable; (ii) any action taken or omitted in the absence of gross negligence, bad faith or willful misconduct as determined in a final and non-appealable judgment by a court of competent jurisdiction; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Request. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as
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it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of any L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (vi) of Section 2.03(e); provided that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by such L/C Issuer’s willful misconduct, bad faith or gross negligence or such L/C Issuer’s willful or grossly negligent failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit, in each case as determined in a final and non-appealable judgment by a court of competent jurisdiction. In furtherance and not in limitation of the foregoing, each L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and no L/C Issuer shall be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(g)    Cash Collateral. (i) If, as of the Letter of Credit Expiration Date, any Letter of Credit may for any reason remain outstanding and partially or wholly undrawn, (ii) if any Event of Default occurs and is continuing and the Administrative Agent or the Lenders holding a majority of the Revolving Credit Commitments, as applicable, require the Borrower to Cash Collateralize the L/C Obligations pursuant to Section 8.02 or (iii) if an Event of Default set forth under Section 8.01(f) occurs and is continuing, the Borrower shall Cash Collateralize the then Outstanding Amount of all L/C Obligations (in each case, in an amount equal to such Outstanding Amount determined as of the date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case may be), and shall do so not later than 2:00 P.M., New York City time, on (x) in the case of the immediately preceding clauses (i) through (iii), (1) the Business Day that the Borrower receives notice thereof, if such notice is received on such day prior to 10:00 A.M., New York City time, or (2) if clause (1) above does not apply, the Business Day immediately following the day that the Borrower receives such notice and (y) in the case of the immediately preceding clause (iii), the Business Day on which an Event of Default set forth under Section 8.01(f) occurs or, if such day is not a Business Day, the Business Day immediately succeeding such day. At any time that there shall exist a Defaulting Lender, promptly upon the written request of the Administrative Agent or an L/C Issuer, the Borrower shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (solely after giving effect to Section 2.17(a)(iv) and any Cash Collateral provided by the Defaulting Lender). For purposes hereof, “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the relevant L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash, Cash Equivalents reasonably acceptable to the Administrative Agent or deposit account balances (“Cash Collateral”) pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the relevant L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term have corresponding meanings. The Borrower hereby grants to the Administrative Agent, for the benefit of the L/C Issuers and the Lenders, a security interest in all such cash, Cash Equivalents, deposit accounts and all balances therein and all proceeds of the foregoing contained in the L/C Cash Collateral Account (as defined below). Cash Collateral shall be maintained in a blocked account at the Administrative Agent (the “L/C Cash Collateral Account”) and may be invested in readily available Cash Equivalents for the benefit of the Borrower. If at any time the Administrative Agent determines that any funds held in the L/C Cash Collateral Account are expressly subject to any right or claim of any Person other than (i) the Administrative Agent (on behalf of itself or the Secured Parties) or (ii) nonconsensual Liens permitted under Section 7.01(c) or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations, the Borrower will, forthwith upon written demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in the L/C Cash Collateral Account as aforesaid, an amount equal to the excess of (a) such aggregate
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Outstanding Amount over (b) the total amount of funds, if any, then held in the L/C Cash Collateral Account that the Administrative Agent reasonably determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit in the L/C Cash Collateral Account, such funds shall be applied, to the extent permitted under applicable Law, to reimburse the relevant L/C Issuer. To the extent the amount of Cash Collateral exceeds the then Outstanding Amount of such L/C Obligations and so long as no Event of Default has occurred and is continuing, the excess shall be promptly refunded to the Borrower. To the extent any Event of Default giving rise to the requirement to Cash Collateralize any Letter of Credit pursuant to this Section 2.03(g) is cured or otherwise waived by the Required Lenders, then so long as no other Event of Default has occurred and is continuing, all Cash Collateral pledged to Cash Collateralize such Letter of Credit shall be promptly refunded to the Borrower. If at any time the Administrative Agent reasonably determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided or Liens described above, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Borrower or the relevant Defaulting Lender will, promptly following written demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.
(h)    Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Pro Rata Share a Letter of Credit fee for each Letter of Credit issued pursuant to this Agreement equal to the Applicable Rate for Revolving Credit Loans outstanding as LIBOR Loans times the daily maximum amount then available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit); provided that (x) if any portion of a Defaulting Lender’s Pro Rata Share of any Letter of Credit is Cash Collateralized by the Borrower or reallocated to the other Revolving Credit Lenders pursuant to Section 2.03(a)(iv), then the Borrower shall not be required to pay a Letter of Credit fee with respect to such portion of such Defaulting Lender’s Pro Rata Share so long as it is Cash Collateralized by the Borrower or reallocated to the other Revolving Credit Lenders and (y) if any portion of a Defaulting Lender’s Pro Rata Share is not Cash Collateralized or reallocated pursuant to Section 2.03(a)(iv), then the Letter of Credit fee with respect to such Defaulting Lender’s Pro Rata Share shall be payable to the applicable L/C Issuer until such Pro Rata Share is Cash Collateralized or such Lender ceases to be a Defaulting Lender. Such Letter of Credit fees shall be computed on a quarterly basis in arrears. Such Letter of Credit fees shall be due and payable in Dollars on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the Applicable Rate during any quarter, the daily maximum amount of each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding the foregoing, the provisions of this Section 2.03(h), solely to the extent otherwise applicable to fees payable on that portion (if any) of Letters of Credit participated in by Revolving Credit Lenders pursuant to Extended Revolving Credit Commitments, shall be subject to modification as expressly provided in Section 2.15.
(i)    Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers. The Borrower shall pay directly to each L/C Issuer for its own account a fronting fee with respect to each Letter of Credit issued by it to the Borrower equal to the greater of (x) 0.25% per annum (or such other amount as may be mutually agreed by the Borrower and the applicable L/C Issuer) of the daily maximum amount then available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit) and (y) to the extent an L/C Issuer is the Administrative Agent or an Affiliate thereof, $500 per annum. Such fronting fees shall be computed on a quarterly basis in arrears. Such fronting fees shall be due and payable in Dollars on the last Business Day of each March, June,
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September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. In addition, the Borrower shall pay directly to each L/C Issuer for its own account with respect to each Letter of Credit issued to the Borrower the customary and reasonable issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable within ten (10) Business Days of written demand (including documentation reasonably supporting such request) and are nonrefundable.
(j)    Conflict with Letter of Credit Request. Notwithstanding anything else to the contrary in this Agreement, any Letter of Credit Request or any other Issuer Document, (i) in the event of any conflict between the terms hereof and the terms of any Letter of Credit Request or any other Issuer Document, the terms hereof shall control in all respects and (ii) any grant of a security interest in any Letter of Credit Request shall be null and void (other than, in the case of trade Letters of Credit, the goods subject to such Letters of Credit and the documents relating to such goods).
(k)    Addition of an L/C Issuer. Any Revolving Credit Lender not already an L/C Issuer hereunder may become an additional L/C Issuer hereunder pursuant to a written agreement among the Borrower, the Administrative Agent and such Revolving Credit Lender. The Administrative Agent shall notify the other Revolving Credit Lenders of any such additional L/C Issuer.
(l)    Provisions Related to Extended Revolving Credit Commitments. If the Maturity Date in respect of any tranche of Revolving Credit Commitments occurs prior to the expiration of any Letter of Credit, then (i) if one or more other tranches of Revolving Credit Commitments in respect of which the Maturity Date shall not have occurred are then in effect, such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the Revolving Credit Lenders to purchase participations therein and to make Revolving Credit Loans and payments in respect thereof pursuant to Section 2.03(c)) under (and ratably participated in by Lenders pursuant to) the Revolving Credit Commitments in respect of such non-terminating tranches up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Revolving Credit Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to immediately preceding clause (i), the Borrower shall Cash Collateralize any such Letter of Credit in accordance with Section 2.03(g). Except to the extent of reallocations of participations pursuant to clause (i) of the immediately preceding sentence, the occurrence of a Maturity Date with respect to a given tranche of Revolving Credit Commitments shall have no effect upon (and shall not diminish) the percentage participations of the Revolving Credit Lenders in any Letter of Credit issued before such Maturity Date.
Section 2.04     [Reserved].
Section 2.05     Prepayments.
(a)    Optional. (i) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Term Loans and Revolving Credit Loans in whole or in part without premium or penalty (except as provided in Section 2.09 (d)); provided that (1) such notice must be received by the Administrative Agent not later than 1:00 p.m. (New York City time) (A) three (3) Business Days prior to any date of prepayment of LIBOR Loans and (B) one (1) Business Day prior to any date of prepayment of Base Rate Loans; (2) any prepayment of LIBOR Loans shall be in a minimum principal amount of $2,500,000, or a whole multiple of $500,000 in excess thereof; and (3) any prepayment of Base Rate Loans shall be in a minimum principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding; provided further that no notice shall be required in connection with (i) the incurrence of the
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2019 Replacement Term B-5 Loans on the Amendment No. 17 Effective Date and repayment of the Existing Term B Loans with the proceeds thereof and (1) the incurrence of the 2019 Replacement Term A-3 Loans on the Amendment No. 18 Effective Date and repayment of the Existing Term A Loans with the proceeds thereof. Each such notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans and the order of Borrowing(s) to be prepaid. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share or, if such prepayment is being made pursuant to Section 2.05(c), such Lender’s share, of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a LIBOR Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05. In the case of each prepayment of the Loans pursuant to this Section 2.05(a), the Borrower may in its sole discretion select the Borrowing or Borrowings (and the order of maturity of principal payments, including to principal payments due at maturity) to be repaid, and such payment shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Shares of the Borrowing or Borrowings to be prepaid (or otherwise as provided in Section 2.05(c)). For the avoidance of doubt, the Borrower may, at the time of any prepayment of 2019 Replacement Term A-3 Loans or, 2019 Replacement Term B-5 Loans or 2021 Incremental Term B-6 Loans made pursuant to this Section 2.05(a), select application of such prepayment to be applied to 2019 Replacement Term A-3 Loans and/or on, 2019 Replacement Term B-5 Loans and/or 2021 Incremental Term B-6 Loans on a non-ratable basis.
Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind any notice of prepayment under Section 2.05(a)(i) if such prepayment would have resulted from a refinancing of all of the Facilities, which refinancing shall not be consummated or shall otherwise be delayed. Each prepayment of Term Loans pursuant to this Section 2.05(a) or any applicable Incremental Amendment shall be applied to repayments required pursuant to Section 2.07(a) as directed by the Borrower and, absent such direction, shall be applied in direct order of maturity to repayments thereof required pursuant to Section 2.07(a) or any applicable Incremental Amendment.
(b)    Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) (commencing with the fiscal year ended December 31, 2014) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a) (the “ECF Test Date”), the Borrower shall cause to be prepaid an aggregate amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period covered by such financial statements minus (B) the sum of (1) all voluntary prepayments of Term Loans during such fiscal year pursuant to Section 2.05(a), (2) the amount expended by any Purchasing Borrower Party to prepay any Term Loans pursuant to Section 2.05(c), (3) all voluntary prepayments of Revolving Credit Loans, in each case, during such fiscal year to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments and (4) the amount equal to all payments in cash paid by the Borrower in connection with the buyback of Term Loans pursuant to Section 10.07(n), in the case of each of the immediately preceding clauses (1), (2), (3) and (4), to the extent such prepayments are not funded with the proceeds of Indebtedness; provided that, prepayments shall only be required under this Section 2.05(b) to the extent Excess Cash Flow exceeds $20,000,00050,000,000 in the applicable Excess Cash Flow Period (and only Excess Cash Flow in excess of such amount shall be required to be used for such prepayment).
(ii)    If (1) Holdings or any Restricted Subsidiary of Holdings Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.05(a)(i), (b), (c), (d), (e), (f), (g), (h), (i), (l), (n), (p), (q) or (r), but for clarity including, without limitation, any Disposition pursuant to a Receivables Facility), or (2) any Casualty Event occurs which results in the realization or receipt by Holdings or any Restricted Subsidiary of Holdings of Net Proceeds, the Borrower shall cause to be offered to be prepaid on
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or prior to the date which is ten (10) Business Days after the date of the realization or receipt by Holdings or any Restricted Subsidiary of Holdings of such Net Proceeds an aggregate principal amount of Term Loans in an amount equal to 100.0%the Applicable Disposition Percentage of all Net Proceeds received; provided that, for the purposes of this Section 2.05(b)(ii), Net Proceeds shall not include all or a portion of the net cash proceeds of the Disposition of the healthcare business of the Borrower as the Borrower shall determine (the “Excluded Asset Sale Proceeds”), so long as cash in an amount equal to such Excluded Asset Sale Proceeds is applied to repay Indebtedness for borrowed money of the Borrower or its Restricted Subsidiaries within 18 months from the date of the receipt of such Excluded Asset Sale Proceeds; provided, further, that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase Permitted Pari Passu Refinancing Debt and the Permitted Refinancing of any such Indebtedness (to the extent secured by Liens on the Collateral on a pari passu basis with the Obligations), in each case pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of any such Disposition or Casualty Event of, or with respect to, any property or assets constituting Collateral (such Permitted Pari Passu Refinancing Debt (or the Permitted Refinancing of any such Indebtedness) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such net proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such Other Applicable Indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iii)    If Holdings or any Domestic Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date that (A) is not permitted to be incurred pursuant to Section 7.03 or (B) is intended to constitute Credit Agreement Refinancing Indebtedness in respect of any Class of Term Loans, the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans (or, in the case of preceding clause (B), such Class of Term Loans) in an amount equal to 100.0% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by Holdings or such Domestic Restricted Subsidiary of such Net Proceeds.
(iv)    If for any reason the aggregate Revolving Credit Exposures at any time exceeds the aggregate Revolving Credit Commitments then in effect, the Borrower shall promptly prepay or cause to be promptly prepaid Revolving Credit Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iv) unless after the prepayment in full of the Revolving Credit Loans such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect.
(v)    If a Loan would otherwise constitute an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code and at the end of any accrual period (as defined in Section 1272(a)(5) of the Code) ending after the fifth anniversary of the
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date on which such Loan was issued, the aggregate amount of the accrued and unpaid original issue discount (as defined in Section 1273(a)(1) of the Code) on such Loan would, but for this paragraph, exceed an amount equal to the product of such Loan’s issue price (as defined in Sections 1273(b) and 1274(a) of the Code) multiplied by the yield to maturity (as defined in Treasury Regulation Section 1.1272-1(b)(1)(i)) (the “Maximum Accrual”), all accrued and unpaid interest and original issue discount on such Loan as of the end of such accrual period in excess of an amount equal to the Maximum Accrual shall be paid in cash by Borrower to the Lenders (the “AHYDO Interest Payment”) and will be applied against and reduce the outstanding principal amount of such Loan. For the avoidance of doubt, this Section 2.05(b)(v) shall be construed so as to cause the Loans to not be treated as having been issued with “significant original issue discount” within the meaning of Section 163(i)(2) of the Code.
(vi)    Except as otherwise provided in any Refinancing Amendment, (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied in direct order of maturity to repayments thereof required pursuant to Section 2.07(a); (B) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied ratably to each Class of Term Loans then outstanding (provided that any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt); and (C) each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares, subject to clause (vii) of this Section 2.05(b). Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Section 2.05(b)(vi) to the extent otherwise applicable to Extended Term Loans shall be subject to modification as expressly provided in Section 2.15.
(vii)    The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clause (ii) of this Section 2.05(b) at least four (4) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clause (ii) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York City time) one (1) Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment; provided however in no event may the proceeds of any Credit Agreement Refinancing Indebtedness be rejected. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be retained by the Borrower.
(viii)    All prepayments under this Section 2.05 shall be made together with, in the case of any such prepayment of a LIBOR Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such LIBOR Loan pursuant to Section 3.05. Notwithstanding any of the other provisions of Section 2.05(b), so long as no Event of Default shall have occurred and be continuing, if any prepayment of LIBOR Loans is required to be made under this Section 2.05(b), prior to the last day of the Interest Period therefor, the Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise
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required to be made thereunder into a Cash Collateral Account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05(b). Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with this Section 2.05(b).
(ix)    Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any Excess Cash Flow attributable to Foreign Subsidiaries (“Foreign Subsidiary Excess Cash Flow”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable Organization Documents, an amount equal to the portion of such Foreign Subsidiary Excess Cash Flow that would be so affected were the Borrower to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 so long, but only so long, as the applicable local law or applicable Organization Documents would not otherwise permit repatriation to the United States (the Borrower hereby agrees to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation, even if the Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Foreign Subsidiary Excess Cash Flow will otherwise be subject to repayment under this Section 2.05), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Foreign Subsidiary Excess Cash Flow is permissible under the applicable local law or applicable Organization Documents (even if such cash is actually not repatriated), an amount equal to the amount of the Foreign Subsidiary Excess Cash Flow that could be repatriated will be promptly (and in any event not later than two Business Days) applied (net of an amount equal to the additional taxes that would be payable or reserved against as a result of a repatriation and any additional costs that would be incurred as a result of a repatriation, whether or not a repatriation actually occurs) by the Borrower to the repayment of the Term Loans pursuant to this Section 2.05 and (ii) to the extent that the Borrower has determined in good faith that repatriation of any Foreign Subsidiary Excess Cash Flow would have adverse tax cost consequences with respect to such Foreign Subsidiary Excess Cash Flow, an amount equal to such Foreign Subsidiary Excess Cash Flow that would be so affected will not be subject to repayment under this Section 2.05; provided that (A) for purposes of this Section 2.05 Excess Cash Flow shall be deemed allocable to each Foreign Subsidiary, with respect to any period, in an amount equal to (i) the Consolidated EBITDA of such Foreign Subsidiary for such period, divided by (ii) the Consolidated EBITDA of Holdings and its Restricted Subsidiaries for such period (it being understood and agreed for the avoidance of doubt that such allocation shall exclude any reduction from interest and principal payments in respect of the Obligations and the Senior Notes) and (B) (1) Holdings and its Restricted Subsidiaries shall be entitled to reduce Excess Cash Flow owed to the Lenders pursuant to Section 2.05(b)(i) in respect of any Excess Cash Flow Period by the lesser of (x) the aggregate amount of Excess Cash Flow attributable to Foreign Subsidiaries subject to the limitations and restrictions described above in this clause (ix) for such Excess Cash Flow Period and (y) $20,000,000 and (2) Excess Cash Flow attributable to Foreign Subsidiaries subject to the limitations and restrictions described above in this clause (ix) in excess of the $20,000,000 referred to in clause (1) above in respect of any Excess Cash Flow Period shall be reduced by estimated deductions for the additional taxes and other costs that would relate to a repatriation of any such Excess Cash Flow from such Foreign Subsidiaries to the Borrower.
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(x)    Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any or all of the Net Proceeds of any Disposition by a Foreign Subsidiary (“Foreign Disposition”) or the Net Proceeds of any Casualty Event incurred by a Foreign Subsidiary (“Foreign Casualty Event”) would be (x) prohibited or delayed by applicable local law, (y) restricted by applicable Organization Documents or (z) subject to other onerous organizational or administrative impediments, an amount equal to the Net Proceeds that would be so affected were the Borrower to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 so long, but only so long, as the applicable local law, applicable Organization Documents or other impediment would not otherwise permit repatriation to the United States (the Borrower hereby agrees to use all commercially reasonable efforts to overcome or eliminate any such restrictions on or impediments to repatriation even if the Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Net Proceeds will otherwise be subject to repayment under this Section 2.05), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Proceeds is permissible under the applicable local law or applicable Organization Documents or the impediment to such repatriation has ceased to exist, even if such cash is not actually repatriated at such time, an amount equal to the amount of the Net Proceeds will be promptly (and in any event not later than two Business Days) applied (net of an amount equal to the additional taxes that would be payable or reserved against and any additional costs that would be incurred as a result of a repatriation, whether or not a repatriation actually occurs) by the Borrower to the repayment of the Term Loans pursuant to this Section 2.05 and (ii) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition or Foreign Casualty Event would have adverse tax cost consequences with respect to such Net Proceeds, an amount equal to such Net Proceeds that would be so affected will not be subject to repayment under this Section 2.05; provided that (A) the aggregate amount of Net Proceeds of Foreign Dispositions not required to be applied to repay Term Loans pursuant to this clause (x) shall not exceed $75,000,000 during the term of this Agreement, and (B) the aggregate amount of Net Proceeds of Foreign Casualty Events not required to be applied to repay Term Loans pursuant to this clause (x) shall not exceed $75,000,000 during the term of this Agreement.
(c)    (i) Notwithstanding anything to the contrary in Section 2.05(a), 2.12(a) or 2.13 (which provisions shall not be applicable to this Section 2.05(c)), any Purchasing Borrower Party shall have the right at any time and from time to time to prepay Term Loans to the Lenders at a discount to the par value of such Term Loans and on a non pro rata basis (each, a “Discounted Voluntary Prepayment”) pursuant to the procedures described in this Section 2.05(c); provided that (A) no Discounted Voluntary Prepayment shall be made from the proceeds of any Revolving Credit Loan, (B) immediately after giving effect to any Discounted Voluntary Prepayment, the sum of (x) the excess of the aggregate Revolving Credit Commitments at such time less the aggregate Revolving Credit Exposure plus (y) the amount of unrestricted cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries shall be not less than $50,000,000, (C) any Discounted Voluntary Prepayment shall be offered to all Lenders of the relevant Class of Term Loans on a pro rata basis, (D) such Purchasing Borrower Party shall deliver to the Administrative Agent a certificate stating that (1) no Default or Event of Default has occurred and is continuing or would result from the Discounted Voluntary Prepayment (after giving effect to any related waivers or amendments obtained in connection with such Discounted Voluntary Prepayment) and (2) each of the conditions to such Discounted Voluntary Prepayment contained in this Section 2.05(c) has been satisfied and (E) each Lender participating in any Discounted Voluntary Prepayments acknowledges and agrees that in connection with such Discounted Voluntary Prepayment, (1) the Borrower then may have, and later may come into possession of, information regarding the Term Loans or the Loan Parties hereunder that is not known to such Lender and that may be material to a decision by such Lender to participate in such Discounted Voluntary Prepayment (“Excluded Information”), (2) such Lender has
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independently and, without reliance on the Borrower, any of its Subsidiaries, the Administrative Agent or any of their respective Affiliates, has made its own analysis and determination to participate in such Discounted Voluntary Prepayment notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of the Borrower, its Subsidiaries, the Administrative Agent or any of their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against the Borrower, its Subsidiaries, the Administrative Agent and their respective Affiliates, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information. Each Lender participating in any Discounted Voluntary Prepayment further acknowledges that the Excluded Information may not be available to the Administrative Agent or the other Lenders.
(ii)    To the extent a Purchasing Borrower Party seeks to make a Discounted Voluntary Prepayment, such Purchasing Borrower Party will provide written notice to the Administrative Agent substantially in the form of Exhibit J hereto (each, a “Discounted Prepayment Option Notice”) that such Purchasing Borrower Party desires to prepay Term Loans in an aggregate principal amount specified therein by the Purchasing Borrower Party (each, a “Proposed Discounted Prepayment Amount”), in each case at a discount to the par value of such Term Loans as specified below. The Proposed Discounted Prepayment Amount of Term Loans shall not be less than $5,000,000. The Discounted Prepayment Option Notice shall further specify with respect to the proposed Discounted Voluntary Prepayment: (A) the Proposed Discounted Prepayment Amount of the relevant Class of Term Loans, (B) a discount range (which may be a single percentage) selected by the Purchasing Borrower Party with respect to such proposed Discounted Voluntary Prepayment (representing the percentage of par of the principal amount of the relevant Class of Term Loans to be prepaid) (the “Discount Range”), and (C) the date by which Lenders are required to indicate their election to participate in such proposed Discounted Voluntary Prepayment which shall be at least five Business Days following the date of the Discounted Prepayment Option Notice (the “Acceptance Date”).
(iii)    Upon receipt of a Discounted Prepayment Option Notice in accordance with Section 2.05(c)(ii), the Administrative Agent shall promptly notify each Term Lender of the relevant Class thereof. On or prior to the Acceptance Date, each such Term Lender may specify by written notice substantially in the form of Exhibit K hereto (each, a “Lender Participation Notice”) to the Administrative Agent (A) a minimum price (the “Acceptable Price”) within the Discount Range (for example, 80.0% of the par value of the Term Loans to be prepaid) and (B) a maximum principal amount (subject to rounding requirements specified by the Administrative Agent) of Term Loans with respect to which such Term Lender is willing to permit a Discounted Voluntary Prepayment at the Acceptable Price (“Offered Loans”). Based on the Acceptable Prices and principal amounts of Term Loans specified by the Lenders in the applicable Lender Participation Notice, the Administrative Agent, in consultation with the Purchasing Borrower Party, shall determine the applicable discount for such Term Loans (the “Applicable Discount”), which Applicable Discount shall be (A) the percentage specified by the Purchasing Borrower Party if the Purchasing Borrower Party has selected a single percentage pursuant to Section 2.05(c)(ii) for the Discounted Voluntary Prepayment or (B) otherwise, the lowest Acceptable Price at which the Purchasing Borrower Party can pay the Proposed Discounted Prepayment Amount in full (determined by adding the principal amounts of Offered Loans commencing with the Offered Loans with the lowest Acceptable Price); provided, however, that in the event that such Proposed Discounted Prepayment Amount cannot be repaid in full at any Acceptable Price, the Applicable Discount shall be the highest Acceptable Price specified by the Lenders that is within the Discount Range. The Applicable Discount shall be applicable for all Lenders who have offered to participate in the Discounted Voluntary Prepayment and have Qualifying Loans (as defined below). Any Lender with outstanding Term Loans of the relevant Class whose Lender Participation Notice is not received
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by the Administrative Agent by the Acceptance Date shall be deemed to have declined to accept a Discounted Voluntary Prepayment of any of its Term Loans of the relevant Class at any discount to their par value within the Applicable Discount.
(iv)    The Purchasing Borrower Party shall make a Discounted Voluntary Prepayment by prepaying those Term Loans (or the respective portions thereof) offered by the Lenders (“Qualifying Lenders”) that specify an Acceptable Price that is equal to or lower than the Applicable Discount (“Qualifying Loans”) at the Applicable Discount; provided that if the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would exceed the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Purchasing Borrower Party shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective principal amounts of such Qualifying Loans (subject to rounding requirements specified by the Administrative Agent). If the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would be less than the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Purchasing Borrower Party shall prepay all Qualifying Loans.
(v)    Each Discounted Voluntary Prepayment shall be made within four Business Days of the Acceptance Date (or such other date as the Administrative Agent shall reasonably agree, given the time required to calculate the Applicable Discount and determine the amount and holders of Qualifying Loans), without premium or penalty (but subject to Section 3.05), upon irrevocable notice substantially in the form of Exhibit L hereto (each a “Discounted Voluntary Prepayment Notice”), delivered to the Administrative Agent no later than 11:00 a.m. (New York City time), three Business Days prior to the date of such Discounted Voluntary Prepayment, which notice shall specify the date and amount of the Discounted Voluntary Prepayment and the Applicable Discount determined by the Administrative Agent. Upon receipt of any Discounted Voluntary Prepayment Notice the Administrative Agent shall promptly notify each relevant Term Lender thereof. If any Discounted Voluntary Prepayment Notice is given, the amount specified in such notice shall be due and payable to the applicable Term Lenders, subject to the Applicable Discount on the applicable Term Loans, on the date specified therein together with accrued interest (on the par principal amount) to but not including such date on the amount prepaid.
(vi)    To the extent not expressly provided for herein, each Discounted Voluntary Prepayment shall be consummated pursuant to reasonable procedures (including as to timing, rounding and calculation of Applicable Discount in accordance with Section 2.05(c)(iii) above) established by the Administrative Agent and the Borrower.
(vii)    Prior to the delivery of a Discounted Voluntary Prepayment Notice, upon written notice to the Administrative Agent, the Purchasing Borrower Party may withdraw its offer to make a Discounted Voluntary Prepayment pursuant to any Discounted Prepayment Option Notice.
Section 2.06     Termination or Reduction of Commitments.
(a)    Optional. The Borrower may, upon written notice to the Administrative Agent, terminate the unused Commitments of any Class, or from time to time permanently reduce the unused Commitments of any Class, in each case without premium or penalty; provided that (i) any such notice shall be received by the Administrative Agent three (3) Business Days prior to the date of termination or
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reduction, (ii) any such partial reduction shall be in a minimum aggregate amount of $1,000,000, as applicable, or any whole multiple of $250,000, in excess thereof and (iii) if, after giving effect to any reduction of the Commitments or the Letter of Credit Sublimit exceeds the amount of the Revolving Credit Facility, such sublimit shall be automatically reduced by the amount of such excess. The amount of any such Commitment reduction shall not otherwise be applied to the Letter of Credit Sublimit unless otherwise specified by the Borrower. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of termination of the Commitments if such termination would have resulted from a refinancing of all or any portion of the Facilities, which refinancing shall not be consummated or otherwise shall be delayed.
(b)    Mandatory. The 2021 Incremental Term B-6 Loan Commitment of each 2021 Incremental Term B-6 Lender shall terminate in its entirety on the Amendment No. 19 Effective Date (after giving effect to the incurrence of the 2021 Incremental Term B-6 Loans on such date). The 2019 Replacement Term B-5 Loan Commitment of each 2019 Replacement Term B-5 Lender shall terminate in its entirety on the Amendment No. 17 Effective Date (after giving effect to the incurrence of the 2019 Replacement Term B-5 Loans on such date). The 2019 Replacement Term A-3 Loan Commitment of each 2019 Replacement Term A-3 Lender shall terminate in its entirety on the Amendment No. 18 Effective Date (after giving effect to the incurrence of the 2019 Replacement Term A-3 Loans on such date). The Revolving Credit Commitment (other than any Extended Revolving Credit Commitment) of each Revolving Credit Lender shall automatically and permanently terminate on the Revolving Credit Maturity Date. On the respective Maturity Date applicable thereto, the Extended Revolving Credit Commitment of each Extending Revolving Credit Lender shall automatically and permanently terminate.
(c)    Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Lenders of any termination or reduction of unused portions of the Letter of Credit Sublimit or the unused Commitments of any Class under this Section 2.06. Upon any reduction of unused Commitments of any Class, the Commitment of each Lender of such Class shall be reduced by such Lender’s Pro Rata Share of the amount by which such Commitments are reduced (other than the termination of the Commitment of any Lender as provided in Section 3.07). All commitment fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.
Section 2.07     Repayment of Loans.
(a)    Term Loans. (i) 2019 Replacement Term A-3 Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the 2019 Replacement Term A-3 Lenders (without premium or penalty, except as expressly set forth in Section 3.05), (A) on the last Business Day of each March, June, September and December, commencing with the first full fiscal quarter ending after the Amendment No. 18 Effective Date the percentage as set forth below, of the aggregate principal amount of 2019 Replacement Term A-3 Loans incurred by the Borrower on the 2019 Replacement Term A-3 Loan Funding Date (which payments shall be reduced as a result of the application of prepayments in
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accordance with the order of priority set forth in Section 2.05) (such payments, together with payments made pursuant to Section 2.01(a)(ii)(A) below, the “Scheduled Repayments”)
Scheduled Repayments of 2019 Replacement Term A-3 LoansPercentage
March 31, 20200.625%
June 30, 20200.625%
September 30, 20200.625%
December 31, 20200.625%
March 31, 20210.625%
June 30, 20210.625%
September 30, 20210.625%
December 31, 20210.625%
March 31, 20221.25%
June 30, 20221.25%
September 30, 20221.25%
December 31, 20221.25%
March 31, 20231.25%
June 30, 20231.25%
September 30, 20231.25%
December 31, 20231.25%
March 31, 20241.25%
June 30, 20241.25%
September 30, 20241.25%

and (B) on the 2019 Replacement Term A-3 Loan Maturity Date (or, with respect to any Extended Term Loans, the Maturity Date applicable thereto), the aggregate principal amount of all 2019 Replacement Term A-3 Loans (or Extended Term Loans, as the case may be) outstanding on such date; provided that, to the extent specified in the respective Extension Offer, amortization payments with respect to Extended Term Loans for periods prior to the 2019 Replacement Term A-3 Loan Maturity Date may be reduced (but not increased) and amortization payments required with respect to Extended Term Loans for periods after the 2019 Replacement Term A-3 Loan Maturity Date shall be as specified in the respected Extension Offer.
(ii)    2019 Replacement Term B-5 Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the 2019 Replacement Term B-5 Lenders (without premium or penalty, except as expressly set forth in Section 3.05), (A) on the last Business Day of each March, June, September and December, commencing with the first full fiscal quarter ending after the Amendment No. 17 Effective Date, an aggregate amount equal to 0.25% of the sum of the aggregate principal amount of 2019 Replacement Term B-5 Loans outstanding on the Amendment No. 17 Effective Date (after giving effect thereto) (which payments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05) and (B) on the 2019 Replacement Term B-5 Loan Maturity Date (or, with respect to any Extended Term Loans, the Maturity Date applicable thereto), the aggregate principal amount of all 2019 Replacement Term B-5 Loans (or Extended Term Loans, as the case may be) outstanding on such date; provided that, to the extent specified in the respective Extension Offer, amortization payments with respect to Extended Term Loans for periods prior to the 2019 Replacement Term B-5 Loan Maturity Date may be reduced (but not increased) and
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amortization payments required with respect to Extended Term Loans for periods after the 2019 Replacement Term B-5 Loan Maturity Date shall be as specified in the respected Extension Offer.
(iii)    2021 Incremental Term B-6 Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the 2021 Incremental Term B-6 Lenders (without premium or penalty, except as expressly set forth in Section 3.05), (A) on the last Business Day of each March, June, September and December, commencing with the first full fiscal quarter ending after the Amendment No. 19 Effective Date, an aggregate amount equal to 0.25% of the sum of the aggregate principal amount of 2021 Incremental Term B-6 Loans outstanding on the Amendment No. 19 Effective Date (after giving effect thereto) (which payments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05) and (B) on the 2021 Incremental Term B-6 Loan Maturity Date (or, with respect to any Extended Term Loans, the Maturity Date applicable thereto), the aggregate principal amount of all 2021 Incremental Term B-6 Loans (or Extended Term Loans, as the case may be) outstanding on such date; provided that, to the extent specified in the respective Extension Offer, amortization payments with respect to Extended Term Loans for periods prior to the 2021 Incremental Term B-6 Loan Maturity Date may be reduced (but not increased) and amortization payments required with respect to Extended Term Loans for periods after the 2021 Incremental Term B-6 Loan Maturity Date shall be as specified in the respected Extension Offer.
(iiiiv)    In addition, the Borrower shall be required to make, with respect to any Incremental Term Loans pursuant to an Incremental Amendment, to the extent then outstanding, scheduled amortization payments of Incremental Term Loans on the dates and in the principal amounts set forth in the respective Incremental Amendment (each such repayment, as the same may be reduced as provided in Section 2.05, “Scheduled Incremental Repayments”); provided, that if any Incremental Term Loans are incurred which will be added to (and form part of) an existing tranche of Term Loans, then each Scheduled Repayment of such tranche to be made after such increase becomes effective shall be increased by an amount equal to (i) the aggregate principal amount of the increase in the Incremental Term Loans of such tranche pursuant to Section 2.14(a) multiplied by (ii) (v) in the case of Incremental Term A Loans, the then-applicable percentage set forth in clause (i)(A) of this Section 2.07, and in the case of the 2019 Replacement Term B-5 Loans or the 2021 Incremental Term B-6 Loans, 0.25%.
(b)    Revolving Credit Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders (without premium or penalty, except as expressly set forth in Section 3.05), the aggregate principal amount of all of the Borrower’s outstanding Revolving Credit Loans on the Revolving Credit Maturity Date (or, with respect to any Revolving Credit Loans outstanding with respect to an Extended Revolving Credit Commitment, the Maturity Date applicable thereto).
Section 2.08     Interest. (a) Subject to the provisions of Section 2.08(b), (i) each LIBOR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to LIBOR, for such Interest Period plus the Applicable Rate and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b)    During the continuance of a Specified Default (or, during the continuance of any other Event of Default, upon the request of the Required Lenders), the Borrower shall pay interest on all outstanding Loans at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws; provided that no interest at the Default Rate shall accrue or be payable to a Defaulting Lender so long as such Lender shall be a Defaulting Lender. Accrued and unpaid interest on such amounts (including interest on past due interest) shall be due and payable upon demand.
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(c)    Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
(d)    The provisions of this Section 2.08 (and the interest rates applicable to the various extensions of credit hereunder) shall be subject to modification as expressly provided in Section 2.15.
(e)    If prior to the commencement of any Interest Period for a Borrowing of LIBOR Loans:
(i)    the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining LIBOR for such Interest Period; or
(ii)    the Administrative Agent is advised by the Required Lenders that LIBOR for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or electronic means as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist (which notice shall be promptly given by the Administrative Agent when such circumstances no longer exist), (i) any request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Borrowing of LIBOR Loans shall be ineffective, and (ii) if any Committed Loan Notice requests a Borrowing of LIBOR Loans, such Borrowing shall be made as a Borrowing of Base Rate Loans; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted.
(f)    If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but the supervisor for the administrator of LIBOR or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBOR shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall agree on an alternate rate of interest to LIBOR that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 10.01, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders of each Class stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (f) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.08, only to the extent LIBOR for such Interest Period is not available or published at such time on a current basis), (x) any request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Borrowing of LIBOR Loans shall be ineffective and (y) if any Committed Loan Notice requests a Revolving Borrowing of LIBOR Loans, such Borrowing shall be made as a Borrowing of Base Rate Loans; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
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(g)    Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, (i) LIBOR with respect to 2021 Incremental Term B-6 Loans maintained as LIBOR Loans shall be subject to the provisions set forth in Schedule 2.08(g) (rather than Section 2.08(f) of this Agreement) and (ii) Section 2.08(e)(i), as it relates to 2021 Incremental Term B-6 Loans maintained as LIBOR Loans, shall be subject to Schedule 2.08(g), to the extent the provisions of Schedule 2.08(g) are then intended to operate as a remedy for circumstances described in Section 2.08(e)(i).   
Section 2.09     Fees.
In addition to certain fees described in Sections 2.03(h) and (i):
(a)    Commitment Fee. The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender under each Facility in accordance with its Pro Rata Share, a commitment fee equal to the Applicable Rate with respect to commitment fees times the actual daily amount by which the aggregate Revolving Credit Commitment exceeds the sum of (A) the Outstanding Amount of Revolving Credit Loans and (B) the Outstanding Amount of L/C Obligations; provided that (x) any commitment fee accrued with respect to any of the Commitments of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such commitment fee shall otherwise have been due and payable by the Borrower prior to such time and (y) no commitment fee shall accrue on any of the Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. The commitment fee on each Revolving Credit Facility shall accrue at all times from the Closing Date until the Maturity Date for the Revolving Credit Facility, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date during the first full fiscal quarter to occur after the Closing Date, and on the Maturity Date for the Revolving Credit Facility. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding the foregoing, the provisions of this Section 2.09(a) to the extent otherwise applicable to Extended Revolving Credit Commitments shall be subject to modification as expressly provided in Section 2.15.
(b)    [Intentionally Omitted].
(c)    Other Fees. The Borrower shall pay to the Agents such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when due and paid and shall not be refundable for any reason whatsoever (except as expressly agreed between the Borrower and the applicable Agent).
(d)    Prepayment Premium on 2019 Replacement Term B-5 Loans. At the time of the effectiveness of any Repricing Transaction that is consummated on or prior to the six month anniversary of the Amendment No. 17 Effective Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender with outstanding 2019 Replacement Term B-5 Loans which are repaid or prepaid pursuant to such Repricing Transaction (including each Lender that withholds its consent to such Repricing Transaction and is replaced as a Non-Consenting Lender under Section 3.07), a fee in an amount equal to 1.00% of (x) in the case of a Repricing Transaction of the type described in clause (1) of the definition thereof, the aggregate principal amount of all 2019 Replacement Term B-5 Loans prepaid (or converted) in connection with such Repricing Transaction and (y) in the case of a Repricing Transaction described in clause (2) of the definition thereof, the aggregate principal amount of all 2019 Incremental Term B-5 Loans outstanding on such date that are subject to an effective reduction of the
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Applicable Rate pursuant to such Repricing Transaction. Such fees shall be due and payable upon the date of the effectiveness of such Repricing Transaction.
(e)    Prepayment Premium on 2021 Incremental Term B-6 Loans. At the time of the effectiveness of any Term B-6 Repricing Transaction that is consummated on or prior to the six month anniversary of the Amendment No. 19 Effective Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender with outstanding 2021 Incremental Term B-6 Loans which are repaid or prepaid pursuant to such Term B-6 Repricing Transaction (including each Lender that withholds its consent to such Term B-6 Repricing Transaction and is replaced as a Non-Consenting Lender under Section 3.07), a fee in an amount equal to 1.00% of (x) in the case of a Term B-6 Repricing Transaction of the type described in clause (1) of the definition thereof, the aggregate principal amount of all 2021 Incremental Term B-6 Loans prepaid (or converted) in connection with such Term B-6 Repricing Transaction and (y) in the case of a Term B-6 Repricing Transaction described in clause (2) of the definition thereof, the aggregate principal amount of all 2021 Incremental Term B-6 Loans outstanding on such date that are subject to an effective reduction of the Applicable Rate pursuant to such Term B-6 Repricing Transaction. Such fees shall be due and payable upon the date of the effectiveness of such Term B-6 Repricing Transaction.
Section 2.10     Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by the Prime Lending Rate shall be made on the basis of a year of three hundred sixty-five (365) days, or three hundred sixty-six (366) days, as applicable, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section 2.11     Evidence of Indebtedness. (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c), as non-fiduciary agent for the Borrower, in each case in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Promptly following the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. The Borrower shall have the right to review the entries made in the accounts maintained pursuant to this clause (a) from time to time upon reasonable prior notice during normal business hours.
(b)    In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records and, in the case of the Administrative Agent, entries in the Register, evidencing the purchases and sales by such Lender of participations in Letters of Credit. In the event of any conflict between the accounts and
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records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
(c)    Entries made in good faith by the Administrative Agent in the Register pursuant to Sections 2.11(a) and (b), and by each Lender in its account or accounts pursuant to Sections 2.11(a) and (b), shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement and the other Loan Documents.
Section 2.12     Payments Generally. (a) All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Same Day Funds not later than 2:00 p.m. (New York City time) on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided in Section 2.05(b)(vii) or as otherwise provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent after 2:00 p.m. (New York City time), shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b)    If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of LIBOR Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(c)    Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i)    if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in Same Day Funds at the applicable Federal Funds Rate from time to time in effect; and
(ii)    if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the greater of (x) the applicable Federal Funds Rate from time to time in effect and (y) a rate determined by
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the Administrative Agent in accordance with banking rules governing interbank compensation. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a written demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.12(c) shall be conclusive, absent manifest error.
(d)    If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e)    The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation.
(f)    Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g)    Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
(h)    If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(b), 2.03(c), 2.12(c) or 2.13, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
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(i)    Amounts to be applied to the prepayment of Term Loans or Revolving Credit Loans shall be applied, as applicable, first to reduce outstanding Base Rate Loans. Any amounts remaining after each such application shall be applied to prepay LIBOR Loans.
Section 2.13     Sharing of Payments. If, other than as expressly provided in Section 2.05(b)(vii), Section 2.05(c) or Section 10.07(k) or as otherwise provided elsewhere herein, any Lender shall obtain on account of the Loans made by it, or the participations in L/C Obligations, any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them and/or such subparticipations in the participations in L/C Obligations, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.13 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.13 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased. Notwithstanding anything to the contrary contained in this Section 2.13 or elsewhere in this Agreement, the Borrower may extend the final maturity of Term Loans and/or Revolving Credit Commitments in connection with an Extension that is permitted under Section 2.15 without being obligated to effect such extensions on a pro rata basis among the Lenders (it being understood that no such extension (i) shall constitute a payment or prepayment of any Term Loans or Revolving Credit Loans, as applicable, for purposes of this Section 2.13 or (ii) shall reduce the amount of any scheduled amortization payment due under Section 2.07(a), except that the amount of any scheduled amortization payment due to a Lender of Extended Term Loans may be reduced to the extent provided pursuant to the express terms of the respective Extension Offer) without giving rise to any violation of this Section 2.13 or any other provision of this Agreement. Furthermore, the Borrower may take all actions contemplated by Section 2.15 in connection with any Extension (including modifying pricing, amortization and repayments or prepayments), and in each case such actions shall be permitted, and the differing payments contemplated therein shall be permitted without giving rise to any violation of this Section 2.13 or any other provision of this Agreement.
Section 2.14     Incremental Credit Extensions. (a) The Borrower may at any time or from time to time after the Amendment No. 7 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches or additions to an existing tranche of term A loans (the “Incremental Term A Loans”), (b) one or more additional tranches or additions to the existing tranche of term B loans (the “Incremental Term B Loans”, and together with the Incremental Term A Loans, the “Incremental Term Loans”) or (c) one or more increases in the amount of the Revolving Credit Commitments on the
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same terms as the Revolving Credit Commitments created pursuant to Amendment No. 13 (a “Revolving Commitment Increase”), provided that (i) no Event of Default shall exist immediately prior to or after giving effect to the incurrence of Incremental Term Loans or Revolving Commitment Increase (except in connection with any Permitted Acquisition or Investment, where (x) no Event of Default shall exist at the time elected by the Borrower pursuant to the LCT Election and no Event of Default pursuant to Section 8.01(a), (f) or (g) shall exist at the time of incurrence of the Incremental Term Loans or Revolving Commitments) and (ii) at the time of incurrence of any Incremental Term Loans or Revolving Commitment Increase, the Borrower shall be in compliance with the covenant set forth in Section 7.11 determined on a Pro Forma Basis as of the date of the most recently ended Test Period, as if such Incremental Term Loans or any borrowings under any such Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith (except in connection with any acquisition or other Investment, where such compliance shall be tested at the time elected by the Borrower pursuant to the LCT Election). Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $25,000,000 and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000, and in each case shall be in an increment of $1,000,000 (provided that such amount may be less than $25,000,000 or $10,000,000, as the case may be, if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed the greater of (x) $1,000,000,000 and (y) 100% of Consolidated EBITDA (the “Base Incremental Amount”); provided that the Borrower may incur additional Incremental Term Loans and/or Revolving Commitment Increases (a “Ratio-Based Incremental Facility”) so long as the Senior Secured Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, in each case, as if such Ratio-Based Incremental Facility (and Revolving Credit Loans in an amount equal to the full amount of any such Revolving Commitment Increase) had been outstanding on the last day of such four-quarter period, shall not exceed 4.25 to 1.00 (it being understood that the Borrower shall be deemed to have utilized amounts available, if any, under the Ratio-Based Incremental Facility prior to utilization of the Base Incremental Amount); provided further that the aggregate principal amount of all Incremental Term A Loans shall not exceed the amount otherwise set forth in this sentence based on the Ratio-Based Incremental Facility plus the Base Incremental Amount. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans (provided that Incremental Term B Loans may rank junior in right of security with the Revolving Credit Loans and the Term Loans (a “Junior Lien Incremental Facility”) or be unsecured (an “Unsecured Incremental Facility”) so long as (x) if requested by the Administrative Agent, such Incremental Term B Loans are extended under a separate facility (each, a “Separate Facility”) from the Facilities, (y) with respect to any Junior Lien Incremental Facility, (1) an Intercreditor Agreement shall be entered into with the representative of such providers of Incremental Term B Loans in form and substance reasonably satisfactory to the Collateral Agent and (2) the Senior Secured Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, in each case, as if such Junior Lien Incremental Facility had been outstanding on the last day of such four-quarter period, shall not exceed 5.25 to 1.00 (in which case, solely for purposes of determining the Senior Secured Net Leverage Ratio pursuant to this clause (y)(2), such Junior Lien Incremental Facility shall be deemed to be included for purposes of calculating Consolidated Total Net Debt, notwithstanding the definition of “Senior Secured Net Leverage Ratio”) (it being understood and agreed that this clause (y)(2) shall not apply to a Junior Lien Incremental Facility using the Base Incremental Amount the proceeds of which are used to refinance Indebtedness of Holdings or its Restricted Subsidiaries other than Junior Financing unless permitted by Sections 7.03 and 7.13)) and (z) with respect to any Unsecured Incremental Facility, the Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) and (b), as applicable, in each case, as if such
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Unsecured Incremental Facility had been outstanding on the last day of such four-quarter period, shall not exceed 6.75 to 1.00 (it being understood and agreed that this clause (z) shall not apply to an Unsecured Incremental Facility the proceeds of which are used to refinance Indebtedness of Holdings or its Restricted Subsidiaries other than Junior Financing unless permitted by Sections 7.03 and 7.13)), (b) shall not mature earlier than 91 days following the Maturity Date with respect to the Term Loans; provided, however, that except with respect to the Incremental Maturity Carveout Amount, the Maturity Date for any Incremental Term A Loans may be the same as or later (but not earlier) than the 2019 Replacement Term A-3 Loan Maturity Date, (c) except with respect to the Incremental Maturity Carveout Amount, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of then-existing Term Loans; provided, however, that the Weighted Average Life to Maturity for any Incremental Term A Loans may be shorter than the remaining Weighted Average Life to Maturity of any other then outstanding Term Loans so long as it is not shorter than the remaining Weighted Average Life to Maturity of the then outstanding 2019 Replacement Term A-3 Loans and (d) shall have an Applicable Rate and, subject to clause (c) above, amortization, as determined by the Borrower and the applicable new Lenders; provided, however, that, with respect to Incremental Term B Loans (other than the Incremental Term B Loans that are extended pursuant to a Junior Lien Incremental Facility or an Unsecured Incremental Facility), (i) (A) in the case of the 2019 Replacement Term B-5 Loans, the interest rate margins for the Incremental Term B Loans shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to the 2019 Replacement Term B-5 Loans or any other previously incurred Incremental Term B Loans, (excluding, for the avoidance of doubt, the subsequently incurred 2021 Incremental Term B-6 Loans), respectively, plus 50 basis points (unless the interest rate margins applicable to the 2019 Replacement Term B-5 Loans and/or such other previously incurred Incremental Term B Loans, as (excluding, for the avoidance of doubt, the subsequently incurred 2021 Incremental Term B-6 Loans) are increased to the extent necessary to achieve the foregoing) and (B) in the case of the 2021 Incremental Term B-6 Loans, the interest rate margins for the Incremental Term B Loans shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to the 2021 Incremental Term B-6 Loans plus 75 basis points (unless the interest rate margins applicable, to the 2021 Incremental Term B-6 Loans are increased to the extent necessary to achieve the foregoing); provided that, this clause (i) shall only apply to broadly syndicated term loans incurred (1) (x) in reliance on the Base Incremental Amount or (y) as a Ratio-Based Incremental Facility and, in each case, that mature less than one year after, in the case of clause (i)(A), the 2019 Replacement Term B-5 Loan Maturity Date or, in the case of clause (i)(B), the 2021 Incremental Term B-6 Loan Maturity Date and (2) solely in the case of clause (i)(B), within 6 months of the Amendment No. 19 Effective Date, (ii) solely for purposes of the foregoing clause (i), the interest rate margins applicable to any 2019 Replacement Term B-5 Loans, any 2021 Incremental Term B-6 Loans or any other Incremental Term B Loans, respectively, shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower generally to the Lenders providing such 2019 Replacement Term B-5 Loans, such 2021 Incremental Term B-6 Loans or such Incremental Term B Loans, as applicable, based on the shorter of (x) the Weighted Average Life to Maturity of such 2019 Replacement Term B-5 Loans, such 2021 Incremental Term B-6 Loans or such Incremental Term B Loans, respectively, and (y) an assumed four-year life to maturity, but shall be deemed to exclude any arrangement, structuring or other fees payable in connection with such 2019 Replacement Term B-5 Loans, such 2021 Incremental Term B-6 Loans or such Incremental Term B Loans, as applicable, that are not shared with all Lenders providing such 2019 Replacement Term B-5 Loans, such 2021 Incremental Term B-6 Loans or such Incremental Term B Loans, respectively, and (iii) (A) in the case of the foregoing clause (i)(A), if the lowest permissible LIBOR is greater than 0.75% or the lowest permissible Base Rate is greater than 1.75% for such Incremental Term B Loans, the difference between such “floor” and 0.75%, in the case of LIBOR Incremental Term B Loans, or 1.75%, in the case of Base Rate Incremental Term B Loans, shall be equated to interest rate margin for purposes of clause (i) above and (B) in the case of the foregoing clause (i)(B), if the lowest permissible LIBOR is greater than 0.50% or the lowest permissible Base Rate is greater than 1.50% for such Incremental Term B Loans, the difference between such “floor” and 0.50%, in the case of LIBOR Incremental Term B Loans, or 1.50%, in the case
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of Base Rate Incremental Term B Loans, shall be equated to interest rate margin for purposes of clause (i) above; provided that except as provided above, the terms and conditions applicable to Incremental Term Loans constituting an additional tranche of Term Loans may be materially different from those of the Term Loans, including, without limitation, the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as are reasonably satisfactory to the Administrative Agent. Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan or any portion of any Revolving Commitment Increase) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent, and to the extent of a Revolving Commitment Increase, each L/C Issuer, shall have consented (not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases to the extent any such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, with the consent of the Borrower and the Administrative Agent, but without the consent of any other Loan Party, Agents or Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14. The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) if the increase relates to the Revolving Credit Facility, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b)    This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
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(c)    Notwithstanding anything to the contrary in this Agreement, the Lenders committing to provide Incremental Term Loans the proceeds of which are, substantially concurrently with the receipt thereof, to be used by the Borrower to finance in whole or in part a Permitted Acquisition or other Investment may agree to waive or modify the conditions to such borrowing of Incremental Term Loans set forth in Section 4.01.
Section 2.15     Extensions of Term Loans and Revolving Credit Commitments.
(a)    Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders of any Class of Term Loans with a like Maturity Date or Revolving Credit Commitments with a like Maturity Date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Term Loans or Revolving Credit Commitments with the same Maturity Date, as the case may be) and on the same terms to each such Lender, the Borrower may from time to time extend the maturity date of any Term Loans of any Class and/or Revolving Credit Commitments and otherwise modify the terms of such Term Loans and/or Revolving Credit Commitments pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of such Term Loans and/or Revolving Credit Commitments (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’s Term Loans) (each, an “Extension”, and each group of Term Loans of any Class or Revolving Credit Commitments, as applicable, in each case as so extended, as well as the original Term Loans of such Class and the original Revolving Credit Commitments (in each case not so extended), being a “tranche”; any Extended Term Loans shall constitute a separate tranche of Term Loans from the tranche of Term Loans from which they were converted, and any Extended Revolving Credit Commitments shall constitute a separate tranche of Revolving Credit Commitments from the tranche of Revolving Credit Commitments from which they were converted), so long as the following terms are satisfied: (i) no Default or Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders, (ii) except as to interest rates, fees and final maturity, the Revolving Credit Commitment of any Revolving Credit Lender (an “Extending Revolving Credit Lender”) extended pursuant to an Extension (an “Extended Revolving Credit Commitment”), and the related outstandings, shall be a Revolving Credit Commitment (or related outstandings, as the case may be) with the same terms as the original Revolving Credit Commitments (and related outstandings); provided that (x) subject to the provisions of Section 2.03(l) to the extent dealing with Letters of Credit which mature or expire after a Maturity Date when there exist Extended Revolving Credit Commitments with a longer Maturity Date, all Letters of Credit shall be participated in on a pro rata basis by all Lenders with Revolving Credit Commitments in accordance with their Pro Rata Share of the Revolving Credit Facility (and except as provided in Section 2.03(l), without giving effect to changes thereto on an earlier Maturity Date with respect to Letters of Credit theretofore incurred or issued) and all borrowings under Revolving Credit Commitments and repayments thereunder shall be made on a pro rata basis (except for (A) payments of interest and fees at different rates on Extended Revolving Credit Commitments (and related outstandings) and (B) repayments required upon the Maturity Date of the non-extending Revolving Credit Commitments) and (y) at no time shall there be Revolving Credit Commitments hereunder (including Extended Revolving Credit Commitments and any original Revolving Credit Commitments) which have more than five different Maturity Dates, (iii) except as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (iv), (v) and (vi), be determined by the Borrower and set forth in the relevant Extension Offer), the Term Loans of any Term Lender (an “Extending Term Lender”) extended pursuant to any Extension (“Extended Term Loans”) shall have the same terms as the tranche of Term Loans subject to such Extension Offer, (iv) the final maturity date of any Extended Term Loans shall be no earlier than the then latest Maturity Date hereunder of the Class of Term Loans to which such Extended Term Loans relate and the amortization schedule applicable to each Class of Term Loans pursuant to Section 2.07(a) for periods prior to the Maturity Date of the Class of Term Loans to which such Extended Term Loans relate may not be increased, (v) the
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Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans extended thereby, (vi) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Extension Offer, (vii) if the aggregate principal amount of Term Loans (calculated on the face amount thereof) or Revolving Credit Commitments, as the case may be, in respect of which Term Lenders or Revolving Credit Lenders, as the case may be, shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans or Revolving Credit Commitments, as the case may be, offered to be extended by the Borrower pursuant to such Extension Offer, then the Term Loans or Revolving Credit Loans, as the case may be, of such Term Lenders or Revolving Credit Lenders, as the case may be, shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Term Lenders or Revolving Credit Lenders, as the case may be, have accepted such Extension Offer, (viii) all documentation in respect of such Extension shall be consistent with the foregoing, and (ix) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower.
(b)    If, at the time any Extension of Revolving Credit Commitments becomes effective, there will be Extended Revolving Credit Commitments which remain in effect from a prior Extension, then if the “effective interest rate”, “effective unused commitment fee rate” or “effective letter of credit fronting fee rate” (which, for this purpose, shall, in each case, be reasonably determined by the Administrative Agent and shall take into account any interest rate floors or similar devices and be deemed to include (without duplication) all fees (except to the extent independently taken into account as commitment fees under Section 2.09(a) or Letter of Credit fronting fees under Section 2.03(i)), including up front or similar fees or original issue discount (amortized over the shorter of (x) the life of such new Extended Revolving Credit Commitments and (y) the four years following the date of the respective Extension) payable to Lenders with such Extended Revolving Credit Commitments, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared with the relevant extending Lenders) and customary consent fees paid generally to consenting Lenders in respect of the Extended Revolving Credit Commitments (and related extensions of credit) shall at any time (over the life of the Extended Revolving Credit Commitments and related extensions of credit) exceed by more than 0.25% the “effective interest rate”, “effective unused commitment fee rate” or “effective letter of credit fronting fee rate” applicable to Revolving Credit Commitments (or outstanding extensions of credit pursuant thereto) which were extended pursuant to one or more prior Extensions (determined on the same basis as provided in the first parenthetical in this sentence), then the Applicable Rate and/or Letter of Credit fronting fee applicable thereto shall be increased to the extent necessary so that at all times thereafter the Extended Revolving Credit Commitments made pursuant to previous Extensions (and related extensions of credit) do not receive less “effective interest rate”, “effective unused commitment fee rate” and/or “effective letter of credit fronting fees” than are applicable to the Revolving Credit Commitments (and related extensions of credit) made (or extended) pursuant to such Extension. If at the time any Extension of Term Loans becomes effective, there will be Extended Term Loans which remain outstanding from a prior Extension, then if the “effective interest rate” (which, for this purpose, shall be reasonably determined by the Administrative Agent and shall take into account any interest rate floors or similar devices and be deemed to include (without duplication) all fees, including up front or similar fees or original issue discount (amortized over the shorter of (x) the life of such new Extended Term Loans and (y) the four years following the date of the respective Extension) payable to Lenders with such Extended Term Loans, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared with the relevant extending Lenders) in respect of the Extended Term Loans shall at any time (over the life of the Extended Term Loans) exceed by more than 0.50% the “effective interest rate” applicable to Term Loans which were extended pursuant to one or more prior Extensions (determined on the same basis as provided in the first parenthetical in this sentence), then the Applicable Rate applicable thereto shall be increased to the extent necessary so that at all times thereafter the Extended Term Loans made pursuant to previous Extensions do not receive less
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“effective interest rate” than are applicable to the Term Loans made (or extended) pursuant to such Extension.
(c)    With respect to all Extensions consummated by the Borrower pursuant to this Section 2.15, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.05 and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment, provided that the Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrower’s sole discretion and may be waived by the Borrower) of Term Loans or Revolving Credit Commitments (as applicable) of any or all applicable tranches be tendered. The Administrative Agent and the Lenders hereby consent to the Extensions and the other transactions contemplated by this Section 2.15 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans and/or Extended Revolving Credit Commitments on the such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 2.05 and 2.13) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.15.
(d)    The Lenders hereby irrevocably authorize the Administrative Agent and Collateral Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of Revolving Credit Commitments or Term Loans so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.15. Notwithstanding the foregoing, each of the Administrative Agent and the Collateral Agent shall have the right (but not the obligation) to seek the advice or concurrence of the Required Lenders with respect to any matter contemplated by this Section 2.15(d) and, if either the Administrative Agent or the Collateral Agent seeks such advice or concurrence, it shall be permitted to enter into such amendments with the Borrower in accordance with any instructions actually received by such Required Lenders and shall also be entitled to refrain from entering into such amendments with the Borrower unless and until it shall have received such advice or concurrence; provided, however, that whether or not there has been a request by the Administrative Agent or the Collateral Agent for any such advice or concurrence, all such amendments entered into with the Borrower by the Administrative Agent or the Collateral Agent hereunder shall be binding and conclusive on the Lenders. Without limiting the foregoing, in connection with any Extensions the respective Loan Parties shall (at their expense) amend (and the Collateral Agent is hereby directed to amend) any Mortgage that has a maturity date prior to the then latest Maturity Date so that such maturity date is extended to the then latest Maturity Date (or such later date as may be advised by local counsel to the Collateral Agent).
(e)    In connection with any Extension, the Borrower shall provide the Administrative Agent at least 5 Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.15.
Section 2.16     Refinancing Amendments.
(a)    On one or more occasions after the Closing Date, the Borrower may obtain, from any Lender or any Additional Refinancing Lender, Credit Agreement Refinancing Indebtedness in respect of all or any portion of the Term Loans and the Revolving Credit Loans (or unused Revolving Credit Commitments) then outstanding under this Agreement (which for purposes of this Section 2.16(a) will be deemed to include any then outstanding Refinancing Term Loans or Incremental Term Loans), in the
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form of Refinancing Term Loans, Refinancing Term Commitments, Refinancing Revolving Credit Commitments or Refinancing Revolving Credit Loans pursuant to a Refinancing Amendment; provided that notwithstanding anything to the contrary in this Section 2.16 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Refinancing Revolving Credit Commitments (and related outstandings), (B) repayments required upon the maturity date of the Refinancing Revolving Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to Refinancing Revolving Credit Commitments after the date of obtaining any Refinancing Revolving Credit Commitments shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) subject to the provisions of Section 2.03(l) to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exist Extended Revolving Credit Commitments with a longer maturity date, all Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments (and except as provided in Section 2.03(l), without giving effect to changes thereto on an earlier maturity date with respect to Letters of Credit theretofore issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Refinancing Revolving Credit Commitments after the date of obtaining any Refinancing Revolving Credit Commitments shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than pro rata basis as compared to any other Class with a later maturity date than such Class and (4) assignments and participations of Refinancing Revolving Credit Commitments and Refinancing Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans.
(b)    The effectiveness of any Refinancing Amendment shall be subject to the satisfaction (or waiver in accordance with the terms of such Refinancing Amendment) on the date thereof of each of the conditions set forth in Section 4.01 and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Credit Agreement Refinancing Indebtedness is provided with the benefit of the applicable Loan Documents.
(c)    Each issuance of Credit Agreement Refinancing Indebtedness under Section 2.16(a) shall be in an aggregate principal amount that is (x) not less than $25,000,000 and (y) an integral multiple of $1,000,000 in excess thereof.
(d)    Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended pursuant to a Refinancing Amendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of the third paragraph of Section 10.01 (without the consent of the Required Lenders called for therein) and (iii) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.16, and the Required Lenders hereby expressly authorize the Administrative Agent to enter into any such Refinancing Amendment.
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Section 2.17     Defaulting Lenders.
(a)    Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i)    Waivers and Amendments. That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 10.01.
(ii)    Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuers hereunder; third, if so determined by the Administrative Agent or requested by any L/C Issuer, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Letter of Credit; fourth, as the Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as reasonably determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders or L/C Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Lender or L/C Issuer against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made at a time when the conditions set forth in Section 4.01 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)    Certain Fees. That Defaulting Lender (x) shall not be entitled to receive any commitment fee pursuant to Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit fees as provided in Section 2.03(h).
(iv)    Reallocation of Pro Rata Share to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the
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obligation of each Non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 2.03, the “Pro Rata Share” of each Non-Defaulting Lender’s Revolving Credit Loans and L/C Obligations shall be computed without giving effect to the Commitment of that Defaulting Lender; provided that (i) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default has occurred and is continuing; and (ii) the aggregate obligation of each Non-Defaulting Lender under a Revolving Credit Facility to acquire, refinance or fund participations in Letters of Credit shall not exceed the positive difference, if any, of (1) the Commitment of that Non-Defaulting Lender under such Revolving Credit Facility minus (2) the sum of (A) the aggregate Outstanding Amount of the Revolving Credit Loans and (B) the aggregate Outstanding Amount of the Pro Rata Share of the L/C Obligations, in each case, under such Revolving Credit Facility of that Revolving Credit Lender.
(b)    Defaulting Lender Cure. If the Borrower, the Administrative Agent and the L/C Issuers agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders at par or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the Lenders in accordance with their Pro Rata Share (without giving effect to Section 2.17(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties and subject to Section 11.11, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
ARTICLE III

Taxes, Increased Costs Protection and Illegality
Section 3.01     Taxes. (a) Unless required by applicable Laws (as determined in good faith by the applicable withholding agent), any and all payments made by or on account of any Loan Party under any Loan Document shall be made free and clear of and without deduction or withholding for Taxes. If the Loan Party or other applicable withholding agent shall be required by any Laws to withhold or deduct any Taxes or Other Taxes from or in respect of any sum payable under any Loan Document to any Agent or any Lender, (i) with respect to Indemnified Taxes and Other Taxes, the sum payable by such Loan Party shall be increased as necessary so that after making all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 3.01), each of such Agent and such Lender receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent shall make such deductions or withholdings, (iii) the applicable withholding agent shall pay the full amount deducted or withheld to the relevant taxation authority or other authority in accordance with applicable Laws, and (iv) within thirty (30) days after the date of such payment (or, if receipts or evidence are not available within thirty (30) days, as soon as possible thereafter), if the relevant Loan Party is the applicable withholding agent, shall furnish to such Agent or Lender (as the case may be) the original or a copy of a receipt evidencing payment thereof or other evidence acceptable to such Agent or Lender.
(b)    In addition, the Borrower agrees to pay any and all present or future stamp, court or documentary Taxes and any other property Taxes, or charges or levies of the same character, imposed by any Governmental Authority (the “Other Taxes”), which arise from any payment made under any
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Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document, excluding any such Taxes that are imposed as a result of a Lender’s voluntary assignment in such Lender’s interest in the Loan hereunder, other than any such assignment that is a result of a transfer or assignment pursuant to Section 3.01(e) or otherwise at the request of the Borrower.
(c)    Each of the Loan Parties agrees to indemnify each Agent and each Lender for (i) the full amount of Indemnified Taxes and Other Taxes payable by such Agent or such Lender (whether or not such Taxes are legally imposed) and (ii) any reasonable expenses arising therefrom or with respect thereto; provided, however, that a Loan Party shall only be required to indemnify an Agent or Lender for Indemnified Taxes and Other Taxes pursuant to this Section 3.01(c) so long as such Taxes have accrued on or after the day which is 180 days prior to the date on which Agent or such Lender first made a written demand therefor. Such Agent or Lender, as the case may be, shall provide the relevant Loan Party with a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts. Such statement shall be conclusive absent manifest error.
(d)    Each Lender shall, at such times as are reasonably requested by the Borrower or the Administrative Agent, provide the Borrower and the Administrative Agent with any documentation prescribed by Law certifying as to any entitlement of such Lender to an exemption from, or reduction in, withholding tax with respect to any payments to be made to such Lender under the Loan Documents. Each such Lender shall, whenever a lapse in time or change in circumstances renders such documentation obsolete or inaccurate in any material respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) or promptly notify the Borrower and the Administrative Agent of its inability to do so. Unless the applicable withholding agent has received forms or other documents satisfactory to it indicating that payments under any Loan Document to or for a Lender are not subject to withholding tax or are subject to such Tax at a rate reduced by an applicable tax treaty, the Borrower, the Administrative Agent or other applicable withholding agent shall withhold amounts required to be withheld by applicable Law from such payments at the applicable statutory rate. Without limiting the foregoing:
(i)    Each Lender that is a United States person (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement two properly completed and duly signed original copies of Internal Revenue Service Form W-9 certifying that such Lender is exempt from federal backup withholding.
(ii)    Each Lender that is not a United States person (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent) whichever of the following is applicable:
(A)    two properly completed and duly signed original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (or any successor forms) claiming eligibility for the benefits of an income tax treaty to which the United States is a party, and such other documentation as required under the Code,
(B)    two properly completed and duly signed original copies of Internal Revenue Service Form W-8ECI (or any successor forms),
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(C)    in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (A) a certificate substantially in the form of Exhibit I (any such certificate a “United States Tax Compliance Certificate”) and (B) two properly completed and duly signed original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable,
(D)    to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership, or is a Participant holding a participation granted by a participating Lender), Internal Revenue Service Form W-8IMY (or any successor forms) of the Lender, accompanied by a Form W-8ECI, W-8BEN, or W-8BEN-E, as applicable, United States Tax Compliance Certificate, Form W-9, Form W-8IMY or any other required information from each beneficial owner, as applicable (provided that, if one or more beneficial owners are claiming the portfolio interest exemption, the United States Tax Compliance Certificate may be provided by such Lender on behalf of such beneficial owner). Each Lender shall deliver to the Borrower and the Administrative Agent two further original copies of any previously delivered form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or inaccurate and promptly after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower or the Administrative Agent, or promptly notify the Borrower and the Administrative Agent that it is unable to do so. Each Lender shall promptly notify the Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered form or certification to the Borrower or the Administrative Agent, or
(E)    two properly completed and duly signed original copies of any other form prescribed by applicable U.S. federal income tax laws (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a deduction in, United States federal withholding tax on any payments to such Lender under the Loan Documents.
Notwithstanding any other provision of this clause (d), a Lender shall not be required to deliver any form that such Lender is not legally able to deliver.
(e)    If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this paragraph (e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(f)    Any Lender claiming any additional amounts payable pursuant to this Section 3.01 shall, upon the reasonable request of the Borrower, use its reasonable efforts to change the jurisdiction of its Lending Office (or take any other measures reasonably requested by the Borrower) if such a change or other measures would reduce any such additional amounts (or any similar amount that may thereafter accrue) and would not, in the sole determination of such Lender, be inconsistent with the
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policies of such Lender and result in any unreimbursed cost or expense or be otherwise materially disadvantageous to such Lender.
(g)    If any Lender or the Administrative Agent determines, in its sole discretion, that it has received a refund in respect of any Indemnified Taxes or Other Taxes as to which indemnification or additional amounts have been paid to it by any Loan Party pursuant to this Section 3.01, it shall promptly remit such refund to the Loan Party, net of all out-of-pocket expenses of the Lender or the Administrative Agent, as the case may be and without interest (other than any interest paid by the relevant taxing authority with respect to such refund net of any Taxes payable by the Administrative Agent or Lender on such interest); provided that the Loan Party, upon the request of the Lender or the Administrative Agent, as the case may be, agrees promptly to return such refund (plus any penalties, interest or other charges imposed by the relevant taxing authority) to such party in the event such party is required to repay such refund to the relevant taxing authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the Lender or the Administrative Agent be required to pay any amount to a Loan Party pursuant to this paragraph (g) the payment of which would place the Lender or the Administrative Agent in a less favorable net after-Tax position than the Lender or the Administrative Agent would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This section shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to Taxes that it deems confidential) to the Borrower or any other person.
Section 3.02     Illegality. If any Lender determines that any Law enacted after the Amendment No. 7 Effective Date has made it unlawful, or that any Governmental Authority has asserted after the Amendment No. 7 Effective Date that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund LIBOR Loans, or to determine or charge interest rates based upon LIBOR, then, on written notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue LIBOR Loans or to convert Base Rate Loans to LIBOR Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all applicable LIBOR Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBOR Loans to such day, or promptly, if such Lender may not lawfully continue to maintain such LIBOR Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted and all amounts due, if any, in connection with such prepayment or conversion under Section 3.05. Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.
Section 3.03     Inability to Determine Rates. If the Administrative Agent or the Required Lenders determine that for any reason adequate and reasonable means do not exist for determining the applicable LIBOR for any requested Interest Period with respect to a proposed LIBOR Loan, or that LIBOR for any requested Interest Period with respect to a proposed LIBOR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, or that Dollar deposits are not being offered to banks in the London interbank eurodollar, or other applicable, market for the applicable amount and the Interest Period of such LIBOR Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain LIBOR Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, notwithstanding anything to the contrary contained herein, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation
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of such LIBOR Loans or, failing that, will be deemed to have converted such request, if applicable, into a request for a Borrowing of Base Rate Loans in the amount specified therein.
Section 3.04     Increased Cost and Reduced Return; Capital Adequacy. (a) If any Lender reasonably determines that as a result of the introduction of or any change in or in the interpretation of any Law, in each case after the Amendment No. 7 Effective Date, or such Lender’s compliance therewith, there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining any LIBOR Loans (or in the case of Taxes, any Loan) or (as the case may be) issuing or participating in Letters of Credit, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this Section 3.04(a) any such increased costs or reduction in amount resulting from (i) Indemnified Taxes or Other Taxes (which are covered by Section 3.01), or any Excluded Taxes or (ii) reserve requirements for which Lenders are compensated pursuant to the definition of “LIBOR” or otherwise contemplated by Section 3.04(c)) and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining the LIBOR Loan (or of maintaining its obligations to make any Loan), or to reduce the amount of any sum received or receivable by such Lender, then from time to time within fifteen (15) days after written demand by such Lender setting forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction.
(b)    If any Lender determines that the introduction of any Law regarding capital or liquidity adequacy or any change therein or in the interpretation thereof, in each case after the Amendment No. 7 Effective Date, or compliance by such Lender (or its Lending Office) therewith, has the effect of reducing the rate of return on the capital or liquidity of such Lender or any corporation controlling such Lender as a consequence of such Lender’s obligations hereunder (taking into consideration its policies with respect to capital or liquidity adequacy and such Lender’s desired return on capital), then from time to time upon written demand of such Lender setting forth in reasonable detail the charge and the calculation of such reduced rate of return (with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such reduction within fifteen (15) days after receipt of such written demand.
(c)    The Borrower shall pay to each Lender, as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of any LIBOR Loans of the Borrower (other than those for which Lenders are compensated pursuant to the definition of “LIBOR”), such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error) which in each case shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least fifteen (15) days’ prior written notice (with a copy to the Administrative Agent) of such additional interest or cost from such Lender. If a Lender fails to give written notice fifteen (15) days prior to the relevant Interest Payment Date, such additional interest or cost shall be due and payable fifteen (15) days from receipt of such written notice.
(d)    Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.04 shall not constitute a waiver of such Lender’s right to demand such compensation.
(e)    If any Lender requests compensation under this Section 3.04, then such Lender will, if requested by the Borrower and at the Borrower’s expense, use commercially reasonable efforts to
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designate another Lending Office for any Loan or Letter of Credit affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided further that nothing in this Section 3.04(e) shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section 3.04(a), (b), (c) or (d).
(f)    Notwithstanding anything in this Agreement to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or other regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change after the Amendment No. 7 Effective Date in a requirement of Law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 3.04).
Section 3.05     Funding Losses. Upon written demand of any Lender (with a copy to the Administrative Agent) from time to time, which demand shall set forth in reasonable detail the basis for requesting such amount, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense actually incurred by it as a result of:
(a)    any continuation, conversion, payment or prepayment of any LIBOR Loan of the Borrower on a day other than the last day of the Interest Period for such Loan; or
(b)    any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any LIBOR Loan of the Borrower on the date or in the amount notified by the Borrower;
including any loss or expense (excluding loss of anticipated profits) arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.
Section 3.06     Matters Applicable to All Requests for Compensation. (a) Any Agent or any Lender claiming compensation under this Article III shall deliver a certificate to the Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods.
(b)    With respect to any Lender’s claim for compensation under Section 3.01, 3.02, 3.03 or 3.04, the Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. If any Lender requests compensation by the Borrower under Section 3.04, the Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or continue from one Interest Period to another applicable LIBOR Loan, or, if applicable, to convert Base Rate Loans into LIBOR Loans, until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of Section 3.06(c) shall be applicable); provided that such suspension shall not affect the right of such Lender to receive the compensation so requested in accordance with the terms hereof.
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(c)    If the obligation of any Lender to make or continue any LIBOR Loan, or to convert Base Rate Loans into LIBOR Loans shall be suspended pursuant to Section 3.06(b) hereof, such Lender’s applicable LIBOR Loans shall be automatically converted into Base Rate Loans (or, if such conversion is not possible, repaid) on the last day(s) of the then current Interest Period(s) for such LIBOR Loans (or, in the case of an immediate conversion required by Section 3.02, on such earlier date as required by Law) and, unless and until such Lender gives notice as provided below that the circumstances specified in Section 3.02, 3.03 or 3.04 hereof that gave rise to such conversion no longer exist:
(i)    to the extent that such Lender’s LIBOR Loans have been so converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s applicable LIBOR Loans shall be applied instead to its Base Rate Loans; and
(ii)    all Loans that would otherwise be made or continued from one Interest Period to another by such Lender as LIBOR Loans shall be made or continued instead as Base Rate Loans (if possible), and all Base Rate Loans of such Lender that would otherwise be converted into LIBOR Loans shall remain as Base Rate Loans.
(d)    If any Lender gives notice to the Borrower (with a copy to the Administrative Agent) that the circumstances specified in Section 3.02, 3.03 or 3.04 hereof that gave rise to the conversion of any of such Lender’s LIBOR Loans pursuant to this Section 3.06 no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when LIBOR Loans made by other Lenders under the applicable Facility are outstanding, if applicable, such Lender’s Base Rate Loans shall be automatically converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding LIBOR Loans under such Facility and by such Lender are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective Commitments for the applicable Facility.
Section 3.07     Replacement of Lenders Under Certain Circumstances. (a) If at any time (i) the Borrower becomes obligated to pay additional amounts or indemnity payments described in Section 3.01 or 3.04 as a result of any condition described in such Sections or any Lender ceases to make any LIBOR Loans as a result of any condition described in Section 3.02 or Section 3.04, (ii) any Lender becomes a Defaulting Lender, (iii) any Lender becomes a Non-Consenting Lender, (iv) a Lender rejects (or is deemed to reject) the Extension under Section 2.15(a) which Extension has been accepted under Section 2.15(a) by the Required Lenders, then the Borrower may, on three (3) Business Days’ prior written notice to the Administrative Agent and such Lender, (x) replace such Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Section 10.07(b) (with the assignment fee to be paid by the Borrower in such instance) all of its rights and obligations under this Agreement (in respect of any applicable Facility only in the case of clause (i) or, with respect to a Class vote, clause (iii)) to one or more Eligible Assignees; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender or other such Person; and provided, further that (A) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments and (B) in the case of any such assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable Eligible Assignees shall have agreed to, and shall be sufficient (together with all other consenting Lenders) to cause the adoption of, the applicable departure, waiver or amendment of the Loan Documents; or (y) terminate the Commitment of such Lender or L/C Issuer, as the case may be, and (1) in the case of a Lender (other than an L/C Issuer), repay all Obligations (other than contingent obligations not then due and payable) of the Borrower owing to such Lender relating to the Loans and participations held by such Lender as of such termination date and (2) in the case of an L/C Issuer, repay all Obligations (other than contingent obligations not then due and payable) of the Borrower owing to such L/C Issuer relating to the Loans and participations held by
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such L/C Issuer as of such termination date and cancel or backstop on terms reasonably satisfactory to such L/C Issuer any Letters of Credit issued by it; provided that in the case of any such termination of a Non-Consenting Lender such termination shall be sufficient (together with all other consenting Lenders or other Non-Consenting Lenders being terminated in connection with the adoption of the applicable departure, waiver or amendment of the Loan Documents) to cause the adoption of the applicable departure, waiver or amendment of the Loan Documents and such termination shall be in respect of any applicable facility only in the case of clause (i) or, with respect to a Class vote, clause (iii).
(b)    Any Lender being replaced pursuant to Section 3.07(a) above shall (i) execute and deliver an Assignment and Assumption with respect to such Lender’s applicable Commitment and outstanding Loans and participations in L/C Obligations in respect thereof, and (ii) deliver any Notes evidencing such Loans to the Borrower or Administrative Agent. Pursuant to such Assignment and Assumption, (A) the assignee Lender shall acquire all or a portion, as the case may be, of the assigning Lender’s Commitment and outstanding Loans and participations in L/C Obligations, (B) all obligations of the Borrower owing to the assigning Lender relating to the Loans, Commitments and participations so assigned shall be paid in full by the assignee Lender to such assigning Lender concurrently with such Assignment and Assumption and (C) upon such payment and, if so requested by the assignee Lender, delivery to the assignee Lender of the appropriate Note or Notes executed by the Borrower, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to constitute a Lender hereunder with respect to such assigned Loans, Commitments and participations, except with respect to indemnification provisions under this Agreement, which shall survive as to such assigning Lender. In connection with any such replacement, if any such Non-Consenting Lender or Defaulting Lender does not execute and deliver to the Administrative Agent a duly executed Assignment and Assumption reflecting such replacement within five (5) Business Days of the date on which the assignee Lender executes and delivers such Assignment and Assumption to such Non-Consenting Lender or Defaulting Lender, then such Non-Consenting Lender or Defaulting Lender shall be deemed to have executed and delivered such Assignment and Assumption without any action on the part of the Non-Consenting Lender or Defaulting Lender.
(c)    Notwithstanding anything to the contrary contained above, any Lender that acts as an L/C Issuer may not be replaced hereunder at any time that it has any Letter of Credit outstanding hereunder unless arrangements reasonably satisfactory to such L/C Issuer (including the furnishing of a back-up standby letter of credit equal to the face amount of all such Letters of Credit in form and substance, and issued by an issuer reasonably satisfactory to such L/C Issuer or the depositing of Cash Collateral into a Cash Collateral account in amounts equal to the face amount of all such Letters of Credit and pursuant to arrangements reasonably satisfactory to such L/C Issuer) have been made with respect to each such outstanding Letter of Credit and the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 9.09.
(d)    In the event that (i) the Borrower or the Administrative Agent has requested that the Lenders consent to a departure or waiver of any provisions of the Loan Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all affected Lenders in accordance with the terms of Section 10.01 or all the Lenders with respect to a certain Class of the Loans or all Lenders and (iii) the Required Lenders (or, in the case of a consent, waiver or amendment involving all affected Lenders of a certain Class or Classes, the Required Pro Rata Lenders, the Required Term A-3 Lenders, the Required Term B-5 Lenders, the Required Term B-6 Lenders or the Required Revolving Credit Lenders, as applicable) have agreed to such consent, waiver or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a “Non-Consenting Lender.”
Section 3.08     Survival. All of the Borrower’s obligations under this Article III shall survive any assignment of rights by, or the replacement of, a Lender (including any L/C Issuer) and
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termination of the Aggregate Commitments and repayment, satisfaction and discharge of all other Obligations hereunder.
ARTICLE IV

Conditions Precedent to Credit Extensions
Section 4.01     All Credit Events After the Closing Date.
The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of LIBOR Loans) after the Closing Date is subject to satisfaction of the following conditions precedent:
(i)    The representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall be true and correct in all material respects on and as of the date of such Credit Extension with the same effect as though made on and as of such date, except (x) to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date and (y) any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects on and as of any such date.
(ii)    No Default or Event of Default shall exist or would result from such proposed Credit Extension or from the application of the proceeds therefrom.
(iii)    The Administrative Agent and, if applicable, the relevant L/C Issuer shall have received a Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of LIBOR Loans) submitted by the Borrower after the Closing Date shall be deemed to be a representation and warranty that the conditions specified in Sections 4.01(i) and (ii) have been satisfied on and as of the date of the applicable Credit Extension. Notwithstanding the foregoing, to the extent that the proceeds of any Incremental Term Loans are to be used to finance a Permitted Acquisition or Investment permitted hereunder, the only conditions precedent to the funding of such Incremental Term Loans shall be the conditions precedent in the related Incremental Amendment.
Section 4.02     [Reserved].
Section 4.03     Amendment No. 13 Effective Date. The conditions to the effectiveness of this Agreement are as set forth in Amendment No. 13.
ARTICLE V

Representations and Warranties
Holdings, the Borrower and each of the Subsidiary Guarantors party hereto represent and warrant to the Agents and the Lenders at the time of each Credit Extension that:
Section 5.01     Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each Restricted Subsidiary (a) is a Person duly organized or formed, validly existing and in good standing (where relevant) under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite organizational power and authority to (i) own or lease its assets and carry on its business
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as currently conducted and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and in good standing (where relevant) under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, (d) is in compliance with all Laws, orders, writs and injunctions and (e) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted; except in the case of clause (a) (other than with respect to the Borrower), (b)(i) (other than with respect to the Borrower), (c), (d) or (e), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
Section 5.02     Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, and the consummation of the Transactions, are within such Loan Party’s corporate or other powers, (a) have been duly authorized by all necessary corporate or other organizational action, and (b) do not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than Permitted Liens), or require any payment to be made under (x) any Contractual Obligation to which such Person is a party or by which it or any of the properties of such Person or any of its Subsidiaries is bound or to which it may be subject or (y) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate any Law; except with respect to any conflict, breach or contravention or payment (but not creation of Liens) referred to in clause (b)(ii)(x) or (b)(iii), to the extent that such violation, conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect.
Section 5.03     Governmental Authorization; Other Consents. No material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the consummation of the Transactions, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (i) filings and registrations necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect (except to the extent not required to obtained, taken, given or made or in full force and effect pursuant to the Collateral and Guarantee Requirement) and (iii) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect.
Section 5.04     Binding Effect. (a) This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is a party thereto.
(b)    This Agreement and each other Loan Document constitute legal, valid and binding obligations of such Loan Party, enforceable against each Loan Party that is a party thereto in accordance with its terms, except as such enforceability may be limited by (i) Debtor Relief Laws and by general principles of equity, (ii) the need for filings and registrations necessary to create or perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties and (iii) the effect of foreign Laws, rules and regulations as they relate to pledges, if any, of Equity Interests in Foreign Subsidiaries and intercompany Indebtedness owed by Foreign Subsidiaries.
Section 5.05     Financial Statements; No Material Adverse Effect. (a) (i) The unaudited pro forma consolidated balance sheet of Holdings and its Subsidiaries as at the last day of the
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most recent fiscal quarter for which Unaudited Financial Statements have been delivered prior to the Closing Date (including the notes thereto describing the pro forma adjustments) (the “Pro Forma Balance Sheet”) and the unaudited pro forma consolidated statement of income of Holdings and its Subsidiaries for the twelve months ended on the last day of the most recent fiscal quarter for which Unaudited Financial Statements have been delivered prior to the Closing Date (together with the Pro Forma Balance Sheet, the “Pro Forma Financial Statements”), copies of which will be furnished to each Lender prior to the Closing Date, have been prepared giving effect (as if such events had occurred on such date or at the beginning of such periods, as the case may be) to the Transactions. The Pro Forma Financial Statements have been prepared in good faith, based on assumptions believed by Holdings to be reasonable as of the date of delivery thereof, and present fairly in all material respects on a pro forma basis the estimated consolidated financial position of Holdings and its Subsidiaries as at the last day of the most recent fiscal quarter for which Unaudited Financial Statements have been delivered and its estimated consolidated results of operations for the periods covered thereby, assuming that the events specified in the preceding sentence had actually occurred at such date or at the beginning of the periods covered thereby.
(ii)    The Audited Financial Statements fairly present in all material respects the consolidated financial condition of Holdings and its Subsidiaries as of the dates thereof and its consolidated results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein.
(iii)    The Unaudited Financial Statements fairly present in all material respects the consolidated financial condition of Holdings and its Subsidiaries as of the dates thereof and its results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein and subject to normal year-end audit adjustments and the absence of footnotes.
(b)    The forecasts of income statements of Holdings and its Subsidiaries which have been furnished to the Administrative Agent prior to the Closing Date have been prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed by Holdings to be reasonable at the time of preparation of such forecasts, it being understood that such forecasts are not to be viewed as facts or as a guarantee of performance or achievement of any particular results and that actual results may vary from such forecasts and that such variations may be material and that no assurance can be given that the projected results will be realized.
(c)    Since December 31, 2013, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
(d)    As of the Closing Date, neither Holdings nor any of its Subsidiaries has any Indebtedness or other obligations or liabilities, direct or contingent (other than (i) the Existing Indebtedness, (ii) obligations arising under the Loan Documents and the Senior Note Documents, (iii) liabilities incurred in the ordinary course of business, (iv) liabilities disclosed in the Pro Forma Financial Statements and (v) liabilities under the Purchase Agreement) that, either individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect.
Section 5.06     Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of Holdings, threatened in writing or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against Holdings or any of its Restricted Subsidiaries or against any of their properties or revenues that have a reasonable likelihood of adverse determination and where such determination either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
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Section 5.07     Ownership of Property; Liens. (a) Holdings and each of its Restricted Subsidiaries has good record title to, or valid leasehold interests in, or easements or other limited property interests in, all Real Property necessary in the ordinary conduct of its business, free and clear of all Liens except as set forth on Schedule 5.07 hereto and except for minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes and Permitted Liens and except where the failure to have such title, interest, easement or other limited property interest could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(b)    As of the Closing Date, Schedule 5.07 contains a true and complete list of each Material Real Property owned by Holdings and the Subsidiaries as of the Closing Date.
Section 5.08     Environmental Matters. Except as disclosed in Schedule 5.08 or as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
(a)    each Loan Party and its properties are and have been in compliance with all Environmental Laws, which includes obtaining and maintaining all applicable Environmental Permits required under such Environmental Laws to carry on the business and operations of the Loan Parties;
(b)    the Loan Parties have not received any written notice that alleges any of them is in violation of or potentially liable under any Environmental Laws and none of the Loan Parties nor any of their properties is the subject of any claims, investigations, liens, demands or judicial, administrative or arbitral proceedings pending or, to the knowledge of the Borrower, threatened under any Environmental Law or to revoke or modify any Environmental Permit held by any of the Loan Parties;
(c)    there has been no release, discharge or disposal of Hazardous Materials on, at, under or from any property owned, leased or operated by any of the Loan Parties, or, to the knowledge of the Borrower, any property formerly owned, operated or leased by any Loan Party or arising out of the conduct of the Loan Parties that would reasonably be expected to require investigation, response or corrective action, or would reasonably be expected to result in the Borrower incurring any Environmental Liability, under Environmental Laws; and
(d)    there are no facts, circumstances or conditions arising out of or relating to the operations of the Loan Parties or any property owned, leased or operated by any of the Loan Parties or, to the knowledge of the Borrower, any property formerly owned, operated or leased by the Loan Parties or any of their predecessors in interest that would reasonably be expected to require investigation, response or corrective action, or would reasonably be expected to result in any of the Loan Parties incurring any Environmental Liability, under Environmental Laws.
Section 5.09     Taxes. Except as would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each of the Loan Parties and their Subsidiaries have filed all tax returns required to be filed, all such tax returns accurately reflect in all material respects all liabilities for Taxes of each Loan Party and their Subsidiaries, as applicable, and each of the Loan Parties and their Subsidiaries have paid all Taxes levied or imposed upon them or their properties, that are due and payable (including in their capacity as a withholding agent) and taking into account applicable extensions, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed Tax deficiency or assessment known to any Loan Parties against the Loan Parties that would, if made, individually or in the aggregate, have a Material Adverse Effect.
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Section 5.10     ERISA Compliance. (a) Except as could not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Plan is in compliance with the applicable provisions of ERISA, the Code and other Federal or state Laws.
(b)    (i) No ERISA Event has occurred during the five year period prior to the date on which this representation is made or deemed made; (ii) no Loan Party, Restricted Subsidiary or ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iii) no Loan Party, Restricted Subsidiary or ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; (iv) if each Loan Party, each Restricted Subsidiary and each ERISA Affiliate were to withdraw in a complete withdrawal as of the date this assurance is deemed given, the aggregate withdrawal liability that would be incurred would not be in excess of $50,000; and (v) no Loan Party, Restricted Subsidiary or ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA, except, with respect to each of the foregoing clauses of this Section 5.10(b), as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(c)    There exists no Unfunded Pension Liability with respect to any Pension Plan, except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(d)    There are no actions, suits or claims pending against or involving a Plan (other than routine claims for benefits) or, to the knowledge of any Loan Party, any Restricted Subsidiary or any ERISA Affiliate, threatened, which could reasonably be expected to be asserted successfully against any Plan and, if so asserted successfully, could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
Section 5.11     Subsidiaries; Equity Interests. As of the Amendment No. 7 Effective Date, no Loan Party has any Subsidiaries other than Immaterial Subsidiaries or those specifically disclosed in Schedule 5.11 (as amended and restated pursuant to Amendment No. 7), and all of the outstanding Equity Interests owned by the Loan Parties (or a Subsidiary of any Loan Party) in such material Subsidiaries have been validly issued and are fully paid and all Equity Interests owned by a Loan Party (or a Subsidiary of any Loan Party) in such material Subsidiaries are owned free and clear of all Liens except (i) those created under the Collateral Documents and (ii) any Permitted Liens. As of the Amendment No. 7 Effective Date, Schedule 5.11 (as amended and restated pursuant to Amendment No. 7) sets forth the name and jurisdiction of each Domestic Subsidiary that is a Loan Party and (b) sets forth the ownership interest of the Borrower and any other Subsidiary thereof in each Subsidiary, including the percentage of such ownership.
Section 5.12     Margin Regulations; Investment Company Act. (a) The Borrower is not engaged nor will it engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Borrowings or drawings under any Letter of Credit will be used for any purpose that violates Regulation U.
(b)    None of Holdings, the Borrower, any Person Controlling the Borrower, or any of its Restricted Subsidiaries is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
Section 5.13     Disclosure. (a) To the best of Holdings’ knowledge, no report, financial statement, certificate or other written information furnished by or on behalf of Holdings or the Borrower
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(other than projections, pro forma financial information, estimates, budgets, other forward-looking information and information of a general economic or industry nature) to any Agent or any Lender in connection with the transactions contemplated hereby (as modified or supplemented by other information so furnished) when taken as a whole, as of the time it was furnished, contained any misstatement of material fact or omitted as of such time to state any material fact necessary to make the statements therein (when taken as a whole), in light of the circumstances under which they were made, not materially misleading. With respect to projections, Holdings represents that such information was prepared in good faith based upon assumptions believed by Holdings to be reasonable at the time of preparation; it being understood that such projections are not to be viewed as facts or as a guarantee of performance or achievement of any particular results and that actual results may vary from actual results and that such variances may be material and that no assurance can be given that the projected results will be realized.
(b)     As of the Amendment No. 18 Effective Date, with respect to any Beneficial Owner (as defined in the Beneficial Ownership Regulation) of the Borrower, the information included in the Beneficial Ownership Certification is true and correct to the best knowledge of the Borrower.
Section 5.14     Labor Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against Holdings or any of its Restricted Subsidiaries pending or, to the knowledge of Holdings, threatened; (b) hours worked by and payment made to employees of Holdings or any of its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Laws dealing with such matters; and (c) all payments due from Holdings or any of its Restricted Subsidiaries on account of employee health and welfare insurance have been paid or accrued as a liability on the books of the relevant party.
Section 5.15     Intellectual Property; Licenses, Etc. Except as, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, Holdings and its Restricted Subsidiaries own, license or possess the right to use all of the trademarks, service marks, trade names, domain names, copyrights, patents, patent rights, licenses, trade secrets, technology, software, know-how, proprietary information, databases, design rights and other intellectual property rights, including registrations and applications for registration of any of the foregoing (collectively, “IP Rights”) that are necessary for the operation of their respective businesses as currently conducted, and such IP Rights do not conflict with the rights of any Person, except to the extent such failure to own, license or possess or such conflicts, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. No product or processor method used or offered by any Loan Party or any of its Subsidiaries or the operation of their respective businesses as currently conducted infringes, misappropriates, dilutes or otherwise violates any IP Rights held by any Person, except for such claims which individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect. No claim or litigation a) contesting the validity of, or any right, title or interest in any of the IP Rights used or held for use by any Loan Party or any of its Subsidiaries, or b) alleging that the operation of the respective businesses of each Loan Party or any of its Subsidiaries as currently conducted infringes, misappropriates, dilutes or otherwise violates the IP Rights of any Person, has been asserted or is presently pending or, to the knowledge of Holdings and its Restricted Subsidiaries, is presently threatened against any Loan Party or any of its Subsidiaries, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
Except pursuant to written licenses and other user agreements entered into by each Loan Party in the ordinary course of business, as of the Closing Date, all registrations listed in Section II(B) of the Perfection Certificate are valid and in full force and effect, except, in each individual case, to the extent that such a registration is not valid and in full force and effect could not reasonably be expected to have a Material Adverse Effect.
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Section 5.16     Solvency. On the Closing Date after giving effect to the Transactions, Holdings and its Restricted Subsidiaries and the Borrower and its Restricted Subsidiaries, in each case, on a consolidated basis, are Solvent.
Section 5.17     Security Documents.
(a)    Valid Liens. Each Collateral Document delivered pursuant to Section 4.02 of the Original Credit Agreement and Sections 4.03, 6.11 and 6.13 hereof will, upon execution and delivery thereof, be effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, the Collateral described therein to the extent intended to be created thereby, except as such enforceability may be limited by Debtor Relief Laws and (i) when financing statements and other filings in appropriate form are filed in the jurisdictions specified in Section I(A) of the Perfection Certificate, as supplemented from time to time after the date hereof, and (ii) upon the taking of possession or control by the Collateral Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent to the extent possession or control by the Collateral Agent is required by the Security Agreement or the Pledge Agreement), the Liens created by the Collateral Documents shall constitute fully perfected Liens on, and security interests in (to the extent intended to be created thereby and to the extent such perfection is governed by the laws of the United States, any state thereof or the District of Columbia), all right, title and interest of the grantors in such Collateral to the extent perfection can be obtained by filing financing statements or such possession or control, in each case subject to no Liens other than Permitted Liens.
(b)    PTO Filing; Copyright Office Filing. When the Security Agreement or a short form thereof is properly filed in the United States Patent and Trademark Office and the United States Copyright Office, to the extent such filings may perfect such interests, the Liens created by such Security Agreement shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the grantors thereunder in Patents and Trademarks (each as defined in the Security Agreement) registered or applied for with the United States Patent and Trademark Office or Copyrights (as defined in such Security Agreement) registered or applied for with the United States Copyright Office, as the case may be, in each case free and clear of Liens other than Permitted Liens (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to establish a Lien on registered Patents, Trademarks and Copyrights registered or applied for by the grantors thereof after the Closing Date).
(c)    Mortgages. Upon recording thereof in the appropriate recording office, each Mortgage is effective to create, in favor of the Collateral Agent, for its benefit and the benefit of the Secured Parties, legal, valid and enforceable perfected first-priority Liens on, and security interest in, all of the Loan Parties’ right, title and interest in and to the Mortgaged Properties thereunder and the proceeds thereof, subject only to Permitted Liens, except as such enforceability may be limited by Debtor Relief Laws, and when the Mortgages are filed in the offices specified on Schedule 5.17(c) (or, in the case of any Mortgage executed and delivered after the date thereof in accordance with the provisions of Sections 6.11 and 6.13, when such Mortgage is filed in the offices specified in the local counsel opinion delivered with respect thereto in accordance with the provisions of Sections 6.11 and 6.13), the Mortgages shall constitute fully perfected first-priority Liens on, and security interests in, all right, title and interest of the Loan Parties in the Mortgaged Properties and the proceeds thereof, in each case prior and superior in right to any other Person, other than Liens permitted by hereunder. The Borrower represents and warrants that no property encumbered by a Mortgage is located in an area determined by the Federal Emergency Management Agency to have special flood hazards. If at any time in the future the Borrower becomes aware that any portion of a property encumbered by a Mortgage is located in an area determined by the Federal Emergency Management Agency as special flood hazard area, then the Borrower will promptly notify the Administrative Agent. Unless (i) the Borrower promptly obtains flood insurance
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coverage required pursuant to the National Flood Insurance Program as set forth in any Flood Insurance Laws, and takes such other measures relating to such special flood hazard area reasonably requested by the Administrative Agent and each Lender and (ii) the Borrower, the Administrative Agent and each affected Lender otherwise agree that the Mortgage can continue to be provided under Section 6.11, the Mortgage relating to such property which is in a special flood hazard area will be released pursuant to Section 9.11.
Notwithstanding anything herein (including this Section 5.17) or in any other Loan Document to the contrary, neither Holdings nor any other Loan Party makes any representation or warranty as to (A) the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security interest in any Equity Interests of or intercompany loans made to any Foreign Subsidiary, or as to the rights and remedies of the Agents or any Lender with respect thereto, under foreign Law, (B) the pledge or creation of any security interest, or the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security interest to the extent such pledge, security interest, perfection or priority is not required pursuant to the Collateral and Guarantee Requirement or the Collateral Documents or (C) on the Closing Date and until required pursuant to Section 6.13 hereof or Section 4.02(e) of the Original Credit Agreement, the pledge or creation of any security interest, or the effects of perfection or non-perfection, the priority or enforceability of any pledge or security interest to the extent not required on the Closing Date pursuant to Section 4.02(e) of the Original Credit Agreement.
Section 5.18     USA PATRIOT Act; OFAC; FCPA.
(a)    To the extent applicable, each of Holdings, the Borrower and any Restricted Subsidiary is in compliance, in all material respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto (collectively, “Sanctions”) and (ii) the USA Patriot Act.
(b)    None of Holdings, the Borrower, any Restricted Subsidiary nor, to the knowledge of the Borrower, any director or officer of Holdings, the Borrower or any Restricted Subsidiary is the target of Sanctions and the Borrower will not knowingly use the proceeds of the Loans or otherwise make available such proceeds to any Person for the purpose of financing the activities of any Person that is the target of Sanctions.
(c)    No part of the proceeds of the Loans will be used, directly or indirectly, to the knowledge of the Borrower, Holdings or any Restricted Subsidiary, or any director or officer of the Borrower, Holdings or any Restricted Subsidiary, by the Loan Parties or any Restricted Subsidiary, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, for the purpose of obtaining, retaining or directing business or obtaining any improper advantage in violation of the United States Foreign Corrupt Practices Act of 1977, as amended (“FCPA”).
ARTICLE VI

Affirmative Covenants
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than contingent obligations not then due and payable) hereunder which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (unless the Outstanding Amount of the L/C Obligations related thereto has been Cash Collateralized or a backstop letter of credit reasonably satisfactory to the applicable L/C Issuer is in place, in each case in an amount at
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least equal to such Outstanding Amount), then from and after the Closing Date, Holdings shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02 and 6.03) cause each of its Restricted Subsidiaries to:
Section 6.01     Financial Statements. (a) Deliver to the Administrative Agent for prompt further distribution to each Lender, within ninety (90) days after the end of each fiscal year, beginning with the fiscal year ending December 31, 2010, (i) a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, stockholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (it being agreed that TransUnion’sParent’s annual report on Form 10-K for such year, as filed with the SEC, will satisfy the Borrower’s obligation under this Section 6.01(a) with respect to such year including with respect to the requirement that such financial statements be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception, unless the Borrower determines that there is a material difference between the financial statements of Holdings and TransUnionParent), and (ii) management’s discussion and analysis of the important operational and financial developments during such fiscal year consistent with the Borrower’s historical practice;
(b)    Deliver to the Administrative Agent for prompt further distribution to each Lender, within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of Holdings for fiscal quarters ended on or after June 30, 2010, (i) a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal quarter and the related consolidated statements of income or operations for such fiscal quarter and for the portion of the fiscal year then ended and consolidated statements of cash flows for such fiscal quarter and the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of Holdings as fairly presenting in all material respects the financial condition, results of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes (it being agreed that TransUnion’s annualParent’s quarterly report on Form 10-Q for such fiscal quarter, as filed with the SEC, will satisfy the Borrower’s obligation under this Section 6.01(b) with respect to such fiscal quarter including with respect to the requirement that such financial statements be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception, unless the Borrower determines that there is a material difference between the financial statements of Holdings and TransUnionParent), and (ii) management’s discussion and analysis of the important operational and financial developments during such quarterly accounting period consistent with the Borrower’s historical practice;
(c)    [Reserved]; and
(d)    Deliver to the Administrative Agent with each set of consolidated financial statements referred to in Sections 6.01(a) and 6.01(b) above, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) (which may be in footnote form only) from such consolidated financial statements.
Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 6.01 shall be satisfied with respect to financial information of Holdings and the Restricted Subsidiaries by
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furnishing (A) the applicable financial statements of Holdings or Parent (or any direct or indirect parent thereof) or (B) Holdings’ or Parent’s Form 10-K or 10-Q, as applicable, filed with the SEC; provided, that with respect to clauses (A) and (B), (i) to the extent such information relates to Parent (or such parent), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Parent (or such parent) and its Subsidiaries on a consolidated basis, on the one hand, and the information relating to Holdings and the Subsidiaries on a consolidated basis, on the other hand, and (ii) to the extent such financial statements are in lieu of financial statements required to be provided under Section 6.01(a), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualifications or exceptions as to the scope of such audit.
Documents required to be delivered pursuant to Section 6.01 and Sections 6.02(c) and (d) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower (or Holdings or any other direct or indirect parent of the Borrower) posts such documents, or provides a link thereto on the website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) promptly upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent; provided, however, that if such Compliance Certificate is first delivered by electronic means, the date of such delivery by electronic means shall constitute the date of delivery for purposes of compliance with Section 6.02(a). Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents. In the event any financial statements delivered under Section 6.01(a) or (b) above shall be restated, Holdings and the Borrower shall deliver, promptly after such restated financial statements become available, revised Compliance Certificates with respect to the periods covered thereby that give effect to such restatement, signed by a Responsible Officer of each of Holdings and the Borrower.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC,” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws; provided that to
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the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.08; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and each Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall not be under any obligation to mark any Borrower Materials “PUBLIC.”
Section 6.02     Certificates; Other Information. Deliver to the Administrative Agent for prompt further distribution to each Lender:
(a)    no later than five (5) days after the delivery of the financial statements referred to in Section 6.01(a) and (b), commencing with the first full fiscal quarter completed after the Closing Date, a duly completed Compliance Certificate signed by a Responsible Officer of Holdings;
(b)    no later than five (5) days after the delivery of the financial statements referred to in Section 6.01(a), but only if available after the use of commercially reasonable efforts, a certificate (or other appropriate reporting means in accordance with applicable auditing standards) of its independent registered public accounting firm stating that in the course of conducting their customary examination, no knowledge was obtained of any Event of Default under Section 7.11 or, if any such Event of Default shall exist, stating the nature and status of such event;
(c)    promptly after the same are publicly available, copies of all annual, regular, periodic and special reports and registration statements which Holdings or any Restricted Subsidiary files with the SEC or with any Governmental Authority that may be substituted therefor (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered), exhibits to any registration statement and, if applicable, any registration statement on Form S-8) and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d)    promptly after the furnishing thereof, copies of any material requests or material notices received by any Loan Party (other than in the ordinary course of business) or material statements or material reports furnished to any holder of debt securities (other than in connection with any board observer rights) of any Loan Party or of any of its Restricted Subsidiaries pursuant to the terms of any Senior Note Document, Junior Financing Documentation or Credit Agreement Refinancing Indebtedness (and, in each case, any Permitted Refinancing thereof), in each case in a principal amount in excess of the Threshold Amount and not otherwise required to be furnished to the Lenders pursuant to any clause of Section 6.01 or 6.02;
(e)    together with the delivery of each Compliance Certificate pursuant to Section 6.02(a), (i) in the case of annual Compliance Certificates only, a report setting forth the information required by sections describing the legal name and the jurisdiction of formation of each Loan Party and the location of the Chief Executive Office of each Loan Party of the Perfection Certificate or confirming that there has been no change in such information since the Closing Date or the date of the last such report, (ii) a description of each event, condition or circumstance during the last fiscal quarter covered by such Compliance Certificate requiring a mandatory prepayment under Section 2.05(b) and (iii) a list of each Subsidiary of Holdings that identifies each Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such Compliance Certificate (solely to the extent that there have been any changes in the identity of such Subsidiaries since the Closing Date or the most recent list provided); and
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(f)    promptly, (I) such additional customary information regarding the business, legal, financial or corporate affairs of the Loan Parties or any of their respective Restricted Subsidiaries, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request or (II) information and documentation reasonably required by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act or other applicable anti-money laundering laws; provided that in no event shall the requirements set forth in this Section 6.02(f) require Holdings or any of it Restricted Subsidiaries to provide any such information which (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or (iii) is subject to attorney client or similar privilege or constitutes attorney work-product.
Section 6.03     Notices. Promptly after a Responsible Officer of Holdings or any other Loan Party has obtained knowledge thereof, notify the Administrative Agent:
(a)    of the occurrence of any Default;
(b)    of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect; and
(c)    of the filing or commencement of, or any written threat or written notice of intention of any person to file or commence, any action, suit, litigation or proceeding, whether at law or in equity by or before any Governmental Authority with respect to any Loan Document.
Each notice pursuant to this Section shall be accompanied by a written statement of a Responsible Officer of Holdings (x) that such notice is being delivered pursuant to Section 6.03(a), (b) or (c) (as applicable) and (y) setting forth details of the occurrence referred to therein and stating what action Holdings has taken and proposes to take with respect thereto.
Section 6.04     Payment of Obligations. Pay, discharge or otherwise satisfy as the same shall become due and payable in the normal conduct of its business, all its Taxes (whether or not shown on a Tax return), except, in each case, to the extent any such Tax is being contested in good faith and by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP or the failure to pay or discharge the same would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 6.05     Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization and (b) take all reasonable action to maintain all rights, privileges (including its good standing where applicable in the relevant jurisdiction), permits, licenses and franchises necessary in the normal conduct of its business, except, in the case of (a) or (b), (i) (other than with respect to the Borrower) to the extent that failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) pursuant to a transaction permitted by Section 7.04 or 7.05.
Section 6.06     Maintenance of Properties. Except if the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (a) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order, repair and condition, ordinary wear and tear excepted and fire, casualty or condemnation excepted, and (b) make all necessary renewals, replacements, modifications, improvements, upgrades, extensions and additions thereof or thereto in accordance with prudent industry practice and in the normal conduct of its business.
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Section 6.07     Maintenance of Insurance.
(a)    Generally. Maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as Holdings and the Restricted Subsidiaries) as are customarily carried under similar circumstances by such other Persons.
(b)    Requirements of Insurance. Not later than ninety (90) days after the Closing Date (or the date any such insurance is obtained, in the case of insurance obtained after the Closing Date), the Borrower shall use commercially reasonable efforts to ensure that (i) all such insurance with respect to any Collateral shall provide that no cancellation, material reduction in amount or material change in coverage thereof shall be effective until at least 10 days (or, to the extent reasonably available, 30 days) after receipt by the Collateral Agent of written notice thereof (promptly after receipt, the Borrower shall deliver a copy of the policy (and to the extent any such policy is renewed, a renewal policy) or other evidence thereof to the Administrative Agent and the Collateral Agent, or insurance certificate with respect thereto) and (ii) all such insurance with respect to any Collateral shall name the Collateral Agent as additional insured on behalf of the Secured Parties (in the case of liability insurance) and loss payee (in the case of property insurance), as applicable.
(c)    Flood Insurance. With respect to each Mortgaged Property, obtain flood insurance in such total amount as the Administrative Agent shall reasonably request, if at any time the area in which any material improvements are located on any Mortgaged Property is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as amended from time to time.
Section 6.08     Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except if the failure to comply therewith could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 6.09     Books and Records. Maintain proper books of record and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied and which reflect all material financial transactions and matters involving the assets and business of Holdings or a Restricted Subsidiary, as the case may be (it being understood and agreed that Foreign Subsidiaries may maintain individual books and records in conformity with generally accepted accounting principles that are applicable in their respective countries of organization and that such maintenance shall not constitute a breach of the representations, warranties or covenants hereunder).
Section 6.10     Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom (other than (a) records of the Board of Directors of such Loan Party or such Subsidiary, (b) information restricted by a third party confidentiality agreement and (c) other information (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or (iii) that is subject to attorney client or similar privilege or constitutes attorney work-product), and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants (subject to such accountants’ customary policies and procedures), all at the reasonable expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon
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reasonable advance notice to the Borrower; provided that, excluding any such visits and inspections during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of the Administrative Agent and the Lenders under this Section 6.10 and the Administrative Agent shall not exercise such rights more often than two (2) times during any calendar year and only one (1) such time shall be at the Borrower’s reasonable expense; provided, further that when an Event of Default exists, the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the reasonable expense of the Borrower at any time during normal business hours and upon reasonable advance notice. The Administrative Agent and the Lenders shall give the Borrower the opportunity to participate in any discussions with the Borrower’s independent public accountants. Notwithstanding anything to the contrary in this Section 6.10, none of the Borrower nor any Restricted Subsidiary shall be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or (iii) is subject to attorney client or similar privilege or constitutes attorney work-product.
Section 6.11     Additional Collateral; Additional Guarantors. At the Borrower’s expense, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a)    Upon (x) the formation or acquisition of any new direct or indirect wholly owned Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by Holdings, (y) any Excluded Subsidiary ceasing to constitute an Excluded Subsidiary or (z) or the designation in accordance with Section 6.14 of any existing direct or indirect wholly owned Domestic Subsidiary (other than an Excluded Subsidiary) as a Restricted Subsidiary:
(i)    within forty-five (45) days after such formation, acquisition, cessation or designation, or such longer period as the Administrative Agent may agree in writing in its reasonable discretion:
(A)    cause each such Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent or the Collateral Agent (as appropriate) joinders to this Agreement as Guarantors, Security Agreement Supplements, Intellectual Property Security Agreements, and other security agreements and documents (including, with respect to such Mortgages, the documents listed in Section 6.13(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent, subject to local law requirements, with the Mortgages, Security Agreement, Pledge Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting first-priority Liens (subject to Permitted Liens) required by the Collateral and Guarantee Requirement;
(B)    cause each such Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement (and the parent of each such Domestic Subsidiary that is a Guarantor) to deliver any and all certificates representing Equity Interests (to the extent certificated) and intercompany notes (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank;
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(C)    take and cause such Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement and each direct or indirect parent of such Restricted Subsidiary to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates) as may be necessary in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected Liens to the extent required by the Collateral and Guarantee Requirement or the Collateral Documents, and to otherwise comply with the requirements of the Collateral and Guarantee Requirement or the Collateral Documents;
(ii)    if reasonably requested by the Administrative Agent or the Collateral Agent, within forty-five (45) days after such request (or such longer period as the Administrative Agent may agree in writing in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the Lenders, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 6.11(a) as the Administrative Agent may reasonably request;
(iii)    as promptly as practicable after the request therefor by the Administrative Agent or Collateral Agent, deliver to the Collateral Agent with respect to each Material Real Property, any existing title reports, abstracts or environmental assessment reports, to the extent available and in the possession or control of the Borrower; provided, however, that there shall be no obligation to deliver to the Administrative Agent any existing environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than Holdings or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(iv)    if reasonably requested by the Administrative Agent or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Administrative Agent may agree in writing in its reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement or the Collateral Documents, but not specifically covered by the preceding clauses (i), (ii) or (iii) or clause (b) below.
(b)    Not later than sixty (60) days after the acquisition by any Loan Party of Material Real Property as determined by the Borrower (acting reasonably and in good faith) (or such longer period as the Administrative Agent may agree in writing in its reasonable discretion) that is required to be provided as Collateral pursuant to the Collateral and Guarantee Requirement, which property would not be automatically subject to another Lien pursuant to pre-existing Collateral Documents, cause such property to be subject to a first-priority Lien and Mortgage (subject to the Permitted Liens) in favor of the Collateral Agent for the benefit of the Secured Parties and take, or cause the relevant Loan Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect or record such Lien, in each case to the extent required by, and subject to the limitations and exceptions of, the Collateral and Guarantee Requirement and to otherwise comply with the requirements of the Collateral and Guarantee Requirement.
(c)    Always ensuring that the Obligations are secured by a first-priority security interest (subject to Liens permitted under Section 7.01(c)) in all the Equity Interests of the Borrower.
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Section 6.12     Compliance with Environmental Laws. Except, in each case, to the extent that the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (a) comply, and take all reasonable actions to cause all lessees and other Persons operating or occupying its properties to comply with all applicable Environmental Laws and Environmental Permits; (b) obtain and renew all Environmental Permits necessary for its operations and properties; and (c) in each case to the extent the Loan Parties are required by Environmental Laws, conduct any investigation, remedial or other corrective action necessary to address Hazardous Materials at any property or facility in accordance with applicable Environmental Laws.
Section 6.13     Further Assurances and Post-Closing Conditions. (a) Within ninety (90) days after the Closing Date (subject to extension by the Administrative Agent in its reasonable discretion), deliver each Collateral Document required to satisfy the Collateral and Guarantee Requirement or required pursuant to the terms of any Collateral Document, duly executed by each Loan Party required to be party thereto, together with all documents and instruments required to perfect the security interest or Lien of the Collateral Agent in the Collateral (if any) free of any other pledges, security interests or mortgages, except Liens permitted under the Collateral and Guarantee Requirement and Permitted Liens, to the extent required pursuant to the Collateral and Guarantee Requirement or the Collateral Documents.
(b)    Promptly upon reasonable request by the Administrative Agent (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral, and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from time to time in order to carry out more effectively the purposes of the Collateral Documents, to the extent required pursuant to the Collateral and Guarantee Requirement or the Collateral Documents. If the Administrative Agent or the Collateral Agent reasonably determines that it is required by applicable Law to have appraisals prepared in respect of the Real Property of any Loan Party subject to a Mortgage constituting Collateral, the Borrower shall provide to the Administrative Agent appraisals that satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
Section 6.14     Designation of Subsidiaries. The Borrower may at any time on or after the Closing Date designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (ii) immediately after giving effect to such designation, the Borrower shall be in compliance with the covenant set forth in Section 7.11 determined on a Pro Forma Basis as of the last day of the most recently ended Test Period as if such designation had occurred on the last day of such fiscal quarter of the Borrower and, as a condition precedent to the effectiveness of any such designation, the Borrower shall deliver to the Administrative Agent a certificate setting forth in reasonable detail the calculations demonstrating such compliance, (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of the Senior Notes, any Junior Financing, or any Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt, Permitted Unsecured Refinancing Debt or Permitted Refinancing of any of the foregoing in excess of the Threshold Amount, as applicable, and (iv) if a Restricted Subsidiary is being designated as an Unrestricted Subsidiary hereunder, the sum of (A) the fair market value of assets of such Subsidiary as of such date of designation (the “Designation Date”), plus (B) the aggregate fair market value of the assets of all Unrestricted Subsidiaries designated as Unrestricted Subsidiaries pursuant to this Section 6.14 as of the Designation Date (in each case measured as of the date of each such Unrestricted Subsidiary’s designation as an Unrestricted Subsidiary) shall not exceed 3.0% of the Adjusted Total Assets as of such Designation Date pro forma for such designation. The designation of any Subsidiary as an Unrestricted Subsidiary after the Closing Date shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s
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investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a return on any Investment by the Borrower in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of such designation of the Borrower’s Investment in such Subsidiary. Notwithstanding the foregoing, neither the Borrower nor any direct or indirect parent of the Borrower that is a Subsidiary shall be permitted to be an Unrestricted Subsidiary.
Section 6.15     Maintenance of Ratings. The Borrower shall use commercially reasonable efforts to maintain a public corporate rating from S&P and a public corporate family rating from Moody’s, in each case in respect of the Borrower, and a public rating of the Facilities by each of S&P and Moody’s.
Section 6.16     Compliance with Sanctions. (a) Adopt and maintain policies and procedures designed to ensure that Borrower does not, directly or indirectly, (i) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 on Terrorist Financing effective September 24, 2001 (the “Executive Order”) or Sanctions, or (ii) engage in or conspire to engage in any transaction that violates, or attempts to violate, any of the material prohibitions set forth in any Executive Order or applicable Sanctions.
(b)    Repay the Loans exclusively with funds that are not directly or, to the knowledge of Borrower, indirectly derived from any unlawful activity such that the result of any such repayment would not cause the making of the Loans to be in material violation of any applicable Law.
(c)    (x) Use funds or properties of Holdings, the Borrower or any of the Restricted Subsidiaries to repay the Loans only to the extent it does not constitute, to the knowledge of the Borrower, property of, or is beneficially owned, to the knowledge of the Borrower, directly or indirectly by, any Person that is the target of Sanctions (an “Embargoed Person”) that is identified on (1) the list of Specially Designated Nationals and Blocked Persons maintained by OFAC and/or on any other similar list maintained by OFAC pursuant to any authorizing statute including, but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., the Trading with the Enemy Act, and any Executive Order or any applicable Law promulgated thereunder, with the result that the investment in Holdings, the Borrower or any of the Restricted Subsidiaries (whether directly or indirectly) is prohibited by any applicable Law, or the Loans made by the Lenders would be in violation of any applicable Law, or (2) the Executive Order, any related enabling legislation or (y) to the knowledge of the Borrower, any Embargoed Person to have any direct or indirect interest, in Holdings, the Borrower or any of the Restricted Subsidiaries, with the result that the investment in Holdings, the Borrowers or any of the Restricted Subsidiaries (whether directly or indirectly) is prohibited by any applicable Law or the Loans are in violation of any applicable Law.
ARTICLE VII

Negative Covenants
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder (other than contingent obligations not then due and owing) which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (unless the Outstanding Amount of the L/C Obligations related thereto has been Cash Collateralized or a backstop letter of credit reasonably satisfactory to the applicable L/C Issuer is in place, in each case in an amount at least equal to such Outstanding Amount), then from and after the Closing Date:
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Section 7.01     Liens. Neither Holdings nor the Restricted Subsidiaries shall, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
(a)    Liens pursuant to any Loan Document or Separate Facility Loan Document;
(b)    Liens existing on the Amendment No. 17 Effective Date; provided that any Lien securing Indebtedness in excess of (x) $2,500,000 individually or (y) $10,000,000 in the aggregate (when taken together with all other Liens securing obligations outstanding in reliance on this clause (b) that are not listed on Schedule 7.01(b) (as amended and restated pursuant to Amendment No. 17)) shall only be permitted to the extent such Lien is listed on Schedule 7.01(b) (as amended and restated pursuant to Amendment No. 17), and any modifications, replacements, renewals, refinancings or extensions thereof; provided that (i) the Lien does not extend to any additional property beyond such property subject to a Lien on the Closing Date, other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03, and (B) proceeds and products thereof, and (ii) the replacement, renewal, extension or refinancing of the obligations secured or benefited by such Liens (including fees and expenses associated with any such extensions, renewals and refinancing), to the extent constituting Indebtedness, is permitted by Section 7.03;
(c)    Liens for Taxes that are not overdue for a period of more than any applicable grace period related thereto or that are being contested in good faith and by appropriate actions, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP to the extent required by GAAP;
(d)    statutory or common law Liens of landlords, sublandlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens arising in the ordinary course of business that secure amounts not overdue for a period of more than sixty (60) days or if more than sixty (60) days overdue, that are being contested in good faith and by appropriate actions, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP to the extent required by GAAP;
(e)    (i) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance, deferred compensation arrangements and supplemental retirement plans and other social security legislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to Holdings or any of its Restricted Subsidiaries;
(f)    deposits and pledges to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, customs and appeal bonds, performance bonds, public or private utilities and other obligations of a like nature (including (i) those to secure health, safety and environmental obligations and (ii) letters of credit and bank guarantees required or requested by any Governmental Authority) incurred in the ordinary course of business;
(g)    easements, rights-of-way, restrictions (including zoning restrictions), encroachments, licenses, protrusions and other similar charges or encumbrances and minor title defects or irregularities affecting Real Property that do not in the aggregate materially interfere with the ordinary conduct of the business of Holdings and its Restricted Subsidiaries, taken as a
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whole, and any exceptions on the Mortgage Policies issued in connection with the Mortgaged Properties;
(h)    Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
(i)    leases, licenses, subleases or sublicenses granted to others in the ordinary course of business (including licenses and sublicenses of intellectual property) which do not (i) interfere in any material respect with the business of Holdings and its Restricted Subsidiaries, taken as a whole, or (ii) secure any Indebtedness;
(j)    Liens (i) in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business or (ii) on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods in the ordinary course of business;
(k)    Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (ii) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes, (iii) in favor of a banking or other financial institution arising as a matter of Law or under customary general terms and conditions encumbering deposits, pooled deposits, sweep accounts or other funds maintained with a financial institution (including the right of setoff) and that are within the general parameters customary in the banking industry or arising pursuant to such banking institutions general terms and conditions, and (iv) that are contractual rights of setoff or rights of pledge relating to purchase orders and other agreements entered into with customers of Holdings or any of its Restricted Subsidiaries in the ordinary course of business;
(l)    Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.02(g) or (l) or, to the extent related to any of the foregoing, Section 7.02(p) to be applied against the purchase price for such Investment, and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(m)    Liens (i) in favor of Holdings, Borrower or a Restricted Subsidiary on assets of a Restricted Subsidiary or (ii) in favor of Holdings or any other Loan Party;
(n)    any interest or title of a lessor, sublessor, licensor or sublicensor under leases, subleases, licenses or sublicenses entered into by Holdings or any of its Restricted Subsidiaries in the ordinary course of business;
(o)    Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by Holdings or any of its Restricted Subsidiaries in the ordinary course of business permitted by this Agreement;
(p)    Liens deemed to exist in connection with Investments in repurchase agreements under Section 7.02;
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(q)    in the case of any non-wholly owned Restricted Subsidiary, any put and call arrangements or restrictions on disposition related to its Equity Interests set forth in its organizational documents or any related joint venture or similar agreement;
(r)    Liens solely on any cash earnest money deposits made by Holdings or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;
(s)    ground leases in respect of Real Property on which facilities owned or leased by Holdings or any of its Restricted Subsidiaries are located;
(t)    Liens to secure Indebtedness permitted under Section 7.03(e); provided that (i) such Liens are created within 270 days of the acquisition, construction, repair, lease or improvement of the property subject to such Liens, (ii) such Liens do not at any time encumber property (except for replacements, additions and accessions to such property) other than the property financed by such Indebtedness and the proceeds and products thereof and customary security deposits and (iii) with respect to Capitalized Leases, such Liens do not at any time extend to or cover any assets (except for replacements, additions and accessions to such assets) other than the assets subject to such Capitalized Leases and the proceeds and products thereof and customary security deposits; provided that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;
(u)    Liens on property of any Restricted Subsidiary that is not a Loan Party securing Indebtedness of the applicable Subsidiary permitted under Section 7.03;
(v)    Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 6.14), in each case after the Closing Date (including Capitalized Leases); provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property subjected to a Lien securing Indebtedness (which Indebtedness constitutes Permitted Refinancing Indebtedness) and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), and (iii) (a) in the case of Liens securing Indebtedness for borrowed money, such Indebtedness secured thereby in reliance on this clause (v) does not exceed at the time of incurrence of any such Indebtedness 3.0% of Adjusted Total Assets determined at the time of such incurrence of Indebtedness and (b) the Indebtedness secured thereby is permitted under Section 7.03(g)(A) or constitutes Permitted Refinancing Indebtedness in respect thereof;
(w)    (i) zoning, building, entitlement and other land use regulations by Governmental Authorities with which the normal operation of the business complies, and (ii) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of Holdings and its Restricted Subsidiaries, taken as a whole;
(x)    Liens arising from precautionary Uniform Commercial Code financing statement or similar filings;
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(y)    Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(z)    the modification, replacement, renewal or extension of any Lien permitted by clauses (t) and (v) of this Section 7.01; provided that (i) the Lien does not extend to any additional property, other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien, (B) proceeds and products thereof, and (C) any other Lien otherwise permissible by another clause in this Section 7.01 and (ii) the renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 7.03 (to the extent constituting Indebtedness);
(aa)    other Liens securing obligations in an aggregate principal amount outstanding at any time not to exceed the greater of (x) $50,000,00075,000,000 and (y) 5.07.5% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(bb)    [reserved];
(cc)    Liens on property subject to any Sale-Leaseback Transaction permitted hereunder and general intangibles related thereto;
(dd)    Liens consisting of contractual restrictions of the type described in the definition of Restricted Cash (excluding the proviso thereto) so long as such contractual restrictions are permitted under Section 7.09;
(ee)    Liens securing Swap Contracts so long as (x) such Swap Contracts do not constitute Secured Hedge Agreements and (y) the value of the property securing such Swap Contracts does not at any time exceed the greater of (i) $10,000,000 and (ii) 1.0% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(ff)    Liens on Receivables Assets including intercompany notes and the Equity Interests of a Receivables Subsidiary, in each case incurred in connection with a Receivables Facility; and
(gg)    Liens on the Collateral securing obligations in respect of Permitted Pari Passu Refinancing Debt or Permitted Junior Refinancing Debt and any Permitted Refinancing of any of the foregoing.
Section 7.02     Investments. Neither Holdings nor the Restricted Subsidiaries shall directly or indirectly, make or hold any Investments, except:
(a)    Investments by Holdings or any of its Restricted Subsidiaries in assets that were Cash Equivalents when such Investment was made;
(b)    loans or advances to officers, directors, consultants and employees of any Loan Party (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes, (ii) in connection with such Person’s purchase of Equity Interests of Holdings or any direct or indirect parent thereof (provided that the amount of such loans and advances shall be
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contributed to the Borrower in cash as common equity) and to permit the payment of Taxes by such Person with respect to such Equity Interests and (iii) for any other purposes not described in the foregoing clauses (i) and (ii); provided that the aggregate principal amount outstanding at any time under clause (iii) above shall not exceed the greater of (x) $2,500,000 and (y) 0.25% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(c)    Investments (i) by Holdings or any Restricted Subsidiary in any Loan Party, (ii) by any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary that is not a Loan Party or any Loan Party, (iii) in the form of intercompany loans, advances or capital contributions by any Loan Party in any Restricted Subsidiary that is not a Loan Party (x) in the ordinary course of business or (y) otherwise not to exceed the Restricted Subsidiary Investment Basket Amount at any time outstanding; provided that the application of any portion of the Restricted Subsidiary Investment Basket Amount pursuant to this Section 7.02(c)(iii)(y) will result in a corresponding dollar-for-dollar reduction in the Restricted Subsidiary Investment Basket Amount available pursuant to Section 7.02(g)(vi) and (iv) in the form of intercompany loans, advances or capital contributions by Holdings or any Restricted Subsidiary in any of their respective direct or indirect Restricted Subsidiaries in the ordinary course of business (including for cash pooling and working capital purposes);
(d)    Investments (i) consisting of advances to customers or extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and (ii) received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(e)    Investments consisting of (x) transactions permitted under Sections 7.01, 7.03 (other than 7.03(d)), 7.04 (other than 7.04(d) and (e)) and 7.05 (other than 7.05(e)), (y) Restricted Payments permitted by Section 7.06 and (z) repayments or other acquisitions of Indebtedness of Holdings or any other Restricted Subsidiary not prohibited by Section 7.13;
(f)    Investments (i) existing or contemplated on the Amendment No. 17 Effective Date and set forth on Schedule 7.02(f) (as amended and restated pursuant to Amendment No. 17) and any modification, replacement, renewal, reinvestment or extension thereof and (ii) existing on the Amendment No. 17 Effective Date by Holdings or any Restricted Subsidiary in Holdings or any other Restricted Subsidiary and any modification, renewal or extension thereof; provided that the amount of any original Investment under this clause (f) is not increased except by the terms of such Investment as of the Closing Date or as otherwise permitted by Section 7.02;
(g)    any acquisition of all or substantially all the assets of, or all the Equity Interests (other than directors’ qualifying shares or any options for Equity Interests that cannot, as a matter of law, be cancelled, redeemed or otherwise extinguished without the express agreement of the holder thereof at or prior to acquisition) in, a Person or division or line of business of a Person (or any subsequent investment made in a Person, division or line of business previously acquired in a Permitted Acquisition), in a single transaction or series of related transactions, if immediately after giving effect thereto: (i) no Event of Default shall exist at the time elected by the Borrower pursuant to the LCT Election and no Event of Default pursuant to Section 8.01(a), (f) or (g) shall exist at the time of the consummation of such Permitted Acquisition; (ii) [reserved], (iii) at the time elected by the Borrower pursuant to the LCT Election, Holdings and the Restricted Subsidiaries shall be in Pro Forma Compliance with the covenant set forth in Section 7.11 after giving effect to such acquisition or investment and any related transactions; (iv) any acquired or
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newly formed Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness otherwise permitted by Section 7.03; (v) to the extent required by the Collateral and Guarantee Requirement, (A) the property, assets and businesses acquired in such purchase or other acquisition shall constitute Collateral and (B) any such newly created or acquired Subsidiary (other than an Excluded Subsidiary or an Unrestricted Subsidiary (it being understood that the acquisition of an Unrestricted Subsidiary as part of a Permitted Acquisition shall be deemed to be an Investment made in reliance on a provision of this Section 7.02 other than this clause (i)) shall become Guarantors, in each case, in accordance with Section 6.11; and (vi) the aggregate amount of such Investments incurred after the Amendment No. 17 Effective Date by Loan Parties in assets that are not (or do not become) owned by a Domestic Subsidiary or in Equity Interests in Persons that constitute Foreign Subsidiaries upon consummation of such acquisition shall not exceed (1) the greater of (x) $1,250,000,000 and (y) 125.0% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available (the “Restricted Subsidiary Investment Basket Amount”); provided that the application of any portion of the Restricted Subsidiary Investment Basket Amount pursuant to this Section 7.02(g)(vi) will result in a corresponding dollar-for-dollar reduction in the Restricted Subsidiary Investment Basket Amount available pursuant to Section 7.02(c)(iii)(y) plus (2) up to the full amount of the Joint Venture Basket Amount not otherwise utilized as permitted pursuant to Section 7.02(r)(i); provided that the application of any portion of the Joint Venture Basket Amount pursuant to this Section 7.02(g)(vi) will result in a corresponding dollar-for-dollar reduction in the Joint Venture Basket Amount available pursuant to Section 7.02(r)(i) (any such acquisition, a “Permitted Acquisition”);
(h)    Investments made in connection with the Transactions;
(i)    Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers consistent with past practices;
(j)    Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(k)    loans and advances to Holdings and any other direct or indirect parent of the Borrower, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof) Restricted Payments permitted to be made to such parent in accordance with Section 7.06(f), (g), (h) or (i);
(l)    other Investments (including in connection with Permitted Acquisitions), in an aggregate amount outstanding pursuant to this clause (l) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) at any time not to exceed (x) the greater of (i) $50,000,000 and (ii) 5.0% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available (net of any return in respect thereof, including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) plus (y) the portion, if any, of the Available Additional Basket on the date of such election that the Borrower elects to apply to this subsection (y), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Available Additional Basket immediately prior to such election
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and the amount thereof elected to be so applied, provided that no Investment may be made pursuant to this clause (l) (A) if an Event of Default pursuant to Sections 8.01(a), (f) and (g) has occurred and is continuing or would result therefrom or (B) in any Unrestricted Subsidiary for the purpose of making a Restricted Payment prohibited pursuant to Section 7.06;
(m)    advances of payroll payments to officers and employees and advances of fees and payments to directors and consultants, in each case, in the ordinary course of business;
(n)    Investments to the extent that payment for such Investments is made solely with Equity Interests of Holdings (or any direct or indirect parent of the Borrower);
(o)    Investments of a Restricted Subsidiary acquired after the Closing Date or of a corporation merged or amalgamated or consolidated into Holdings or merged, amalgamated or consolidated with a Restricted Subsidiary, in each case in accordance with Section 7.04 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation, do not constitute a material portion of the aggregate assets acquired by Holdings and its Restricted Subsidiaries in such transaction and were in existence on the date of such acquisition, merger or consolidation;
(p)    Investments made by any Restricted Subsidiary that is not a Loan Party to the extent such Investments are financed with the proceeds received by such Restricted Subsidiary from an Investment in such Restricted Subsidiary contemplated pursuant to Section 7.02(l) or permitted under Section 7.02(g)(vi), Section 7.02(r) or Section 7.02(x);
(q)    Guarantees by Holdings or any of its Restricted Subsidiaries of leases (other than Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r)    (i) (A) Investments in joint ventures and (B) purchases of minority interests in non-wholly-owned Subsidiaries; provided that the aggregate amount of such Investments with respect to clauses (A) and (B) incurred on or after the Amendment No. 17 Effective Date shall not exceed (1) the greater of (x) $1,250,000,000 and (y) 125% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available (the “Joint Venture Basket Amount”) plus (2) up to the greater of (x) $100,000,000 and (y) 10.0% of Consolidated EBITDA of the Restricted Subsidiary Investment Basket Amount not otherwise utilized as permitted pursuant to Section 7.02(c)(iii) and Section 7.02(g)(vi); provided that the application of any portion of the Restricted Subsidiary Investment Basket Amount pursuant to this Section 7.02(r)(i) will result in a corresponding dollar-for-dollar reduction in the Restricted Subsidiary Investment Basket Amount available pursuant to Section 7.02(c)(iii) and Section 7.02(g)(vi) and (ii) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(s)    Investments in deposit accounts and securities accounts opened in the ordinary course of business;
(t)    Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business;
(u)    Investments in any Person to which the Borrower or any Subsidiary outsources operational activities or otherwise related to the outsourcing of operational activities in the ordinary course of business and, with respect to any such Investment incurred on or after the
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Amendment No. 17 Effective Date, in an aggregate amount not to exceed the greater of (x) $10,000,000 and (y) 1.0% of Consolidated EBITDA;
(v)    Investments in (or asset dispositions to) Restricted Subsidiaries that are not Loan Parties so long as any such Investment (or disposition) is part of a series of simultaneous Investments (and/or dispositions) by various Restricted Subsidiaries in other Restricted Subsidiaries (with each such Investment (or disposition) having an equal aggregate amount (or fair market value)) that results in the aggregate proceeds of the initial Investment (or disposition) being invested in one or more (i) Loan Parties and/or (ii) Restricted Subsidiaries that are not Loan Parties, so long as in the case of clause (ii), (A) the initial Investment (or disposition) was made by a Restricted Subsidiary that is not a Loan Party and (B) any Loan Party participating in such series of Investments (and/or dispositions) shall not have made an Investment (or disposition) in an amount in excess of the amount of proceeds such Loan Party received by way of an Investment (or disposition) by another Restricted Subsidiary in such Loan Party (except to the extent any such excess is permitted by, and reduces availability under, Section 7.02(c), (g), (l), (r), (u) and (x));
(w)    Investments relating to a Receivables Subsidiary that, in the good faith determination of the Borrower, are necessary or advisable to effect any Receivables Facility;
(x)     other Investments up to an unlimited aggregate amount outstanding pursuant to this clause (x) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) (net of any return in respect thereof, including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts); provided that, both immediately prior and after giving effect thereto, (1) no Event of Default pursuant to Sections 8.01(a), (f) or (g) shall exist or result therefrom, and (2) the Total Net Leverage Ratio (determined at the time elected by the Borrower pursuant to the LCT Election) on a Pro Forma Basis after giving effect to such Investment as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, shall be no greater than 5.75 to 1.00; provided, however, that notwithstanding the foregoing, if the Total Net Leverage Ratio (determined at the time elected by the Borrower pursuant to the LCT Election) on a Pro Forma Basis after giving effect to such Investment as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, shall be greater than 5.75 to 1.00 and equal to or less than 6.25 to 1.00, such other Investments shall be permitted under this clause (x) so long as the aggregate amount of such Investments incurred on or after the Amendment No. 17 Effective Date does not exceed the greater of (A) Consolidated EBITDA for the Test Period then most recently ended for which financial statements were required to have been delivered, pursuant to Section 6.01(a) or (b), as applicable, and (B) the greater of (i) $400,000,000 and (ii) 40.0% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available; and
(y)    non-cash Investments in connection with any reorganization or similar activity of the Borrower and its Restricted Subsidiaries related to tax planning; provided that (1) both immediately prior and after giving effect thereto, no Event of Default shall exist or result therefrom and (2) the security interests of the Lenders in the Collateral, taken as a whole, would not be materially impaired.
Section 7.03     Indebtedness. Neither Holdings nor any of the Restricted Subsidiaries shall directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, except:
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(a)    Indebtedness of any Loan Party under the Loan Documents or any Incremental Term Loans under Separate Facility Loan Documents;
(b)    (i) Indebtedness outstanding on the Amendment No. 17 Effective Date and listed on Schedule 7.03(b) (as amended and restated pursuant to Amendment No. 17) and any refinancing, extension or replacement thereof and (ii) intercompany Indebtedness outstanding on the Amendment No. 17 Effective Date and any refinancing thereof; provided that (x) no such intercompany Indebtedness owed to a Loan Party shall be evidenced by a promissory note unless such promissory note is pledged to the Collateral Agent in accordance with the terms of the Pledge Agreement and (y) all such Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party shall be unsecured and subordinated to the Obligations pursuant to subordination terms substantially in the form of Exhibit O (but only to the extent permitted by law and not giving rise to any material adverse tax consequences);
(c)    Guarantees by Holdings and any Restricted Subsidiary in respect of Indebtedness of Holdings or any Restricted Subsidiary of Holdings otherwise permitted hereunder; provided that (A) no Guarantee of any Senior Notes or Junior Financing shall be permitted unless such guaranteeing party shall have also provided a Guarantee of the Obligations on the terms set forth herein and (B) if the Indebtedness being Guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(d)    Indebtedness of Holdings or any Restricted Subsidiary owing to any Loan Party or any other Restricted Subsidiary (or issued or transferred to any direct or indirect parent of a Loan Party which is substantially contemporaneously transferred to a Loan Party or any Restricted Subsidiary of a Loan Party) to the extent constituting an Investment permitted by Section 7.02; provided that (x) no such Indebtedness owed to a Loan Party shall be evidenced by a promissory note unless such promissory note is pledged to the Collateral Agent in accordance with the terms of the Pledge Agreement and (y) all such Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party shall be unsecured and subordinated to the Obligations pursuant to subordination terms substantially in the form of Exhibit O (but only to the extent permitted by law and not giving rise to any material adverse tax consequences);
(e)    (i) Attributable Indebtedness and other Indebtedness (including Capitalized Leases) financing an acquisition, construction, repair, replacement, lease or improvement of a fixed or capital asset incurred by Holdings or any Restricted Subsidiary prior to or within 270 days after the acquisition, construction, repair, replacement, lease or improvement of the applicable asset; provided that at the time of incurrence thereof and after giving pro forma effect thereto, the aggregate amount of Indebtedness at any time outstanding in reliance on this clause (e) shall not exceed the greater of (A) $30,000,00075,000,000 and (B) 3.07.5% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available, determined at the time of such incurrence of Indebtedness (together with any Permitted Refinancings thereof), (ii) Attributable Indebtedness arising out of Sale-Leaseback Transactions permitted by Sections 7.05(k) and (m) and (iii) any Permitted Refinancing of any of the foregoing;
(f)    Indebtedness in respect of Swap Contracts designed to hedge against the Borrower’s or any Restricted Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
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(g)    Indebtedness of Holdings or any Restricted Subsidiary (A) assumed in connection with any Permitted Acquisition, provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, and any Permitted Refinancing thereof, or (B) incurred to finance a Permitted Acquisition and any Permitted Refinancing thereof; provided that (w) in the case of clauses (A) and (B), such Indebtedness and all Indebtedness resulting from a Permitted Refinancing thereof is unsecured (except for (I) Liens permitted by Section 7.01(v) securing Indebtedness (together with Permitted Refinancings thereof) incurred pursuant to clause (A), so long as such Indebtedness either does not constitute Indebtedness for borrowed money or (to the extent constituting Indebtedness for borrowed money) the aggregate amount of such Indebtedness outstanding at the time of incurrence thereof and calculated on a Pro Forma Basis does not exceed 3.0% of Adjusted Total Assets, (II) Liens permitted by Section 7.01(aa) securing Indebtedness incurred pursuant to clause (A), and (III) Liens securing Incremental Term Loans as and to the extent permitted by Section 2.14), (x) in the case of clauses (A) and (B), no Event of Default pursuant to Section 8.01(a), (f) or (g) shall exist both immediately prior and after giving effect thereto and no Event of Default shall exist at the time elected by the Borrower pursuant to the LCT Election and (y) in the case of any such incurred Indebtedness under clause (B), such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the date occurring six months after the final Maturity Date with respect to the Term Loans; provided, further, that at the time of incurrence thereof and after giving pro forma effect thereto, the aggregate amount of Indebtedness outstanding under clause (B) of this Section 7.03(g) by Restricted Subsidiaries that are not Loan Parties shall not exceed the greater of (x) $300,000,000 in the aggregate and (y) 30.0% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(h)    Indebtedness representing deferred compensation or similar obligations to employees of Holdings or any of its Restricted Subsidiaries incurred in the ordinary course of business;
(i)    Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any direct or indirect parent of the Borrower permitted by Section 7.06;
(j)    Indebtedness incurred by Holdings or any of its Restricted Subsidiaries in a Permitted Acquisition, any other Investment expressly permitted hereunder or any Disposition, in each case, constituting indemnification obligations or obligations in respect of purchase price (including customary earnouts) or other similar adjustments;
(k)    Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with deposit accounts or securities accounts in the ordinary course of business;
(l)    Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(m)    Indebtedness incurred by Holdings or any of its Restricted Subsidiaries in respect of letters of credit, bank guarantees, supporting obligations, bankers’ acceptances, performance bonds, surety bonds, statutory bonds, appeal bonds, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation
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claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; provided that any reimbursement obligations in respect thereof are reimbursed within 30 days following the due date thereof;
(n)    obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by Holdings or any of its Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with past practice;
(o)    the Senior Notes and any Permitted Refinancing thereof (in each case including Guarantees thereof by the Guarantors other than Holdings);
(p)    [reserved];
(q)    Indebtedness of the Loan Parties in an amount equal to the lesser of (x) 100.0% of the net cash proceeds received by Holdings since immediately after the Closing Date from the issue or sale of Equity Interests of Holdings or cash contributed to the capital of Holdings (in each case, other than proceeds of Disqualified Equity Interests or sales of Equity Interests to Holdings or any of its Subsidiaries) to the extent such net cash proceeds or cash have not been applied pursuant to Section 7.02(l), 7.06(g) or 7.13 and (y) the greater of (i) $75,000,000 and (ii) 7.5% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(r)    other Indebtedness of Holdings or any of its Restricted Subsidiaries, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of (i) $150,000,000 and (ii) 15.0% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(s)    Indebtedness consisting of obligations of the Borrower or any of its Restricted Subsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with the Transactions, and Permitted Acquisitions or any other Investment expressly permitted hereunder;
(t)    Indebtedness of Foreign Subsidiaries; provided that at the time of incurrence thereof and calculated on a Pro Forma Basis the aggregate principal amount of Indebtedness outstanding pursuant to this clause (t) and incurred on or after the Amendment No. 17 Effective Date shall not exceed the greater of (i) $25,000,000 and (ii) 2.5% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available, which is attributable to the Foreign Subsidiaries;
(u)    customary obligations in connection with sales, other dispositions and leases permitted under Section 7.05 (but not in respect of Indebtedness for borrowed money or Capitalized Leases) including indemnification obligations with respect to leases, and guarantees of collectability in respect of accounts receivable or notes receivable for up to face value;
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(v)    obligations of Holdings in respect of Disqualified Equity Interests in an amount not to exceed the greater of (i) $10,000,000 and (ii) 1.0% of Consolidated EBITDA at any time outstanding;
(w)    Indebtedness of any Loan Party supported by a Letter of Credit in a principal amount not to exceed the face amount of such Letter of Credit;
(x)    [reserved];
(y)    to the extent constituting Indebtedness, Holdings and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02;
(z)    all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (y) above;
(aa)    Credit Agreement Refinancing Indebtedness;
(bb)    [reserved]; and
(cc)    Permitted Unsecured Ratio Debt and any Permitted Refinancing thereof.
For purposes of determining compliance with this Section 7.03, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (z) above, the Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Loan Documents will at all times be deemed to be outstanding in reliance only on the exception in clause (a) of Section 7.03, (ii) the Senior Notes will be deemed to be outstanding in reliance only on the exception in clause (o) of Section 7.03; (iii) Credit Agreement Refinancing Indebtedness will be deemed to be outstanding in reliance only on the exception in clause (aa) of Section 7.03 and (iv) [reserved]; and (v) Permitted Unsecured Ratio Debt will be deemed to be outstanding in reliance only on the exception in clause (cc) of this Section 7.03.
Section 7.04     Fundamental Changes. Neither Holdings nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a)    any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction in the United States); provided that the Borrower shall be the continuing or surviving Person or (ii) one or more other Restricted Subsidiaries; provided that when any Person that is a Loan Party is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person;
(b)    (i) any Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and its Subsidiaries and if not
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materially disadvantageous to the Lenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c)    any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Holdings or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively;
(d)    so long as no Default or Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Company”), (A) the Successor Company shall be an entity organized or existing under the Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement, the Pledge Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e)    so long as no Event of Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that the continuing or surviving Person shall be a Restricted Subsidiary or the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement;
(f)    Holdings and the Restricted Subsidiaries may consummate the Acquisition, the Repurchase Merger, related transactions contemplated by the Purchase Agreement (and documents related thereto) and the Transactions; and
(g)    so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
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Section 7.05     Dispositions. Neither Holdings nor any of the Restricted Subsidiaries shall, directly or indirectly, make any Disposition or enter into any agreement to make any Disposition (other than (i) as part of or in connection with the Transaction or (ii) if the consummation thereof is made expressly subject to a consent, waiver or amendment hereunder), except:
(a)    (i) Dispositions of obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions in the ordinary course of business of property no longer used or useful in the conduct of the business of Holdings or any of its Restricted Subsidiaries and (ii) Dispositions of property no longer used or useful in the conduct of the business of Holdings and its Restricted Subsidiaries outside the ordinary course of business;
(b)    Dispositions of inventory, goods held for sale in the ordinary course of business and immaterial assets (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned) in the ordinary course of business;
(c)    Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d)    Dispositions of property to Holdings or any Restricted Subsidiary; provided that if the transferor of such property is a Loan Party, (i) the transferee thereof must be a Loan Party or (ii) if such transaction constitutes an Investment, such transaction is permitted under Section 7.02;
(e)    to the extent constituting Dispositions, the granting of Permitted Liens, the making of Investments permitted by Section 7.02, mergers, consolidations and liquidations permitted by Section 7.04 (other than Section 7.04(g)) and Restricted Payments permitted by Section 7.06;
(f)    Dispositions made on the Closing Date to consummate the Transactions;
(g)    Dispositions of cash and Cash Equivalents;
(h)    leases, subleases, licenses or sublicenses (including the provision of software or the licensing of other intellectual property rights) and terminations thereof, in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(i)    transfers of property subject to Casualty Events;
(j)    Dispositions of property not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default or Event of Default exists), no Default or Event of Default shall exist or would result from such Disposition, and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $5,000,000, Holdings or any of its Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Section 7.01(a), (e), (f), (k), (l), (p), (q) and (aa)); provided, however, that for the purposes of this clause (j)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on Holdings’ most recent balance sheet provided hereunder or in the footnotes thereto) of
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Holdings or such Restricted Subsidiary associated with the assets or Restricted Subsidiary sold in such Disposition that are assumed by the transferee with respect to the applicable Disposition and for which Holdings and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by Holdings or the applicable Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, and (C) any Designated Non-cash Consideration received by Holdings or such Restricted Subsidiary in such Disposition having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) (other than securities received and not yet liquidated pursuant to clause (B) that are at that time outstanding), not to exceed the greater of $175,000,000 and 17.5% of Consolidated EBITDA at the time of the receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(k)    Dispositions listed on Schedule 7.05(k) (as amended and restated pursuant to Amendment No. 17);
(l)    Dispositions or discounts without recourse of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business;
(m)    Dispositions of property pursuant to Sale-Leaseback Transactions; provided that (i) the Net Proceeds of a Sale-Leaseback Transaction of the Borrower Corporate Headquarters (if any) shall be applied to prepay Term Loans in accordance with Section 2.05(b)(ii) (including, for the avoidance of doubt, reinvestment in accordance with the definition of “Net Proceeds”) and (ii) the aggregate fair market value of all properties so Disposed of after the Amendment No. 17 Effective Date (other than the Borrower Corporate Headquarters) shall not exceed the greater of (i) $25,000,000 and (ii) 2.5% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(n)    any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater value or usefulness to the business of Holdings and its Subsidiaries as a whole, as determined in good faith by the management of the Borrower;
(o)    Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(p)    any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(q)    the unwinding of any Swap Contracts pursuant to its terms;
(r)    terminations of leases, subleases, licenses and sublicenses in the ordinary course of business;
(s)    sales of non-core assets acquired in connection with Permitted Acquisitions or other Investments;
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(t)    sales of Receivables Assets, or participations therein, in connection with any Receivables Facility;
(u)    the transfer of Equity Interests of any Foreign Subsidiaries which are direct Subsidiaries of Loan Parties to any non-Loan Party, so long as 65.0% of the voting Equity Interests of such non-Loan Party (or the parent entity of such non-Loan Party which is directly owned by a Loan Party) are pledged to the Administrative Agent for the benefit of the Secured Parties; and
(v)    the transfer, via license or otherwise, by one or more Loan Parties to any non-Loan Party of all of the substantial rights in any IP Rights owned by a Loan Party which are used by one or more Foreign Subsidiaries outside of the United States to any non-Loan Party, provided that (w) the transaction is for fair market value, (x) the consideration received therefor may be in the form of Equity Interests, so long as at least 35% of the consideration is in the form of cash and/or an intercompany promissory note, which intercompany promissory note shall be pledged to the Administrative Agent for the benefit of the Secured Parties, (y) at a minimum, bare title to such IP Rights remains with a Loan Party and (z) 65.0% of the voting Equity Interests of such non-Loan Party (or its parent entity which is directly owned by a Loan Party) are pledged to the Administrative Agent for the benefit of the Secured Parties;
provided that any Disposition of any property pursuant to Section 7.05(j) or (m) shall be for no less than the fair market value of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold or transferred free and clear of the Liens created by the Loan Documents (including the assets of any Subsidiary when the Equity Interests of such Subsidiary are being Disposed of as permitted hereunder), and the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Section 7.06     Restricted Payments.
Neither Holdings shall, nor shall Holdings permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment, except:
(a)    each Restricted Subsidiary may make Restricted Payments to the Borrower, and other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b)    Holdings and each Restricted Subsidiary may declare and make dividend payments or other Restricted Payments payable solely in Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c)    [reserved];
(d)    to the extent constituting Restricted Payments, Holdings and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than Section 7.02(e)), Section 7.04, Section 7.05 or Section 7.08 (other than Section 7.08(f));
(e)    repurchases of Equity Interests in Holdings (or any direct or indirect parent thereof) or any Restricted Subsidiary of Holdings deemed to occur upon exercise of stock options
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or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f)    the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay, which payment by Holdings is hereby permitted) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of Holdings or any other such direct or indirect parent thereof), including any Indebtedness permitted pursuant to Section 7.03(i), by any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) on or after the Amendment No. 17 Effective Date shall not exceed the greater of (x) $10,000,000 and (y) 1.0% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available (which shall increase to the greater of (x) $20,000,000 and (y) 2.0% of Consolidated EBITDA subsequent to the consummation of a Qualified IPO of the Borrower or any direct or indirect parent thereof, as the case may be) in any calendar year (with unused amounts in any calendar year being carried over to the next succeeding calendar year subject to a maximum (without giving effect to the following proviso) of the greater of (x) $20,000,000 and (y) 2.0% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available (which shall increase to the greater of (x) $40,000,000 and (y) 4.0% of Consolidated EBITDA subsequent to the consummation of a Qualified IPO of the Borrower or any direct or indirect parent thereof, as the case may be)); provided further that (I) such amount in any calendar year may be increased by an amount not to exceed:
(i)    to the extent contributed to Holdings, the Net Proceeds from the sale of Equity Interests of any of Holdings’ direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date; plus
(ii)    the cash proceeds of key man life insurance policies received by Holdings or its Restricted Subsidiaries; less
(iii)    the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f);,
and (II) such amount in any calendar year shall be decreased by the amount reallocated and previously applied to make prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings pursuant to Section 7.13(a)(iv)(A) in such calendar year;
(g)    if Holdings is in compliance with the covenant set forth in Section 7.11 on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable,
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as if such Restricted Payment had been made on the last day of such four quarter period, then Holdings may make Restricted Payments in an aggregate amount equal to the portion, if any, of the Available Additional Basket on such date that the Borrower elects to apply to this paragraph, such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Available Additional Basket immediately prior to such election and the amount thereof elected to be so applied; provided that with respect to any Restricted Payment made pursuant to this Section 7.06(g), (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to such Restricted Payment on a Pro Forma Basis, the Borrower could incur $1.00 of additional Indebtedness and maintain compliance with a Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable) of no less than 2.00:1.00;
(h)    the Borrower or any of its Restricted Subsidiaries may make Restricted Payments to Holdings or any direct or indirect parent of Holdings, an Affiliate (other than an Unrestricted Subsidiary) which is the common parent of a consolidated, combined or unitary group for tax purposes that includes Borrower or any of its Restricted Subsidiaries, as applicable:
(i)    to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are incurred in the ordinary course of business and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries so long as allocable to such entity in accordance with GAAP, Transaction Expenses and any indemnification claims made by directors or officers of such parent attributable to the ownership or operations of Holdings and its Restricted Subsidiaries;
(ii)    the proceeds of which shall be used to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii)    the proceeds of which shall be used to pay federal, state and local income taxes, to the extent such income taxes are attributable to the income of the Borrower and its Restricted Subsidiaries and, to the extent of the amount actually received from its Unrestricted Subsidiaries, in amounts required to pay such taxes to the extent attributable to the income of such Unrestricted Subsidiaries; provided, that in each case, the amount of such payments with respect to any taxable period does not exceed the amount that the Borrower, its Restricted Subsidiaries and its Unrestricted Subsidiaries, as applicable, would be required to pay in respect of federal, state, and local taxes with respect to such taxable period were the Borrower, its Restricted Subsidiaries and its Unrestricted Subsidiaries, as applicable, to pay such taxes separately from any such parent entity; provided further, (1) in the case of any payment being made that is solely permitted as a result of this Section 7.06(h)(iii) with respect to a tax for which the Borrower and its Restricted Subsidiaries are members of the same consolidated, combined or similar income tax group (a “Tax Group”), then the amount of such payment permitted under this section shall not exceed the amount that the Borrower and its Restricted Subsidiaries would have been required to pay as a stand-alone Tax Group and (2) the amount of any payment permitted under this Section 7.06(h)(iii) shall be reduced by any portion of such income taxes directly paid to the relevant Governmental Authority by the Borrower or any of its Restricted Subsidiaries;
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(iv)    the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the other Restricted Subsidiaries;
(v)    the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or investment permitted by this Agreement;
(vi)    [reserved];
(vii)    to enable Holdings to make payments pursuant to Sections 7.05(m), 7.06(g), 7.06(i) or 7.08(j); and
(viii)    to finance any Investment by Holdings permitted to be made pursuant to Section 7.02.
(i)    payments made or expected to be made by Holdings or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(j)    after a Qualified IPO, (i) any Restricted Payment by the Borrower or any other direct or indirect parent of the Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company and (ii) Restricted Payments of up to 6.0% per annum of the net proceeds received by (or contributed to) Holdings and its Restricted Subsidiaries from such Qualified IPO (less amounts reallocated and previously applied to make prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings pursuant to Section 7.13(a)(iv)(A));
(k)    notwithstanding anything to the contrary in any Loan Document, the Borrower may make regularly scheduled payments of interest on the Senior Notes, or any Junior Financing, and may make any payments required by the terms of such Indebtedness in order to avoid the application of Section 163(e)(5) of the Code to such Indebtedness;
(l)    distributions or payments of Receivables Fees and purchase of any assets in connection with a Receivables Facility;
(m)    distributions in connection with a corporate dividend program not to exceed in any fiscal year the greater of (x) $75,000,000100,000,000 and (y) 7.510.0% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available; and
(n)    Holdings and each Restricted Subsidiary may declare and make additional Restricted Payments up to an unlimited amount; provided that, both immediately prior and after giving effect thereto, (i) no Default or Event of Default shall exist or result therefrom, and (ii) the Total Net Leverage Ratio determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant
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to Section 6.01(a) or (b), as applicable, as if such dividend had been paid on the last day of such Test Period, shall be no greater than 4.75 to 1.00.
Section 7.07     Change in Nature of Business. Holdings shall not, nor shall Holdings permit any of the Restricted Subsidiaries to, directly or indirectly, engage in any material line of business substantially different from those lines of business conducted by Holdings and the Restricted Subsidiaries on the Closing Date or any business reasonably related, complementary, synergistic or ancillary thereto (including related, complementary, synergistic or ancillary technologies) or reasonable extensions thereof.
Section 7.08     Transactions with Affiliates. Neither Holdings shall, nor shall Holdings permit any of the Restricted Subsidiaries to, directly or indirectly, enter into any transaction of any kind with any Affiliate of Holdings, whether or not in the ordinary course of business, other than (a) transactions among Holdings and its Restricted Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction, (b) on terms substantially as favorable to Holdings or such Restricted Subsidiary as would be obtainable by Holdings or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate, (c) the Transactions and the payment of fees and expenses (including Transaction Expenses) as part of or in connection with the Transactions, (d) the issuance of Equity Interests to any officer, director, employee or consultant of Holdings or any of its Restricted Subsidiaries in connection with the Transactions, (e) Restricted Payments permitted under Section 7.06, (f) loans and other transactions among Holdings and its Subsidiaries and joint ventures (to the extent any such Subsidiary that is not a Restricted Subsidiary or any such joint venture is only an Affiliate as a result of Investments by Holdings and its Restricted Subsidiaries in such Subsidiary or joint venture) to the extent otherwise permitted under this Article VII, (g) employment and severance arrangements between Holdings and its Restricted Subsidiaries and their respective officers and employees in the ordinary course of business and transactions pursuant to stock option plans and employee benefit plans and arrangements in the ordinary course of business, (h) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, officers, employees and consultants of Holdings and its Restricted Subsidiaries (or any direct or indirect parent of Holdings) in the ordinary course of business to the extent attributable to the ownership or operation of Holdings and its Restricted Subsidiaries, (i) transactions pursuant to agreements in existence on the Closing Date and set forth on Schedule 7.08 or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material respect, (j) so long as no Event of Default has occurred and is continuing, (x) the payment of management, consulting, monitoring and advisory fees and related expenses to the Permitted Holders in an amount not to exceed in the aggregate in any calendar year the greater of (x) $5,000,000 and (y) 0.50% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available and (y) payments by Holdings or any of its Restricted Subsidiaries to any of the Permitted Holders made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by a majority of the Board of Directors of the Borrower in good faith, (k) payments by Holdings or any of its Subsidiaries pursuant to any tax sharing agreements with any direct or indirect parent of Holdings to the extent attributable to the ownership or operation of Holdings and the Subsidiaries, but only to the extent permitted by Section 7.06(h)(iii) and entering into any tax sharing agreements that would only require payments otherwise permitted by Section 7.06(h)(iii), (l) the issuance or transfer of Equity Interests (other than Disqualified Equity Interests) of Holdings to any Permitted Holder or to any former, current or future director, manager, officer, employee or consultant (or any Affiliate of any of the foregoing) of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof, (m) transactions with customers, clients, joint venture partners, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement that are fair to Holdings and the Restricted Subsidiaries, in the reasonable determination of the board of directors or the senior management of the Borrower, or are on terms at least as favorable
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as might reasonably have been obtained at such time from an unaffiliated party, (n) any payments required to be made pursuant to the Purchase Agreement, (o) the Transactions, (p) the payment of reasonable out-of-pocket costs and expenses relating to registration rights and indemnities provided to shareholders pursuant to the Shareholder Agreement and (q) any transaction with a Receivables Subsidiary effected as part of a Receivables Facility, including sales of Receivables Assets, or participations therein.
Section 7.09     Burdensome Agreements. Holdings shall not, nor shall Holdings permit any of the Restricted Subsidiaries to, enter into or permit to exist any Contractual Obligation (other than this Agreement, any other Loan Document or any Separate Facility Loan Document) that limits the ability of (a) any Restricted Subsidiary of Holdings that is not a Guarantor to make Restricted Payments to Holdings or any Guarantor or (b) any Loan Party to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Lenders with respect to the Facilities and the Obligations or under the Loan Documents; provided that the foregoing clauses (a) and (b) shall not apply to Contractual Obligations which (i) (x) exist on the Closing Date and (to the extent not otherwise permitted by this Section 7.09) are listed on Schedule 7.09 hereto and (y) to the extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness, or any agreement evidencing any permitted modification, replacement, renewal, extension or refinancing of such Indebtedness so long as such modification, replacement, renewal, extension or refinancing is not (taken as a whole) materially less favorable to the Lenders, (ii) are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of Holdings, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of Holdings; provided, further that this clause (ii) shall not apply to Contractual Obligations that are binding on a Person that becomes a Restricted Subsidiary pursuant to Section 6.14, (iii) represent Indebtedness of a Restricted Subsidiary of the Borrower which is not a Loan Party which is permitted by Section 7.03, (iv) arise in connection with any Disposition permitted by Section 7.04 or 7.05 and relate solely to the assets or Person subject to such Disposition, (v) are customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 7.02 and applicable solely to such joint venture entered into in the ordinary course of business, (vi) are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.03 but solely to the extent any negative pledge relates to the property (and proceeds or products thereof) financed by such Indebtedness, (vii) are customary restrictions in leases, subleases, licenses, sublicenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto, (viii) comprise restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 7.03(e), (g) or (r) and to the extent that such restrictions apply only to the property or assets (and proceeds or products thereof) securing such Indebtedness or to the Restricted Subsidiaries incurring or guaranteeing such Indebtedness, (ix) are customary provisions restricting subletting, assignment or transfer of any lease governing a leasehold interest of Holdings or any Restricted Subsidiary, (x) are customary provisions restricting assignment, license or transfers of any agreement entered into in the ordinary course of business, (xi) are restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business, (xii) are customary restrictions contained in the Senior Note Documents or the documents governing any Permitted Junior Refinancing Debt, Permitted Pari Passu Refinancing Debt or Permitted Unsecured Refinancing Debt, or the documents governing any Permitted Refinancing Indebtedness in respect of any of the foregoing, (xiii) arise in connection with cash or other deposits permitted under Sections 7.01 and 7.02 and limited to such cash or deposit, (xiv) are restrictions regarding licensing or sublicensing by Holdings and its Restricted Subsidiaries of intellectual property in the ordinary course of business, (xv) are restrictions on cash earnest money deposits in favor of sellers in connection with acquisitions not prohibited hereunder or (xvi) are restrictions and conditions under the terms of the documentation governing any Receivables Facility that in the good faith determination of Holdings or the Borrower are necessary or advisable to effect such Receivables Facility.
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Section 7.10     Use of Proceeds. The proceeds of the 2021 Incremental Term B-6 Loans incurred pursuant to Amendment No. 19 shall be for the purposes specified therein, which include the financing of the Amendment No. 19 Transactions (as defined in Amendment No. 19) and the paying of fees and expenses incurred in connection therewith. The proceeds of the 2019 Replacement Term B-5 Loans incurred pursuant to Amendment No. 17 shall be for the purposes specified therein, which include the refinancing of all of the Existing 2017 Term B-3 Loans and Existing 2018 Incremental Term B-4 Loans existing immediately prior to the Amendment No. 17 Effective Date and the paying of fees and expenses incurred in connection therewith. The proceeds of the 2019 Replacement Term A-3 Loans incurred pursuant to Amendment No. 18 shall be for the purposes specified therein, which include the refinancing of the Existing 2018 Replacement Term A-2 Loans and Existing 2018 Incremental Term A-2 Loans existing immediately prior to the Amendment No. 18 Effective Date and the paying of fees and expenses incurred in connection therewith. Revolving Credit Loans and Letters of Credit issued hereunder shall be for general corporate purposes and working capital of the Borrower and its Subsidiaries, and any other purpose not prohibited by this Agreement.
Section 7.11     Financial Covenant.
Senior Secured Net Leverage Ratio. Except with the written consent of the Required Pro Rata Lenders, Holdings shall not permit the Senior Secured Net Leverage Ratio as of the last day of any Test Period to be greater than 5.50 to 1.00.
Section 7.12     Accounting Changes. Holdings shall not make any change in its fiscal year; provided, however, that Holdings may, upon written notice to the Administrative Agent, change its fiscal year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, Holdings and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary to reflect such change in fiscal year.
Section 7.13     Prepayments, Etc. of Indebtedness. (a) Holdings shall not, nor shall Holdings permit any of the Restricted Subsidiaries to, directly or indirectly, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (it being understood that payments of regularly scheduled interest or AHYDO payments shall be permitted) the Senior Notes, any Indebtedness constituting a Permitted Refinancing of the Senior Notes, any Indebtedness constituting Permitted Junior Refinancing Debt or Permitted Unsecured Refinancing Debt, loans outstanding under a Junior Lien Incremental Facility or an Unsecured Incremental Facility, any subordinated Indebtedness incurred under Section 7.03(g), any other Indebtedness that is required to be(other than any permitted intercompany Indebtedness) that is contractually subordinated in right of payment to the Obligations pursuant to the terms of the Loan Documents (collectively, “Junior Financing”) or make any payment in violation of any subordination terms of any Junior Financing Documentation, except (i) the refinancing or exchange thereof with the Net Proceeds of any Indebtedness constituting a Permitted Refinancing; provided that if such Indebtedness was originally incurred under Section 7.03(g), such Permitted Refinancing is permitted pursuant to Section 7.03(g), (ii) the conversion of any Junior Financing to Equity Interests (other than Disqualified Equity Interests) of Holdings or any of its direct or indirect parents, and (iii) so long as no Event of Default has occurred and is continuing or would result therefrom, prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to their scheduled maturity in an aggregate amount not to exceed on or after the Amendment No. 17 Effective Date the greater of (x) $25,000,000 and (y) 2.50% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available, plus, if the Senior Secured Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, as if such prepayment, redemption, purchase,
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defeasance or other payment in respect of Junior Financings had been made on the last day of such four quarter period, is less than or equal to 3.00 to 1.00, the portion, if any, of the Available Additional Basket on such date that the Borrower elects to apply to this paragraph, such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Available Additional Basket immediately prior to such election and the amount thereof elected to be so applied., (iv) additional prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to their scheduled maturity in an aggregate amount not to exceed the sum of (A) the Available RP Capacity Amount plus (B) an unlimited additional amount; provided that, solely in the case of clause (iv)(B), both immediately prior and after giving effect thereto, (x) no Default or Event of Default shall exist or result therefrom, and (y) the Total Net Leverage Ratio determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, as if such prepayment, redemption, purchase, defeasance and other payment had been made on the last day of such Test Period, shall be no greater than 4.75 to 1.00 and (v) any Excluded Asset Sale Proceeds may be used to make prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to their scheduled maturity within 18 months of the receipt of such Excluded Asset Sale Proceeds.
(b)    Holdings shall not, nor shall it permit any of the Restricted Subsidiaries to, directly or indirectly, amend, modify or change in any manner materially adverse to the interests of the Lenders any term or condition of any Junior Financing Documentation, (other than intercompany indebtedness) without the consent of the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed); provided, that nothing in this Section 7.13(b) shall prohibit Holdings and its Restricted Subsidiaries from refinancing, replacing, renewing or exchanging any such Junior Financing, to the extent otherwise permitted by Section 7.13(a).
Section 7.14     Permitted Activities. Holdings shall not engage in any material operating or business activities; provided that the following shall be permitted in any event: (i) its ownership of the Equity Interests of the Borrower and other Subsidiaries and activities incidental or reasonably related thereto, (ii) the maintenance of its legal existence (including the ability to incur fees, costs and expenses relating to such maintenance), (iii) the performance of its obligations with respect to the Loan Documents, the Separate Facility Loan Documents and any other Indebtedness or the Purchase Documents, (iv) any public offering of its common stock or any other issuance or sale of its Equity Interests (and activities related to an entity being public) or making of any Restricted Payments or Investments permitted hereunder, (v) financing activities, including the issuance of securities, incurrence of debt, payment of dividends, making contributions to the capital of the Borrower and guaranteeing the obligations of the Borrower, (vi) participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings and the Borrower, (vii) holding any cash or property (but not operating any property), (viii) providing indemnification to officers, managers and directors and (ix) any activities incidental or reasonably related to the foregoing. Holdings shall not incur any consensual Liens on Equity Interests of the Borrower other than those for the benefit of the Obligations.
ARTICLE VIII

Events of Default and Remedies
Section 8.01     Events of Default. Any of the following from and after the Closing Date shall constitute an event of default (an “Event of Default”):
(a)    Non-Payment. Any Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, or (ii) within five (5) Business Days after the same
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becomes due, any interest on any Loan or any Unreimbursed Amount or any other amount payable hereunder or with respect to any other Loan Document; or
(b)    Specific Covenants. Holdings or the Borrower fails to perform or observe any term, covenant or agreement contained in:
(i)    any of Sections 6.03(a) or 6.05(a) (solely with respect to the Borrower) or Article VII (other than Section 7.11); or
(ii)    Section 7.11; provided that an Event of Default under this clause (ii) is subject to cure pursuant to Section 8.05; provided, further, that an Event of Default under this clause (ii) shall not constitute an Event of Default for purposes of any 2019 Replacement Term B-5 Loan unless and until both (x) a period of 30 consecutive days has elapsed since the first date on which the Required Pro Rata Lenders would be entitled under this Agreement to declare all outstanding obligations under the Pro Rata Facilities, to be immediately due and payable as a result of Holdings’ or the Borrower’s failure to perform or observe any term, covenant or agreement contained in Section 7.11 and (y) at the end of such 30 consecutive day period, the Required Pro Rata Lenders have actually declared all such obligations to be immediately due and payable in accordance with this Agreement and such declaration has not been rescinded; or
(c)    Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) days after notice thereof by the Administrative Agent or the Required Lenders to the Borrower; or
(d)    Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of Holdings or any other Loan Party herein, in any other Loan Document, or in any other report or certificate required to be delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or
(e)    Cross-Default. Any Loan Party or any Restricted Subsidiary (A) fails to make any payment beyond the applicable grace period with respect thereto, if any, (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder) having an outstanding aggregate principal amount of not less than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness, or any other event occurs (other than, with respect to Indebtedness consisting of Swap Contracts, termination events or equivalent events pursuant to the terms of such Swap Contracts), the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity; provided that this clause (e)(B) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness; provided further that this clause (e)(B) shall not apply if such failure is remedied or waived by the holders of such Indebtedness prior to any termination of the Revolving Credit Commitments or acceleration of the Loans pursuant to Section 8.02; or
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(f)    Insolvency Proceedings, Etc. Any Loan Party or, subject to Section 8.03, any Restricted Subsidiary institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or
(g)    Inability to Pay Debts; Attachment. (i) Any Loan Party or, subject to Section 8.03, any Restricted Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of Holdings and the Restricted Subsidiaries, taken as a whole, and is not released, vacated or fully bonded within sixty (60) days after its issue or levy; or
(h)    Judgments. There is entered against any Loan Party or any Restricted Subsidiary a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by (i) independent third party insurance as to which the insurer has been notified of such judgment or order and has not denied coverage or (ii) other third party indemnities from financially sound investment grade indemnifying parties (or other parties reasonably acceptable to the Administrative Agent)) and such judgment or order shall not have been satisfied, vacated, discharged or stayed or bonded pending an appeal for a period of sixty (60) consecutive days; or
(i)    Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder (including as a result of a transaction permitted under Section 7.04 or 7.05) or the satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in writing the validity or enforceability of any provision of any Loan Document; or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document (other than as a result of repayment in full of the Obligations and termination of the Aggregate Commitments), or purports in writing to revoke or rescind any Loan Document; or
(j)    Change of Control. There occurs any Change of Control; or
(k)    Collateral Documents. Any Collateral Document after delivery thereof pursuant to Section 4.02 of the Original Credit Agreement, Sections 4.03, 6.11 or 6.13 hereof shall for any reason (other than pursuant to the terms thereof including as a result of a transaction not prohibited under this Agreement or as a result of acts or omissions by the Administrative Agent or Collateral Agent or any Lender) cease to create a valid and perfected Lien, with the priority required by the Collateral Documents on and security interest in any material portion of the Collateral purported to be covered thereby, subject to Permitted Liens, (i) except to the extent that any such perfection or priority is not required pursuant to the Collateral and Guarantee Requirement or results from the failure of the Administrative Agent or the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Documents or to file Uniform Commercial Code continuation statements and (ii)
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except as to Collateral consisting of Real Property to the extent that such losses are covered by a lender’s title insurance policy and such insurer has not denied coverage; or
(l)    ERISA. (i) An ERISA Event occurs which has resulted or could reasonably be expected to result in liability of a Loan Party, a Restricted Subsidiary or any ERISA Affiliate in an aggregate amount which could reasonably be expected to result in a Material Adverse Effect, (ii) there is or arises an Unfunded Pension Liability (taking into account only Pension Plans with positive Unfunded Pension Liability) that could reasonably be expected to result in a Material Adverse Effect or (iii) a Loan Party, any Restricted Subsidiary or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount which could reasonably be expected to result in a Material Adverse Effect.
Section 8.02     Remedies upon Event of Default.
(a)    If any Event of Default occurs and is continuing (other than an Event of Default under Section 8.01(b)(ii) unless the conditions of the second proviso contained therein have been satisfied), the Administrative Agent may and, at the request of the Required Lenders, shall take any or all of the following actions:
(i)    declare the commitment of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(ii)    declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(iii)    require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
(iv)    exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law;
provided that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
(b)    Subject to the first proviso in Section 8.01(b)(ii), if any Event of Default under Section 8.01(b)(ii) occurs and is continuing, the Administrative Agent may and, at the request of the Required Pro Rata Lenders, shall take any or all of the following actions:
(i)    declare the commitment of each Revolving Credit Lender to make Revolving Credit Loans and any obligation of the L/C Issuers to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
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(ii)    declare the unpaid principal amount of all outstanding Revolving Credit Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document under or in respect of the Revolving Credit Facility to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(iii)    require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof);
(iv)    declare the commitment of each 2017 Replacement Term A-2 Lender to make 2017 Replacement Term A-2 Loans to be terminated, whereupon such commitments shall be terminated;
(v)    declare the unpaid principal amount of all outstanding 2017 Replacement Term A-2 Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document under or in respect of the 2017 Replacement Term A-2 Loans to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; and
(vi)    exercise on behalf of itself and the Pro Rata Lenders all rights and remedies available to it and the Pro Rata Lenders under the Loan Documents or applicable Laws, in each case, under or in respect of each Pro Rata Facility.
Section 8.03     Exclusion of Immaterial Subsidiaries. Solely for the purpose of determining whether a Default or Event of Default has occurred under clause (f) or (g) of Section 8.01, any reference in any such clause to any Restricted Subsidiary or Loan Party shall be deemed not to include any Restricted Subsidiary affected by any event or circumstances referred to in any such clause that did not, as of the last day of the most recent completed fiscal quarter of Holdings, have assets with a fair market value in excess of 5.0% of Adjusted Total Assets (it being agreed that all Restricted Subsidiaries affected by any event or circumstance referred to in any such clause shall be considered together, as a single consolidated Restricted Subsidiary, for purposes of determining whether the condition specified above is satisfied).
Section 8.04     Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Secured Obligations shall be applied by the Administrative Agent in the following order (to the fullest extent permitted by mandatory provisions of applicable Law):
First, to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest, but including Attorney Costs payable under Section 10.04 and amounts payable under Article III) payable to the Administrative Agent or the Collateral Agent in its capacity as such;
Second, to payment of that portion of the Secured Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs payable under Section 10.04 and amounts payable under Article III), ratably among them in proportion to the amounts described in this clause Second payable to them;
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Third, to payment of that portion of the Secured Obligations constituting accrued and unpaid interest and fees on the Loans, Commitments, Letters of Credit and L/C Borrowings, and any fees, premiums and scheduled periodic payments due under Cash Management Obligations or Secured Hedge Agreements, ratably among the Secured Parties in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Secured Obligations constituting unpaid principal of the Loans and L/C Borrowings (including to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit), and any breakage, termination or other payments under Cash Management Obligations or Secured Hedge Agreements, ratably among the Secured Parties in proportion to the respective amounts described in this clause Fourth held by them;
Fifth, to the payment of all other Secured Obligations of the Borrower that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Secured Obligations owing to the Administrative Agent and the other Secured Parties on such date; and
Last, the balance, if any, after all of the Secured Obligations have been paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit in the L/C Cash Collateral Account after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Secured Obligations, if any, in the order set forth above and, if no Secured Obligations remain outstanding, to the Borrower as applicable.
Notwithstanding the foregoing, no amounts received from any Guarantor shall be applied to any Excluded Swap Obligations of such Guarantor.
Section 8.05     Borrower’s Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 8.01 or 8.02, in the event of any Event of Default or potential Event of Default under the covenant set forth in Section 7.11 and at any time until the expiration of the tenth (10th) day after the date on which financial statements are required to be delivered with respect to the applicable fiscal quarter hereunder, the Permitted Holders (or any other Person so long as no Change of Control results therefrom) may make a Specified Equity Contribution to Holdings, and Holdings may apply the amount of the net cash proceeds thereof to increase Consolidated EBITDA with respect to such applicable quarter; provided that such net cash proceeds (i) are actually received by the Borrower as cash common equity (including through capital contribution of such net cash proceeds to the Borrower) no later than ten (10) days after the date on which financial statements are required to be delivered with respect to such fiscal quarter hereunder and (ii) are Not Otherwise Applied. The parties hereby acknowledge that this Section 8.05(a) may not be relied on for purposes of calculating any financial ratios other than as applicable to Section 7.11 and shall not result in any adjustment to any amounts other than the amount of the Consolidated EBITDA referred to in the immediately preceding sentence.
(b)    (i) In each period of four consecutive fiscal quarters, there shall be at least two fiscal quarters in which no Specified Equity Contribution is made, (ii) no more than four Specified Equity Contributions will be made in the aggregate during the term of this Agreement, (iii) the amount of any Specified Equity Contribution shall be no more than the amount required to cause Holdings to be in Pro Forma Compliance with Section 7.11 for any applicable period and (iv) there shall be no pro forma reduction in Indebtedness with the proceeds of any Specified Equity Contribution for determining
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compliance with Section 7.11 for the fiscal quarter immediately prior to the fiscal quarter in which such Specified Equity Contribution was made.
ARTICLE IX

Administrative Agent and Other Agents
Section 9.01     Appointment and Authorization of Agents. (a) The Lenders hereby irrevocably designate and appoint DBNY as Administrative Agent to act as specified herein and in the other Loan Documents. Each Lender hereby irrevocably authorizes, and each holder of any Note by the acceptance of such Note shall be deemed irrevocably to authorize, the Administrative Agent to take such action on its behalf under the provisions of this Agreement, the other Loan Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of the Administrative Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto. The Administrative Agent may perform any of its respective duties hereunder by or through its Agent-Related Persons.
(b)    Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each such L/C Issuer shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in this Article IX and in the definition of “Agent-Related Person” included such L/C Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect to such L/C Issuer.
(c)    Each of the Secured Parties hereby irrevocably appoints and authorizes the Collateral Agent to act as the agent of (and to hold any security interest created by the Collateral Documents for and on behalf of or in trust for) such Secured Party for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent (and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to this Article IX for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Collateral Agent), shall be entitled to the benefits of all provisions of this Article IX (including Section 9.06, as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents) as if set forth in full herein with respect thereto.
Section 9.02     Nature of Duties. (a) No Agent-Related Person shall have any duties or responsibilities except those expressly set forth in this Agreement and in the other Loan Documents. No Agent-Related Person shall be liable for any action taken or omitted by it or them hereunder or under any other Loan Document or in connection herewith or therewith, unless caused by its or their gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). The duties of each Agent-Related Person shall be mechanical and administrative in nature; no Agent-Related Person shall have by reason of this Agreement or any other Loan Document a fiduciary relationship in respect of any Lender or the holder of any Note; and nothing in this Agreement or in any other Loan Document, expressed or implied, is intended to or shall be so
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construed as to impose upon any Agent-Related Person any obligations in respect of this Agreement or any other Loan Document except as expressly set forth herein or therein.
(b)    Notwithstanding any other provision of this Agreement or any provision of any other Loan Document, the Syndication Agent, the Documentation Agents, and the Arrangers are named as such for recognition purposes only, and in their capacity as such shall have no powers, duties, responsibilities or liabilities with respect to this Agreement or the other Loan Documents or the transactions contemplated hereby and thereby. Without limitation of the foregoing, the Syndication Agent, the Documentation Agents and the Arrangers shall not, solely by reason of this Agreement or any other Loan Documents, have any fiduciary relationship in respect of any Lender or any other Person.
Section 9.03     Lack of Reliance on Agent-Related Persons. Independently and without reliance upon any Agent-Related Person, each Lender and the holder of each Note, to the extent it deems appropriate, has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of Holdings and its Subsidiaries in connection with the making and the continuance of the Loans and the taking or not taking of any action in connection herewith and (ii) its own appraisal of the creditworthiness of Holdings and its Subsidiaries and, except as expressly provided in this Agreement, no Agent-Related Person shall have any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any Note with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter. No Agent-Related Person shall be responsible to any Lender or the holder of any Note for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of this Agreement or any other Loan Document or the financial condition of Holdings or any of its Subsidiaries or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Loan Document, or the financial condition of Holdings or any of its Subsidiaries or the existence or possible existence of any Default or Event of Default.
Section 9.04     Certain Rights of Agent-Related Persons. If any Agent-Related Person requests instructions from the Required Lenders (or where expressly required or permitted by the terms of this Agreement, a greater or other proportion of the Lenders) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, such Agent-Related Person shall be entitled to refrain from such act or taking such action unless and until such Agent-Related Person shall have received instructions from the Required Lenders (or where expressly required or permitted by the terms of this Agreement, a greater or other proportion of the Lenders); and such Agent-Related Person shall not incur liability to any Lender by reason of so refraining. Without limiting the foregoing, neither any Lender nor the holder of any Note shall have any right of action whatsoever against any Agent-Related Person as a result of such Agent-Related Person acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of the Required Lenders (or where expressly required or permitted by the terms of this Agreement, a greater or other proportion of the Lenders).
Section 9.05     Reliance. (a) Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that such Agent believed in good faith to be the proper Person, and, with respect to all legal matters pertaining to this Agreement and any other Loan Document and its duties hereunder and
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thereunder, upon advice of counsel selected by such Agent (which may include counsel to Holdings or its Subsidiaries).
(b)    For purposes of determining compliance with the conditions specified in Section 4.02 of the Original Credit Agreement with respect to Credit Extensions on the Closing Date or Section 4.01 hereof, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Section 9.06     Indemnification. To the extent an Agent-Related Person is not reimbursed and indemnified by the Borrower, and without relieving the Borrower of its obligation to do so, the Lenders will reimburse and indemnify such Agent-Related Person in proportion to their respective “percentage” as used in determining the Required Lenders (determined as if there were no Defaulting Lenders) for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by such Agent-Related Person in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from an Agent-Related Person’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
Section 9.07      Agents in their Individual Capacities. With respect to its obligation to make Loans, or issue or participate in Letters of Credit, under this Agreement, each Agent shall have the rights and powers specified herein for a “Lender” and may exercise the same rights and powers as though it were not performing the duties specified herein; and the term “Lender,” “Required Lenders,” “Required Pro Rata Lenders,” “Required Revolving Credit Lenders”, “Required Term A-3 Lenders”, “Required Term B-5 Lenders”, “Required Term B-6 Lenders” or any similar terms shall, unless the context clearly indicates otherwise, include each Agent in its respective individual capacities. Each Agent and its affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, investment banking, trust or other business with, or provide debt financing, equity capital or other services (including financial advisory services) to any Loan Party or any Affiliate of any Loan Party (or any Person engaged in a similar business with any Loan Party or any Affiliate thereof) as if they were not performing the duties specified herein, and may accept fees and other consideration from any Loan Party or any Affiliate of any Loan Party for services in connection with this Agreement and otherwise without having to account for the same to the Lenders.
Section 9.08     Holders. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes hereof unless and until a written notice of the assignment, transfer or endorsement thereof, as the case may be, shall have been filed with the Administrative Agent. Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is the holder of any Note shall be conclusive and binding on any subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any Note or Notes issued in exchange therefor.
Section 9.09     Resignation by the Agents. (a) Each of the Administrative Agent and the Collateral Agent may resign from the performance of all its respective functions and duties hereunder and/or under the other Loan Documents at any time by giving fifteen (15) Business Days’ prior written notice to the Lenders and, unless a Default or an Event of Default under Section 8.01(f) or (g) then exists, the Borrower. Any such resignation by an Administrative Agent hereunder shall also constitute its resignation as an L/C Issuer, in which case the resigning Administrative Agent (x) shall not be required to
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issue any further Letters of Credit hereunder upon effectiveness of such resignation and (y) shall maintain all of its rights as an L/C Issuer with respect to any Letters of Credit issued by it prior to the date of such resignation. Such resignation shall take effect upon the appointment of a successor Administrative Agent or successor Collateral Agent, as the case may be, pursuant to clauses (b) and (c) below or as otherwise provided below.
(b)    Upon any such notice of resignation by the Administrative Agent or the Collateral Agent, the Required Lenders shall appoint a successor Administrative Agent or a successor Collateral Agent, as the case may be, hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Borrower, which acceptance shall not be unreasonably withheld or delayed (provided that the Borrower’s approval shall not be required if an Event of Default under Section 8.01(a) or a Default or Event of Default under Section 8.01(f) or (g) then exists).
(c)    If a successor Administrative Agent or a successor Collateral Agent, as the case may be, shall not have been so appointed within such fifteen (15) Business Day period, the Administrative Agent or the Collateral Agent, as the case may be, with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed, provided that the Borrower’s consent shall not be required if an Event of Default then exists), shall then appoint a successor Administrative Agent or a successor Collateral Agent, as the case may be, who shall serve as Administrative Agent or Collateral Agent, as the case may be, hereunder or thereunder until such time, if any, as the Required Lenders appoint a successor Administrative Agent or a successor Collateral Agent, as the case may be, as provided above.
(d)    If no successor Administrative Agent or Collateral Agent, as the case may be, has been appointed pursuant to clause (b) or (c) above by the twentieth (20th) Business Day after the date such notice of resignation was given by the Administrative Agent or the Collateral Agent, as the case may be, the Administrative Agent’s resignation or the Collateral Agent’s resignation, as the case may be, shall become effective and the Required Lenders shall thereafter perform all the duties of the Administrative Agent or the Collateral Agent, as the case may be, hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided above.
(e)    Upon a resignation of the Administrative Agent or the Collateral Agent pursuant to this Section 9.09, the Administrative Agent or the Collateral Agent, as the case may be, shall remain indemnified to the extent provided in this Agreement and the other Loan Documents and the provisions of this Article IX (and the analogous provisions of the other Loan Documents) shall continue in effect for the benefit of the Administrative Agent or the Collateral Agent, as the case may be, for all of its actions and inactions while serving as the Administrative Agent or the Collateral Agent, as the case may be.
Section 9.10     Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower or the Collateral Agent) shall be (to the fullest extent permitted by mandatory provisions of applicable Law) entitled and empowered, by intervention in such proceeding or otherwise:
(a)    to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Collateral Agent and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the
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Collateral Agent and the Administrative Agent and their respective agents and counsel and all other amounts due to the Lenders, the Collateral Agent and the Administrative Agent under Sections 2.03(h) and (i), 2.09 and 10.04) allowed in such judicial proceeding; and
(b)    to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, curator, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent or the Collateral Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent or the Collateral Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Administrative Agent or the Collateral Agent under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
Section 9.11     Collateral and Guaranty Matters. (a) Each Lender authorizes and directs the Collateral Agent to enter into the Collateral Documents for the benefit of the Lenders and the other Secured Parties. Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders in accordance with the provisions of this Agreement or the Collateral Documents, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to the occurrence and continuance of an Event of Default, to take any action with respect to any Collateral or Collateral Documents which may be necessary to create, perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Collateral Documents.
(b)    The Lenders hereby authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon termination of the Aggregate Commitments and payment and satisfaction of all of the Obligations (other than contingent obligations not then due and payable) at any time arising under or in respect of this Agreement or the Loan Documents or the transactions contemplated hereby or thereby, (ii) constituting property being sold or otherwise disposed of (to Persons other than a Loan Party) upon the sale or other disposition thereof in compliance with Section 7.05, (iii) if approved, authorized or ratified in writing by the Required Lenders (or all of the Lenders hereunder, to the extent required by Section 10.01), (iv) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (e) below, or (v) as otherwise may be expressly provided in the relevant Collateral Documents. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 9.11.
(c)    The Collateral Agent shall have no obligation whatsoever to the Lenders or to any other Person to assure that the Collateral exists or is owned by any Loan Party or is cared for, protected or insured or that the Liens granted to the Collateral Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of
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care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 9.11 or in any of the Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to the Lenders, except for its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(d)    The Collateral Agent is authorized to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document on any assets that are excluded from the Collateral.
(e)    The Lenders irrevocably agree that any Guarantor shall be automatically released from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary or becomes an Excluded Subsidiary (other than pursuant to (i) clause (a) of the definition thereof unless such Restricted Subsidiary ceases to be a Restricted Subsidiary or (ii) clause (b) of the definition thereof unless, in the case of this subclause (ii), the Borrower delivers a written request to the Administrative Agent for such release and no Default or Event of Default has occurred and is continuing at such time) as a result of a transaction or designation permitted hereunder; provided that no such release shall occur if such Guarantor continues to be a guarantor in respect of the Senior Notes or any Junior Financing.
(f)    (x) The Collateral Agent may, without any further consent of any Lender, enter into or amend an intercreditor agreement with the collateral agent or other representatives of the holders of Indebtedness that is permitted to be secured by a Lien on the Collateral ranking junior to the Lien securing the Obligations that is permitted by Section 7.03, (y) the Collateral Agent may rely exclusively on a certificate of a Responsible Officer of the Borrower as to whether any such other Liens are permitted and (z) any intercreditor agreement entered into by the Collateral Agent shall be binding on the Secured Parties.
Upon request by the Administrative Agent or the Collateral Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s or the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.11. In each case as specified in this Section 9.11, the Administrative Agent or the Collateral Agent will (and each Lender irrevocably authorizes the Administrative Agent and the Collateral Agent to), at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as the Borrower may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to evidence the release of such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.11.
Section 9.12     Delivery of Information. No Agent shall be required to deliver to any Lender originals or copies of any documents, instruments, notices, communications or other information received by the Administrative Agent from any Loan Party, any Subsidiary, the Required Lenders, any Lender or any other Person under or in connection with this Agreement or any other Loan Document except (i) as specifically provided in this Agreement or any other Loan Document and (ii) as specifically requested from time to time in writing by any Lender with respect to a specific document, instrument, notice or other written communication received by and in the possession of such Agent at the time of receipt of such request and then only in accordance with such specific request.
Section 9.13     Appointment of Supplemental Agents. (a) It is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any Law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or
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trustee in such jurisdiction. It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative Agent or the Collateral Agent deems that by reason of any present or future Law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, the Administrative Agent and the Collateral Agent are hereby authorized to appoint an additional individual or institution selected by the Administrative Agent or the Collateral Agent in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral agent, administrative sub-agent or administrative co-agent (any such additional individual or institution being referred to herein individually as a “Supplemental Agent” and collectively as “Supplemental Agents”).
(b)    In the event that the Collateral Agent appoints a Supplemental Agent with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Collateral Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Agent to the extent, and only to the extent, necessary to enable such Supplemental Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by such Supplemental Agent shall run to and be enforceable by either the Collateral Agent or such Supplemental Agent, and (ii) the provisions of this Article IX and of Sections 10.04 and 10.05 that refer to the Administrative Agent shall inure to the benefit of such Supplemental Agent and all references therein to the Collateral Agent shall be deemed to be references to the Collateral Agent and/or such Supplemental Agent, as the context may require.
(c)    Should any instrument in writing from any Loan Party be required by any Supplemental Agent so appointed by the Administrative Agent or the Collateral Agent for more fully and certainly vesting in and confirming to it or its such rights, powers, privileges and duties, such Loan Party shall execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent or the Collateral Agent. In case any Supplemental Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Agent.
Section 9.14     Withholding Tax Indemnity. To the extent required by any applicable Law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any other authority of the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrower pursuant to Section 3.01 and Section 3.04 and without limiting or expanding the obligation of the Borrower to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as Taxes or otherwise, together with all expenses incurred, including legal expenses and any other out-of-pocket expenses, whether or not such tax was correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. The agreements in this Section 9.14 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Agreement and the repayment, satisfaction or discharge of all other Obligations.
Section 9.15     Certain ERISA Matters.
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(a)    Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, that at least one of the following is and will be true:
(i)    such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement,,
(ii)    the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iii)    (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement.
(b)    In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
ARTICLE X

Miscellaneous
Section 10.01     Amendments, Etc. Except as otherwise set forth in this Agreement, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders, the Borrower and the Guarantors and each such waiver or consent shall be effective only in the
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specific instance and for the specific purpose for which given; provided that, no such amendment, waiver or consent shall:
(a)    extend or increase the Commitment of any Lender without the written consent of each Lender holding such Commitment (it being understood that a waiver of any condition precedent or of any Default or Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender);
(b)    postpone any date scheduled for, or reduce or forgive the amount of, any payment of principal or interest under Section 2.07 or 2.08 without the written consent of each Lender directly affected thereby (it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest and it being understood that any change to the definition of “Senior Secured Net Leverage Ratio” or “Total Net Leverage Ratio” or in the component definitions thereof shall not constitute a reduction or forgiveness in any rate of interest);
(c)    reduce or forgive the principal of, or the rate of interest specified herein on, any Loan, or L/C Borrowing, or (subject to clause (iii) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document (or postpone the timing of payments of such fees or other amounts) without the written consent of each Lender directly affected thereby (it being understood that any change to the definition of “Senior Secured Net Leverage Ratio” or “Total Net Leverage Ratio” or in the component definitions thereof shall not constitute a reduction or forgiveness in any rate of interest); provided that, only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate (including any incremental interest accrued as a result of the application of the Default Rate);
(d)    change any provision of this Section 10.01 or the definitions of “Required Lenders”, “Required Pro Rata Lenders,” “Required Revolving Credit Lenders”, “Required Term A-3 Lenders” or, “Required Term B-5 Lenders” or “Required Term B-6 Lenders” without the written consent of each Lender directly adversely affected, Section 8.04 or, following an exercise of remedies pursuant to Section 8.02(a), the definition of “Pro Rata Share” or Section 2.12(a), 2.12(g) or 2.13 without the written consent of each Lender directly and adversely affected thereby; provided that modifications to Section 2.12(a), 2.12(g), 2.13 or 8.04 or the definition of “Pro Rata Share” in connection with any purchase of Term Loans by Holdings or the Borrower pursuant to Section 10.07(n) shall only require approval (to the extent such approval is otherwise required) of the Required Lenders;
(e)    other than in connection with a transaction permitted under Section 7.04 or 7.05, release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender;
(f)    other than in connection with a transaction permitted under Section 7.04 or 7.05, release all or substantially all of the aggregate value of the Guarantees, without the written consent of each Lender; or
(g)    without the written consent of the relevant Required Term A-3 Lenders, Required Term B-5 Lenders, Required Term B-6 Lenders and/or Required Revolving Credit Lenders adversely affected thereby, waive or modify any mandatory prepayment with respect to such
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Class of Loans or any rights in respect of Collateral in a manner different than any other Class of Loans;
and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by each L/C Issuer in addition to the Lenders required above, affect the rights or duties of an L/C Issuer under this Agreement or any Letter of Credit Request relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent or the Collateral Agent, as applicable, in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent or the Collateral Agent, as applicable, under this Agreement or any other Loan Document; (iii) Section 10.07(h) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification; (iv) only the consent of the Required Pro Rata Lenders shall be necessary to amend or waive the terms and provisions of Sections 7.11, 8.02(b) and 8.05 (and related definitions as used in such Sections, but not as used in other Sections of this Agreement); and (v) no Lender consent is required to effect a Refinancing Amendment (except as expressly provided in Section 2.16) or to effect any amendment expressly contemplated by Section 7.12.
Notwithstanding the foregoing, no Lender consent is required to effect any amendment, modification or supplement to any intercreditor agreement or arrangement permitted under this Agreement or in any document pertaining to any Indebtedness permitted hereby that is permitted to be secured by the Collateral, including any Permitted Pari Passu Refinancing Debt or any Permitted Junior Refinancing Debt, for the purpose of adding the holders of such Indebtedness (or their Representative) as a party thereto and otherwise causing such Indebtedness to be subject thereto, in each case as contemplated by the terms of such intercreditor agreement or arrangement permitted under this Agreement, as applicable (it being understood that any such amendment or supplement may make such other changes to the applicable intercreditor agreement as, in the good faith determination of the Administrative Agent, are required to effectuate the foregoing and provided that such other changes are not adverse, in any material respect (taken as a whole), to the interests of the Lenders); provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent.
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, the Borrower and the Guarantors (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Credit Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, Holdings, the Borrower and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans under a given Term Facility, (the “Refinanced Term Loans”) with a replacement term loan tranche denominated in Dollars (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount (or accreted value, if applicable) of such Replacement Term Loans shall not exceed the aggregate principal amount (or accreted value, if applicable) of such Refinanced Term Loans (plus any accrued interest, fees, expenses, original issue discount or other amounts paid), (b) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of Replacement Term Loans shall not be shorter than the
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Weighted Average Life to Maturity of such Refinanced Term Loans, at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prior prepayments of the Refinanced Term Loans) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans, in effect immediately prior to such refinancing.
Anything herein to the contrary notwithstanding, during such period as a Lender is a Defaulting Lender, to the fullest extent permitted by applicable law, such Lender will not be entitled to vote in respect of amendments, waivers and consents hereunder and the Commitment and the outstanding Loans or other extensions of credit of such Lender hereunder will not be taken into account in determining whether the Required Lenders, Required Pro Rata Lenders, the Required Revolving Credit Lenders, the Required Term A-3 Lenders, the Required Term B-5 Lenders, the Required Term B-6 Lenders or all of the Lenders, as required, have approved any such amendment, waiver or consent (and the definitions of “Required Lenders”, “Required Pro Rata Lenders”, “Required Revolving Credit Lenders”, “Required Term A-3 Lenders” and, “Required Term B-5 Lenders” and “Required Term B-6 Lenders” will automatically be deemed modified accordingly for the duration of such period); provided that any such amendment or waiver that would increase or extend the term of the Commitment of such Defaulting Lender, extend the date fixed for the payment of principal or interest owing to such Defaulting Lender hereunder, reduce the principal amount of any obligation owing to such Defaulting Lender, reduce the amount of or the rate or amount of interest on any amount owing to such Defaulting Lender or of any fee payable to such Defaulting Lender hereunder, require the consent of all Lenders or each directly and adversely affected Lender that by its terms materially and adversely affects any Defaulting Lender to a greater extent than other affected Lenders, or alter the terms of this proviso, will require the consent of such Defaulting Lender. In addition, to the extent any Defaulting Lender has defaulted on any amounts owing to the Borrower hereunder, the Borrower shall be entitled to offset any amounts the Borrower owes the Defaulting Lender with such unpaid amounts.
Notwithstanding anything to the contrary contained in this Section 10.01, Holdings, the Borrower and the Administrative Agent may without the input or consent of the Lenders, effect amendments to this Agreement and the other Loan Documents as may be necessary or appropriate in the opinion of the Administrative Agent to effect the provisions of Section 2.14 or 2.15.
Notwithstanding anything to the contrary contained in this Section 10.01, guarantees, collateral security documents and related documents executed by Subsidiaries in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be, together with this Agreement, amended, supplemented and waived with the consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any other Lender if such amendment, supplement or waiver is delivered in order (i) to comply with local Law or advice of local counsel, (ii) to cure ambiguities, omissions, mistakes or defects or (iii) to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan Documents.
Section 10.02     Notices and Other Communications; Facsimile Copies.
(a)    General. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or under any other Loan Document shall be in writing (including by facsimile transmission). All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
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(i)    if to Holdings, the Borrower or the Administrative Agent, the Collateral Agent or an L/C Issuer, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and
(ii)    if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to Holdings, the Borrower and the Administrative Agent, the Collateral Agent or an L/C Issuer.
All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of Section 10.02(d)), when delivered; provided that notices and other communications to the Administrative Agent, the Collateral Agent and an L/C Issuer pursuant to Article II shall not be effective until actually received by such Person. In no event shall a voice mail message be effective as a notice, communication or confirmation hereunder.
(b)    Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted and/or signed by facsimile or other electronic communication. The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually signed originals and shall be binding on all Loan Parties, the Agents and the Lenders.
(c)    Reliance by Agents and Lenders. The Administrative Agent, the Collateral Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify each Agent-Related Person and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower in the absence of gross negligence, bad faith or willful misconduct as determined in a final and non-appealable judgment by a court of competent jurisdiction. All telephonic notices to the Administrative Agent or Collateral Agent may be recorded by the Administrative Agent or the Collateral Agent, and each of the parties hereto hereby consents to such recording.
(d)    Electronic Communications. Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or L/C Issuer pursuant to Article II if such Lender or L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. Each of the Administrative Agent, Holdings or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as
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available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
Section 10.03     No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent or the Collateral Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.
Section 10.04     Attorney Costs and Expenses. The Borrower agrees (a) if the Closing Date occurs, to pay or reimburse the Administrative Agent and the Collateral Agent for all reasonable out-of-pocket costs and expenses incurred in connection with the preparation, negotiation, syndication and execution of this Agreement and the other Loan Documents, and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby (including all Attorney Costs, which shall be limited to White & Case LLP (and one local counsel in each material jurisdiction and, in the event of a conflict of interest, one additional counsel of each type to the affected parties)) and (b) from and after the Closing Date, to pay or reimburse the Administrative Agent, the Collateral Agent and each Lender for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and including all respective Attorney Costs, which shall be limited to Attorney Costs of one counsel to the Administrative Agent and the Arrangers collectively and one counsel to the other Lenders (and one local counsel in each applicable jurisdiction and, in the event of any conflict of interest, one additional counsel of each type to the affected parties)). The foregoing costs and expenses shall include all reasonable search, filing, recording and title insurance charges and fees related thereto, and other reasonable out-of-pocket expenses incurred by any Agent. The agreements in this Section 10.04 shall survive the termination of the Aggregate Commitments and repayment of all other Obligations. All amounts due under this Section 10.04 shall be paid within fifteen (15) Business Days of receipt by the Borrower of an invoice relating thereto setting forth such expenses in reasonable detail; provided that, with respect to the Closing Date, all amounts due under this Section 10.04 shall be paid on the Closing Date solely to the extent invoiced to the Borrower within three (3) Business Days of the Closing Date. If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by the Administrative Agent in its sole discretion.
Section 10.05     Indemnification by the Borrower. Whether or not the transactions contemplated hereby are consummated, from and after the Closing Date, the Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, and directors, officers, employees, agents, trustees and attorneys-in-fact of each of the foregoing (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs which shall be limited to Attorney Costs of one counsel to the Administrative Agent and the Arrangers and one
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counsel to the other Lenders (and solely in the event of any actual conflict of interest, one additional counsel in each applicable material jurisdiction to the affected Persons, taken as a whole)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit, or (c) any actual or alleged presence or Release of Hazardous Materials at, on, under or from any property or facility currently or formerly owned, leased or operated by the Loan Parties or any Subsidiary, or any Environmental Liability related in any way to any Loan Parties or any Subsidiary, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”) in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that, notwithstanding the foregoing, such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Indemnitee, as determined by the final non-appealable judgment of a court of competent jurisdiction, (y) a material breach of its obligations under the Loan Documents by such Indemnitee or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Indemnitee as determined by the final non-appealable judgment of a court of competent jurisdiction or (z) any dispute solely among Indemnitees other than claims against any Initial Lender in its capacity or in fulfilling its role as Administrative Agent or arranger or any other similar role hereunder and other than claims arising out of any act or omission on the part of the Loan Parties or their Subsidiaries. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or the Borrower or any Subsidiary have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) except, in the case of the Borrower and its Subsidiaries, to the extent such damages would otherwise be subject to indemnification pursuant to the terms of this Section 10.05. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, any Subsidiary of any Loan Party, any Loan Party’s directors, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents are consummated. All amounts due under this Section 10.05 shall be paid within fifteen (15) Business Days after written demand therefor (including documentation reasonably supporting such request; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent or the Collateral Agent, the replacement of, or assignment of rights by, any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, any indemnification relating to Taxes, other than Taxes resulting from any non-Tax claim, shall be covered by Sections 3.01 and 3.04 and shall not be covered by this Section 10.05.
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Section 10.06     Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to any Agent or any Lender, or any Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall, to the fullest extent possible under provisions of applicable Law, be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect.
Section 10.07     Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (except as permitted by Section 7.04) and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee and in the case of any Assignee that is Parent, Holdings or any of its Subsidiaries, pursuant to Section 10.07(n), (ii) by way of participation in accordance with the provisions of Section 10.07(e), (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.07(g) or (iv) to an SPC in accordance with the provisions of Section 10.07(h) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 10.07(e) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)    (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (“Assignees”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this Section 10.07(b), participations in L/C Obligations at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:
(A)    the Borrower, provided that no consent of the Borrower shall be required for (i) an assignment of all or a portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund, (ii) an assignment related to Revolving Credit Commitments or Revolving Credit Exposure to a Revolving Credit Lender or an Affiliate of a Revolving Credit Lender or an Approved Fund of a Revolving Credit Lender or (iii) if an Event of Default under Section 8.01(a), (f) or (g) has occurred and is continuing, any Assignee;
(B)    the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment (i) of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund or (ii) of all or any portion of the Loans made pursuant to Section 10.07(n); and
(C)    each Principal L/C Issuer at the time of such assignment, provided that no consent of the Principal L/C Issuers shall be required for any assignment not related to Revolving Credit Commitments or Revolving Credit Exposure or any assignment to an Agent or an Affiliate of an Agent.
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Notwithstanding the foregoing or anything to the contrary set forth herein, (x) except pursuant to the provisions of Sections 2.05(c) and 10.07(n), no assignment of any Loans or Commitments may be made to Holdings, any Subsidiary of Holdings or any Competitor and (y) any assignment of any Loans or Commitments to the Sponsor shall also be subject to the requirements set forth in Section 10.07(k).
(ii)    Assignments shall be subject to the following additional conditions:
(A)    except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than an amount of $5,000,000 (in the case of each Revolving Credit Loan) or $1,000,000 (in the case of a Term Loan), and shall be in increments of an amount of $1,000,000 in excess thereof unless each of the Borrower and the Administrative Agent otherwise consents, provided that such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;
(B)    the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that the Administrative Agent, in its sole discretion, may elect to waive such processing and recordation fee;
(C)    other than in the case of assignments pursuant to Section 10.07(n), the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and
(D)    on or before the date on which it becomes a party to this Agreement, the Assignee shall deliver to the Borrower and the Administrative Agent the forms or certifications, as applicable, described in Section 3.01(d), to the extent required thereby.
This paragraph (b) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis among such Facilities.
(c)    Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.07(d), from and after the effective date specified in each Assignment and Assumption, (i) (other than in connection with an assignment pursuant to Section 10.07(n)) the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and (ii) the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, and the surrender by the assigning Lender of its Note, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (c) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.07(e).
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(d)    The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it, each notice of cancellation of any Loans delivered by the Borrower pursuant to Section 10.07(n) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related interest amounts) of the Loans, L/C Obligations (specifying the Unreimbursed Amounts), L/C Borrowings and the amounts due under Section 2.03, owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, any Agent and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(e)    Any Lender may at any time sell participations to any Person (other than a natural person, Holdings, any Subsidiary of Holdings or any Competitor) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Loan Parties, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that requires the affirmative vote of such Lender. Subject to Section 10.07(f), the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations of such Sections, including the requirement to provide the forms and certificates pursuant to and otherwise comply with Section 3.01(d)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(c) (it being understood that the documentation required under Section 3.01(d) shall be delivered to the participating Lender)). To the extent permitted by applicable Law, each Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender to the extent the Borrower has received notice of such participation; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. The Participant Register shall be available for inspection by the Borrower and any Agent, at any reasonable time and from time to time upon reasonable notice. The Loan Parties and the Sponsor (by its acquisition of a participation in any Lender’s rights and/or obligations under this Agreement) hereby agree that if a case under Title 11 of the United States Code is commenced against any Loan Party, to the extent that the Sponsor would have the right to direct any Participant with respect to any vote with respect to any plan of reorganization with respect to any Loan Party (or to directly vote on such plan of reorganization) as a result of any participation taken by the Sponsor pursuant to this Section 10.07(e), such Loan Party shall seek (and the Sponsor shall consent) to provide that the vote of the Sponsor (in its capacity as a Participant) with respect to any plan of reorganization of such Loan Party shall not be counted except that the Sponsor’s vote (in its capacity as a Participant) may be counted to the extent any such plan of reorganization proposes to treat the
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participation in any Obligations held by the Sponsor in a manner that is less favorable in any material respect to the Sponsor than the proposed treatment of similar Obligations held by Lenders or Participants that are not Affiliates of the Borrower. The Sponsor hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as the Sponsor’s attorney-in-fact, with full authority in the place and stead of the Sponsor and in the name of the Sponsor, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this paragraph.
(f)    A Participant shall not be entitled to receive any greater payment under Section 3.01, 3.04 or 3.05 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent.
(g)    Any Lender may, without the consent of the Borrower or the Administrative Agent, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h)    Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. Each party hereto hereby agrees that (i) an SPC shall be entitled to the benefit of Sections 3.01, 3.04 and 3.05 (subject to the requirements and the limitations of such Sections, including the requirement to provide the forms and certificates pursuant to and otherwise comply with Section 3.01(d)), but neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement, unless the grant to the SPC was made with the prior written consent of the Borrower, not to be unreasonably withheld or delayed (for the avoidance of doubt, the Borrower shall have reasonable basis for withholding consent if an exercise by SPC immediately after the grant would result in materially increased indemnification obligation to the Borrower at such time or material additional costs), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Borrower and the Administrative Agent and with the payment of a processing fee of $3,500, assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.
(i)    Notwithstanding anything to the contrary contained herein, without the consent of the Borrower or the Administrative Agent, (1) any Lender may in accordance with applicable Law create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it and (2) any Lender that is a Fund may create a security interest in all or any portion of the Loans owing to it
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and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 10.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.
(j)    Notwithstanding anything to the contrary contained herein, any L/C Issuer may, upon thirty (30) days’ notice to the Borrower and the Lenders, resign as an L/C Issuer; provided that on or prior to the expiration of such 30-day period with respect to such resignation, the relevant L/C Issuer shall have identified a successor L/C Issuer reasonably acceptable to the Borrower willing to accept its appointment as successor L/C Issuer. In the event of any such resignation of an L/C Issuer, the Borrower shall be entitled to appoint from among the Lenders willing to accept such appointment a successor L/C Issuer hereunder; provided that no failure by the Borrower to appoint any such successor shall affect the resignation of the relevant L/C Issuer except as expressly provided above. If an L/C Issuer resigns as an L/C Issuer, it shall retain all the rights and obligations of an L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).
(k)    (i) Notwithstanding anything else to the contrary contained in this Agreement, any Lender may assign all or a portion of its Term Loans to the Sponsor in accordance with Section 10.07(b); provided that:
(A)    no Default or Event of Default has occurred or is continuing or would result therefrom;
(B)    the assigning Lender and the Sponsor shall execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit M hereto (an “Affiliated Lender Assignment and Assumption”) in lieu of an Assignment and Assumption;
(C)    for the avoidance of doubt, Lenders shall not be permitted to assign Revolving Credit Commitments or Revolving Credit Loans to the Sponsor; and
(D)    no Term Loan may be assigned to the Sponsor pursuant to this Section 10.07(k), if after giving effect to such assignment, the Sponsor in the aggregate would own in excess of 15.0% of all Term Loans then outstanding.
(ii)    Notwithstanding anything to the contrary in this Agreement, the Sponsor shall not have any right to (i) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Loan Parties are not invited, (ii) receive any information or material prepared by Administrative Agent or any Lender or any communication by or among Administrative Agent and/or one or more Lenders, except to the extent such information or materials have been made available to any Loan Party or its representatives (and in any case, other than the right to receive notices of prepayments and other administrative notices in respect of its Loans required to be delivered to Lenders pursuant to Article II), or (iii) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents
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(l)    Notwithstanding anything in Section 10.01 or the definition of “Required Lenders”, “Required Class Lenders”, “Required Pro Rata Lenders”, “Required Term A-3 Lenders” or, “Required Term B-5 Lenders” or “Required Term B-6 Lenders” to the contrary, for purposes of determining whether the Required Lenders, Required Class Lenders, Required Pro Rata Lenders, Required Term A-3 Lenders or, Required Term B-5 Lenders or Required Term B-6 Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document, or (iii) directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document all Term Loans held by the Sponsor shall be deemed to be not outstanding for all purposes of calculating whether the Required Lenders, Required Class Lenders, Required Pro Rata Lenders, Required Term A-3 Lenders or, Required Term B-5 Lenders or Required Term B-6 Lenders have taken any actions.
Additionally, the Loan Parties and the Sponsor hereby agree that if a case under Title 11 of the United States Code is commenced against any Loan Party, such Loan Party shall seek (and the Sponsor shall consent) to provide that the vote of the Sponsor (in its capacity as a Lender) with respect to any plan of reorganization of such Loan Party shall not be counted except that the Sponsor’s vote (in its capacity as a Lender) may be counted to the extent any such plan of reorganization proposes to treat the Obligations held by the Sponsor in a manner that is less favorable in any material respect to the Sponsor than the proposed treatment of similar Obligations held by Lenders that are not Affiliates of the Borrower. The Sponsor hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as the Sponsor’s attorney-in-fact, with full authority in the place and stead of the Sponsor and in the name of the Sponsor, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this paragraph.
(m)    By purchasing any participation or assignment pursuant to this Section 10.07 after the Closing Date, each Participant or Lender shall be deemed to represent that it is not a Competitor (which representation may be conclusively relied upon by the participating or assigning Lender in consummating such participation or assignment).
(n)    Any Lender may, so long as no Event of Default has occurred and is continuing, at any time, without any consent, assign all or a portion of its rights and obligations with respect to Term Loans under this Agreement to Parent, Holdings or the Borrower through (x) Dutch auctions open to all Lenders on a pro rata basis in accordance with procedures of the type described in Section 2.05(c) or (y) notwithstanding Sections 2.12 and 2.13 or any other provision in this Agreement, open market purchase on a non-pro rata basis, in each case subject to the following:
(i)    if Parent or Holdings is the assignee, upon such assignment, transfer or contribution, such entity shall automatically be deemed to have contributed the principal amount of such Term Loans, plus all accrued and unpaid interest thereon, to the Borrower as common equity;
(ii)    if the Borrower or a Subsidiary thereof is the assignee (including through contribution or transfers set forth in clause (i) above), (a) the principal amount of such Term Loans, along with all accrued and unpaid interest thereon, so contributed, assigned or transferred to the Borrower shall be deemed automatically cancelled and extinguished on the date of such contribution, assignment or transfer, (b) the aggregate outstanding principal amount of Term Loans of the remaining Lenders shall reflect such cancellation and extinguishment of the Term Loans then held by the Borrower and (c) the Borrower shall promptly provide notice to the Administrative Agent of such contribution, assignment or
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transfer of such Term Loans, and the Administrative Agent, upon receipt of such notice, shall reflect the cancellation of the applicable Term Loans in the Register; and
(iii)    purchases of Term Loans pursuant to this Section 10.07(n) may not be funded with the proceeds of Revolving Credit Loans.
Each Lender participating in any assignment to Parent, Holdings or the Borrower acknowledges and agrees that in connection with such assignment, (1) Parent, Holdings or the Borrower then may have, and later may come into possession of Excluded Information, (2) such Lender has independently and, without reliance on Parent, Holdings, the Borrower or any of their Subsidiaries, the Administrative Agent or any other Agent-Related Persons, made its own analysis and determination to participate in such assignment notwithstanding such Lender’s lack of knowledge of the Excluded Information, (3) none of Parent, Holdings, the Borrower or their respective Subsidiaries, the Administrative Agent or any other Agent-Related Persons shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against Parent, Holdings, the Borrower and their respective Subsidiaries, the Administrative Agent and any other Agent-Related Persons, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information and (4) that the Excluded Information may not be available to the Administrative Agent or the other Lenders.
The aggregate outstanding principal amount of the Term Loans of the applicable Class shall be deemed reduced by the full par value of the aggregate principal amount of the Term Loans purchased by, or contributed to (in each case, and subsequently cancelled hereunder), Parent, Holdings or its Subsidiaries pursuant to this Section 10.07(n) and each principal repayment installment with respect to the Term Loans of such Class pursuant to Section 2.07(a) shall be reduced pro rata by the par value of the aggregate principal amount of Term Loans so purchased or contributed (and subsequently cancelled).
Any purchase of Term Loans pursuant to this Section 10.07(n) shall not constitute voluntary or mandatory payment or prepayment under this Agreement.
Section 10.08     Confidentiality. Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information, except that Information may be disclosed (a) to its Affiliates and its and its Affiliates’ managers, administrators, directors, officers, employees, trustees, partners, investors, investment advisors and agents, including accountants, legal counsel and other advisors (other than Excluded Affiliates) solely for evaluating the Transaction and negotiating, making available, syndicating, evaluation and administering this Agreement (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential and such Agent or the respective Lender, as the case may be, shall be liable for any breach thereof); (b) to the extent requested by any Governmental Authority or self regulatory authority having or asserting jurisdiction over such Person (including any Governmental Authority regulating any Lender or its Affiliates); (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process (in which case you agree, to the extent permitted by applicable law, to inform us promptly thereof prior to such disclosure so that a protective order or other appropriate remedy may be sought); (d) to any other party to this Agreement; (e) subject to an agreement containing provisions substantially the same as those of this Section 10.08 (or as may otherwise be reasonably acceptable to the Borrower and allowing the Borrower to rely on and be a third party beneficiary of such agreement), to any pledgee referred to in Section 10.07(g), counterparty to a Swap Contract, Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in any of its rights or obligations under this Agreement; (f) with the written consent of the Borrower; (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 10.08 or becomes available to the Administrative Agent, any Arranger, any Lender, any L/C Issuer or any of their respective Affiliates on a non-confidential basis from a source other than a Loan
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Party or the Sponsor or their respective related parties (so long as such source is not known to the Administrative Agent, such Arranger, such Lender, such L/C Issuer or any of their respective Affiliates to be bound by confidentiality obligations to any Loan Party); (h) to any Governmental Authority or examiner (including the National Association of Insurance Commissioners or any other similar organization) regulating any Lender; (i) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to Loan Parties and their Subsidiaries received by it from such Lender) or to the CUSIP Service Bureau or any similar organization; or (j) in connection with the exercise of any remedies hereunder, under any other Loan Document or the enforcement of its rights hereunder or thereunder. In addition, the Agents and the Lenders may disclose the existence of this Agreement and publicly available information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Credit Extensions. For the purposes of this Section 10.08, “Information” means all information received from the Loan Parties relating to any Loan Party, its Affiliates or its Affiliates’ directors, managers, officers, employees, trustees, investment advisors or agents, relating to Holdings, the Borrower or any of their Subsidiaries or its business, other than any such information that is publicly available to any Agent, any L/C Issuer or any Lender prior to disclosure by any Loan Party other than as a result of a breach of this Section 10.08.
Section 10.09     Setoff. In addition to any rights and remedies of the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, each Lender and its Affiliates (and the Collateral Agent, in respect of any unpaid fees, costs and expenses payable hereunder) is authorized at any time and from time to time, without prior notice to the Borrower, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and each of its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, but excluding any trust, payroll, tax withholding, employee benefits or other fiduciary accounts) at any time held by, and other Indebtedness at any time owing by, such Lender and its Affiliates or the Collateral Agent to or for the credit or the account of the respective Loan Parties and their Subsidiaries against any and all Obligations owing to such Lender and its Affiliates or the Collateral Agent hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness; provided, however, that to the extent prohibited by applicable law as described in the definition of “Excluded Swap Obligation,” no amounts received from, or set off with respect to, any Guarantor shall be applied to any Excluded Swap Obligations of such Guarantor. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, the Collateral Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, the Collateral Agent and such Lender may have at Law.
Section 10.10     Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread
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in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
Section 10.11     Counterparts. This Agreement and each other Loan Document may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or electronic mail of an executed counterpart of a signature page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document. The Agents may also require that any such documents and signatures delivered by telecopier or electronic mail be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier or electronic mail.
Section 10.12     Integration; Termination. This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Agents or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.
Section 10.13     Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
Section 10.14     Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.14, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent or any L/C Issuer, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
Section 10.15     Governing Law. THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
ANY LEGAL ACTION OR PROCEEDING ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN
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DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH LOAN PARTY, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS IN THE MANNER PROVIDED FOR NOTICES (OTHER THAN TELECOPIER) IN SECTION 10.02. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
Section 10.16     Waiver of Right to Trial by Jury. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.16 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 10.17     Binding Effect. This Agreement shall become effective when it shall have been executed and delivered by the Loan Parties and the Administrative Agent shall have been notified by each Lender and L/C Issuer that each such Lender and L/C Issuer has executed it and thereafter shall be binding upon and inure to the benefit of the Loan Parties, each Agent and each Lender and their respective successors and assigns, in each case in accordance with Section 10.07 (if applicable) and except that no Loan Party shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders except as permitted by Section 7.04.
Section 10.18     USA Patriot Act. Each Lender that is subject to the USA Patriot Act or the Beneficial Ownership Regulation and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name, address and tax identification number of the Borrower and other information regarding the Borrower that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the USA Patriot Act or the Beneficial Ownership Regulation. This notice is given in accordance with the requirements of the USA Patriot Act and the Beneficial Ownership Regulation and is effective as to the Lenders and the Administrative Agent.
Section 10.19     No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby, each Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that (i) the facilities provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction
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between the Borrower and its Affiliates, on the one hand, and the Agents, the Arrangers and the Lenders, on the other hand, and the Borrower is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof), (ii) in connection with the process leading to such transaction, each of the Agents, the Arrangers and the Lenders is and has been acting solely as a principal and except as expressly agreed in writing by the relevant parties, is not the financial advisor, agent or fiduciary, for the Borrower or any of its Affiliates, stockholders, creditors or employees or any other Person, (iii) none of the Agents, the Arrangers or the Lenders has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower with respect to any of the transactions contemplated hereby or the process leading thereto except as expressly agreed in writing by the relevant parties, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether any Agent or Lender has advised or is currently advising the Borrower or any of its Affiliates on other matters) and none of the Agents, the Arrangers or the Lenders has any obligation to the Borrower or any of its Affiliates with respect to the financing transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents, (iv) the Agents, the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from, and may conflict with, those of the Borrower and its Affiliates, and none of the Agents, the Arrangers or the Lenders has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship and (v) the Agents, the Arrangers and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate.
Section 10.20     Schedules and Exhibits.
(a)    Subject to Section 10.20(b), all schedules and exhibits to the Original Credit Agreement, as amended, amended and restated or otherwise modified from time to time, are hereby incorporated as schedules and exhibits hereto.
(b)    Each of Exhibits A, D-2, J, K and L to the Credit Agreement are hereby amended and new Exhibit D-6 has been added, in each case as set forth in Exhibit B attached to Amendment No. 18. Exhibit D-7 to the Credit Agreement has been added as set forth in Exhibit C attached to Amendment No. 19 and Schedule 2.08(g) to the Credit Agreement has been added as set forth in Exhibit D attached to Amendment No. 19.
Section 10.21     Effect of Amendment and Restatement. It is the intention of each of the parties hereto that the Second Amended and Restated Credit Agreement (as amended prior to the Amendment No. 13 Effective Date), which is an amendment and restatement of the First Amended and Restated Credit Agreement, and which was an amendment and restatement of the Original Credit Agreement, be further amended and restated so as to preserve the perfection and priority of all security interests securing indebtedness and obligations under the Original Credit Agreement, the First Amended and Restated Credit Agreement and the Second Amended and Restated Credit Agreement and that all Indebtedness and Obligations of the Loan Parties hereunder and thereunder shall be secured by the Collateral Documents and that the Third Amended and Restated Credit Agreement does not constitute a novation of the obligations and liabilities existing under the Original Credit Agreement, the First Amended and Restated Credit Agreement or the Second Amended and Restated Credit Agreement; provided that all Loans, Letters of Credit or other Credit Extensions outstanding under the Original Credit Agreement, the First Amended and Restated Credit Agreement and the Second Amended and Restated Credit Agreement shall continue as Loans, Letters of Credit or other Credit Extensions, as applicable, under the Third Amended and Restated Credit Agreement. Upon the effectiveness of the Third Amended
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and Restated Credit Agreement in accordance with Amendment No. 13, each Loan Document that was in effect immediately prior to the Amendment No. 13 Effective Date shall continue to be effective, unless the context requires otherwise. The parties hereto further acknowledge and agree that the Third Amended and Restated Credit Agreement constitutes an amendment of the Second Amended and Restated Credit Agreement made under and in accordance with the terms of Section 10.01 of the Second Amended and Restated Credit Agreement. In addition, unless specifically amended by the Third Amended and Restated Credit Agreement or by Amendment No. 13, each of the Loan Documents, the Exhibits and Schedules to the Second Amended and Restated Credit Agreement shall continue in full force and effect and, from and after the Amendment No. 13 Effective Date, all references to the “Agreement” or the “Credit Agreement” contained therein shall be deemed to refer to the Third Amended and Restated Credit Agreement, as amended from time to time.
ARTICLE XI

Guarantee
Section 11.01     The Guarantee. Each Guarantor hereby jointly and severally with the other Guarantors guarantees, as a primary obligor and not as a surety to each Secured Party and their respective permitted successors and assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of and interest (including any interest, fees, costs or charges that would accrue but for the provisions of (i) Title 11 of the United States Code after any bankruptcy or insolvency petition under Title 11 of the United States Code and (ii) any other Debtor Relief Laws) on the Loans made by the Lenders to, and the Notes, if any, held by each Lender of, the Borrower, and all other Obligations from time to time owing to the Secured Parties by any Loan Party under any Loan Document or Holdings or any Restricted Subsidiary under any Secured Hedge Agreement or with respect to any Cash Management Obligations, in each case strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”); provided that, for purposes of determining any Obligations of any Guarantor under this Agreement, the definition of “Guaranteed Obligations” shall not create any guarantee by any Guarantor of any Excluded Swap Obligations of such Guarantor. The Guarantors hereby jointly and severally agree that if the Borrower or other Guarantor(s) shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
Section 11.02     Obligations Unconditional. The obligations of the Guarantors under Section 11.01 shall constitute a guaranty of payment and to the fullest extent permitted by applicable Law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Borrower under this Agreement, the Notes, if any, or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Guarantor (except for payment in full). Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantors hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above:
(i)    at any time or from time to time, without notice to the Guarantors, to the extent permitted by Law, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;
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(ii)    any of the acts mentioned in any of the provisions of this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein shall be done or omitted;
(iii)    the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be amended in any respect, or any right under the Loan Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations or except as permitted pursuant to Section 11.09, any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;
(iv)    any Lien or security interest granted to, or in favor of, an L/C Issuer or any Lender or Agent as security for any of the Guaranteed Obligations shall fail to be perfected; or
(v)    the release of any other Guarantor pursuant to Section 11.09 or otherwise.
To the extent permitted by applicable Law, the Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that any Secured Party exhaust any right, power or remedy or proceed against the Borrower under this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein, or against any other person under any other guarantee of, or security for, any of the Guaranteed Obligations. The Guarantors waive, to the extent permitted by Law, any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by any Secured Party upon this Guarantee or acceptance of this Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between the Borrower and the Secured Parties shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee. This Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment without regard to any right of offset with respect to the Guaranteed Obligations at any time or from time to time held by Secured Parties, and the obligations and liabilities of the Guarantors hereunder shall not be conditioned or contingent upon the pursuit by the Secured Parties or any other person at any time of any right or remedy against the Borrower or against any other person which may be or become liable in respect of all or any part of the Guaranteed Obligations or against any collateral security or guarantee therefor or right of offset with respect thereto. This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Lenders, and their respective permitted successors and assigns, notwithstanding that from time to time during the term of this Agreement there may be no Guaranteed Obligations outstanding.
Section 11.03     Reinstatement. The obligations of the Guarantors under this Article XI shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or other Loan Party in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.
Section 11.04     Subrogation; Subordination. Each Guarantor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations (other than contingent obligations, Cash Management Obligations or obligations pursuant to Secured Hedge Agreements, in each case, not then due and payable) and the expiration and termination of the Commitments of the Lenders under this Agreement it shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 11.01, whether by subrogation or otherwise, against the Borrower or any other Guarantor of any of the Guaranteed Obligations or any security for any
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of the Guaranteed Obligations. Any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party permitted pursuant to Section 7.03(b)(ii) or 7.03(d) shall be subordinated to such Loan Party’s Obligations pursuant to subordination terms substantially in the form of Exhibit O.
Section 11.05     Remedies. The Guarantors jointly and severally agree that, as between the Guarantors and the Lenders, the obligations of the Borrower under this Agreement and the Notes, if any, may be declared to be forthwith due and payable as provided in Section 8.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 8.02) for purposes of Section 11.01, notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Guarantors for purposes of Section 11.01.
Section 11.06     Instrument for the Payment of Money. Each Guarantor hereby acknowledges that the guarantee in this Article XI constitutes an instrument for the payment of money, and consents and agrees that any Lender or Agent, at its sole option, in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
Section 11.07     Continuing Guarantee. The guarantee in this Article XI is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising.
Section 11.08     General Limitation on Guarantee Obligations. In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other Law affecting the rights of creditors generally, if the obligations of any Guarantor under Section 11.01 would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 11.01, then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Guarantor, any Loan Party or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 11.10) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
Section 11.09     Release of Guarantors. If, in compliance with the terms and provisions of the Loan Documents, (i) Equity Interests of any Subsidiary Guarantor (a “Transferred Guarantor”) are sold or otherwise transferred, following which transfer such Subsidiary Guarantor ceases to be a Subsidiary or (ii) any Subsidiary Guarantor is designated as an Unrestricted Subsidiary in accordance with Section 6.14, such Transferred Guarantor or Unrestricted Subsidiary shall, upon the consummation of such sale, transfer or designation, be automatically released from its obligations under this Agreement (including under Section 10.05 hereof) and the other Loan Documents and, so long as the Borrower shall have provided the Agents such certifications or documents as any Agent shall reasonably request, the Collateral Agent shall take such actions as are necessary to effect the releases described in this Section 11.09; provided that no such release shall occur if such Subsidiary Guarantor continues to be a guarantor in respect of any Permitted Pari Passu Refinancing Debt, any Permitted Junior Refinancing Debt, any Permitted Unsecured Refinancing Debt, any other Junior Financing or any Permitted Refinancing in respect of any of the foregoing.
When all Commitments hereunder have terminated, and all Loans or other Obligations hereunder which are accrued and payable have been paid or satisfied, and no Letter of Credit remains outstanding (except any Letter of Credit the Outstanding Amount of which and the Obligations related
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thereto have been Cash Collateralized or for which a backstop letter of credit reasonably satisfactory to the applicable L/C Issuer has been put in place, in each case in an amount at least equal to such Outstanding Amount), this Agreement and the Guarantees made herein shall terminate with respect to all Obligations, except with respect to Obligations that expressly survive such repayment pursuant to the terms of this Agreement.
Section 11.10     Right of Contribution. Each Guarantor hereby agrees that to the extent that a Subsidiary Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Subsidiary Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment. Each Subsidiary Guarantor’s right of contribution shall be subject to the terms and conditions of Section 11.04. The provisions of this Section 11.10 shall in no respect limit the obligations and liabilities of any Subsidiary Guarantor to the Administrative Agent, the L/C Issuers and the Lenders, and each Subsidiary Guarantor shall remain liable to the Administrative Agent, the L/C Issuers and the Lenders for the full amount guaranteed by such Subsidiary Guarantor hereunder.
Section 11.11     Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)    the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)    the effects of any Bail-in Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
Section 11.12     Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States), in the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights
196

in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
*     *     *



197



EXHIBIT C
TERM B-6 NOTE
[INTENTIONALLY OMITTED]


EXHIBIT D
Schedule 2.08(g)

Alternate Rate of Interest for 2021 Incremental Term B-6 Loans

(a)The interest rate on a 2021 Incremental Term B-6 Loan may be derived from an interest rate benchmark that is, or may in the future become, the subject of regulatory reform. Regulators have signaled the need to use alternative benchmark reference rates for some of these interest rate benchmarks and, as a result, such interest rate benchmarks may cease to comply with applicable laws and regulations, may be permanently discontinued, and/or the basis on which they are calculated may change. The London interbank offered rate (“Standard LIBOR”) is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. On March 5, 2021, the U.K. Financial Conduct Authority (“FCA”) publicly announced that: (a) immediately after December 31, 2021, publication of the 1-week and 2-month Dollar Standard LIBOR settings will permanently cease; immediately after June 30, 2023, publication of the overnight and 12-month Dollar Standard LIBOR settings will permanently cease and immediately after June 30, 2023, the 1-month, 3-month and 6-month Dollar Standard LIBOR settings will cease to be provided or, subject to the FCA’s consideration of the case, be provided on a synthetic basis and no longer be representative of the underlying market and economic reality they are intended to measure and that representativeness will not be restored. There is no assurance that dates announced by the FCA will not change or that the administrator of Standard LIBOR and/or regulators will not take further action that could impact the availability, composition, or characteristics of Standard LIBOR or the currencies and/or tenors for which Standard LIBOR is published. Each party to the Credit Agreement (as defined below) which subject to this Schedule 2.08(g) should consult its own advisors to stay informed of any such developments. Public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of Standard LIBOR. Upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, clauses (b) and (c) of this Schedule 2.08(g) provide a mechanism for determining an alternative rate of interest. The Administrative Agent will promptly notify the Borrower, pursuant to clause (e) of this Schedule 2.08(g), of any change to the reference rate upon which the interest rate on LIBOR Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to Standard LIBOR or other rates in the definition of “LIBOR” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to clauses (b) and (c) of this Schedule 2.08(g), whether upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to clause (d) of this Schedule 2.08(g), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, LIBOR or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain LIBOR, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of the Credit Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
(b)Certain Benchmark Replacements. Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes of the Credit Agreement and under any Loan Document in


respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, the Credit Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes of the Credit Agreement and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the 2021 Incremental Term B-6 Lenders without any amendment to, or further action or consent of any other party to, the Credit Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from 2021 Incremental Term B-6 Lenders comprising the Required Term B-6 Lenders.
(c)Term SOFR Transition Event Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this clause (c), if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes under the Credit Agreement or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, the Credit Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Administrative Agent has delivered to the 2021 Incremental Term B-6 Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after the occurrence of a Term SOFR Transition Event and may do so in its sole discretion.
(d)Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrative Agent and the Borrower (acting together reasonably) will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to the Credit Agreement or any other Loan Document.
(e)Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the 2021 Incremental Term B-6 Lenders of (i) any occurrence of a Benchmark Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent, the Borrower or, if applicable, any 2021 Incremental Term B-6 Lender (or group of 2021 Incremental Term B-6 Lenders) pursuant to this Schedule 2.08(g), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to the Credit Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Schedule 2.08(g).
(f)Unavailability of Tenor Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or LIBOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent (in good faith consultation with the Borrower) may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to


clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may (in good faith consultation with the Borrower) modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g)Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a LIBOR Borrowing of 2021 Incremental Term B-6 Loans, conversion to or continuation of 2021 Incremental Term B-6 Loans to be made, converted or continued as LIBOR Loans during any Benchmark Unavailability Period and, failing that, either the Borrower will be deemed to have converted any request for a LIBOR Borrowing of 2021 Incremental Term B-6 Loans into a request for a Borrowing of or conversion to 2021 Incremental Term B-6 Loans maintained as Base Rate Loans. Furthermore, if any LIBOR 2021 Incremental Term B-6 Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to LIBOR, then until such time as a Benchmark Replacement is implemented pursuant to this Schedule 2.08(g), then on the last day of the Interest Period applicable to such 2021 Incremental Term B-6 Loan (or the next succeeding Business Day if such day is not a Business Day), such 2021 Incremental Term B-6 Loan shall be converted by the Administrative Agent to, and shall constitute, a Base Rate Loan on such day.
(h)Notwithstanding anything to the contrary in this Schedule 2.08(g) or the Credit Agreement, the Administrative Agent and, to the extent any other party hereto shall have any consent or consultation right in respect of the selection of the Benchmark Replacement, each such applicable party, shall use commercially reasonable efforts to satisfy any applicable Internal Revenue Service guidance, including to meet the standards set forth in Proposed Treasury Regulation Section 1.1001-6 and any future guidance, to the effect that a Benchmark Replacement will not result in a deemed exchange for U.S. federal income tax purposes of any Borrowing of 2021 Incremental Term B-6 Loans under the Credit Agreement if the Borrower determines that such deemed exchange would cause the Borrower, or its direct or indirect beneficial owners, any adverse tax consequences.
(i)Certain Defined Terms. Capitalized terms used herein but not defined herein shall have the meaning provided in the Credit Agreement to which this Schedule 2.08(g) is attached (the “Credit Agreement”). As used in this Schedule 2.08(g):
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to the Credit Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (f) of this Schedule 2.08(g).
“Benchmark” means, initially, LIBOR; provided that if a Benchmark Transition Event, a Term SOFR Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to LIBOR or the then-current Benchmark for LIBOR, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) or clause (c) of this Schedule 2.08(g).
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent (in good faith consultation with the Borrower) for the applicable Benchmark Replacement Date; provided that, in the case of an Other Benchmark Rate Election, “Benchmark Replacement” shall mean the alternative set forth in (3) below:
(1)     the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;


(2)     the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;
(3)    the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body and (b) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; provided further that, in the case of clause (3), when such clause is used to determine the Benchmark Replacement in connection with the occurrence of an Other Benchmark Rate Election, the alternate benchmark rate selected by the Administrative Agent and the Borrower shall be the term benchmark rate that is used in lieu of a LIBOR-based rate in the relevant other Dollar-denominated syndicated credit facilities; provided further that, notwithstanding anything to the contrary in the Credit Agreement or in any other Loan Document, upon the occurrence of a Term SOFR Transition Event, and the delivery of a Term SOFR Notice, on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).
If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than 0.50%, the Benchmark Replacement will be deemed to be 0.50% for the purposes of the Credit Agreement and the other Loan Documents.
Any Benchmark Replacement shall be applied in a manner consistent with market practice; provided that, to the extent such market practice is not administratively feasible for the Administrative Agent, such Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Administrative Agent with the consent of the Borrower (such consent not to be unreasonably withheld or delayed).
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) for the applicable Corresponding Tenor that is substantially consistent with market practice at such time (giving due consideration to any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date), as reasonably determined by the Administrative Agent and the Borrower.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides with the consent of the Borrower (such consent not to be unreasonably withheld or delayed) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, (i) if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or (ii) if the Administrative Agent determines, in consultation with the Borrower, that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides with the consent of the Borrower (such consent not to be unreasonably withheld or delayed) is reasonably necessary in connection with the administration of the Credit Agreement and the other Loan Documents).


“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1)    in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
(2)    in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date;
(3)    in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the 2021 Incremental Term B-6 Lenders and the Borrower pursuant to clause (c) of Schedule 2.08(g) ; or
(4)    in the case of an Early Opt-in Election or an Other Benchmark Rate Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election or Other Benchmark Rate Election, as applicable, is provided to the 2021 Incremental Term B-6 Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election or Other Benchmark Rate Election, as applicable, is provided to the 2021 Incremental Term B-6Lenders, written notice of objection to such Early Opt-in Election or Other Benchmark Rate Election, as applicable, from 2021 Incremental Term B-6 Lenders comprising the Required Term B-6 Lenders.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided


that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with this Schedule 2.08(g) and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes of the Credit Agreement and under any Loan Document in accordance with this Schedule 2.08(g).
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which may include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Early Opt-in Election” means the occurrence of:
(1)a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2)the joint election by the Administrative Agent and the Borrower to trigger a fallback from LIBOR and the provision by the Administrative Agent of written notice of such election to the 2021 Incremental Term B-6 Lenders.
“Other Benchmark Rate Election” means, if the then-current Benchmark is LIBOR, the occurrence of:
(a) a request by the Borrower to the Administrative Agent to notify each of the other parties hereto that, at the determination of the Borrower, Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed), in lieu of a LIBOR-based rate, a term benchmark rate as a benchmark rate, and
(b) the Administrative Agent, in its sole discretion, and the Borrower jointly elect to trigger a fallback from LIBOR and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the 2021 Incremental Term B-6 Lenders.
“Reference Time” with respect to any setting of the then-current Benchmark means 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting,


“Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term SOFR Notice” means a notification by the Administrative Agent to the 2021 Incremental Term B-6 Lenders and the Borrower of the occurrence of a Term SOFR Transition Event.
“Term SOFR Transition Event” means the determination by the Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event or an Early Opt-in Election, as applicable (and, for the avoidance of doubt, not in the case of an Other Benchmark Rate Election), has previously occurred resulting in a Benchmark Replacement in accordance with this Schedule 2.08(g) that is not Term SOFR.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

Exhibit 10.8
EXECUTION VERSION
SECOND LIEN CREDIT AGREEMENT
Dated as of December 1, 2021

among
TRANSUNION INTERMEDIATE HOLDINGS, INC.,
as Holdings,
TRANS UNION LLC,
as the Borrower,
THE GUARANTORS PARTY HERETO FROM TIME TO TIME,
JPMORGAN CHASE BANK, N.A.,
as Administrative and Collateral Agent,
THE OTHER LENDERS PARTY HERETO FROM TIME TO TIME,
__________________________________________________
JPMORGAN CHASE BANK, N.A.
DEUTSCHE BANK SECURITIES INC.,

and

WELLS FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Joint Bookrunners

Table of Contents
(continued)
Page


ARTICLE I Definitions and Accounting Terms
1
Section 1.01    Defined Terms
1
Section 1.02    Other Interpretive Provisions.
56
Section 1.03    Accounting Terms
56
Section 1.04    Rounding
56
Section 1.05    References to Agreements, Laws, Etc
57
Section 1.06    Times of Day
57
Section 1.07    Timing of Payment of Performance
57
Section 1.08    Available Additional Basket Transactions
57
Section 1.09    Pro Forma Calculations
57
Section 1.10    Collateral
58
Section 1.11    Certifications
58
Section 1.12    Currency Translation
58
Section 1.13    Limited Condition Transactions
59
Section 1.14    Divisions
60
ARTICLE II The Commitments and Borrowings
60
Section 2.01    The Loans
60
Section 2.02    Borrowings, Conversions and Continuations of Loans
60
Section 2.03    LIBOR Notification; Alternative Rate of Interest
61
Section 2.04    [Reserved].
64
Section 2.05    Prepayments.
64
Section 2.06    Termination or Reduction of Commitments
72
Section 2.07    Repayment of Loans
72
Section 2.08    Interest
72
Section 2.09    Fees
72
Section 2.10    Computation of Interest and Fees
73
Section 2.11    Evidence of Indebtedness
73
Section 2.12    Payments Generally
74
Section 2.13    Sharing of Payments
75
Section 2.14    Incremental Facilities
76
Section 2.15    Extensions of Term Loans
79
Section 2.16    Refinancing Amendments
80
Section 2.17    Defaulting Lenders
81
ARTICLE III Taxes, Increased Costs Protection and Illegality
82
Section 3.01    Taxes
82
Section 3.02    Illegality
85
Section 3.03    Inability to Determine Rates
85
Section 3.04    Increased Cost and Reduced Return; Capital Adequacy
85
Section 3.05    Funding Losses
87
i
Table of Contents
(continued)
Page


Section 3.06    Matters Applicable to All Requests for Compensation
87
Section 3.07    Replacement of Lenders Under Certain Circumstances
88
Section 3.08    Survival
89
ARTICLE IV Conditions Precedent to Borrowings
89
Section 4.01    All Credit Events After the Closing Date
89
Section 4.02    Closing Date
90
ARTICLE V Representations and Warranties
93
Section 5.01    Existence, Qualification and Power; Compliance with Laws
93
Section 5.02    Authorization; No Contravention
93
Section 5.03    Governmental Authorization; Other Consents
93
Section 5.04    Binding Effect
94
Section 5.05    Financial Statements; No Material Adverse Effect
94
Section 5.06    Litigation
94
Section 5.07    Ownership of Property; Liens
94
Section 5.08    Environmental Matters
95
Section 5.09    Taxes
95
Section 5.10    ERISA Compliance
96
Section 5.11    Subsidiaries; Equity Interests
96
Section 5.12    Margin Regulations; Investment Company Act
96
Section 5.13    Disclosure
96
Section 5.14    Labor Matters
97
Section 5.15    Intellectual Property; Licenses, Etc
97
Section 5.16    Solvency
98
Section 5.17    Security Documents
98
Section 5.18    USA PATRIOT Act; OFAC; FCPA
99
ARTICLE VI Affirmative Covenants
99
Section 6.01    Financial Statements
100
Section 6.02    Certificates; Other Information
102
Section 6.03    Notices
103
Section 6.04    Payment of Obligations
103
Section 6.05    Preservation of Existence, Etc
103
Section 6.06    Maintenance of Properties
103
Section 6.07    Maintenance of Insurance
103
Section 6.08    Compliance with Laws
104
Section 6.09    Books and Records
104
Section 6.10    Inspection Rights
104
Section 6.11    Additional Collateral; Additional Guarantors
105
Section 6.12    Compliance with Environmental Laws
106
Section 6.13    Further Assurances and Post-Closing Conditions
107
ii
Table of Contents
(continued)
Page


Section 6.14    Designation of Subsidiaries
107
Section 6.15    Maintenance of Ratings
108
Section 6.16    Compliance with Sanctions
108
ARTICLE VII Negative Covenants
109
Section 7.01    Liens
109
Section 7.02    Investments
113
Section 7.03    Indebtedness
117
Section 7.04    Fundamental Changes
121
Section 7.05    Dispositions
122
Section 7.06    Restricted Payments
125
Section 7.07    Change in Nature of Business
128
Section 7.08    Transactions with Affiliates
128
Section 7.09    Burdensome Agreements
129
Section 7.10    Use of Proceeds
130
Section 7.11    [Reserved]
130
Section 7.12    Accounting Changes
130
Section 7.13    Prepayments, Etc. of Indebtedness
130
Section 7.14    Permitted Activities
131
ARTICLE VIII Events of Default and Remedies
132
Section 8.01    Events of Default
132
Section 8.02    Remedies upon Event of Default
134
Section 8.03    Exclusion of Immaterial Subsidiaries
134
Section 8.04    Application of Funds
134
ARTICLE IX Administrative Agent and Other Agents
135
Section 9.01    Appointment and Authorization of Agents
135
Section 9.02    Nature of Duties
136
Section 9.03    Lack of Reliance on Agent-Related Persons
136
Section 9.04    Certain Rights of Agent-Related Persons
136
Section 9.05    Reliance
137
Section 9.06    Indemnification
137
Section 9.07    Agents in their Individual Capacities
137
Section 9.08    Holders
137
Section 9.09    Resignation by the Agents
138
Section 9.10    Administrative Agent May File Proofs of Claim
138
Section 9.11    Collateral and Guaranty Matters
139
Section 9.12    Delivery of Information
141
Section 9.13    Appointment of Supplemental Agents
141
Section 9.14    Withholding Tax Indemnity
141
Section 9.15    Certain ERISA Matters
142
iii
Table of Contents
(continued)
Page


Section 9.16    Erroneous Payments
143
ARTICLE X Miscellaneous
144
Section 10.01    Amendments, Etc
144
Section 10.02    Notices and Other Communications; Facsimile Copies
146
Section 10.03    No Waiver; Cumulative Remedies
148
Section 10.04    Attorney Costs and Expenses
148
Section 10.05    Indemnification by the Borrower
148
Section 10.06    Payments Set Aside
149
Section 10.07    Successors and Assigns
150
Section 10.08    Confidentiality
155
Section 10.09    Setoff
156
Section 10.10    Interest Rate Limitation
157
Section 10.11    Counterparts
157
Section 10.12    Integration; Termination
157
Section 10.13    Survival of Representations and Warranties
157
Section 10.14    Severability
157
Section 10.15    Governing Law
158
Section 10.16    Waiver of Right to Trial by Jury
158
Section 10.17    Binding Effect
158
Section 10.18    USA Patriot Act
159
Section 10.19    No Advisory or Fiduciary Responsibility
159
Section 10.20    Acknowledgement and Consent to Bail-In of EEA Financial Institutions
159
Section 10.21    Acknowledgement Regarding Any Supported QFCs
160
ARTICLE XI Guarantee
160
Section 11.01    The Guarantee
160
Section 11.02    Obligations Unconditional
161
Section 11.03    Reinstatement
162
Section 11.04    Subrogation; Subordination
162
Section 11.05    Remedies
162
Section 11.06    Instrument for the Payment of Money
162
Section 11.07    Continuing Guarantee
162
Section 11.08    General Limitation on Guarantee Obligations
162
Section 11.09    Release of Guarantors
163
Section 11.10    Right of Contribution
163
iv
Table of Contents
(continued)



SCHEDULES
1.01A    --    Initial Term Loan Commitments
1.01B    --    Unrestricted Subsidiaries
5.07    --    Ownership of Property
5.08(a)    --    Environmental Matters
5.11    --    Subsidiaries and Other Equity Investments
5.17(c)    --    Mortgaged Properties
6.13    --    Post-Closing Conditions
7.01(b)    --    Existing Liens
7.02(f)    --    Existing Investments
7.03(b)    --    Existing Indebtedness
7.05(k)    --    Dispositions
7.08    --    Transactions with Affiliates
7.09    --    Certain Contractual Obligations
10.02    --    Administrative Agent’s Office, Certain Addresses for Notices

EXHIBITS
Form of
A    --    Committed Loan Notice
B    --    [Reserved]
C    --    [Reserved]
D    --    Term Note
E    --    Compliance Certificate
F    --    Assignment and Assumption
G    --    Security Agreement
H    --    Pledge Agreement
I    --    United States Tax Compliance Certificate
J    --    Discounted Prepayment Option Notice
K    --    Lender Participation Notice
L    --    Discounted Voluntary Prepayment Notice
M    --    Affiliated Lender Assignment Assumption
N    --    Perfection Certificate
O    --    Intercompany Subordination Provisions
P    --    UK Security Agreement

v

SECOND LIEN CREDIT AGREEMENT
This SECOND LIEN CREDIT AGREEMENT is entered into as of December 1, 2021 (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time, this “Agreement”), among TRANSUNION INTERMEDIATE HOLDINGS, INC., a Delaware corporation (“Holdings”), TRANS UNION LLC, a Delaware limited liability company (the “Borrower”), the Guarantors party hereto from time to time, JPMORGAN CHASE BANK, N.A., as Administrative Agent and Collateral Agent (as each such term is defined herein), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and the other parties party hereto from time to time.
PRELIMINARY STATEMENTS
Capitalized terms used in these preliminary statements shall have the respective meanings set forth for such terms in Section 1.1 hereof.
The Borrower intends to, directly or indirectly, acquire all of the issued and outstanding share capital of EZS Parent, Inc. (the “Target”), from EZShield Group Holdings, LLC (the “Seller”) pursuant to, and in accordance with the requirements of, the Securities Purchase Agreement, dated as of October 22, 2021 (together with all exhibits, schedules and other disclosure letters thereto, collectively, as amended, modified and/or supplemented from time to time in accordance with the terms thereof and hereof, the “Acquisition Agreement”), by and among TransUnion Interactive, Inc., the Seller and the Target (the “Acquisition”).
The Lenders have agreed, subject to the terms and conditions hereof, to extend credit to the Borrower on the Closing Date in the form of Initial Term Loans in an initial aggregate amount of $640,000,000.00, the proceeds of which will be applied (i) to pay the cash consideration for the Acquisition, (ii) to pay fees and expenses incurred in connection with the Acquisition and (iii) for the Refinancing.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree, as follows:
ARTICLE I

Definitions and Accounting Terms
Section 1.01     Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“Acceptable Price” has the meaning set forth in Section 2.05(c)(iii).
“Acceptance Date” has the meaning set forth in Section 2.05(c)(ii).
“Acquisition” has the meaning set forth in the preliminary statements hereto.
“Acquisition Agreement” has the meaning set forth in the preliminary statements hereto.
“Additional Lender” has the meaning set forth in Section 2.14(a).
“Additional Refinancing Lender” means, at any time, any bank, financial institution or other institutional lender or investor (other than any such bank, financial institution or other institutional lender or investor that is a Lender at such time) that agrees to provide any portion of Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance with Section 2.16, provided that each Additional Refinancing Lender shall be subject to the approval of (i) the Administrative Agent, such approval not to be unreasonably withheld, conditioned or delayed, to the


extent that each such Additional Refinancing Lender is not then an existing Lender, an Affiliate of a then-existing Lender or an Approved Fund and (ii) the Borrower.
“Adjusted Total Assets” means the total assets of Holdings and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP, but calculated as if purchase accounting had been applied with respect to the Original Transactions or the Sponsor Acquisition with resulting adjustments to goodwill and other intangible assets.
“Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent under any of the Loan Documents, or any permitted successor in such capacity in accordance with Section 9.09.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Advent” means Advent International Corporation, a Delaware corporation.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Affiliated Lender Assignment and Assumption” has the meaning set forth in Section 10.07(k)(i)(B).
“Agent-Related Persons” means the Agents, together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
“Agents” means, collectively, the Administrative Agent, the Collateral Agent and the Supplemental Agents (if any).
“Aggregate Commitments” means the Commitments of all the Lenders.
“Agreement” has the meaning set forth in the preliminary statements hereto.
“AHYDO Interest Payment” has the meaning set forth in Section 2.05(b)(v).
“Applicable Discount” has the meaning set forth in Section 2.05(c)(iii).
“Applicable Disposition Percentage” means (a) 100% if the Total Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, is greater than 4.50:1.00, (b) 50.0% if the Total Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, is less than or equal to 4.50:1.00 but greater than 3.50:1.00 and (c) 0% if the Total Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, is less than or equal to 3.50:1.00.
“Applicable ECF Percentage” means, for any Excess Cash Flow Period, (a) 50.0% if the First Lien Net Leverage Ratio as of the last day of the applicable Excess Cash Flow Period is greater than 3.50:1.00, (b) 25.0% if the First Lien Net Leverage Ratio as of the last day of the applicable Excess Cash
2

Flow Period is less than or equal to 3.50:1.00 and greater than 3.00:1:00 and (c) 0% if the First Lien Net Leverage Ratio as of the last day of the applicable Excess Cash Flow Period is less than or equal to 3.00:1.00.
“Applicable Rate” means a percentage per annum equal to, with respect to Initial Term Loans, (A) for LIBOR Loans, 5.00% and (B) for Base Rate Loans, 4.00%.
Notwithstanding the foregoing, (x) the Applicable Rate of any Extended Term Loans made after the Closing Date shall be the applicable percentages per annum set forth in the relevant Extension Offer and (y) the Applicable Rate shall be increased as, and to the extent, necessary to comply with the provisions of Section 2.15(b).
“Appropriate Lender” means, at any time, with respect to Loans of any Class, the Lenders of such Class.
“Approved Bank” has the meaning set forth in clause (c) of the definition of “Cash Equivalents.”
“Approved Fund” means any Fund that is administered, advised or managed by a Lender or an Affiliate of the entity that administers, advises or manages any Fund that is a Lender.
“Arrangers” means JPMorgan Chase Bank, N.A., Deutsche Bank Securities Inc. and Wells Fargo Securities, LLC, in their respective capacities as joint lead arrangers in connection with this Agreement.
“Assignees” has the meaning set forth in Section 10.07(b).
“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit F and accepted by the Administrative Agent and the Borrower, as and to the extent required by Section 10.07.
“Attorney Costs” means and includes all reasonable fees, expenses and disbursements of any law firm or other external legal counsel.
“Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP as in effect on December 31, 2018.
“Audited Financial Statements” means the audited consolidated balance sheet of Holdings and its Subsidiaries as of each of December 31, 2019 and 2020, and the related audited consolidated statements of operations and of cash flows for Holdings and its Subsidiaries for the fiscal years ended December 31, 2019 and 2020.
“Available Additional Basket” means, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to, without duplication:
(a)    $50,000,000; plus
(b)    the Cumulative CNI Amount at such time, plus
(c)    the cumulative amount of cash and Cash Equivalent proceeds from (i) the sale of Equity Interests of Holdings or of any direct or indirect parent of Holdings (other than Disqualified Equity Interests) after the Original Closing Date and on or prior to such time (including upon exercise of warrants or options) which proceeds have been contributed as common equity to the capital of the Borrower and (ii) the Equity Interests of Holdings (or any direct or indirect parent of Holdings) (other than Disqualified Equity Interests of Holdings) issued upon conversion of Indebtedness issued after the Original Closing Date of Holdings or any Restricted Subsidiary of Holdings owed to a Person other than a
3

Loan Party or a Restricted Subsidiary of a Loan Party, in the case of each of subclause (i) and subclause (ii), not previously applied for a purpose (including a Specified Equity Contribution applied pursuant to the financial covenant cure provisions of the First Lien Credit Agreement) other than use in the Available Additional Basket, plus
(d)    100.0% of the aggregate amount of contributions to the common capital of Holdings (other than from a Restricted Subsidiary) received in cash and Cash Equivalents after the Original Closing Date other than from a Specified Equity Contribution pursuant to the financial covenant cure provisions of the First Lien Credit Agreement, which contributions have been contributed as common equity to the capital of the Borrower, plus
(e)    without duplication of any amounts that otherwise increased the amount available for Investments pursuant to Section 7.02, 100.0% of the aggregate amount received after the Original Closing Date by the Borrower or any Restricted Subsidiary of the Borrower in cash and Cash Equivalents from:
(i)    the sale (other than to the Borrower or any such Restricted Subsidiary) of any Equity Interests of an Unrestricted Subsidiary or any minority Investments, or
(ii)    any dividend or other distribution by an Unrestricted Subsidiary or received in respect of any minority Investments, or
(iii)    any interest, returns of principal, repayments and similar payments by such Unrestricted Subsidiary or received in respect of any minority Investments, plus
(f)    in the event any Unrestricted Subsidiary has been re-designated as a Restricted Subsidiary or has been merged, consolidated or amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary after the Original Closing Date, the fair market value of the Investments of the Borrower and the Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable), plus
(g)    an amount equal to any returns in cash and Cash Equivalents (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received by the Borrower or any Restricted Subsidiary after the Original Closing Date in respect of any Investments made pursuant to Section 7.02(l)(y) (or the corresponding provision of the First Lien Credit Agreement), minus
(h)    any amount of the Available Additional Basket used to make Investments pursuant to Section 7.02(l)(y) after the Closing Date and prior to such time, minus
(i)    any amount of the Available Additional Basket used to make Restricted Payments pursuant to Section 7.06(g) after the Closing Date and prior to such time, minus
(j)    any amount of the Available Additional Basket used to make payments or distributions in respect of Junior Financings pursuant to Section 7.13 after the Closing Date and prior to such time.
“Available RP Capacity Amount” means, at the time of determination, the amount of Restricted Payments that may be made at such time pursuant to Section 7.06(f) and Section 7.06(j).
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not
4

including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (g) of Section 2.03.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Base Incremental Amount” has the meaning set forth in Section 2.14(a).
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1.00%, (b) the Prime Lending Rate at such time and (c) LIBOR for an Interest Period of one month commencing on such day (giving effect to any applicable “floor”) plus 1.00% per annum; provided that in no event shall the Base Rate be less than 1.00%. For purposes of this definition, LIBOR shall be determined using LIBOR as otherwise determined by the Administrative Agent in accordance with the definition of LIBOR, except that (x) if a given day is a Business Day, such determination shall be made on such day (rather than two Business Days prior to the commencement of an Interest Period) or (y) if a given day is not a Business Day, LIBOR for such day shall be the rate determined by the Administrative Agent pursuant to preceding clause (x) for the most recent Business Day preceding such day. Any change in the Base Rate due to a change in the Prime Lending Rate, the Federal Funds Effective Rate or such LIBOR shall be effective as of the opening of business on the day of such change in the Prime Lending Rate, the Federal Funds Effective Rate or such LIBOR, respectively.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Benchmark” means, initially, LIBOR; provided that if a Benchmark Transition Event, a Term SOFR Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to LIBOR or the then-current Benchmark for LIBOR, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (c) or clause (d) of Section 2.03.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent (in good faith consultation with the Borrower) for the applicable Benchmark Replacement Date; provided that, in the case of an Other Benchmark Rate Election, “Benchmark Replacement” shall mean the alternative set forth in (3) below:
(1)    the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;
(2)    the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;
(3)    the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body and (b) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative
5

Agent in its reasonable discretion; provided further that, in the case of clause (3), when such clause is used to determine the Benchmark Replacement in connection with the occurrence of an Other Benchmark Rate Election, the alternate benchmark rate selected by the Administrative Agent and the Borrower shall be the term benchmark rate that is used in lieu of a LIBOR-based rate in the relevant other Dollar-denominated syndicated credit facilities; provided further that, notwithstanding anything to the contrary in this Agreement or in any other Loan Document, upon the occurrence of a Term SOFR Transition Event, and the delivery of a Term SOFR Notice, on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).
If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.
Any Benchmark Replacement shall be applied in a manner consistent with market practice; provided that, to the extent such market practice is not administratively feasible for the Administrative Agent, such Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Administrative Agent (in good faith consultation with the Company).
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) for the applicable Corresponding Tenor that is substantially consistent with market practice at such time (giving due consideration to any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date), as reasonably determined by the Administrative Agent (in good faith consultation with the Borrower), which spread adjustment or method for calculating or determining such spread adjustment will become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have notified all Lenders thereof unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object thereto.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent, in good faith consultation with the Borrower, decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, (i) if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or (ii) if the Administrative Agent determines, in consultation with the Borrower, that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent (in good faith consultation with the Borrower) decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1)    in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation
6

thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
(2)    in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date;
(3)    in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Lenders and the Borrower pursuant to Section 2.03(d); or
(4)    in the case of an Early Opt-in Election or an Other Benchmark Rate Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election or Other Benchmark Rate Election, as applicable, is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election or Other Benchmark Rate Election, as applicable, is provided to the Lenders, written notice of objection to such Early Opt-in Election or Other Benchmark Rate Election, as applicable, from Lenders comprising the Required Lenders.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
7

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.03 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.03.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Borrower” has the meaning set forth in the preamble hereto.
“Borrower Corporate Headquarters” means the Mortgaged Property located at 555 West Adams Street, Chicago, Illinois.
“Borrower Materials” has the meaning set forth in Section 6.01.
“Borrowing” means a borrowing consisting of simultaneous Term Loans of the same Class and Type and, in the case of LIBOR Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(a), Section 2.15 or under any Incremental Amendment or Refinancing Amendment.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, New York, New York or Chicago, Illinois and if such day relates to any LIBOR Loan, means any such day on which dealings in deposits are conducted by and between banks in the London interbank eurodollar market.
“Canadian Dollars” and “Cdn.” mean freely transferable lawful money of Canada (expressed in Canadian Dollars).
“Capital Expenditures” means, for any period, the aggregate, without duplication, of (a) all expenditures (whether paid in cash or accrued as liabilities) by Holdings and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment and other deferred charges included in Capital Expenditures reflected in the consolidated balance sheet of Holdings and its Restricted Subsidiaries and (b) the value of all assets under Capitalized Leases incurred by Holdings and its Restricted Subsidiaries during such period (other than as a result of purchase accounting); provided that the term “Capital Expenditures” shall not include (i) expenditures made in connection with the replacement, substitution, restoration, repair or improvement of assets to the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, restored, repaired or improved or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced, (ii) the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment solely to the extent
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that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time, (iii) the purchase of plant, property or equipment or software to the extent financed with the proceeds of Dispositions that are not required to be applied to prepay Term Loans pursuant to Section 2.05(b), (iv) expenditures that are accounted for as capital expenditures by Holdings or any Restricted Subsidiary and that actually are paid for by a Person other than Holdings or any Restricted Subsidiary and for which neither Holdings nor any Restricted Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such Person or any other Person (whether before, during or after such period), (v) expenditures that constitute operating lease expenses in accordance with GAAP, (vi) expenditures that constitute Permitted Acquisitions, the Acquisition or other investments that consist of the purchase of a business unit, line of business or a division of a Person or all or substantially all of the assets of a Person, (vii) any capitalized interest expense reflected as additions to property, plant or equipment in the consolidated balance sheet of Holdings and the Restricted Subsidiaries or (viii) any non-cash compensation or other non-cash costs reflected as additions to property, plant or equipment in the consolidated balance sheet of Holdings and the Restricted Subsidiaries.
“Capitalized Leases” means all leases that have been or are required to be, in accordance with GAAP as in effect on December 31, 2018, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability on a balance sheet (excluding the notes thereto) in accordance with GAAP as in effect on December 31, 2018.
“Cash Collateral Account” means a blocked account at JPMorgan Chase Bank, N.A. in the name of the Administrative Agent and under the sole dominion and control of the Administrative Agent, and otherwise established in a manner reasonably satisfactory to the Administrative Agent.
“Cash Equivalents” means any of the following types of Investments, to the extent owned by Holdings or any Restricted Subsidiary:
(a)    Dollars, Pounds Sterling, Canadian Dollars, Euro, or any national currency of any participating member state of the EMU;
(b)    readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of the United States having average maturities of not more than 24 months from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;
(c)    time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) is a Lender or (ii) (A) is organized under the Laws of the United States, any state thereof, the District of Columbia or any member nation of the Organization for Economic Cooperation and Development or is the principal banking Subsidiary of a bank holding company organized under the Laws of the United States, any state thereof, the District of Columbia or any member nation of the Organization for Economic Cooperation and Development, and is a member of the Federal Reserve System, and (B) has combined capital and surplus of at least $250,000,000 in the case of U.S. banks or $100,000,000 (or the Dollar equivalent as of the date of determination) in the case of non-U.S. banks (any such bank in the foregoing clauses (i) or (ii) being an “Approved Bank”), in each case with maturities not exceeding 12 months from the date of acquisition thereof;
(d)    commercial paper and variable or fixed rate notes issued by an Approved Bank (or by the parent company thereof) or any variable or fixed rate note issued by, or guaranteed by, a corporation (other than structured investment vehicles and other than corporations used in structured financing transactions) rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or better by Moody’s, in each case with average maturities of not more than 12 months from the date of acquisition thereof;
(e)    marketable short-term money market and similar funds having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall
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be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Borrower);
(f)    repurchase agreements entered into by any Person with a bank or trust company (including any of the Lenders) or recognized securities dealer, in each case, having capital and surplus in excess of $250,000,000 for direct obligations issued by or fully guaranteed or insured by the government or any agency or instrumentality of the United States or $100,000,000 (or the Dollar equivalent as of the date of determination) in the case of non-U.S. banks, in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100.0% of the amount of the repurchase obligations;
(g)    securities with average maturities of 24 months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government having an investment grade rating from either S&P or Moody’s (or the equivalent thereof);
(h)    Investments (other than in structured investment vehicles and structured financing transactions) with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s;
(i)    Investments, classified in accordance with GAAP as current assets of Holdings or any Restricted Subsidiary, in money market investment programs which are registered under the Investment Company Act of 1940 or which are administered by financial institutions having capital of at least $250,000,000, and, in either case, the portfolios of which are limited such that substantially all of such Investments are of the character, quality and maturity described in clauses (a) through (h) of this definition;
(j)    investment funds investing at least 95.0% of their assets in securities of the types (including as to credit quality and maturity) described in clauses (a) through (i) above; and
(k)    in the case of any Foreign Subsidiary, (x) such local currencies in those countries in which such Foreign Subsidiary transacts business from time to time in the ordinary course of business and (y) investments of comparable tenor and credit quality to those described in the foregoing clauses (a) through (j) customarily utilized in countries in which such Foreign Subsidiary operates for short term cash management purposes.
“Casualty Event” means any event that gives rise to the receipt by Holdings or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace, restore or repair such equipment, fixed assets or real property.
“Change of Control” shall be deemed to occur if:
(a)    at any time prior to a Qualified IPO, any combination of Permitted Holders shall fail to own beneficially (within the meaning of Rule 13d-5 of the Exchange Act as in effect on the Closing Date), directly or indirectly, in the aggregate Equity Interests representing at least a majority of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings;
(b)    at any time after a Qualified IPO (including the TransUnion IPO), any person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date), other than any “group” including any Permitted Holders (provided, that in the case of any such “group,” the Permitted Holders hold a majority of all voting interest in Holdings’ Equity Interests held by all members of such “group”), shall have acquired beneficial ownership of 35.0% or more on a fully diluted basis of the voting interest in Holdings’ Equity Interests and the Permitted Holders shall
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own, directly or indirectly, less than such person or “group” on a fully diluted basis of the voting interest in Holdings’ Equity Interests;
(c)    a “change of control” (or similar event) shall occur under (i) any First Lien Loan Document (other than in connection with the Sponsor Acquisition) or (ii) any Junior Financing or Credit Agreement Refinancing Indebtedness, in each case with an aggregate principal amount in excess of the Threshold Amount, or any Permitted Refinancing Indebtedness in respect of any of the foregoing with an aggregate principal amount in excess of the Threshold Amount; or
(d)    Holdings shall cease to own directly or indirectly 100.0% of the Equity Interests of the Borrower.
“Class” (a) when used with respect to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments, (b) when used with respect to Commitments, refers to whether such Commitments are Initial Term Loan Commitments, Refinancing Term Commitments or Commitments in respect of Replacement Term Loans, Extended Term Loans or Incremental Term Loans and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Initial Term Loans, Refinancing Term Loans, Replacement Term Loans, Extended Term Loans or Incremental Term Loans. Commitments (and in each case, the Loans made pursuant to such Commitments) that have different terms and conditions shall be construed to be in different Classes. Commitments (and, in each case, the Loans made pursuant to such Commitments) that have the same terms and conditions shall be construed to be in the same Class.
“Closing Date” means December 1, 2021.
“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means the “Collateral” as defined in the Security Agreement, the “Collateral” as defined in the Pledge Agreement and any other assets pledged or in which a Lien is granted pursuant to any Collateral Document, including, without limitation, the Mortgaged Property (if any).
“Collateral Agent” means JPMorgan Chase Bank N.A., in its capacity as collateral agent or pledgee in its own name under any of the Loan Documents, or any permitted successor collateral agent appointed in accordance with Section 9.09.
“Collateral and Guarantee Requirement” means, at any time, the requirement that:
(a)    on the Closing Date the Administrative Agent shall have received each Collateral Document to the extent required to be delivered on the Closing Date pursuant to Section 4.02(a), subject to the limitations and exceptions of this Agreement, duly executed by each Loan Party thereto;
(b)    the Secured Obligations shall have been secured by a second-priority (subject to the First Lien/Second Lien Intercreditor Agreement and Permitted Liens under Section 7.01(c)) security interest in (i) all the Equity Interests of the Borrower, (ii) all Equity Interests of each Restricted Subsidiary of Holdings that is not an Excluded Subsidiary directly owned by any Loan Party, (iii) 65.0% of the voting and non-voting Equity Interests collectively issued by Trans Union International, Inc. to any Loan Party and (iv) 65.0% of any voting Equity Interests of any “first-tier” wholly owned Foreign Subsidiary and 100.0% of any non-voting Equity Interests of any “first-tier” wholly owned Foreign Subsidiary held by any Loan Party, in each case, subject to Permitted Liens under Section 7.01(c), exceptions and limitations otherwise set forth in this Agreement and the Collateral Documents pursuant to documents governed by applicable state law; provided, that in no event shall any Loan Party be required to deliver a pledge (i) in excess of 65.0% of any voting Equity Interests of any “first-tier” Foreign Subsidiary or (ii) of any Equity Interest of any “second-tier” or lower Subsidiary that is a Foreign Subsidiary;
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(c)    the Secured Obligations shall have been secured by a perfected security interest in, or Mortgage on, as applicable, substantially all tangible and intangible assets of the Borrower and each Guarantor (including intercompany debt, accounts, inventory, equipment, investment property, contract rights, intellectual property in the United States, other general intangibles, Material Real Property and proceeds of the foregoing), in each case, subject to Permitted Liens, exceptions and limitations otherwise set forth in this Agreement (for the avoidance of doubt, including the limitations and exceptions set forth in the proviso of Section 4.02(k)) and the Collateral Documents pursuant to documents governed by applicable state law;
(d)    subject to limitations and exceptions of this Agreement (for the avoidance of doubt, including the limitations and exceptions set forth in the proviso of Section 4.02(k) and Section 6.13(c)) and the Collateral Documents, to the extent a security interest in and Mortgages on any Material Real Property is required under Section 6.11 or 6.13 (together with any Material Real Property that is subject to a Mortgage on the Closing Date, each, a “Mortgaged Property”), the Administrative Agent shall have received (i) counterparts of a Mortgage with respect to such Mortgaged Property duly executed and delivered by the record owner of such property in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may reasonably deem necessary to create a valid and subsisting perfected second-priority Lien (subject to the First Lien/Second Lien Intercreditor Agreement and subject only to the Permitted Liens and other Liens permitted in the relevant Mortgage) on the property and/or rights described therein in favor of the Collateral Agent for the benefit of the Secured Parties, and evidence that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (it being understood that if a mortgage tax will be owed on the entire amount of the indebtedness evidenced hereby, then the amount secured by the Mortgage shall be limited to 100.0% of the fair market value of the property at the time the Mortgage is entered into if such limitation results in such mortgage tax being calculated based upon such fair market value), (ii) fully paid policies of title insurance (or marked-up title insurance commitments having the effect of policies of title insurance) on the Mortgaged Property naming the Collateral Agent as the insured for its benefit and that of the Secured Parties and respective successors and assigns (the “Mortgage Policies”) issued by a nationally recognized title insurance company reasonably acceptable to the Administrative Agent in form and substance and in an amount reasonably acceptable to the Administrative Agent (not to exceed 100.0% of the fair market value of the real properties covered thereby), insuring the Mortgages to be valid subsisting second-priority Liens on the property described therein, free and clear of all Liens other than Permitted Liens, which shall include (A) such reinsurance arrangements (to the extent reasonably necessary, and with provisions for direct access, if reasonably necessary) and endorsements as shall be reasonably acceptable to the Collateral Agent, (B) a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), and (C) such endorsements as shall be reasonably requested by the Collateral Agent (including, to the extent reasonably requested by the Collateral Agent, endorsements on matters relating to usury, first loss, zoning, contiguity, revolving credit (if available after the applicable Loan Party uses commercially reasonable efforts), doing business, non-imputation, public road access, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot and so-called comprehensive coverage over covenants and restrictions), (iii) legal opinions, addressed to the Administrative Agent and the Collateral Agent, reasonably acceptable to the Administrative Agent and the Collateral Agent, (iv) a survey or express map of each Mortgaged Property sufficient in form to delete the standard survey exception in the title insurance policy insuring the Mortgage and provide Collateral Agent with endorsements to such policy as shall be reasonably requested by the Collateral Agent and (v) a completed “life of the loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property duly executed and acknowledged by the appropriate Loan Parties; and
(e)    after the Closing Date, each Restricted Subsidiary of Holdings that is not an Excluded Subsidiary shall become a Guarantor and signatory to this Agreement pursuant to a joinder agreement in accordance with Section 6.11 and a party to the applicable Collateral Documents in accordance with Section 6.11; provided that notwithstanding the foregoing provisions, any Subsidiary of Holdings that Guarantees the First Lien Facilities shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
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Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary:
(A)    the foregoing definition shall not require, unless otherwise stated in this clause (A), the creation or perfection of pledges of, security interests in, Mortgages on, or the obtaining of title insurance or taking other actions with respect to, (i) any fee owned real property (other than Material Real Properties) and any leasehold rights and interests in real property (including landlord waivers, estoppels and collateral access letters), (ii) (A) motor vehicles and other assets subject to certificates of title and (B) commercial tort claims where the amount of damages claimed by the applicable Loan Party is less than $5,000,000, (iii) any particular asset, if the pledge thereof or the security interest therein is prohibited by Law other than to the extent such prohibition is expressly deemed ineffective under the Uniform Commercial Code or other applicable Law notwithstanding such prohibition, (iv) Margin Stock and, solely to the extent prohibited by the Organization Documents or any shareholders agreement with shareholders that are not direct or indirect wholly owned Restricted Subsidiaries of Holdings, Equity Interests in any Person other than wholly owned Restricted Subsidiaries, (v) any rights of any Loan Party with respect to any lease, license or other agreement to the extent a grant of security interest therein is prohibited by such lease, license or other agreement, would result in an invalidation thereof or would create a right of termination in favor of any other party thereto (other than a Loan Party) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable Laws or principle of equity notwithstanding such prohibition, (vi) any property or assets that would result in adverse tax consequences to Holdings, the Borrower or any of its Subsidiaries, as determined by the Borrower (it being understood that the Lenders shall not require Holdings or any of its Subsidiaries to enter into any security agreements or pledge agreements governed under foreign law), (vii) intellectual property to the extent a security interest is not perfected by filing of a UCC financing statement or in respect of registered intellectual property, a filing in the USPTO (if required) or the U.S. Copyright Office (it being understood that such assets are intended to constitute Collateral, though perfection beyond UCC, USPTO and U.S. Copyright Office filings is not required), (viii) Equity Interests of Unrestricted Subsidiaries, (ix) assets specifically requiring perfection solely through control agreements (e.g., deposit accounts and securities accounts) and (x) any particular assets if, in the reasonable judgment of the Administrative Agent and the Borrower, the burden, cost or consequences of creating or perfecting such pledges or security interests in such assets or obtaining title insurance is excessive in relation to the benefits to be obtained therefrom by the Lenders under the Loan Documents;
(B)    (i) the foregoing definition shall not require control agreements and perfection by “control” with respect to any Collateral (including deposit accounts, securities accounts, etc.) other than certificated Equity Interests of the Borrower and, to the extent constituting Collateral, its Restricted Subsidiaries; (ii) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required in order to create any security interests in assets located or titled outside of the U.S. or to perfect such security interests (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction other than the UK Security Agreement; and (iii) except to the extent that perfection and priority may be achieved by the filing of a financing statement under the Uniform Commercial Code with respect to the Borrower or a Guarantor, or, with respect to real property and the recordation of Mortgages in respect thereof, as contemplated by clauses (c) and (d) above, the Loan Documents shall not contain any requirements as to perfection or priority with respect to any assets or property described in this clause (B);
(C)    the foregoing definition shall not require the creation of security interests in any assets of, or Equity Interests of, any Unrestricted Subsidiaries;
(D)    the Administrative Agent in its reasonable discretion may grant extensions of time for the creation or perfection of security interests in, and Mortgages on, or obtaining of title insurance or taking other actions with respect to, particular assets (including extensions beyond the Closing Date) or any other compliance with the requirements of this definition where it and the Borrower reasonably determine that the creation or perfection of security interests and Mortgages on, or obtaining of title insurance or taking other actions, or any other compliance with the requirements of this definition cannot be accomplished without undue delay, burden or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents; provided that the Collateral Agent shall have received on or prior to the Closing Date, (i) UCC financing statements in appropriate form for
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filing under the UCC in the jurisdiction of incorporation or organization of each Loan Party, and (ii) any certificates or instruments representing or evidencing Equity Interests of the Borrower and any Subsidiary Guarantors accompanied by instruments of transfer and stock powers undated and endorsed in blank;
(E)    in no event shall the Administrative Agent or any Lender be entitled to exercise the voting power in respect of more than 65.0% of the voting Equity Interests of any “first-tier” Foreign Subsidiary; and
(F)    Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in this Agreement and the Collateral Documents.
“Collateral Documents” means, collectively, the Security Agreement, the Pledge Agreement, the UK Security Agreement, each of the Mortgages, collateral assignments, security agreements, pledge agreements, intellectual property security agreements or other similar agreements delivered to the Administrative Agent pursuant to Section 4.02, Section 6.11 or Section 6.13 hereof, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.
“Commitment” means, collectively, the Initial Term Loan Commitments and any commitments to make Refinancing Term Loans, Replacement Term Loans, Extended Term Loans and/or Incremental Term Loans.
“Commitment Letter” means the Commitment Letter, dated as of October 22, 2021, by and among the Borrower, the Arrangers and the other parties thereto.
“Committed Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of LIBOR Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Company Material Adverse Effect” means a “Material Adverse Effect” as such term is defined in the Acquisition Agreement as in effect on the date thereof.
“Compensation Period” has the meaning set forth in Section 2.12(c)(ii).
“Competitors” means any Person for whom a primary focus of their business is providing one or more of the following data and information management services: credit reports, credit scores, analytical services, risk management, portfolio review, direct marketing, credit monitoring, identification management, fraud detection, resources to help consumers manage their credit, auto information solutions, and receivables management services. Competitors include, but are not limited to, any of those companies currently operating under the following corporate umbrellas: Equifax Inc.; Experian Group Ltd.; Fair Isaac Corporation; RELX plc.; First Advantage Corporation; Innovis Inc.; Intersections, Inc.; Moody’s Corp.; LiveRamp Holdings, Inc.; Dun & Bradstreet Corp.; Fiserv Inc.; The McGraw-Hill Companies, Inc.; Thomson Reuters Corporation; Wolters Kluwer N.V.; Accenture plc; Automatic Data Processing, Inc.; Alliance Data Systems Corporation; CyberSource Corporation; Fidelity National Information Services Inc.; Paychex Inc.; SunGard Data Systems Inc.; Volt Information Sciences, Inc.; and Verisk Analytics, Inc.
“Compliance Certificate” means a certificate substantially in the form of Exhibit E.
“Consolidated EBITDA” means, for any period, the Consolidated Net Income for such period, plus:
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(a)    without duplication and, except with respect to clause (v) or (viii) below, to the extent deducted (and not added back) in arriving at such Consolidated Net Income, the sum of the following amounts for such period with respect to Holdings and its Restricted Subsidiaries:
(i)    total interest expense determined in accordance with GAAP (including, to the extent deducted and not added back in computing Consolidated Net Income, (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers’ acceptances, (c) non-cash interest payments, (d) the interest component of Capitalized Leases, (e) net payments, if any, pursuant to interest rate Swap Contracts with respect to Indebtedness, (f) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, (g) any expensing of bridge, commitment and other financing fees and (h) commissions, discounts, yield and other fees and charges (including related interest expenses) related to any Receivables Facility) and, to the extent not reflected in such total interest expense, any losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such hedging obligations, and costs of surety bonds in connection with financing activities (whether amortized or immediately expensed),
(ii)    provision for taxes based on income, profits or capital of Holdings and the Restricted Subsidiaries, including, without limitation, federal, state, franchise and similar taxes (such as Delaware franchise tax) and foreign withholding taxes paid or accrued during such period including penalties and interest related to such taxes or arising from any tax examinations,
(iii)    depreciation and amortization (including amortization of intangible assets, deferred financing fees, debt issuance costs, commissions, fees and expenses, bridge, commitment and other financing fees, discounts, yield and other fees and charges (including interest expense) related to any Receivables Facility, and amortization of unrecognized prior service costs and actuarial gains and losses related to pensions and other post-employment benefits, of Holdings and its Restricted Subsidiaries),
(iv)    severance and signing bonuses, stock options and other equity based compensation expenses, management fees and expenses, including, without limitation, any one time expense relating to enhanced accounting function or other transaction costs, including those associated with becoming a public company, relocation costs and expenses, Transaction Expenses, integration costs, transition costs, consolidation and closing costs for facilities, costs incurred in connection with any non-recurring strategic initiatives, costs incurred in connection with acquisitions and non-recurring intellectual property development after the Original Closing Date, other business optimization expenses (including costs and expenses relating to business optimization programs and new systems design and implementation costs), project start-up costs and other restructuring charges, accruals or reserves (including restructuring costs related to acquisitions after the Original Closing Date and to closure/consolidation of facilities, retention charges, systems establishment costs and excess pension charges),
(v)    the portion attributable to Holdings and its Restricted Subsidiaries (based on their percentage ownership) of the net income (loss) for such period of any Person that is not a Subsidiary, or that is accounted for by the equity method of accounting (but in any event excluding any Unrestricted Subsidiary), to the extent that the same was not included or otherwise deducted (and not added back) in such period in computing Consolidated Net Income,
(vi)    the amount of (A) management, consulting, monitoring and advisory fees and related expenses paid to the Permitted Holders in an amount not to exceed $5,000,000 in the aggregate in any calendar year and (B) payments by Holdings or any of its Restricted Subsidiaries to any of the Permitted Holders made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by a majority of the Board of Directors of the Borrower in good faith,
(vii)    any costs or expenses incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds
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contributed to the capital of Holdings or net cash proceeds of an issuance of Equity Interests of Holdings (other than Disqualified Equity Interests),
(viii)    the amount of cost savings, operating expense reductions, other operating improvements and synergies projected by the Borrower in good faith to be realized in connection with the Transactions or any Specified Transaction or the implementation of an operational initiative after the Original Closing Date (calculated on a Pro Forma Basis as though such cost savings, operating expense reductions, other operating improvements and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, other operating improvements and synergies were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) a duly completed certificate signed by a Responsible Officer of the Borrower shall be delivered to the Administrative Agent together with the Compliance Certificate required to be delivered pursuant to Section 6.02(a), certifying that (x) such cost savings, operating expense reductions, other operating improvements and synergies are reasonably anticipated to be realized and factually supportable in the good faith judgment of the Borrower, and (y) such actions are to be taken within (I) in the case of any such cost savings, operating expense reductions, other operating improvements and synergies in connection with the Transactions, 12 months after the Closing Date and (II) in all other cases, within 12 months after the consummation of the acquisition, Disposition or the implementation of an initiative, which is expected to result in such cost savings, expense reductions, other operating improvements or synergies, (B) no cost savings, operating expense reductions and synergies shall be added pursuant to this clause (viii) to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period, (C) to the extent that any cost savings, operating expense reductions, other operating improvements and synergies are not associated with the Transactions or a Specified Transaction following the Original Closing Date, all steps shall have been taken for realizing such savings and (D) projected amounts (and not yet realized) may no longer be added in calculating Consolidated EBITDA pursuant to this clause (viii) to the extent occurring more than four full fiscal quarters after the specified action taken in order to realize such projected cost savings, operating expense reductions, other operating improvements and synergies,
(ix)    any net loss from disposed, abandoned or discontinued operations,
(x)    any non-cash increase in expenses resulting from the revaluation of inventory (including any impact of changes to inventory valuation policy methods including changes in capitalization and variances),
(xi)    proceeds of business interruption insurance,
(xii)    other accruals, payments and expenses (including legal, tax, structuring and other costs and expenses) incurred during such period, or any amortization thereof for such period, in connection with any acquisition, investment, asset disposition, issuance or repayment of debt, issuance of equity securities, refinancing transaction or amendment or other modification of any debt instrument (in each case, including any such transaction consummated on the Closing Date and any such transaction undertaken but not completed); provided, that for the avoidance of doubt, the effects of expensing all transaction related expenses in accordance with Financial Accounting Standards No. 141(R) and gains or losses associated with FASB Interpretation No. 45 shall be excluded,
(xiii)    cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (b) below for any previous period and not added back,
(xiv)    the amount of loss on sales of Receivables Assets to a Receivables Subsidiary in connection with a Receivables Facility, and
(xv)    non-cash expenses, charges and losses (including impairment charges or asset write-offs, losses from investments recorded using the equity method, stock-based awards compensation expense or expenses relating to the vesting of warrants), in each case other than (A) any non-cash charge
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representing amortization of a prepaid cash item that was paid and not expensed in a prior period and (B) any non-cash charge relating to write-offs, write-downs or reserves with respect to accounts receivable or inventory; provided that if any non-cash charges referred to in this clause (xv) represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA in such future period to such extent paid, and
(xvi)    the amount of any non-controlling interest consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly-owned Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income,
less (b) without duplication and to the extent included in arriving at such Consolidated Net Income, (i) extraordinary, unusual or non-recurring gains, (ii) non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period) and (iii) any net gain from disposed, abandoned or discontinued operations; provided that, for the avoidance of doubt, any gain representing the reversal of any non-cash charge referred to in clause (a)(xv)(B) above for a prior period shall be added (together with, without duplication, any amounts received in respect thereof to the extent not increasing Consolidated Net Income) to Consolidated EBITDA in any subsequent period to such extent so reversed (or received);
provided that:
(A)    to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA (x) currency translation gains and losses related to currency remeasurements of Indebtedness (including the net loss or gain (i) resulting from Swap Contracts for currency exchange risk and (ii) resulting from intercompany indebtedness) and (y) gains or losses on Swap Contracts,
(B)    to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period any adjustments resulting from the application of Statement of Financial Accounting Standards No. 133 and International Accounting Standard No. 39 and their respective related pronouncements and interpretations,
(C)    to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period any income (loss) for such period attributable to the early extinguishment of (i) Indebtedness, (ii) obligations under any Swap Contracts or (iii) other derivative instruments, and
(D)    there shall be excluded in determining Consolidated EBITDA for any period any after-tax effect of non-recurring items (including gains or losses and all fees and expenses relating thereto) relating to curtailments or modifications to pension and post-retirement employee benefit plans for such period.
“Consolidated Interest Expense” means, for any period, (1) total interest expense of Holdings, the Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP (including, to the extent deducted and not added back in computing Consolidated Net Income, (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers’ acceptances, (c) non-cash interest payments (but excluding (i) any non-cash interest expense attributable to the movement in the mark to market valuation of Swap Contracts or other derivative instruments pursuant to GAAP and (ii) any non-cash imputed interest expense associated with non-interest bearing Indebtedness issued at par to the extent not included in Consolidated EBITDA), (d) the interest component of Capitalized Leases and (e) net payments, if any, pursuant to interest rate Swap Contracts with respect to Indebtedness, and excluding (x) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, (y) any expenses associated with bridge, commitment and other financing fees and (z) commissions, discounts, yield and other fees and charges (including related interest expenses) related to any Receivables Facility); plus (2) consolidated capitalized interest of Holdings, the Borrower and the Restricted Subsidiaries for such period, whether paid or accrued; less (3)
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interest income for such period. For purposes of this definition, interest on a Capitalized Lease shall be deemed to accrue at an interest rate reasonably determined by the Borrower to be the rate of interest implicit in such Capitalized Lease in accordance with GAAP.
“Consolidated Net Income” means, for any period, the net income (loss) of Holdings, the Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, provided, however, that, without duplication,
(a)    any pro forma after-tax effect (using a reasonable estimate based on applicable tax rates) of extraordinary, non-recurring or unusual items (including gains or losses and less all fees and expenses relating thereto) for such period shall be excluded, provided that solely for the purpose of calculating Consolidated Net Income in connection with determining the Available Additional Basket for Section 7.06(g) hereof, the after-tax effect of severance, relocation costs and curtailments or modifications to pension and post-retirement benefits plans shall also be excluded,
(b)    the cumulative effect of a change in accounting principles during such period to the extent included in Consolidated Net Income shall be excluded,
(c)    accruals and reserves that are established or adjusted within twelve months after the Original Closing Date or the Closing Date that are so required to be established or adjusted as a result of the Original Transactions or the Transactions, as applicable, in accordance with GAAP or changes as a result of adoption or modification of accounting policies in accordance with GAAP shall be excluded,
(d)    any net pro forma after-tax gains or losses on disposal of abandoned, disposed or discontinued operations shall be excluded,
(e)    any net pro forma after-tax effect of gains or losses (less all fees, expenses and charges) attributable to asset dispositions or the sale or other disposition of any Equity Interests of any Person in each case other than in the ordinary course of business, as determined in good faith by the Borrower, shall be excluded,
(f)    the net income (loss) for such period of any Person that is not a Subsidiary of Holdings, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of Holdings shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents (or to the extent subsequently converted into cash or Cash Equivalents) to Holdings or a Restricted Subsidiary thereof in respect of such period,
(g)    any impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP shall be excluded,
(h)    any non-cash compensation charge or expense, including any such charge or expense arising from the grants of stock appreciation or similar rights, stock options, restricted stock or other rights or equity incentive programs shall be excluded, and any cash charges associated with the rollover, acceleration or payout of Equity Interests by management of Holdings or any of its direct or indirect Restricted Subsidiaries in connection with the Original Transactions or the Transactions, as applicable, shall be excluded,
(i)    any expenses, charges or losses that are covered by indemnification or other reimbursement provisions in connection with any Investment, Permitted Acquisition or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement, to the extent actually reimbursed, or, so long as the Borrower has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days), shall be excluded,
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(j)    to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is in fact reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses with respect to liability or casualty events or business interruption shall be excluded,
(k)    the income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary of Holdings or is merged into or consolidated with Holdings or any of its Subsidiaries or that Person’s assets are acquired by Holdings or any of its Restricted Subsidiaries shall be excluded (except to the extent required for any calculation of Consolidated EBITDA on a Pro Forma Basis in accordance with Section 1.09 and Section 1.13), and
(l)    solely for the purpose of calculating Consolidated Net Income in connection with determining the Available Additional Basket for Section 7.06(g) hereof, (i) any fees and expenses incurred directly in connection with the Sponsor Acquisition shall be excluded, (ii) fees and expenses incurred, or any amortization thereof, in connection with any Investment, Permitted Acquisition or any sale, conveyance, transfer or other disposition of assets, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case to the extent not prohibited under this Agreement shall be excluded and (iii) the after-tax effect of any gains or losses from the early extinguishment of Indebtedness or any hedging obligation or other derivative obligation, shall be excluded.
For the avoidance of doubt, revenue will be accounted for on a GAAP basis and the recognition of any deferred revenue will be included in Consolidated Net Income in the same period as recognized for GAAP.
There shall be excluded from Consolidated Net Income for any period the purchase accounting effects of adjustments (including the effects of such adjustments pushed down to Holdings and its Restricted Subsidiaries) in component amounts required or permitted by GAAP (including in the inventory, property and equipment, software, goodwill, intangible assets, in-process research and development, deferred revenue and debt line items thereof) and related authoritative pronouncements (including the effects of such adjustments pushed down to Holdings and the Restricted Subsidiaries), as a result of the Original Transactions, the Transactions, any acquisition consummated prior to the Original Closing Date, any Permitted Acquisitions or other Investments, the Sponsor Acquisition, or the amortization or write-off of any amounts thereof. However, to the extent that deferred revenue is reduced as a result of the application of purchase accounting rules, revenue will be increased in subsequent periods to reflect the amount of revenue that would be recognized each period if there were no purchase accounting adjustments to deferred revenue.
“Consolidated Total Net Debt” means, as of any date of determination, (a) the aggregate principal amount of Indebtedness of Holdings and its Restricted Subsidiaries outstanding on such date, in an amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP (but (x) excluding the impact on Indebtedness resulting from the application of purchase accounting in connection with the Transactions, the Original Transactions, the Sponsor Acquisition or any Permitted Acquisition and (y) any Indebtedness that is issued at a discount to its initial principal amount shall be calculated based on the entire principal amount thereof), consisting of Indebtedness for borrowed money, Attributable Indebtedness, and debt obligations evidenced by promissory notes or similar instruments, minus (b) the aggregate amount of cash and Cash Equivalents (other than Restricted Cash), in each case, that is held by Holdings and its Restricted Subsidiaries as of such date free and clear of all Liens, other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Section 7.01(a), clauses (i), (ii) and (iii) of Section 7.01(k) and Section 7.01(p), provided that Consolidated Total Net Debt shall not include Indebtedness in respect of (i) letters of credit, except to the extent of unreimbursed amounts thereunder, provided that any unreimbursed amount under trade letters of credit shall not be counted as Consolidated Total Net Debt until three (3) Business Days after such amount is drawn and (ii) Unrestricted Subsidiaries; it being understood, for the avoidance of doubt,
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that obligations under Swap Contracts entered into for non-speculative purposes do not constitute Consolidated Total Net Debt.
“Consolidated Working Capital” means, with respect to Holdings and its Restricted Subsidiaries on a consolidated basis at any date of determination, Current Assets at such date of determination minus Current Liabilities at such date of determination; provided that increases or decreases in Consolidated Working Capital shall be calculated without regard to any changes in Current Assets or Current Liabilities as a result of (a) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent, (b) the effects of purchase accounting or (c) the effect of fluctuations in the amount of accrued or contingent obligations, assets or liabilities under Swap Contracts.
“Contract Consideration” has the meaning set forth in the definition of “Excess Cash Flow.”
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“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 or by contract. “Controlling” and “Controlled” have meanings correlative thereto.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning set forth in Section 10.21.
“Credit Agreement Refinancing Indebtedness” means (a) Permitted Pari Passu Refinancing Debt, (b) Permitted Junior Refinancing Debt, (c) Permitted Unsecured Refinancing Debt or (d) other Indebtedness incurred pursuant to a Refinancing Amendment, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or part, any Class of existing Term Loans or any then-existing Credit Agreement Refinancing Indebtedness (the “Refinanced Debt”); provided that (i) such Indebtedness has a maturity no earlier, and a Weighted Average Life to Maturity equal to or greater, than the Refinanced Debt, (ii) such Indebtedness shall not have a greater principal amount than the principal amount (or accreted value, if applicable) of the Refinanced Debt plus accrued interest, fees, premiums (if any) and penalties thereon and fees and expenses associated with the refinancing, plus an amount equal to any existing commitments unutilized thereunder, (iii) the terms and conditions of such Indebtedness (except as otherwise provided in clause (ii) above, but including with respect to pricing and optional prepayment or redemption terms) reflect market terms and conditions (as reasonably determined by the Borrower) at the time of incurrence or issuance of such Credit Agreement Refinancing Indebtedness, (iv) the “effective” yield with respect such Credit Agreement Refinancing Indebtedness shall be determined by the Borrower and the lenders providing such Credit Agreement Refinancing Indebtedness, (v) such Refinanced Debt shall be repaid, repurchased, retired, defeased or satisfied and discharged, and all accrued interest, fees, premiums (if any) and penalties in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained, (vi) such Indebtedness is not at any time guaranteed by any Person other than Guarantors, (vii) to the extent secured, such Indebtedness is not secured by property other than the Collateral, (viii) if the Refinanced Debt is subordinated in right of payment to, or to the Liens securing, the Obligations, then any Credit Agreement Refinancing Indebtedness shall be subordinated in right of payment to, or to the Liens securing, the Obligations, as applicable, on terms (A) at least as favorable (taken as a whole) (as
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reasonably determined by the Borrower) to the Lenders as those contained in the documentation governing the Refinanced Debt or (B) otherwise reasonably acceptable to the Administrative Agent, (ix) any Credit Agreement Refinancing Indebtedness shall be pari passu or junior in right of payment and, if secured, secured on a pari passu or junior basis with respect to security, with respect to the Term Loans, to the extent outstanding, (x) if such Credit Agreement Refinancing Indebtedness is secured, the requirements in the proviso at the end of Section 7.03 have been satisfied, and (xi) no Credit Agreement Refinancing Indebtedness that is a Term Loan shall be voluntarily or mandatorily prepaid prior to repayment in full of (or, if junior in right of payment or as to security, on a junior basis with respect to) any Class of then-existing Term Loans unless, solely in the case such Credit Agreement Refinancing Indebtedness that is pari passu in right of payment and security with such Class of then-existing Term Loans, accompanied by at least a ratable payment of such Class of then-existing Term Loans, and any such Credit Agreement Refinancing Indebtedness that is pari passu in right of payment and security with any Class of then-existing Term Loans may participate on a pro rata basis or on less than a pro rata basis (but not greater than pro rata basis) in any mandatory prepayments hereunder.
“Cumulative CNI Amount” means 50.0% of the aggregate amount of Consolidated Net Income accrued during the period (treated as one accounting period) from July 1, 2010 to the end of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 6.01(a) or (b).
“Current Assets” means, with respect to Holdings and the Restricted Subsidiaries on a consolidated basis at any date of determination, all assets (other than cash and Cash Equivalents) that would, in accordance with GAAP, be classified on a consolidated balance sheet of Holdings and its Restricted Subsidiaries as current assets at such date of determination, other than amounts related to current or deferred Taxes based on income or profits (but excluding (i) assets held for sale, (ii) loans (permitted) to third parties, (iii) Pension Plan assets, (iv) deferred bank fees, (v) derivative financial instruments and (vi) in the event that a Receivables Facility is accounted for off-balance sheet, (x) gross accounts receivable comprising a part of the Receivables Assets subject to such Receivables Facility less (y) collection against the amount sold pursuant to clause (x)).
“Current Liabilities” means, with respect to Holdings and the Restricted Subsidiaries on a consolidated basis at any date of determination, all liabilities that would, in accordance with GAAP, be classified on a consolidated balance sheet of Holdings and its Restricted Subsidiaries as current liabilities at such date of determination, other than (a) the current portion of any Indebtedness, (b) the current portion of interest, (c) accruals for current or deferred Taxes based on income or profits, (d) accruals of any costs or expenses related to restructuring reserves, (e) deferred revenue, (f) any revolving credit exposure under the First Lien Credit Agreement and (g) the current portion of pension liabilities.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which may include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Debtor Relief Laws” means the Bankruptcy Code of the United States and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declined Proceeds” has the meaning set forth in Section 2.05(b)(vii).
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2.0% per annum; provided that with respect to a LIBOR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable
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Rate) otherwise applicable to such Loan plus 2.0% per annum, in each case, to the fullest extent permitted by applicable Laws.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means, subject to Section 2.17(b), any Lender that, as reasonably determined by the Administrative Agent (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans, within one Business Day of the date required to be funded by it hereunder (unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in writing) has not been satisfied), (b) has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations hereunder or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after request by the Administrative Agent or the Borrower, to confirm in a manner satisfactory to the Administrative Agent and the Borrower that it will comply with its funding obligations, (d) has failed, within two Business Days after request by the Administrative Agent, to pay any amounts owing to the Administrative Agent or the other Lenders or (e) has, or has a direct or indirect parent company that has (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment or (iv) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
“Designated Non-cash Consideration” means the fair market value of non-cash consideration (including, without limitation, services) received by Holdings or a Restricted Subsidiary in connection with a Disposition that is so designated as Designated Non-cash Consideration pursuant to an officer’s certificate, setting forth the basis of such valuation, executed by a Responsible Officer of the Borrower, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.
“Designation Date” has the meaning set forth in Section 6.14.
“Discharge of Senior Obligations” has the meaning given to such term in the First Lien/Second Lien Intercreditor Agreement.
“Discount Range” has the meaning set forth in Section 2.05(c)(ii).
“Discounted Prepayment Option Notice” has the meaning set forth in Section 2.05(c)(ii).
“Discounted Voluntary Prepayment” has the meaning set forth in Section 2.05(c)(i).
“Discounted Voluntary Prepayment Notice” has the meaning set forth in Section 2.05(c)(v).
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any Sale-Leaseback Transaction and any sale or issuance of Equity Interests in a Restricted
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Subsidiary of Holdings) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable (including pursuant to any Receivables Facility) or any rights and claims associated therewith.
“Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests or solely at the direction of the issuer), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than if the issuer has the option to settle for Qualified Equity Interests and cash in lieu of fractional shares), in whole or in part, (c) requires the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the latest Maturity Date applicable to any then-outstanding Term Loans on the date of issuance of such Equity Interest; provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of Holdings (or any direct or indirect parent thereof), the Borrower or the Restricted Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Borrower or if its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Restricted Subsidiary” means any direct or indirect Restricted Subsidiary of Holdings which is a Domestic Subsidiary.
“Domestic Subsidiary” means any Subsidiary (i) that is organized under the Laws of the United States, any state thereof or the District of Columbia or (ii) otherwise designated by Holdings as a “Domestic Subsidiary” in an officer’s certificate delivered by a Responsible Officer of Holdings to the Administrative Agent (such Subsidiary being deemed a “Domestic Subsidiary” until such time, if any, that a Responsible Officer of Holdings shall deliver to the Administrative Agent a subsequent officer’s certificate certifying that such Subsidiary is no longer deemed a “Domestic Subsidiary”. Notwithstanding the foregoing, for purposes of clause (ii) of the immediately preceding sentence, Holdings may only deem that any such Subsidiary is no longer a “Domestic Subsidiary” if (x) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing and (y) all transactions involving such Subsidiary since the Closing Date (including, without limitation, all Investments in such Subsidiary) would have been permitted if such Subsidiary was not deemed to be a “Domestic Subsidiary” at all times from and after the Closing Date.
“Early Opt-in Election” means the occurrence of:
(1)     a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2)     the joint election by the Administrative Agent and the Borrower to trigger a fallback from LIBOR and the provision by the Administrative Agent of written notice of such election to the Lenders.
“ECF Test Date” has the meaning set forth in Section 2.05(b).
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“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means and includes a commercial bank, an insurance company, a finance company, a financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act) (other than a natural person) but in any event excluding (x) any Competitor and (y) except to the extent provided in Section 2.05(c), 10.07(k) and 10.07(n), the Sponsor, Holdings or any Subsidiary of Holdings.
“Embargoed Person” has the meaning set forth in Section 6.16.
“EMU” shall mean economic and monetary union as contemplated in the Treaty on European Union.
“Environment” means indoor air, ambient air, surface water, groundwater, drinking water, land surface, subsurface strata, and natural resources such as wetlands, flora and fauna.
“Environmental Laws” means the common law and any applicable Laws, in any case, relating to pollution or the protection of the Environment, or the protection of human health (to the extent relating to exposure to Hazardous Materials) and safety as it relates to the environment, including any applicable provisions of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Clean Water Act, 33 U.S.C. § 1251 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., and the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq., and all analogous state or local statutes, and the regulations promulgated pursuant thereto.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of investigation and remediation, fines, penalties or indemnities), of the Loan Parties or any Restricted Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.
“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities); provided, that any instrument evidencing Indebtedness convertible or exchangeable for Equity Interests shall not be deemed to be Equity Interests, unless and until any such instruments are so converted or exchanged.
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“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is under common control with a Loan Party or any Restricted Subsidiary within the meaning of Section 414 of the Code or Section 4001 of ERISA.
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by a Loan Party, any Restricted Subsidiary or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Loan Party, any Restricted Subsidiary or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization or insolvency, or the receipt by any Loan Party, any Restricted Subsidiary or any ERISA Affiliate of any notice that a Multiemployer Plan is in endangered or critical status under Section 305 of ERISA; or the failure to make any required contribution to a Multiemployer Plan; (d) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) 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) with respect to a Pension Plan, the failure to satisfy the minimum funding standard of Section 412 of the Code, whether or not waived; a determination that any Pension Plan is, or is expected to be, considered an at-risk plan within the meaning of Section 430 of the Code or Section 303 of ERISA; a Loan Party or any Restricted Subsidiary or any ERISA Affiliate incurring any liability under Section 436 of the Code, or a violation of Section 436 of the Code with respect to a Pension Plan; (g) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could result in liability to a Loan Party or any Restricted Subsidiary; or (h) 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 a Loan Party, any Restricted Subsidiary or any ERISA Affiliate.
“Euros” and the sign “€” mean the currency introduced on January 1, 1999 at the start of the third stage of European Economic and Monetary Union pursuant to the Treaty establishing the European Community being the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1986, the Maastricht Treaty (which was signed at Maastricht on February 7, 1992) and the Treaty of Amsterdam (which was signed in Amsterdam on October 2, 1997).
“EU-Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning set forth in Section 8.01.
“Excess Cash Flow” means, for any period, an amount equal to (a) the sum, without duplication, of (i) Consolidated Net Income for such period, (ii) an amount equal to the amount of all non-cash charges (including depreciation and amortization) to the extent deducted in arriving at such Consolidated Net Income, (iii) decreases in Consolidated Working Capital and long-term accounts receivable of Holdings and its Restricted Subsidiaries for such period (other than any such decreases arising from acquisitions or dispositions by Holdings and its Restricted Subsidiaries completed during such period) and (iv) an amount equal to the aggregate net non-cash loss on Dispositions by Holdings and its Restricted Subsidiaries during such period (other than sales in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income minus (b) the sum, without duplication, of (i) an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income and cash charges included in clauses (a) through (k) of the definition of Consolidated Net Income, (ii) without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Capital Expenditures or acquisitions of intellectual property to the extent not expensed during such period, to the extent that such Capital Expenditures or acquisitions were financed with internally generated cash or borrowings under the Revolving Credit Facility and were not made by utilizing the Cumulative CNI Amount, (iii) the aggregate amount of all principal payments of Indebtedness of Holdings or its Restricted Subsidiaries (including (A) the principal component of payments in respect of
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Capitalized Leases, (B) the amount of any scheduled repayment of First Lien Term Loans pursuant to Section 2.07 of the First Lien Credit Agreement and (C) any mandatory prepayment of First Lien Term Loans pursuant to Section 2.05(b)(ii) of the First Lien Credit Agreement or Term Loans pursuant to Section 2.05(b)(ii), in each case to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase, but excluding (X) all other voluntary and mandatory prepayments of First Lien Term Loans and Term Loans, (Y) all other prepayments of Revolving Credit Loans, in each case, made during such period and (Z) all payments in respect of any other revolving credit facility made during such period, except in the case of clause (Z) to the extent there is an equivalent permanent reduction in commitments thereunder), to the extent financed with internally generated cash, (iv) an amount equal to the aggregate net non-cash gain on Dispositions by Holdings and its Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income, (v) increases in Consolidated Working Capital and long-term accounts receivable of Holdings and its Restricted Subsidiaries for such period (other than any such increases arising from acquisitions or dispositions by Holdings and its Restricted Subsidiaries during such period), (vi) cash payments by Holdings and its Restricted Subsidiaries during such period in respect of long-term liabilities of Holdings and its Restricted Subsidiaries other than Indebtedness, (vii) without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Investments and acquisitions made during such period by Holdings and its Restricted Subsidiaries on a consolidated basis pursuant to Section 7.02 to the extent that such Investments and acquisitions were financed with internally generated cash and were not made by utilizing the Cumulative CNI Amount, (viii) the amount of Restricted Payments paid during such period pursuant to Section 7.06(f) to the extent such Restricted Payments were financed with internally generated cash or borrowings under the Revolving Credit Facility, (ix) the aggregate amount of expenditures actually made by Holdings and its Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period, (x) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by Holdings and its Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness, (xi) without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by Holdings and its Restricted Subsidiaries pursuant to binding contracts or executed letters of intent (the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions, acquisitions, Investments or Capital Expenditures or acquisitions of intellectual property (to the extent not expensed) to be consummated or made, plus any restructuring cash expenses, pension payments or tax contingency payments that have been added to Excess Cash Flow pursuant to clause (a)(ii) above required to be made, in each case during the period of four consecutive fiscal quarters of Holdings following the end of such period, provided that to the extent the aggregate amount of internally generated cash not utilizing the Cumulative CNI Amount actually utilized to finance such Permitted Acquisitions, acquisitions, Investments, Capital Expenditures or acquisitions of intellectual property during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters, (xii) the amount of cash taxes (including penalties and interest) or the tax reserves set aside in a prior period to the extent paid in cash in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period, (xiii) cash expenditures in respect of Swap Contracts during such fiscal year to the extent not deducted in arriving at such Consolidated Net Income, (xiv) any payment of cash to be amortized or expensed over a future period and recorded as a long-term asset, (xv) reimbursable or insured expenses incurred during such fiscal year to the extent that reimbursement has not yet been received, and (xvi) cash expenditures for costs and expenses in connection with acquisitions or Investments, dispositions and the issuance of equity interests or Indebtedness to the extent not deducted in arriving at such Consolidated Net Income. Notwithstanding anything in the definition of any term used in the definition of Excess Cash Flow to the contrary, all components of Excess Cash Flow shall be computed for Holdings and its Restricted Subsidiaries on a consolidated basis.
“Excess Cash Flow Period” means each fiscal year of Holdings (commencing with the fiscal year ending December 31, 2022).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
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“Excluded Affiliate” means, with respect to any Person, Affiliates of such Person that are (i) engaged as principals primarily in private equity, mezzanine financing or venture capital, (ii) customers of Holdings and its Subsidiaries or (iii) Competitors.
“Excluded Asset Sale Proceeds” has the meaning set forth in Section 2.05(b)(ii).
“Excluded Information” has the meaning set forth in Section 2.05(c)(i).
“Excluded Subsidiary” means (a) any Subsidiary that is not directly or indirectly a wholly owned Subsidiary of Holdings, (b) any Subsidiary (an “Immaterial Subsidiary”) that does not have (i) the greater of (A) assets representing 1.0% or more of the Adjusted Total Assets of Holdings or (B) total assets in excess of $15,000,000 or more, in each case, excluding intercompany indebtedness, or (ii) revenues representing the greater of (A) 1.0% or more of the consolidated revenues of Holdings or (B) $15,000,000, in each case, as of the end of or for the most recent period of four consecutive fiscal quarters of Holdings for which financial statements have been delivered pursuant to Section 6.01(a) or (b) (or, prior to the first delivery of any such financial statements, as of the end of or for the period of four consecutive fiscal quarters of Holdings most recently ended prior to the date of this Agreement), (c) any Subsidiary that is prohibited by applicable Law or Contractual Obligations that are in existence on the Closing Date or at the time of acquisition of such Subsidiary and not entered into in contemplation thereof from guaranteeing the Obligations or if guaranteeing the Obligation would require governmental (including regulatory) consent, approval, license or authorization (unless such consent, approval license or authorization has been obtained), (d) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower, the burden or cost or other consequences (including any material adverse tax consequences) of providing a Guarantee shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (e) any Foreign Subsidiary, (f) any non-for-profit Subsidiaries, (g) any Unrestricted Subsidiaries, (h) any special purpose securitization vehicle or a captive insurance subsidiary, (i) any direct or indirect Domestic Subsidiary all or substantially all of the assets of which consist of the Equity Interests of one or more Foreign Subsidiaries, (j) any Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary and (k) any Receivables Subsidiary; provided that no Subsidiary that guarantees the First Lien Obligations or any Junior Financing shall be deemed to be an Excluded Subsidiary at any time any such guarantee is in effect.
“Excluded Swap Obligation” means, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, and only for so long as all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a Lien to secure, as applicable, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Loan Parties and counterparty applicable to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.
“Excluded Taxes” means, with respect to any Agent, any Lender, or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) any Taxes imposed on (or measured by) its net income or net profits (or any franchise or similar Taxes in lieu thereof) by the jurisdiction under the laws of which such recipient is organized, in which its principal office is located or in which it is otherwise doing business or as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Loan or Loan Document) or, in the case of any Lender, in which its Lending Office is located, (b) any Taxes in the nature of branch profits tax within the meaning of section 884(a) of the Code or any similar tax imposed by any jurisdiction described in (a), (c) other than in the case of an assignee pursuant to a
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request by the Borrower under Section 3.07, any withholding Tax that is imposed on any interest payable to any Lender pursuant to any Law in effect at the time such Lender becomes a party to this Agreement (or designates a new Lending Office), except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new applicable Lending Office (or assignment), to receive additional amounts with respect to such United States federal withholding Tax pursuant to Section 3.01(a), (d) any withholding tax (including backup withholding tax) that is attributable to such Lender’s failure to comply with Section 3.01(d), or (e) any United States federal withholding tax imposed under FATCA.
“Executive Order” has the meaning set forth in Section 6.16.
“Extending Term Lender” has the meaning set forth in Section 2.15(a).
“Extended Term Loans” has the meaning set forth in Section 2.15(a).
“Extension” has the meaning set forth in Section 2.15(a).
“Extension Offer” has the meaning set forth in Section 2.15(a).
“Facility” means the Initial Term Loans or the Extended Term Loans, Refinancing Term Loans, Replacement Term Loans or Incremental Term Loans of a given Class, as the context may require.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any law, regulation, rule, promulgation, guidance notes, practices or official agreement implementing an official governmental agreement with respect to the foregoing.
“FCPA” has the meaning set forth in Section 5.18.
“Federal Funds Rate” means, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent in its reasonable judgment (rounded upward, if necessary, to a whole multiple of 1/100 of 1.00%).
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“Fee Letter” means the Fee Letter, dated as of October 22, 2021, by and among the Borrower, the Arrangers and the other parties thereto.
“FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended.
“First Lien Administrative Agent” means Deutsche Bank AG, New York Branch, in its capacity as administrative agent and collateral agent under the First Lien Facilities Documentation, or any successor administrative agent and collateral agent under the First Lien Facilities Documentation.
“First Lien Base Incremental Amount” means the “Base Incremental Amount” as such term is defined in the First Lien Credit Agreement as in effect on the Closing Date.
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“First Lien Credit Agreement” means that certain Third Amended and Restated Credit Agreement, dated as of August 9, 2017, among Holdings, the Borrower, the guarantors party thereto from time to time, the lenders from time to time party thereto and the First Lien Administrative Agent, as the same may be amended, restated, modified, supplemented, extended, increased, or refinanced or replaced pursuant to a Permitted Refinancing from time to time in one or more agreements (in each case with the same or new lenders, investors or agents), in each case as and to the extent permitted by this Agreement and the First Lien/Second Lien Intercreditor Agreement.
“First Lien Credit Agreement Refinancing Indebtedness” means, collectively, the “Credit Agreement Refinancing Debt” as defined in the First Lien Credit Agreement.
“First Lien Facilities” means the first lien term loan facilities and first lien revolving facility under the First Lien Credit Agreement.
“First Lien Facilities Documentation” means the First Lien Credit Agreement and all security agreements, guarantees, pledge agreements, notes and other agreements or instruments executed in connection therewith, including all “Loan Documents” (as such term is defined in the First Lien Credit Agreement).
“First Lien Incremental Facilities” means “Incremental Term Loans” and any “Revolving Commitment Increase”, as each such term is defined in the First Lien Credit Agreement.
“First Lien Loans” means the “Loans” as such term is defined in the First Lien Credit Agreement.
“First Lien Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) the Consolidated Total Net Debt (other than any portion of Consolidated Total Net Debt that is unsecured or is secured solely by a Lien on the Collateral that is subordinated to the Liens on the Collateral securing the First Lien Obligations pursuant to the First/Second Lien Intercreditor Agreement) as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period.
“First Lien Obligations” means the “Obligations” as such term is defined in the First Lien Credit Agreement.
“First Lien Term Loans” means, collectively, “Term Loans” as defined in the First Lien Credit Agreement.
“First Lien/Second Lien Intercreditor Agreement” means the First Lien/Second Lien Intercreditor Agreement, dated as of the date hereof, executed by the Administrative Agent and the First Lien Administrative Agent.
“Fixed Charge Coverage Ratio” means as of any date of determination, the ratio of (a) Consolidated EBITDA for the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), to (b) the Fixed Charges for such Test Period; provided that the Fixed Charge Coverage Ratio shall be determined for the relevant Test Period on a Pro Forma Basis.
“Fixed Charges” shall mean, with respect to Holdings for any period, the sum, without duplication, of:
(a)    Consolidated Interest Expense of Holdings and its Restricted Subsidiaries that was paid or payable in cash during such period,
(b)    all cash dividend payments or other distributions paid (excluding items eliminated in consolidation) on any series of preferred stock during such period (other than distributions paid in Equity Interests (other than Disqualified Equity Interests) of Holdings and its Restricted Subsidiaries, and
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(c)    all cash dividend payments or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Equity Interests during such period (other than distributions paid in Equity Interests (other than Disqualified Equity Interests) of Holdings and its Restricted Subsidiaries.
“Flood Insurance Laws” shall mean, collectively, (i) the 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) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign Casualty Event” has the meaning set forth in Section 2.05(b)(x).
“Foreign Disposition” has the meaning set forth in Section 2.05(b)(x).
“Foreign Subsidiary” means any direct or indirect Restricted Subsidiary of Holdings which is not a Domestic Subsidiary.
“Foreign Subsidiary Excess Cash Flow” has the meaning set forth in Section 2.05(b)(ix).
“Fund” means 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.
“GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that (a) the amount of any Indebtedness under GAAP with respect to a Capitalized Lease shall be determined in accordance with the definition of Capitalized Leases and (b) if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Granting Lender” has the meaning set forth in Section 10.07(h).
“GS” means GS Capital Partners VI, L.P., a Delaware limited partnership.
“Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness of another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness of any other Person, whether or not such
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Indebtedness is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any contractual arrangement, including, but not limited to, any acquisition, capital expenditure, investment or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guaranteed Obligations” has the meaning set forth in Section 11.01.
“Guarantors” means Holdings and the Subsidiaries of Holdings (including the Borrower (solely with respect to its Obligations other than its direct Obligations as a primary obligor (as opposed to a guarantor) under the Loan Documents) and excluding any Excluded Subsidiary) and any other Domestic Subsidiary that, at the option of the Borrower, issues a Guarantee of the Obligations after the Closing Date. Notwithstanding any provision set forth herein or in any other Loan Documents to the contrary, and for avoidance of doubt, in no event shall (x) any Subsidiary that is not a Domestic Subsidiary (or an entity that is a direct or indirect Subsidiary of such Subsidiary) be required to guarantee the obligations of the Borrower or any Domestic Subsidiary, (y) the assets of any Subsidiary that is not a Domestic Subsidiary (or an entity that is a direct or indirect Subsidiary of such Subsidiary) directly or indirectly constitute security or secure payment of the obligations of the Borrower or any Domestic Subsidiary, or (z) a Loan Party deliver a pledge (A) in excess of 65.0% of any voting Equity Interest of any “first-tier” Subsidiary that is not a Domestic Subsidiary or (B) of any Equity Interest of any “second-tier” or lower Subsidiary that is not a Domestic Subsidiary.
“Guaranty” means, collectively, the guaranty of the Obligations by the Guarantors pursuant to this Agreement.
“Hazardous Materials” means all materials, pollutants, contaminants, chemicals, compounds, constituents, substances or wastes, in any form, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, mold, electromagnetic radio frequency or microwave emissions, that are regulated pursuant to, or which could give rise to liability under, applicable Environmental Law.
“Holdings” has the meaning set forth in the preamble hereto.
“Immaterial Subsidiary” has the meaning set forth in the definition of “Excluded Subsidiary.”
“Incremental Amendment” has the meaning set forth in Section 2.14(a).
“Incremental Maturity Carveout Amount” means up to the greater of $375,000,000 and (y) 37.5% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available.
“Incremental Term Loans” has the meaning set forth in Section 2.14(a).
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following:
(a)    all obligations of such Person for borrowed money and all monetary obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
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(b)    the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all outstanding letters of credit (including standby and trade), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;
(c)    net obligations of such Person under any Swap Contract;
(d)    all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course of business, (ii) any earn-out obligation until such obligation becomes a non-contingent liability on the balance sheet of such Person in accordance with GAAP and (iii) liabilities and expenses accrued in the ordinary course);
(e)    indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f)    all Attributable Indebtedness; and
(g)    all obligations of such Person in respect of Disqualified Equity Interests;
if and to the extent that the foregoing would constitute indebtedness or a liability in accordance with GAAP; and
(h)    to the extent not otherwise included above, all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall (A) include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner, except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would be included in the calculation of Consolidated Total Net Debt and (B) shall exclude obligations in respect of Receivables Facilities. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.
“Indemnified Liabilities” has the meaning set forth in Section 10.05.
“Indemnified Taxes” means any Taxes other than Excluded Taxes.
“Indemnitees” has the meaning set forth in Section 10.05.
“Information” has the meaning set forth in Section 10.08.
“Initial Borrowing” means the Borrowing of Initial Term Loans on the Closing Date pursuant to Section 2.01(a).
“Initial Lenders” means JPMorgan Chase Bank, N.A., Deutsche Bank AG New York Branch and Wells Fargo Bank, National Association.
“Initial Term Loan” means a term loan made by the Lenders on the Closing Date to the Borrower pursuant to Section 2.01(a).
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“Initial Term Loan Commitment” means the commitment of a Lender to make or otherwise fund an Initial Term Loans and “Initial Term Loan Commitments” means such commitments of all of the Lenders in the aggregate. The amount of each Lender’s Initial Term Loan Commitment, if any, is set forth on Schedule 1.01A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Initial Term Loan Commitments as of the Closing Date is $640,000,000.
“Intellectual Property Security Agreement” means any agreement substantially in the form of Annex A, B or C to the Security Agreement.
“Intercreditor Agreement” means (a) a Junior Lien Intercreditor Agreement or (b) any pari passu intercreditor agreement by and among the Collateral Agent and the collateral agents or other representatives for the holders of Indebtedness secured by Liens on Collateral that are intended to rank equal in priority with the Liens securing the Obligations (but without regard to control of remedies) in form and substance reasonably satisfactory to the Collateral Agent.
“Interest Determination Date” means, with respect to any LIBOR Loan, the second Business Day prior to the commencement of any Interest Period relating to such LIBOR Loan.
“Interest Payment Date” means (a) as to any LIBOR Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided that if any Interest Period for a LIBOR Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made.
“Interest Period” means, as to each LIBOR Loan, the period commencing on the date such LIBOR Loan is disbursed or converted to or continued as a LIBOR Loan and ending on the date one, three or six months thereafter or, to the extent agreed by each Lender of such LIBOR Loan, twelve months or any other date thereafter (or such period of less than one month as may be consented to by the Administrative Agent), as selected by the Borrower in its Committed Loan Notice; provided that:
(i)    any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(ii)    any Interest Period (other than an Interest Period having a duration of less than one month) that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(iii)    no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment but giving effect to any returns or distributions received by such Person with respect thereto.
“IP Rights” has the meaning set forth in Section 5.15.
“Joint Venture Basket Amount” has the meaning set forth in Section 7.02(r)(i).
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“Junior Financing” has the meaning set forth in Section 7.13(a).
“Junior Financing Documentation” means any documentation governing any Junior Financing.
“Junior Lien Incremental Facility” has the meaning set forth in Section 2.14(a).
“Junior Lien Intercreditor Agreement” means an intercreditor agreement by and among the Collateral Agent and the collateral agents or other representatives for the holders of Indebtedness secured by Liens on the Collateral that are intended to rank junior to the Liens securing the Obligations and that are otherwise Permitted Liens providing that all proceeds of Collateral shall first be applied to repay the Secured Obligations in full prior to being applied to any obligations under the Indebtedness secured by such junior Liens and that until the termination of the Aggregate Commitments and the repayment in full of all Secured Obligations (other than contingent obligations not then due and payable), the Collateral Agent shall have the sole right to exercise remedies against the Collateral (subject to customary exceptions and the expiration of any standstill provisions) and otherwise in form and substance reasonably satisfactory to the Collateral Agent.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“LCT Election” has the meaning set forth in Section 1.13.
“LCT Test Date” has the meaning set forth in Section 1.13.
“Lender” has the meaning set forth in the preamble to this Agreement and, as the context requires, and includes their respective permitted successors and assigns as permitted hereunder, each of which is referred to herein as a “Lender.”
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
“LIBO Screen Rate” means, with respect to any Borrowing of LIBOR Loans and for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion).
“LIBOR” means, with respect to any Borrowing of LIBOR Loans and for any Interest Period, (a) the LIBO Screen Rate at approximately 11:00 a.m. (London time) on the date that is two (2) Business Days prior to the commencement of such Interest Period, in each case, multiplied by (b) the Statutory Reserve Rate, and if LIBOR, as determined above, shall at any time be less than 0.00%, LIBOR shall be deemed to be 0.00% at such time for all purposes of this Agreement.
“LIBOR Loan” means a Loan that bears interest at a rate based on LIBOR.
“Lien” means any mortgage, pledge, hypothecation, collateral 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
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other title retention agreement, any easement, right of way or other encumbrance on title to Real Property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing). For the avoidance of doubt, “Lien” shall not be deemed to include any licenses of IP Rights.
“Limited Condition Transaction” means (i) any Permitted Acquisition or Investment by the Borrower or one or more of its Restricted Subsidiaries whose consummation is not conditioned upon the availability of, or on obtaining, third party financing or any asset sale, (ii) any repayment, repurchase or refinancing of Indebtedness with respect to which an irrevocable notice of repayment (or similar irrevocable notice) is required to be delivered or (iii) any dividends or distributions on, or redemptions of equity interests permitted to be issued pursuant to this Agreement requiring irrevocable notice in advance thereof.
“Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan (including any Incremental Term Loan and any Extended Term Loans).
“Loan Documents” means, collectively, (i) this Agreement, (ii) the Notes, (iii) the Collateral Documents, (iv) any Refinancing Amendment, (v) the First Lien/Second Lien Intercreditor Agreement and any other Intercreditor Agreement and/or subordination agreements and (vi) any amendment, modification or supplement to any of the foregoing (including any Incremental Amendment).
“Loan Parties” means, collectively, the Borrower, each Guarantor and, without duplication, each Pledgor under and as defined in the Pledge Agreement.
“Management Stockholders” means the members of management of Holdings, the Borrower or any of its Subsidiaries who are investors in Holdings or any direct or indirect parent thereof.
“Margin Stock” has the meaning set forth in Regulation U.
“Master Agreement” has the meaning set forth in the definition of “Swap Contract”.
“Material Adverse Effect” means (i) on or prior to the Closing Date, a Company Material Adverse Effect and (ii) after the Closing Date, (a) a material adverse effect on the business, operations, assets, liabilities or financial condition of Holdings and its Restricted Subsidiaries, taken as a whole; (b) a material adverse effect on the ability of the Loan Parties (taken as a whole) to fully and timely perform any of their payment obligations under any Loan Document to which Holdings or any of the Loan Parties is a party; or (c) a material adverse effect on the material rights and remedies available to the Lenders or the Collateral Agent under any Loan Document.
“Material Real Property” means any fee owned real property owned by any Loan Party (other than any owned real property subject to a Lien permitted by clause (t) or (v) of Section 7.01 to the extent and for so long as the documentation governing such Lien prohibits the granting of a Mortgage thereon to secure the Obligations) with a fair market value in excess of $5,000,000 (at the Closing Date or, with respect to real property acquired after the Closing Date, at the time of acquisition, in each case, as reasonably estimated by the Borrower in good faith); provided that if at any time the fair market value of all fee owned real properties that are not “Material Real Property” owned by the Loan Parties would exceed $20,000,000 in the aggregate, the Loan Parties shall designate additional fee owned real properties as “Material Real Property” and comply with the Collateral and Guarantee Requirement with respect thereto such that such threshold is no longer exceeded.
“Maturity Date” means (i) with respect to the Initial Term Loans that have not been extended pursuant to Section 2.15, December 1, 2029 (the “Initial Term Loan Maturity Date”) and (ii) with respect to any tranche of Extended Term Loans, the final maturity date as specified in the applicable Extension Offer accepted by the respective Lender or Lenders; provided that if any such day is not a Business Day, the applicable Maturity Date shall be the Business Day immediately succeeding such day.
“Maximum Accrual” has the meaning set forth in Section 2.05(b)(v).
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“Maximum Rate” has the meaning set forth in Section 10.10.
“Minimum Extension Condition” has the meaning set forth in Section 2.15(c).
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Mortgage Policies” has the meaning set forth in the definition of “Collateral and Guarantee Requirement.”
“Mortgaged Properties” has the meaning set forth in the definition of “Collateral and Guarantee Requirement.”
“Mortgages” means, collectively, the deeds of trust, trust deeds, hypothecs and mortgages made by the Loan Parties in favor or for the benefit of the Collateral Agent on behalf of the Secured Parties creating and evidencing a Lien on a Mortgaged Property, in form and substance reasonably satisfactory to the Collateral Agent and the Borrower.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Loan Party or any Restricted Subsidiary makes or is obligated to make contributions, or has any liability or contingent liability (including liability or contingent liability on account of any ERISA Affiliate).
“Net Proceeds” means:
(a)    100.0% of the cash proceeds actually received by Holdings or any of the Restricted Subsidiaries (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards, but in each case only as and when received) from any Disposition (other than sales of Receivables Assets pursuant to a Receivables Facility) or Casualty Event, net of (i) attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (ii) any amount required to repay (x) Indebtedness (other than pursuant to the Loan Documents) that is secured by a Lien on the assets disposed of and, if such assets constitute Collateral, which Lien ranks prior to the Lien securing the Obligations or (y) Indebtedness or other obligations of any Subsidiary that is disposed of in such transaction, (iii) in the case of any Disposition or Casualty Event by a non-wholly owned Restricted Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (iii)) attributable to minority interests and not available for distribution to or for the account of Holdings or a wholly owned Restricted Subsidiary as a result thereof, (iv) taxes paid or reasonably estimated to be payable as a result thereof, (v) any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition (provided that to the extent that any amounts are released from such escrow to Holdings or a Restricted Subsidiary, such amounts net of any related expenses shall constitute Net Proceeds) and (vi) without duplication of clause (v) above, the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any taxes deducted pursuant to clause (i) above) (x) related to any of the applicable assets and (y) retained by Holdings or any of the Restricted Subsidiaries including, without limitation, Pension Plan and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (however, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such Disposition or Casualty Event occurring on the date of such reduction); provided that, if no Event of Default exists, Holdings and its Restricted Subsidiaries may reinvest any portion of such proceeds in assets useful for their businesses within 18 months of such receipt, such portion of such proceeds shall not constitute Net Proceeds except to the extent not, within 18 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds are not so used within such 18-month period but within such 18-month period are contractually committed to be used, then upon the termination of such contract or if such Net Proceeds are not so used within 24 months of initial receipt, such remaining portion shall
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constitute Net Proceeds as of the date of such termination or expiry without giving effect to this proviso; it being understood that such proceeds shall constitute Net Proceeds notwithstanding any investment notice if there is a Specified Default at the time of a proposed reinvestment unless such proposed reinvestment is made pursuant to a binding commitment entered into at a time when no Specified Default was continuing); provided, further, that no proceeds realized in a single transaction or series of related transactions shall constitute Net Proceeds unless the aggregate net proceeds exceed $62,500,000 (and only net cash proceeds in excess of such amount shall constitute Net Proceeds under this clause (a)),
(b)    100.0% of the cash proceeds from the incurrence, issuance or sale by Holdings or any of the Restricted Subsidiaries of any Indebtedness for borrowed money, net of all taxes paid or reasonably estimated to be payable as a result thereof and fees (including investment banking fees and discounts), commissions, costs and other expenses, in each case incurred in connection with such issuance or sale, and
(c)    with respect to any Receivables Facility, 100.0% of the cash proceeds of (i) any sale of Receivables Assets by Holdings or any of its Restricted Subsidiaries, (ii) the repayment by Holdings or any of its Restricted Subsidiaries of any loan solely to finance the purchase from Holdings or any Restricted Subsidiary of Receivables Assets and (iii) any return of capital invested by Holdings or any Restricted Subsidiary in the Receivables Subsidiary for such Receivables Facility, in each case (x) to the extent funded by a “borrowing” or increase in investment under such Receivables Facility and (y) net of upfront fees (including investment banking fees and discounts), commissions, costs and other expenses, in each case incurred in connection with the Receivables Facility.
For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to Holdings or any Restricted Subsidiary shall be disregarded.
“Non-Consenting Lender” has the meaning set forth in Section 3.07(d).
“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender.
“Not Otherwise Applied” means, with reference to any amount of Net Proceeds of any transaction or event, that such amount (a) was not required to be applied to prepay the Loans pursuant to Section 2.05(b), and (b) was not previously applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was (or may have been) contingent on receipt of such amount or utilization of such amount for a specified purpose. The Borrower shall promptly notify the Administrative Agent of any application of such amount as contemplated by (b) above.
“Note” means a Term Note.
“NYFRB” means the Federal Reserve Bank of New York.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party and its Restricted Subsidiaries arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or Restricted Subsidiary of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and of their Restricted Subsidiaries to the extent they have obligations under the Loan Documents) include (a) the obligation (including guarantee obligations) to pay principal, interest, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document and (b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that the Administrative Agent, the Collateral Agent or any Lender, in its sole discretion consistent with the Loan Documents, may elect to pay or advance on behalf of such Loan Party; provided that, for purposes of determining any Obligations of any Guarantor under Article XI of this Agreement, the definition of “Obligations” shall not create any guarantee by any Guarantor of any Excluded Swap Obligations of such Guarantor.
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“OFAC” has the meaning set forth in Section 5.18.
“Offered Loans” has the meaning set forth in Section 2.05(c)(iii).
“Other Applicable Indebtedness” has the meaning set forth in Section 2.05(b)(ii).
“Original Closing Date” means the “Closing Date” as such term is defined in the First Lien Credit Agreement.
“Original Transactions” means the “Transactions” as such term is defined in the First Lien Credit Agreement.
“Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Benchmark Rate Election” means if the then-current Benchmark is LIBOR, the occurrence of:
(a)     a request by the Borrower to the Administrative Agent to notify each of the other parties hereto that, at the determination of the Borrower, Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed), in lieu of a LIBOR-based rate, a term benchmark rate as a benchmark rate, and
(b)     the Administrative Agent, in its sole discretion, and the Borrower jointly elect to trigger a fallback from LIBOR and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders.
“Other Taxes” has the meaning set forth in Section 3.01(b).
“Outstanding Amount” means, with respect to Term Loans of any Class, on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans of such Class occurring on such date.
“Parent” means TransUnion (f/k/a TransUnion Holding Company, Inc.).
“Pari Passu Secured Incremental Facility” has the meaning set forth in Section 2.14(a).
“Participant” has the meaning set forth in Section 10.07(e).
“Payment” has the meaning assigned to it in Section 9.16(a).
“Payment Notice” has the meaning assigned to it in Section 9.16(b).
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV or Section 302 of ERISA or Section 412 of the Code and is sponsored or maintained by any Loan Party or any Restricted Subsidiary or to which any Loan Party or any Restricted Subsidiary contributes or has an obligation to
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contribute, or has any liability or contingent liability (including liability or contingent liability on account of an ERISA Affiliate).
“Perfection Certificate” means a certificate in the form of Exhibit N or any other form reasonably approved by the Collateral Agent and the Borrower, as the same shall be supplemented from time to time.
“Permitted Acquisition” has the meaning set forth in Section 7.02(g).
“Permitted Holders” means each of the Sponsor and the Management Stockholders; provided that if the Management Stockholders own beneficially or of record more than ten percent (10.0%) of the outstanding voting Equity Interests of Holdings in the aggregate, they shall be treated as Permitted Holders of only ten percent (10.0%) of the outstanding voting Equity Interests of Holdings at such time.
“Permitted Junior Refinancing Debt” means secured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower or any other Loan Party in the form of one or more series of third lien (or other junior lien) secured notes or third lien (or other junior lien) secured loans; provided that (i) such Indebtedness is secured by the Collateral on a junior priority basis to the Liens securing the Obligations and the obligations in respect of any Permitted Pari Passu Refinancing Debt, (ii) such Indebtedness otherwise meets the requirements contained in the proviso to the definition of “Credit Agreement Refinancing Indebtedness” and (iii) such Indebtedness meets the Permitted Other Debt Conditions. Permitted Junior Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Liens” means those Liens permitted pursuant to Section 7.01 hereof.
“Permitted Other Debt Conditions” means that such applicable Indebtedness (i) other than with respect to the Incremental Maturity Carveout Amount, does not mature or have scheduled amortization payments or payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligations (except (x) customary asset sale, initial public offering or change of control or similar event provisions that provide for the prior repayment in full of the Loans and all other Obligations, (y) maturity payments for a customary bridge financing which, subject to customary conditions, provides for automatic conversion or exchange into Indebtedness that otherwise complies with the requirements of this definition or (z) AHYDO payments), in each case prior to 91 days following the latest Maturity Date at the time such Indebtedness is incurred.
“Permitted Pari Passu Refinancing Debt” means any secured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower or any other Loan Party in the form of one or more series of senior secured notes or loans secured by the Collateral on a pari passu basis with the Liens on the Collateral securing the Obligations (but without regard to control of remedies); provided that such Indebtedness meets the requirements contained in the proviso to the definition of “Credit Agreement Refinancing Indebtedness”. Permitted Pari Passu Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, restructuring, refunding, renewal, replacement or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, restructured, refunded, renewed, replaced or extended except by an amount equal to unpaid accrued interest and premium thereon plus other amounts owing or paid related to such Indebtedness, and fees (including original issue discount) and expenses incurred, in connection with such modification, refinancing, restructuring, refunding, renewal, replacement or extension plus an amount equal to any existing commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.03(e), such modification, refinancing, restructuring, refunding, renewal, replacement or extension at the time of incurrence has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced,
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restructure, refunded, renewed, replaced or extended, (c) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Sections 7.03(e) or (f), at the time thereof, no Event of Default shall have occurred and be continuing and (d) if such Indebtedness being modified, refinanced, restructured, refunded, renewed, replaced or extended is Indebtedness permitted pursuant to Section 7.03(b) or 7.13(a) or is otherwise a Junior Financing, (i) to the extent such Indebtedness being modified, refinanced, restructured, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, such modification, refinancing, restructuring, refunding, renewal, replacement or extension is subordinated in right of payment to the Obligations (x) on terms (taken as a whole) at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, restructured, refunded, renewed, replaced or extended or (y) on terms reasonably satisfactory to the Administrative Agent, (ii) the terms and conditions (including, if applicable, as to collateral but excluding as to subordination, interest rate and redemption premium) of any such modified, refinanced, restructure, refunded, renewed, replaced or extended Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, restructured, refunded, renewed, replaced or extended, taken as a whole; provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees) and (iii) such modification, refinancing, restructuring, refunding, renewal, replacement or extension is incurred by the Person who is the obligor or guarantor of the Indebtedness being modified, refinanced, restructured, refunded, renewed, replaced or extended.
“Permitted Unsecured Ratio Debt” means unsecured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower or any other Loan Party in the form of one or more series of senior unsecured notes or loans; provided that (i) such Indebtedness is either (x) pari passu or (y) subordinated in right of payment to the Obligations; (ii) such Indebtedness meets the Permitted Other Debt Conditions; (iii) such Indebtedness has a Weighted Average Life to Maturity equal to or greater than the Initial Term Loans outstanding on the Closing Date; (iv) immediately after giving effect thereto and the use of proceeds thereof on a Pro Forma Basis, (x) no Default of Event of Default shall exist or result therefrom and (y) the Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable) shall be no less than 2.00:1.00; (v) such Indebtedness is not issued with covenants that are more restrictive (taken as a whole) (as reasonably determined by the Borrower) with respect to Holdings and the Restricted Subsidiaries than the covenants in this Agreement; and (vi) such Indebtedness complies with the requirements of the proviso at the end of Section 7.03 and (vii) the aggregate amount of any such Indebtedness incurred or guaranteed by a Restricted Subsidiary that is not a Loan Party (including any Permitted Refinancing thereof, to the extent incurred or guaranteed by a Restricted Subsidiary that is not a Loan Party) pursuant to Section 7.03(cc) outstanding at the time of incurrence thereof and calculated on a Pro Forma Basis does not exceed the greater of (x) $125,000,000 and (y) 12.5% of Consolidated EBITDA.
“Permitted Unsecured Refinancing Debt” means unsecured Indebtedness (including any Registered Equivalent Notes) incurred by the Borrower or any other Loan Party in the form of one or more series of senior unsecured notes or loans; provided that (i) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness and (ii) meets the Permitted Other Debt Conditions. Permitted Unsecured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established, maintained or contributed to by any Loan Party, any Restricted Subsidiary or, with respect to any such plan that is subject to Section 412 of the Code or Title IV or Section 302 of ERISA, any ERISA Affiliate.
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“Platform” has the meaning set forth in Section 6.01.
“Pledge Agreement” means the Pledge Agreement substantially in the form of Exhibit H, as amended, amended and restated, modified, supplemented or extended from time to time in accordance with the terms thereof and hereof.
“Pounds Sterling” and the sign “£” mean freely transferable lawful money of the United Kingdom (expressed in Pounds Sterling).
“Prime Lending Rate” means 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 Federal Reserve 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 determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). 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” means, with respect to compliance with any test or covenant or calculation of any ratio hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section 1.09.
“Pro Rata Share” means, with respect to each Lender at any time a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments of such Lender under the applicable Facility or Facilities at such time and the denominator of which is the amount of the Aggregate Commitments under the applicable Facility or Facilities at such time; provided that if such Commitments have been terminated, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.
“Proposed Discounted Prepayment Amount” has the meaning set forth in Section 2.05(c)(ii).
“Public Lender” has the meaning set forth in Section 6.01.
“Purchasing Borrower Party” means Holdings or any Subsidiary of Holdings that makes a Discounted Voluntary Prepayment pursuant to Section 2.05(c).
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning set forth in Section 10.21.
“Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.
“Qualified IPO” means the issuance by Holdings or any direct or indirect parent of Holdings of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) (i) pursuant to an effective registration statement filed with the U.S. Securities and Exchange Commission in accordance with the Securities Act (whether alone or in connection with a secondary public offering) or (ii) after which the common Equity Interests of Holdings or any direct or indirect parent of Holdings are listed on an internationally recognized securities exchange or dealer quotation system. The TransUnion IPO shall constitute a Qualified IPO for all purposes hereunder.
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“Qualifying Lenders” has the meaning set forth in Section 2.05(c)(iv).
“Qualifying Loans” has the meaning set forth in Section 2.05(c)(iv).
“Ratio-Based Incremental Facility” has the meaning set forth in Section 2.14(a).
“Real Property” means, collectively, all right, title and interest (including any leasehold, mineral or other estate) in and to any and all parcels of or interests in real property owned or leased by any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment.
“Receivables Assets” means any accounts receivable owed to Holdings or any Restricted Subsidiary (whether now existing or arising or acquired in the future) arising in the ordinary course of business from the sale of goods or services, all collateral securing such accounts receivable, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable, all proceeds of such accounts receivable and other assets (including contract rights) which are of the type customarily transferred or in respect of which security interests are customarily granted in connection with securitizations of accounts receivable and which are sold, conveyed, assigned or otherwise transferred by Holdings or a Restricted Subsidiary to either (A) a Person that is not a Restricted Subsidiary or (B) a Receivables Subsidiary that in turn sells its Receivables Assets to a Person that is not a Restricted Subsidiary.
“Receivables Facility” means any of one or more receivables financing facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to Holdings or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which Holdings or any of its Restricted Subsidiaries sells, conveys, assigns, grants an interest in or otherwise transfers their Receivables Assets to either (A) a Person that is not a Restricted Subsidiary or (B) a Receivables Subsidiary that in turn sells its Receivables Assets to a Person that is not a Restricted Subsidiary.
“Receivables Fees” means distributions or payments made directly or by means of discounts with respect to any Receivables Assets or participation interests therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Facility.
“Receivables Subsidiary” means any Subsidiary formed for the purpose of, and that solely engages in one or more Receivables Facilities and other activities reasonably related thereto.
“Reference Time” with respect to any setting of the then-current Benchmark means 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting,
“Refinanced Debt” has the meaning set forth in the definition of “Credit Agreement Refinancing Indebtedness”.
“Refinanced Term Loans” has the meaning set forth in Section 10.01.
“Refinancing” means the refinancing transactions described in Section 4.02(i).
“Refinancing Amendment” means an amendment to this Agreement executed by each of (a) the Borrower, (b) the Administrative Agent, (c) each Additional Refinancing Lender and (d) each Lender that agrees to provide any portion of Refinancing Term Loans and Refinancing Term Commitments, incurred pursuant thereto, in accordance with Section 2.16.
“Refinancing Series” means all Refinancing Term Loans or Refinancing Term Commitments that are established pursuant to the same Refinancing Amendment (or any subsequent
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Refinancing Amendment to the extent such Refinancing Amendment expressly provides that the Refinancing Term Loans or Refinancing Term Commitments provided for therein are intended to be a part of any previously established Refinancing Series) and that provide for the same “effective” yield (other than, for this purpose, any original issue discount or upfront fees), if applicable, and amortization schedule.
“Refinancing Term Commitments” means one or more term loan commitments hereunder that fund Refinancing Term Loans of the applicable Refinancing Series hereunder pursuant to a Refinancing Amendment.
“Refinancing Term Loans” means one or more Classes of term loans hereunder that result from a Refinancing Amendment.
“Register” has the meaning set forth in Section 10.07(d).
“Registered Equivalent Notes” means, with respect to any notes originally issued in an offering pursuant to Rule 144A under the Securities Act or other private placement transaction under the Securities Act, substantially identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect.
“Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect.
“Rejection Notice” has the meaning set forth in Section 2.05(b)(vii).
“Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing or migrating in, into, onto or through the Environment.
“Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.
“Replacement Term Loans” has the meaning set forth in Section 10.01.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived.
“Representative” means, with respect to any series of Permitted Pari Passu Refinancing Debt or Permitted Junior Refinancing Debt, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
“Repricing Transaction” means (1) the incurrence by Holdings or any of its Restricted Subsidiaries of any Indebtedness (including, without limitation, any new or additional term loans under this Agreement (including Replacement Term Loans), whether incurred directly or by way of the conversion of Initial Term Loans into a new tranche of replacement term loans under this Agreement) that is broadly marketed or syndicated to banks and other institutional investors in financings similar to the facilities provided for in this Agreement (i) having an “effective” yield for the respective Type of such Indebtedness that is less than the “effective” yield for Initial Term Loans of the respective Type (with the comparative determinations to be made in the reasonable judgment of the Administrative Agent consistent with generally accepted financial practices, after giving effect to, among other factors, margin, upfront or similar fees or “original issue discount”, in each case, shared with all lenders or holders of such
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Indebtedness or Initial Term Loans, as the case may be, but excluding the effect of any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all lenders or holders of such Indebtedness or Initial Term Loans, as the case may be, and without taking into account any fluctuations in LIBOR or comparable rate), but excluding Indebtedness incurred in connection with a Change of Control, and (ii) the proceeds of which are used to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of Initial Term Loans or (2) any effective reduction in the Applicable Rate for Initial Term Loans (e.g., by way of amendment, waiver or otherwise) (with such determination to be made in the reasonable judgment of the Administrative Agent, consistent with generally accepted financial practices). Any such determination by the Administrative Agent as contemplated by preceding clauses (1) and (2) shall be conclusive and binding on all Lenders holding Initial Term Loans.
“Required Facility Lenders” means, as to any Facility, the Required Lenders determined as if no other Facilities were then outstanding under this Agreement other than such Facility.
“Required Lenders” means, as of any date of determination and subject to the limitations set forth in Section 10.07(l), Lenders having more than 50.0% of the sum of the (a) Total Outstandings and (b) aggregate unused Commitments; provided that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer or other similar officer of a Loan Party and, as to any document delivered on the Closing Date, any secretary or assistant secretary of such Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Cash” means cash and Cash Equivalents held by Restricted Subsidiaries that is contractually restricted from being distributed to the Borrower; provided, that cash or Cash Equivalents maintained by any Foreign Subsidiary that is subject to minority shareholder approval before being distributed to Borrower (a “Shareholder Restriction”) shall not be deemed “Restricted Cash” as a result of such Shareholder Restriction.
“Restricted Payment” means any dividend, payment or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of Holdings or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to Holdings’ or a Restricted Subsidiary’s stockholders, partners or members (or the equivalent Persons thereof).
“Restricted Subsidiary” means any Subsidiary of Holdings other than an Unrestricted Subsidiary.
“Restricted Subsidiary Investment Basket Amount” has the meaning set forth in Section 7.02(g)(vi).
“Revolving Credit Facility” means the Revolving Credit Facility under, and as defined in, the First Lien Credit Agreement.
“Revolving Credit Loan” means the “Revolving Credit Loans” as such term is defined in the First Lien Credit Agreement.
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“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and any successor thereto.
“Sale-Leaseback Transaction” means an arrangement relating to property owned by Holdings, the Borrower or any other Restricted Subsidiary whereby Holdings, the Borrower or such Restricted Subsidiary sells or transfers such property to any Person in contemplation of Holdings, the Borrower or any other Subsidiary leasing such property from such Person or its Affiliates.
“Same Day Funds” means immediately available funds.
“Sanctions” has the meaning set forth in Section 5.18.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secured Obligations” shall means the Obligations.
“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Supplemental Agents and each co-agent or sub-agent appointed by the Administrative Agent or Collateral Agent from time to time pursuant to Section 9.02.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Agreement” means a Security Agreement substantially in the form of Exhibit G, as amended, amended and restated, modified, supplemented or extended from time to time in accordance with the terms thereof and hereof.
“Security Agreement Supplement” has the meaning set forth in the Security Agreement.
“Senior Lien Incremental Facility” has the meaning set forth in Section 2.14(a).
“Senior Secured Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) the Consolidated Total Net Debt (other than any portion of Consolidated Total Net Debt that is unsecured) as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period.
“Separate Facility” has the meaning set forth in Section 2.14(a).
“Separate Facility Loan Documents” means any documents or agreements executed in connection with Indebtedness incurred pursuant to a Separate Facility as contemplated by Section 2.14.
“Shareholder Agreement” means the shareholder agreement entered into in connection with the Sponsor Acquisition.
“Shareholder Restriction” has the meaning specified in the definition of Restricted Cash.
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
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“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Sontiq Existing Debt” means that certain Credit and Guaranty Agreement, dated August 1, 2018, by and between Sontiq, Inc. and Brightwood Loan Services LLC.
“Sontiq Financial Statements” has the meaning set forth in Section 4.02(e).
“SPC” has the meaning set forth in Section 10.07(h).
“Specified Acquisition Agreement Representations” means each of the representations made by, or with respect to, the Target and its subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders (in their capacities as such), but only to the extent that the Borrower (or its affiliate) has the right (taking into account any applicable cure provisions) to terminate its obligations under the Acquisition Agreement or decline to consummate the Acquisition (in accordance with the terms thereof) as a result of a breach of such representations in the Acquisition Agreement.
“Specified Default” means an Event of Default under Section 8.01(a), (f) or (g).
“Specified Equity Contribution” means any cash contribution to the common equity of Holdings and/or any purchase or investment in an Equity Interest of Holdings other than Disqualified Equity Interests.
“Specified Representations” means the representations and warranties of the Borrower, and to the extent applicable, the other Loan Parties, set forth in Section 5.01(a), Section 5.01(b) (as it relates to the organizational power and authority to execute, deliver and perform obligations under each Loan Document to which each applicable Person is a party after giving effect to the Transactions), Section 5.02(a), Section 5.02(b)(i), Section 5.04, Section 5.12, Section 5.16, Section 5.17 (as it relates to the creation, validity and perfection of the security interests in the Collateral) and Section 5.18.
“Specified Transaction” means any incurrence or repayment of Indebtedness (other than for working capital purposes) or Incremental Term Loan or Investment that results in a Person becoming a Restricted Subsidiary or an Unrestricted Subsidiary, any Permitted Acquisition or any Disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary of the Borrower, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person or any Disposition of a business unit, line of business or division of the Borrower or a Restricted Subsidiary, in each case whether by merger, consolidation, amalgamation or otherwise.
“Sponsor” means Advent, GS and their respective Affiliates (other than their respective portfolio companies and natural persons).
“Sponsor Acquisition” means the acquisition directly or indirectly by Advent and GS (and/or their respective affiliates) of the Equity Interests of Holdings pursuant to the terms of the Sponsor Acquisition Agreement on the Amendment No. 2 Effective Date (as defined in the First Lien Credit Agreement).
“Sponsor Acquisition Agreement” means the Agreement and Plan of Merger, dated as of February 17, 2012, by and among Spartan Parent Holdings Inc., Spartan Acquisition Sub Inc., Holdings
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and MDCPVI TU Holdings, LLC, solely in its capacity as Stockholder Representative pursuant to Article 11 thereof (as may be amended, supplemented or modified in accordance with the terms thereof).
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Federal Reserve Board to which the Administrative Agent is subject with respect to LIBOR or any other reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans. Such reserve percentage shall include those imposed pursuant to Regulation D. LIBOR Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Subsequent Transaction” has the meaning set forth in Section 1.13.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which (i) a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, (ii) more than half of the issued share capital is at the time beneficially owned or (iii) the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Holdings.
“Subsidiary Guarantor” means any Guarantor other than Holdings.
“Successor Company” has the meaning set forth in Section 7.04(d).
“Supplemental Agent” has the meaning set forth in Section 9.13(a) and “Supplemental Agents” shall have the corresponding meaning.
“Supported QFC” has the meaning set forth in Section 10.21.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the
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date referenced in clause (a), the maximum aggregate amount (giving effect to any netting agreements) that would be required to be paid if such Swap Contract were terminated at such time.
“Target” has the meaning set forth in the preliminary statements hereto.
“Tax Group” has the meaning set forth in Section 7.06(h)(iii).
“Taxes” means any and all present or future taxes, duties, levies, imposts, assessments, deductions, withholdings or other charges imposed by any Governmental Authority in the nature of a tax, whether computed on a separate, consolidated, unitary, combined or other basis and any and all liabilities (including interest, fines, penalties or additions to tax) with respect to the foregoing.
“Term Note” means a promissory note of the Borrower payable to any Term Lender or its registered assigns, in substantially the form of Exhibit D hereto, evidencing the aggregate Indebtedness of the Borrower to such Term Lender resulting from the Term Loans made by such Term Lender.
“Term Facilities” means the Initial Term Loans, any Incremental Term Loans and any other Class of Term Loans.
“Term Lender” means, at any time, any Lender that has a Commitment or a Term Loan at such time.
“Term Loan” means the Initial Term Loans, Extended Term Loans, Incremental Term Loans, Refinancing Term Loans and/or Replacement Term Loans, as the context may require.
“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term SOFR Notice” means a notification by the Administrative Agent to the Lenders and the Borrower of the occurrence of a Term SOFR Transition Event.
“Term SOFR Transition Event” means the determination by the Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event or an Early Opt-in Election, as applicable (and, for the avoidance of doubt, not in the case of an Other Benchmark Rate Election), has previously occurred resulting in a Benchmark Replacement in accordance with Section 2.03 that is not Term SOFR.
“Test Period” means, for any date of determination under this Agreement, the then most recently ended period of four consecutive fiscal quarters of Holdings.
“Threshold Amount” means $62,500,000.
“Total Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Net Debt as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans.
“Trading with the Enemy Act” means the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq.
“tranche” has the meaning set forth in Section 2.15(a).
“Transaction Expenses” means any costs, fees or expenses incurred or paid by the Sponsor, Holdings, the Borrower, the Target or any of its (or their) Subsidiaries in connection with the
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Transactions (including expenses in connection with hedging transactions), this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby.
“Transactions” means, collectively, (a) the Acquisition and other related transactions contemplated by the Acquisition Agreement, (b) the funding of the Initial Term Loans on the Closing Date and the execution and delivery of Loan Documents to be entered into on the Closing Date, (c) the Refinancing and (d) the payment of Transaction Expenses.
“Transferred Guarantor” has the meaning set forth in Section 11.09.
“TransUnion IPO” means a Qualified IPO by Parent in an underwritten primary public offering pursuant to the registration statement on Form S-1 (File No. 333-203110) filed with the U.S. Securities and Exchange Commission in accordance with the Securities Act, as such Form S-1 may be amended.
“Type” means, with respect to a Loan, its character as a Base Rate Loan or a LIBOR Loan.
“U.S. Special Resolution Regimes” has the meaning set forth in Section 10.21.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Security Agreement” means a security agreement substantially in the form of Exhibit P to be entered into by Trans Union International, Inc. and TransUnion Global Holdings LLC, as Chargors, and JPMorgan Chase Bank, N.A., as Security Trustee.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unaudited Financial Statements” means (a) the unaudited consolidated balance sheets of Holdings and its Subsidiaries as of September 30, 2021, June 30, 2021 and March 31, 2021 and (b) the related unaudited consolidated statements of income and cash flows for Holdings and its Subsidiaries for the fiscal quarters ended September 30, 2021, June 30, 2021 and March 31, 2021.
“Unfunded Pension Liability” of any Pension Plan means the amount, if any, by which the value of the accumulated plan benefits under the Pension Plan, determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value of all plan assets of such Pension Plan (excluding any accrued but unpaid contributions).
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.
“United States” and “U.S.” mean the United States of America.
“United States Tax Compliance Certificate” has the meaning set forth in Section 3.01(d)(ii)(C) and is in substantially the form of Exhibit I hereto.
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“Unrestricted Subsidiary” means (i) each Subsidiary of Holdings listed on Schedule 1.01B as of the Closing Date and (ii) any Subsidiary of Holdings designated by the board of directors of Holdings as an Unrestricted Subsidiary pursuant to Section 6.14 subsequent to the Closing Date.
“Unsecured Incremental Facility” has the meaning set forth in Section 2.14(a).
“USA Patriot Act” means the USA PATRIOT Improvement and Reauthorization Act, Pub. L. 109-177 (signed into law March 9, 2009) (as amended from time to time).
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness.
“wholly owned” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (x) director’s qualifying shares and (y) shares issued to other Persons to the extent required by applicable Law) are owned by such Person and/or by one or more wholly owned Subsidiaries of such Person.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.02      Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a)    The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b)    The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.
(c)    Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.
(d)    The term “including” is by way of example and not limitation.
(e)    The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
(f)    In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including.”
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(g)    Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(h)    All references to “knowledge” of any Loan Party or a Restricted Subsidiary of Holdings means the actual knowledge of a Responsible Officer.
(i)    The words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(j)    All references to any Person shall be constructed to include such Person’s successors and assigns (subject to any restriction on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all of the functions thereof.
Section 1.03     Accounting Terms. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, except as otherwise specifically prescribed herein. Notwithstanding anything to the contrary contained herein, all financial statements shall be prepared, and all financial covenants and other financial calculations contained herein or in any other Loan Document shall be calculated, in each case, without giving effect to any election under FASB ASC 825 (or any similar accounting principle) permitting a Person to value its financial liabilities at the fair value thereof.
Section 1.04     Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number).
Section 1.05     References to Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, amendments and restatements, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, amendments and restatements, restatements, extensions, supplements and other modifications are permitted by the Loan Documents; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law (including by succession of comparable successor laws).
Section 1.06     Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
Section 1.07     Timing of Payment of Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day.
Section 1.08     Available Additional Basket Transactions. If more than one action occurs on any given date the permissibility of the taking of which is determined hereunder by reference to the amount of the Available Additional Basket immediately prior to the taking of such action, the permissibility of the taking of each such action shall be determined independently and in no event may any two or more such actions be treated as occurring simultaneously.
Section 1.09     Pro Forma Calculations. (a) Notwithstanding anything to the contrary herein, the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio and the Fixed Charge Coverage Ratio shall be calculated in the manner prescribed by this Section
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1.09; provided that notwithstanding anything to the contrary in clauses (b), (c) or (d) of this Section 1.09, when calculating the First Lien Net Leverage Ratio for purposes of the Applicable ECF Percentage of Excess Cash Flow, the events described in this Section 1.09 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.
(b)    For purposes of calculating the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio and the Fixed Charge Coverage Ratio, Specified Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been made (i) during the applicable Test Period and (ii) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into Holdings or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.09, then the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio and the Fixed Charge Coverage Ratio shall be calculated to give pro forma effect thereto in accordance with this Section 1.09.
(c)    Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower and include, for the avoidance of doubt, the amount of cost savings, operating expense reductions, other operating improvements and synergies projected by the Borrower in good faith to be reasonably anticipated to be realized within 12 months after the closing date of such Specified Transaction (provided, that to the extent any such operational changes are not associated with a transaction, such changes shall be limited to those for which all steps have been taken for realizing such savings and are factually supportable, reasonably identifiable and supported by an officer’s certificate delivered to the Administrative Agent) (calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements and synergies had been realized on the first day of such period as if such cost savings, operating expense reductions, other operating improvements and synergies were realized during the entirety of such period) relating to such Specified Transaction, net of the amount of actual benefits realized during such period from such actions; provided that any increase in Consolidated EBITDA as a result of cost savings, operating expense reductions, other operating improvements and synergies shall be subject to the limitations set forth in the definition of Consolidated EBITDA.
(d)    In the event that the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by redemption, repayment, retirement or extinguishment) any Indebtedness included in the calculations of the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio , the First Lien Net Leverage Ratio and the Fixed Charge Coverage Ratio, as the case may be (in each case, other than Indebtedness incurred or repaid under any revolving credit facility in the ordinary course of business for working capital purposes), (i) during the applicable Test Period and (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Total Net Leverage Ratio, the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio and the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence or repayment of Indebtedness, to the extent required, as if the same had occurred on the last day of the applicable Test Period.
Section 1.10     Collateral. Notwithstanding any provision of any Loan Document to the contrary, until the Discharge of Senior Obligations has occurred, for purposes of any determination whether any assets or property shall not become part of or shall be excluded from the Collateral as to which any Agent is granted discretion hereunder or under any other Loan Document, the determination of the applicable First Lien Administrative Agent (or other applicable agent for the holders of any applicable First Lien Obligations) under the analogous provision of the First Lien Facilities Documentation or other documentation governing the other applicable First Lien Obligations shall be deemed to be the determination of such Person with respect thereto, and each Agent hereby agrees, at the Borrower’s
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expense, to execute and deliver to the applicable Loan Party such documents as the Borrower may reasonably request in connection therewith.
Section 1.11     Certifications. All certifications to be made hereunder by an officer or representative of a Loan Party shall be made by such person in his or her capacity solely as an officer or a representative of such Loan Party, on such Loan Party’s behalf and not in such Person’s individual capacity.
Section 1.12     Currency Translation. For purposes of determining compliance as of any date with Sections 7.01, 7.02, 7.03, 7.04, 7.05, 7.06 or 7.08, amounts incurred or outstanding in currencies other than Dollars shall be translated into Dollars at the exchange rates in effect on the first Business Day of the fiscal quarter in which such determination occurs or in respect of which such determination is being made, as such exchange rates shall be determined in good faith by the Borrower based on commonly used financial reporting sources. No Default or Event of Default shall arise as a result of any limitation or threshold set forth in Dollars in Section 7.01, 7.02, 7.03, 7.04, 7.05, 7.06 or 7.08 or paragraph (e) or (h) of Section 8.01 being exceeded solely as a result of changes in currency exchange rates from those applicable on the first day of the fiscal quarter in which such determination occurs or in respect of which such determination is made (it being understood that such changes shall nonetheless be taken into account in determining the remaining availability (if any) under any such limitation or threshold).
Section 1.13     Limited Condition Transactions Notwithstanding anything to the contrary herein, in connection with any action being taken solely in connection with a Limited Condition Transaction, for purposes of:
(a)    determining compliance with any provision of this Agreement which requires the calculation of any financial ratio or test, including the Senior Secured Net Leverage Ratio, the First Lien Net Leverage Ratio, Total Net Leverage Ratio and Fixed Charge Coverage Ratio (and, for the avoidance of doubt, the financial ratios set forth in Sections 2.14, 7.02(x) and 7.03(g)); or
(b)    testing availability under baskets set forth in this Agreement;
in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (or, in respect of any transaction described in clauses (ii) or (iii) of the definition of a Limited Condition Transaction, the date of delivery of irrevocable notice, declaration of dividend or similar event (and not at the time of consummation of such Limited Condition Transaction)) (the “LCT Test Date”), and if, after giving effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) on a Pro Forma Basis as if they had occurred at the beginning of the most recent Test Period for which financial statements were (or were required to be) delivered pursuant to Section 6.01(a) or (b) ending prior to the LCT Test Date (for income statement purposes) or at the end of such most recent Test Period (for balance sheet purposes), the Borrower would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA or Adjusted Total Assets of the Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any calculation of any ratio, test or basket availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any permitted Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement or irrevocable
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notice, declaration of dividend or similar event for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated; provided, that with respect to any such Subsequent Transaction that is a Restricted Payment, any such ratio or basket shall also be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated.
Section 1.14     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 II

The Commitments and Borrowings
Section 2.01     The Loans.    Subject to and upon the terms and conditions set forth herein, each Term Lender with an Initial Term Loan Commitment severally, and not jointly with the other Term Lenders, agrees to make to the Borrower on the Closing Date Initial Term Loans in an amount equal to such Term Lender’s Initial Term Loan Commitment as of such date (as in effect immediately prior to the funding of Initial Term Loans on such date). Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed. Initial Term Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
Section 2.02     Borrowings, Conversions and Continuations of Loans. (a) Each Borrowing or each conversion of Term Loans from one Type to the other, and each continuation of LIBOR Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than (i) 11:00 a.m. (New York City time) three (3) Business Days prior to the requested date of any Borrowing or continuation of LIBOR Loans or any conversion of Base Rate Loans to LIBOR Loans, and (ii) 11:00 a.m. (New York City time) one (1) Business Day prior to the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Except as provided in Section 2.14(a), each Borrowing of, conversion to or continuation of LIBOR Loans shall be in a minimum principal amount of $2,500,000 or a whole multiple of $500,000, in excess thereof. Except as provided in 2.14(a) or the last sentence of this paragraph, each Borrowing of or conversion to Base Rate Loans shall be in a minimum principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing or a conversion of Term Loans from one Type to the other, or a continuation of LIBOR Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Committed Loan Notice or fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of LIBOR Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month.
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(b)    Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Pro Rata Share of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation described in Section 2.02(a). In the case of each Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 1:00 p.m. (New York City time) on the Business Day specified in the applicable Committed Loan Notice. The Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of JPMorgan Chase Bank, N.A. with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.
(c)    Except as otherwise provided herein, a LIBOR Loan may be continued or converted only on the last day of an Interest Period for such LIBOR Loan unless the Borrower pays the amount due, if any, under Section 3.05 in connection therewith. During the existence of an Event of Default, the Administrative Agent or the Required Lenders may require that no Loans may be converted to or continued as LIBOR Loans.
(d)    The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for LIBOR Loans upon determination of such interest rate on each Interest Determination Date. The determination of LIBOR by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in the Prime Lending Rate used in determining the Base Rate promptly following the public announcement of such change.
(e)    After giving effect to all Borrowings or all conversions of Term Loans from one Type to the other, and all continuations of Term Loans of the same Type, there shall not be more than (5) Interest Periods in effect with respect to all Borrowings in respect of Initial Term Loans.
(f)    The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
Section 2.03     LIBOR Notification; Alternative Rate of Interest. Notwithstanding anything to the contrary herein or in any other Loan Document:
(a)    The interest rate on a Term Loan denominated in Dollars may be derived from an interest rate benchmark that is, or may in the future become, the subject of regulatory reform. Regulators have signaled the need to use alternative benchmark reference rates for some of these interest rate benchmarks and, as a result, such interest rate benchmarks may cease to comply with applicable laws and regulations, may be permanently discontinued, and/or the basis on which they are calculated may change. The London interbank offered rate (“Standard LIBOR”) is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. On March 5, 2021, the U.K. Financial Conduct Authority (“FCA”) publicly announced that: (a) immediately after December 31, 2021, publication of the 1-week and 2-month Dollar Standard LIBOR settings will permanently cease; immediately after June 30, 2023, publication of the overnight and 12-month Dollar Standard LIBOR settings will permanently cease and immediately after June 30, 2023, the 1-month, 3-month and 6-month Dollar Standard LIBOR settings will cease to be provided or, subject to the FCA’s consideration of the case, be provided on a synthetic basis and no longer be representative of the underlying market and economic reality they are intended to measure and that representativeness will not be restored. There is no assurance that dates announced by the FCA will not change or that the administrator of Standard LIBOR and/or regulators will not take further action that could impact the availability, composition, or characteristics of Standard LIBOR or the currencies and/or tenors for which Standard LIBOR is published. Each party to this agreement should consult its own advisors to stay informed of any such developments. Public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of Standard LIBOR. Upon the
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occurrence of a Benchmark Transition Event, a Term SOFR Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, Section 2.03(b) and (c) provide a mechanism for determining an alternative rate of interest. The Administrative Agent will promptly notify the Borrower, pursuant to Section 2.03 (f), of any change to the reference rate upon which the interest rate on LIBOR Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to Standard LIBOR or other rates in the definition of “LIBOR” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to Section 2.03(b) and (c), whether upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to Section 2.03(e), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, LIBOR or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain LIBOR, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
(b)    Subject to clauses (c), (d), (e), (f), (g) and (h) of this Section 2.03, if:
(i)    the Administrative Agent determines (which determination shall be conclusive absent manifest error) prior to the commencement of any Interest Period for a LIBOR Borrowing, that adequate and reasonable means do not exist for ascertaining LIBOR (including because the Relevant Screen Rate is not available or published on a current basis), for Dollars and such Interest Period; or
(ii)    the Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of any Interest Period for a LIBOR Borrowing, LIBOR for Dollars and such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for Dollars and such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, if any Borrowing Request requests a LIBOR Borrowing for the relevant rate above in Dollars, then such request shall be ineffective; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted. Furthermore, if any LIBOR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.03(b), then until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, if such LIBOR Loan is denominated in Dollars, then on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, an Base Rate Term Loan denominated in Dollars on such day
(c)    Certain Benchmark Replacements. Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such
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Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders of each affected Class.
(d)    Term SOFR Transition Event Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this clause (d), if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (d) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after the occurrence of a Term SOFR Transition Event and may do so in its sole discretion.
(e)    Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time (in good faith consultation with the Borrower) and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(f)    Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, an Early Opt-in Election or an Other Benchmark Rate Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (g) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent, the Borrower or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.03, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.03.
(g)    Unavailability of Tenor Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or LIBOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent (in good faith consultation with the Borrower) may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may (in good faith consultation with the Borrower) modify the definition of
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“Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(h)    Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a LIBOR Borrowing of, conversion to or continuation of LIBOR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, either the Borrower will be deemed to have converted any request for a LIBOR Borrowing into a request for a Borrowing of or conversion to Base Rate Loans. Furthermore, if any LIBOR Loan in Dollars is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to LIBOR, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.03, then on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, a Base Rate Loan on such day.
(i)    Notwithstanding anything to the contrary in this Agreement, the Administrative Agent and, to the extent any other party hereto shall have any consent or consultation right in respect of the selection of the Benchmark Replacement, each such applicable party, shall use commercially reasonable efforts to satisfy any applicable Internal Revenue Service guidance, including to meet the standards set forth in Proposed Treasury Regulation Section 1.1001-6 and any future guidance, to the effect that a Benchmark Replacement will not result in a deemed exchange for U.S. federal income tax purposes of any Borrowing under this Agreement if the Borrower determines that such deemed exchange would cause the Borrower, or its direct or indirect beneficial owners, any adverse tax consequences.
Section 2.04     [Reserved].
Section 2.05     Prepayments.
(a)    Optional. The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Term Loans of any Class in whole or in part without premium or penalty (except as provided in Section 2.09); provided that (1) such notice must be received by the Administrative Agent not later than 1:00 p.m. (New York City time) (A) three (3) Business Days prior to any date of prepayment of LIBOR Loans and (B) one (1) Business Day prior to any date of prepayment of Base Rate Loans; (2) any prepayment of LIBOR Loans shall be in a minimum principal amount of $2,500,000, or a whole multiple of $500,000 in excess thereof; and (3) any prepayment of Base Rate Loans shall be in a minimum principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans and the order of Borrowing(s) to be prepaid. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share or, if such prepayment is being made pursuant to Section 2.05(c), such Lender’s share, of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a LIBOR Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05. In the case of each prepayment of the Loans pursuant to this Section 2.05(a), the Borrower may in its sole discretion select the Borrowing or Borrowings (and the order of maturity of principal payments, including to principal payments due at maturity) to be repaid, and such payment shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Shares of the Borrowing or Borrowings to be prepaid (or otherwise as provided in Section 2.05(c)).
Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind any notice of prepayment under Section 2.05(a) if such prepayment would have resulted from a refinancing of all of the Facilities, which refinancing shall not be consummated or shall otherwise be delayed. Each prepayment of Term Loans pursuant to this Section 2.05(a) or any applicable Incremental Amendment shall be applied to repayments required pursuant to Section 2.07(a) as directed by the Borrower and, absent such direction, shall be applied in direct order of maturity to repayments thereof required pursuant to Section 2.07(a) or any applicable Incremental Amendment.
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(b)    Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) (commencing with the fiscal year ended December 31, 2022) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a) (the “ECF Test Date”), the Borrower shall cause to be prepaid an aggregate amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period covered by such financial statements minus (B) the sum of (1) all voluntary prepayments of Term Loans and First Lien Term Loans during such fiscal year pursuant to Section 2.05(a) or Section 2.05(a) of the First Lien Credit Agreement, as applicable, (2) the amount expended by any Purchasing Borrower Party to prepay any Term Loans pursuant to Section 2.05(c) or First Lien Term Loans pursuant to Section 2.05(c) of the First Lien Credit Agreement, (3) all voluntary prepayments of Revolving Credit Loans, in each case, during such fiscal year to the extent the commitments under the Revolving Credit Facility are permanently reduced by the amount of such payments and (4) the amount equal to all payments in cash paid by the Borrower in connection with the buyback of Term Loans pursuant to Section 10.07(n) or First Lien Term Loans pursuant to Section 10.07(n) of the First Lien Credit Agreement, in the case of each of the immediately preceding clauses (1), (2), (3) and (4), to the extent such prepayments are not funded with the proceeds of Indebtedness; provided that, prepayments shall only be required under this Section 2.05(b) to the extent Excess Cash Flow exceeds $62,500,000 in the applicable Excess Cash Flow Period (and only Excess Cash Flow in excess of such amount shall be required to be used for such prepayment); provided, further, that until the Discharge of Senior Obligations has occurred, no mandatory prepayments of Term Loans shall be required under this Section 2.05(b)(i), except to the extent of the amount of mandatory prepayments pursuant to Section 2.05(b)(i) of the First Lien Credit Agreement declined by the lenders thereunder.
(ii)    If (1) Holdings or any Restricted Subsidiary of Holdings Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.05(a)(i), (b), (c), (d), (e), (f), (g), (h), (i), (l), (n), (p), (q) or (r), but for clarity including, without limitation, any Disposition pursuant to a Receivables Facility), or (2) any Casualty Event occurs which results in the realization or receipt by Holdings or any Restricted Subsidiary of Holdings of Net Proceeds, the Borrower shall cause to be offered to be prepaid on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by Holdings or any Restricted Subsidiary of Holdings of such Net Proceeds an aggregate principal amount of Term Loans in an amount equal to the Applicable Disposition Percentage of all Net Proceeds received; provided that, for the purposes of this Section 2.05(b)(ii), Net Proceeds shall not include all or a portion of the net cash proceeds of the Disposition of the healthcare business of the Borrower as the Borrower shall determine (the “Excluded Asset Sale Proceeds”), so long as cash in an amount equal to such Excluded Asset Sale Proceeds is applied to repay Indebtedness for borrowed money of the Borrower or its Restricted Subsidiaries within 18 months from the date of the receipt of such Excluded Asset Sale Proceeds; provided, further, that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase Permitted Pari Passu Refinancing Debt and the Permitted Refinancing of any such Indebtedness (to the extent secured by Liens on the Collateral on a pari passu basis with the Obligations), in each case pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of any such Disposition or Casualty Event of, or with respect to, any property or assets constituting Collateral (such Permitted Pari Passu Refinancing Debt (or the Permitted Refinancing of any such Indebtedness) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such net proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such Other Applicable Indebtedness
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repurchased or prepaid, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, that until the Discharge of Senior Obligations has occurred, no mandatory prepayments of Term Loans shall be required under this Section 2.05(b)(ii), except to the extent of the amount of mandatory prepayments pursuant to Section 2.05(b)(ii) of the First Lien Credit Agreement declined by the lenders thereunder.
(iii)    If Holdings or any Domestic Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date that (A) is not permitted to be incurred pursuant to Section 7.03 or (B) is intended to constitute Credit Agreement Refinancing Indebtedness in respect of any Class of Term Loans, the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans (or, in the case of preceding clause (B), such Class of Term Loans) in an amount equal to 100.0% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by Holdings or such Domestic Restricted Subsidiary of such Net Proceeds; provided, that until the Discharge of Senior Obligations has occurred, no mandatory prepayments of Term Loans shall be required under this Section 2.05(b)(iii), except to the extent of the amount of mandatory prepayments pursuant to Section 2.05(b)(iii) of the First Lien Credit Agreement declined by the lenders thereunder.
(iv)    [Reserved].
(v)    If a Loan would otherwise constitute an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code and at the end of any accrual period (as defined in Section 1272(a)(5) of the Code) ending after the fifth anniversary of the date on which such Loan was issued, the aggregate amount of the accrued and unpaid original issue discount (as defined in Section 1273(a)(1) of the Code) on such Loan would, but for this paragraph, exceed an amount equal to the product of such Loan’s issue price (as defined in Sections 1273(b) and 1274(a) of the Code) multiplied by the yield to maturity (as defined in Treasury Regulation Section 1.1272-1(b)(1)(i)) (the “Maximum Accrual”), all accrued and unpaid interest and original issue discount on such Loan as of the end of such accrual period in excess of an amount equal to the Maximum Accrual shall be paid in cash by Borrower to the Lenders (the “AHYDO Interest Payment”) and will be applied against and reduce the outstanding principal amount of such Loan. For the avoidance of doubt, this Section 2.05(b)(v) shall be construed so as to cause the Loans to not be treated as having been issued with “significant original issue discount” within the meaning of Section 163(i)(2) of the Code.
(vi)    Except as otherwise provided in any Refinancing Amendment, (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied in direct order of maturity to repayments thereof required pursuant to Section 2.07(a); (B) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied ratably to each Class of Term Loans then outstanding (provided that any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt); and (C) each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares, subject to clause (vii) of this Section 2.05(b). Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Section 2.05(b)(vi) to the extent otherwise applicable to Extended Term Loans shall be subject to modification as expressly provided in Section 2.15.
(vii)    The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clause (ii) of this Section 2.05(b) at least four (4) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clause (ii) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent
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and the Borrower no later than 5:00 p.m. (New York City time) one (1) Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment; provided however in no event may the proceeds of any Credit Agreement Refinancing Indebtedness be rejected. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be retained by the Borrower.
(viii)    All prepayments under this Section 2.05 shall be made together with, in the case of any such prepayment of a LIBOR Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such LIBOR Loan pursuant to Section 3.05. Notwithstanding any of the other provisions of Section 2.05(b), so long as no Event of Default shall have occurred and be continuing, if any prepayment of LIBOR Loans is required to be made under this Section 2.05(b), prior to the last day of the Interest Period therefor, the Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral Account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05(b). Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with this Section 2.05(b).
(ix)    Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any Excess Cash Flow attributable to Foreign Subsidiaries (“Foreign Subsidiary Excess Cash Flow”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable Organization Documents, an amount equal to the portion of such Foreign Subsidiary Excess Cash Flow that would be so affected were the Borrower to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 so long, but only so long, as the applicable local law or applicable Organization Documents would not otherwise permit repatriation to the United States (the Borrower hereby agrees to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation, even if the Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Foreign Subsidiary Excess Cash Flow will otherwise be subject to repayment under this Section 2.05), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Foreign Subsidiary Excess Cash Flow is permissible under the applicable local law or applicable Organization Documents (even if such cash is actually not repatriated), an amount equal to the amount of the Foreign Subsidiary Excess Cash Flow that could be repatriated will be promptly (and in any event not later than two Business Days) applied (net of an amount equal to the additional taxes that would be payable or reserved against as a result of a repatriation and any additional costs that would be incurred as a result of a repatriation, whether or not a repatriation actually occurs) by the Borrower to the repayment of the Term Loans pursuant to this Section 2.05 and (ii) to the extent that the Borrower has determined in good faith that repatriation of any Foreign Subsidiary Excess Cash Flow would have adverse tax cost consequences with respect to such Foreign Subsidiary Excess Cash Flow, an amount equal to such Foreign Subsidiary Excess Cash Flow that would be so affected will not be subject to repayment under this Section 2.05; provided that (A) for purposes of this Section 2.05 Excess Cash Flow shall be deemed allocable to each Foreign Subsidiary, with respect to any period, in an amount equal to (i) the Consolidated EBITDA of such Foreign Subsidiary for such period, divided by (ii) the Consolidated EBITDA of Holdings and its Restricted Subsidiaries for such period (it being understood and agreed for the avoidance of doubt that such allocation shall exclude any reduction from interest and principal payments in respect of the Obligations and the Senior
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Notes) and (B) (1) Holdings and its Restricted Subsidiaries shall be entitled to reduce Excess Cash Flow owed to the Lenders pursuant to Section 2.05(b)(i) in respect of any Excess Cash Flow Period by the lesser of (x) the aggregate amount of Excess Cash Flow attributable to Foreign Subsidiaries subject to the limitations and restrictions described above in this clause (ix) for such Excess Cash Flow Period and (y) $25,000,000 and (2) Excess Cash Flow attributable to Foreign Subsidiaries subject to the limitations and restrictions described above in this clause (ix) in excess of the $25,000,000 referred to in clause (1) above in respect of any Excess Cash Flow Period shall be reduced by estimated deductions for the additional taxes and other costs that would relate to a repatriation of any such Excess Cash Flow from such Foreign Subsidiaries to the Borrower; provided, further, that until the Discharge of Senior Obligations has occurred, no mandatory prepayments of Term Loans shall be required under this Section 2.05(b)(ix), except to the extent of the amount of mandatory prepayments pursuant to Section 2.05(b)(ix) of the First Lien Credit Agreement declined by the lenders thereunder.
(x)    Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any or all of the Net Proceeds of any Disposition by a Foreign Subsidiary (“Foreign Disposition”) or the Net Proceeds of any Casualty Event incurred by a Foreign Subsidiary (“Foreign Casualty Event”) would be (x) prohibited or delayed by applicable local law, (y) restricted by applicable Organization Documents or (z) subject to other onerous organizational or administrative impediments, an amount equal to the Net Proceeds that would be so affected were the Borrower to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 so long, but only so long, as the applicable local law, applicable Organization Documents or other impediment would not otherwise permit repatriation to the United States (the Borrower hereby agrees to use all commercially reasonable efforts to overcome or eliminate any such restrictions on or impediments to repatriation even if the Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Net Proceeds will otherwise be subject to repayment under this Section 2.05), and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Proceeds is permissible under the applicable local law or applicable Organization Documents or the impediment to such repatriation has ceased to exist, even if such cash is not actually repatriated at such time, an amount equal to the amount of the Net Proceeds will be promptly (and in any event not later than two Business Days) applied (net of an amount equal to the additional taxes that would be payable or reserved against and any additional costs that would be incurred as a result of a repatriation, whether or not a repatriation actually occurs) by the Borrower to the repayment of the Term Loans pursuant to this Section 2.05 and (ii) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition or Foreign Casualty Event would have adverse tax cost consequences with respect to such Net Proceeds, an amount equal to such Net Proceeds that would be so affected will not be subject to repayment under this Section 2.05; provided that (A) the aggregate amount of Net Proceeds of Foreign Dispositions not required to be applied to repay Term Loans pursuant to this clause (x) shall not exceed $93,750,000 during the term of this Agreement, and (B) the aggregate amount of Net Proceeds of Foreign Casualty Events not required to be applied to repay Term Loans pursuant to this clause (x) shall not exceed $93,750,000 during the term of this Agreement.
(c)    (i) Notwithstanding anything to the contrary in Section 2.05(a), 2.12(a) or 2.13 (which provisions shall not be applicable to this Section 2.05(c)), any Purchasing Borrower Party shall have the right at any time and from time to time to prepay Term Loans to the Lenders at a discount to the par value of such Term Loans and on a non pro rata basis (each, a “Discounted Voluntary Prepayment”) pursuant to the procedures described in this Section 2.05(c); provided that (A) no Discounted Voluntary Prepayment shall be made from the proceeds of any Revolving Credit Loan, (B) immediately after giving effect to any Discounted Voluntary Prepayment, the sum of (x) the excess of the aggregate commitments under the Revolving Credit Facility at such time less the aggregate credit exposure under the Revolving Credit Facility at such time plus (y) the amount of unrestricted cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries shall be not less than $50,000,000, (C) any Discounted Voluntary Prepayment shall be offered to all Lenders of the relevant Class of Term Loans on a pro rata basis, (D) such Purchasing Borrower Party shall deliver to the Administrative Agent a certificate stating
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that (1) no Default or Event of Default has occurred and is continuing or would result from the Discounted Voluntary Prepayment (after giving effect to any related waivers or amendments obtained in connection with such Discounted Voluntary Prepayment) and (2) each of the conditions to such Discounted Voluntary Prepayment contained in this Section 2.05(c) has been satisfied and (E) each Lender participating in any Discounted Voluntary Prepayments acknowledges and agrees that in connection with such Discounted Voluntary Prepayment, (1) the Borrower then may have, and later may come into possession of, information regarding the Term Loans or the Loan Parties hereunder that is not known to such Lender and that may be material to a decision by such Lender to participate in such Discounted Voluntary Prepayment (“Excluded Information”), (2) such Lender has independently and, without reliance on the Borrower, any of its Subsidiaries, the Administrative Agent or any of their respective Affiliates, has made its own analysis and determination to participate in such Discounted Voluntary Prepayment notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of the Borrower, its Subsidiaries, the Administrative Agent or any of their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against the Borrower, its Subsidiaries, the Administrative Agent and their respective Affiliates, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information. Each Lender participating in any Discounted Voluntary Prepayment further acknowledges that the Excluded Information may not be available to the Administrative Agent or the other Lenders.
(ii)    To the extent a Purchasing Borrower Party seeks to make a Discounted Voluntary Prepayment, such Purchasing Borrower Party will provide written notice to the Administrative Agent substantially in the form of Exhibit J hereto (each, a “Discounted Prepayment Option Notice”) that such Purchasing Borrower Party desires to prepay Term Loans in an aggregate principal amount specified therein by the Purchasing Borrower Party (each, a “Proposed Discounted Prepayment Amount”), in each case at a discount to the par value of such Term Loans as specified below. The Proposed Discounted Prepayment Amount of Term Loans shall not be less than $5,000,000. The Discounted Prepayment Option Notice shall further specify with respect to the proposed Discounted Voluntary Prepayment: (A) the Proposed Discounted Prepayment Amount of the relevant Class of Term Loans, (B) a discount range (which may be a single percentage) selected by the Purchasing Borrower Party with respect to such proposed Discounted Voluntary Prepayment (representing the percentage of par of the principal amount of the relevant Class of Term Loans to be prepaid) (the “Discount Range”), and (C) the date by which Lenders are required to indicate their election to participate in such proposed Discounted Voluntary Prepayment which shall be at least five Business Days following the date of the Discounted Prepayment Option Notice (the “Acceptance Date”).
(iii)    Upon receipt of a Discounted Prepayment Option Notice in accordance with Section 2.05(c)(ii), the Administrative Agent shall promptly notify each Term Lender of the relevant Class thereof. On or prior to the Acceptance Date, each such Term Lender may specify by written notice substantially in the form of Exhibit K hereto (each, a “Lender Participation Notice”) to the Administrative Agent (A) a minimum price (the “Acceptable Price”) within the Discount Range (for example, 80.0% of the par value of the Term Loans to be prepaid) and (B) a maximum principal amount (subject to rounding requirements specified by the Administrative Agent) of Term Loans with respect to which such Term Lender is willing to permit a Discounted Voluntary Prepayment at the Acceptable Price (“Offered Loans”). Based on the Acceptable Prices and principal amounts of Term Loans specified by the Lenders in the applicable Lender Participation Notice, the Administrative Agent, in consultation with the Purchasing Borrower Party, shall determine the applicable discount for such Term Loans (the “Applicable Discount”), which Applicable Discount shall be (A) the percentage specified by the Purchasing Borrower Party if the Purchasing Borrower Party has selected a single percentage pursuant to Section 2.05(c)(ii) for the Discounted Voluntary Prepayment or (B) otherwise, the lowest Acceptable Price at which the Purchasing Borrower Party can pay the Proposed Discounted Prepayment Amount in full (determined by adding the principal amounts of Offered Loans commencing with the Offered Loans with the lowest Acceptable Price); provided, however, that in the event that such Proposed Discounted Prepayment Amount cannot be repaid in full at any Acceptable Price, the Applicable Discount shall be the highest Acceptable Price specified by the Lenders that is within the Discount Range. The Applicable
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Discount shall be applicable for all Lenders who have offered to participate in the Discounted Voluntary Prepayment and have Qualifying Loans (as defined below). Any Lender with outstanding Term Loans of the relevant Class whose Lender Participation Notice is not received by the Administrative Agent by the Acceptance Date shall be deemed to have declined to accept a Discounted Voluntary Prepayment of any of its Term Loans of the relevant Class at any discount to their par value within the Applicable Discount.
(iv)    The Purchasing Borrower Party shall make a Discounted Voluntary Prepayment by prepaying those Term Loans (or the respective portions thereof) offered by the Lenders (“Qualifying Lenders”) that specify an Acceptable Price that is equal to or lower than the Applicable Discount (“Qualifying Loans”) at the Applicable Discount; provided that if the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would exceed the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Purchasing Borrower Party shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective principal amounts of such Qualifying Loans (subject to rounding requirements specified by the Administrative Agent). If the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would be less than the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Purchasing Borrower Party shall prepay all Qualifying Loans.
(v)    Each Discounted Voluntary Prepayment shall be made within four Business Days of the Acceptance Date (or such other date as the Administrative Agent shall reasonably agree, given the time required to calculate the Applicable Discount and determine the amount and holders of Qualifying Loans), without premium or penalty (but subject to Section 3.05), upon irrevocable notice substantially in the form of Exhibit L hereto (each a “Discounted Voluntary Prepayment Notice”), delivered to the Administrative Agent no later than 11:00 a.m. (New York City time), three Business Days prior to the date of such Discounted Voluntary Prepayment, which notice shall specify the date and amount of the Discounted Voluntary Prepayment and the Applicable Discount determined by the Administrative Agent. Upon receipt of any Discounted Voluntary Prepayment Notice the Administrative Agent shall promptly notify each relevant Term Lender thereof. If any Discounted Voluntary Prepayment Notice is given, the amount specified in such notice shall be due and payable to the applicable Term Lenders, subject to the Applicable Discount on the applicable Term Loans, on the date specified therein together with accrued interest (on the par principal amount) to but not including such date on the amount prepaid.
(vi)    To the extent not expressly provided for herein, each Discounted Voluntary Prepayment shall be consummated pursuant to reasonable procedures (including as to timing, rounding and calculation of Applicable Discount in accordance with Section 2.05(c)(iii) above) established by the Administrative Agent and the Borrower.
(vii)    Prior to the delivery of a Discounted Voluntary Prepayment Notice, upon written notice to the Administrative Agent, the Purchasing Borrower Party may withdraw its offer to make a Discounted Voluntary Prepayment pursuant to any Discounted Prepayment Option Notice.
Section 2.06     Termination or Reduction of Commitments.
The Initial Term Loan Commitment of each Lender shall terminate in its entirety on the Closing Date (after giving effect to the incurrence of the Initial Term Loans on such date).
Section 2.07     Repayment of Loans.
(a)    Initial Term Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Term Lenders holding Initial Term Loans (without premium or penalty, except
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as expressly set forth in Section 3.05), on the Maturity Date with respect to Initial Term Loans (or, with respect to any Extended Term Loans, the Maturity Date applicable thereto), the aggregate principal amount of all Initial Term Loans (or Extended Term Loans, as the case may be) outstanding on such date; provided that, to the extent specified in the respective Extension Offer, amortization payments required with respect to Extended Term Loans for periods after the Maturity Date with respect to Initial Term Loans shall be as specified in the respected Extension Offer.
(b)    Incremental Term Loans. In addition, the Borrower shall be required to make, with respect to any Incremental Term Loans pursuant to an Incremental Amendment, to the extent then outstanding, scheduled amortization payments of Incremental Term Loans on the dates and in the principal amounts set forth in the respective Incremental Amendment.
Section 2.08     Interest. (a) Subject to the provisions of Section 2.08(b), (i) each LIBOR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to LIBOR, for such Interest Period plus the Applicable Rate and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.
(b)    During the continuance of a Specified Default (or, during the continuance of any other Event of Default, upon the request of the Required Lenders), the Borrower shall pay interest on all outstanding Loans at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws; provided that no interest at the Default Rate shall accrue or be payable to a Defaulting Lender so long as such Lender shall be a Defaulting Lender. Accrued and unpaid interest on such amounts (including interest on past due interest) shall be due and payable upon demand.
(c)    Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
(d)    The provisions of this Section 2.08 (and the interest rates applicable to the various extensions of credit hereunder) shall be subject to modification as expressly provided in Section 2.15.
Section 2.09     Fees.
(a)    If the Borrower (x) makes any prepayment or repayment of Initial Term Loans pursuant to Section 2.05(a) or (b)(iii) or (y) effects a Repricing Transaction, in either case (A) after the six-month anniversary of the Closing Date and on or prior to the eighteen-month anniversary of the Closing Date, the Borrower shall pay to the Administrative Agent, for the ratable account of each applicable Term Lender, a fee equal to 2.00% of the principal amount of the Initial Term Loans so prepaid or repaid or subject to such Repricing Transaction, and (B) after the eighteen-month anniversary of the Closing Date and on or prior to the thirty-month anniversary of the Closing Date, the Borrower shall pay to the Administrative Agent, for the ratable account of each applicable Term Lender, a fee equal to 1.00% of the principal amount of Initial Term Loans so prepaid or repaid or subject to such Repricing Transaction.
(b)    The Borrower shall pay to the Agents such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when due and paid and shall not be refundable for any reason whatsoever (except as expressly agreed between the Borrower and the applicable Agent).
(c)    The Borrower shall pay to the Arrangers and the Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Commitment Letter and the Fee Letter.
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Section 2.10     Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by the Prime Lending Rate shall be made on the basis of a year of three hundred sixty-five (365) days, or three hundred sixty-six (366) days, as applicable, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section 2.11     Evidence of Indebtedness. (a) The Borrowings made available by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c), as non-fiduciary agent for the Borrower, in each case in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent manifest error of the amount of the Borrowings made available by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Promptly following the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. The Borrower shall have the right to review the entries made in the accounts maintained pursuant to this clause (a) from time to time upon reasonable prior notice during normal business hours.
(b)    In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
(c)    Entries made in good faith by the Administrative Agent in the Register pursuant to Section 2.11(a), and by each Lender in its account or accounts pursuant to Section 2.11(a), shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement and the other Loan Documents.
Section 2.12     Payments Generally. (a) All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Same Day Funds not later than 2:00 p.m. (New York City time) on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided in Section 2.05(b)(vii) or as otherwise provided herein) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent after 2:00 p.m. (New York City time), shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b)    If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would
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cause payment of interest on or principal of LIBOR Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(c)    Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i)    if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in Same Day Funds at the applicable Federal Funds Rate from time to time in effect; and
(ii)    if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the greater of (x) the applicable Federal Funds Rate from time to time in effect and (y) a rate determined by the Administrative Agent in accordance with banking rules governing interbank compensation. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a written demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.12(c) shall be conclusive, absent manifest error.
(d)    If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e)    The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan.
(f)    Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g)    Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable
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to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro Rata Share of the sum of the Outstanding Amount of all Loans outstanding at such time in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
(h)    If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(b), 2.03(c), 2.12(c) or 2.13, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
(i)    Amounts to be applied to the prepayment of Term Loans shall be applied, as applicable, first to reduce outstanding Base Rate Loans. Any amounts remaining after each such application shall be applied to prepay LIBOR Loans.
Section 2.13     Sharing of Payments. If, other than as expressly provided in Section 2.05(b)(vii), Section 2.05(c) or Section 10.07(k) or as otherwise provided elsewhere herein, any Lender shall obtain on account of the Loans made by it, any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.13 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.13 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased. Notwithstanding anything to the contrary contained in this Section 2.13 or elsewhere in this Agreement, the Borrower may extend the final maturity of Term Loans in connection with an Extension that is permitted under Section 2.15 without being obligated to effect such extensions on a pro rata basis among the Lenders (it being understood that no such extension (i) shall constitute a payment or prepayment of any Term Loans for purposes of this Section 2.13 or (ii) shall reduce the amount of any scheduled amortization payment due under Section 2.07(a), except that the amount of any scheduled amortization payment due to a Lender of Extended Term Loans may be reduced to the extent provided pursuant to the express terms of the respective Extension Offer) without giving rise to any violation of this Section 2.13 or any other provision of this Agreement. Furthermore, the Borrower may take all actions contemplated by Section 2.15 in connection with any Extension (including modifying pricing, amortization and repayments or prepayments), and in each case such actions shall be permitted, and the
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differing payments contemplated therein shall be permitted without giving rise to any violation of this Section 2.13 or any other provision of this Agreement.
Section 2.14     Incremental Facilities. (a) The Borrower may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches or additions to an existing tranche of term loans (the “Incremental Term Loans”), provided that (i) no Event of Default shall exist immediately prior to or after giving effect to the incurrence of Incremental Term Loans (except in connection with any Permitted Acquisition or Investment, where (x) no Event of Default shall exist at the time elected by the Borrower pursuant to the LCT Election and no Event of Default pursuant to Section 8.01(a), (f) or (g) shall exist at the time of incurrence of the Incremental Term Loans) and (ii) at the time of incurrence of any Incremental Term Loans, the First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, in each case, as if such Incremental Term Loans had been outstanding on the last day of such Test Period for testing compliance therewith (except in connection with any acquisition or other Investment, where such compliance shall be tested at the time elected by the Borrower pursuant to the LCT Election), shall not exceed the level permitted under Section 7.11 of the First Lien Credit Agreement on such date (or, following the termination of the First Lien Credit Agreement, 5.50 to 1.00). Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $25,000,000 and, in each case, shall be in an increment of $1,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans shall not exceed the sum of (1) the greater of (x) $1,000,000,000 and (y) 100% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements were required to have been delivered pursuant to Section 6.01(a) and (b), as applicable, minus (2) the amount of secured Indebtedness incurred pursuant to Section 7.03(g)(B) in reliance on preceding clause (1) minus (3) the amount incurred prior to the date of incurrence thereof in reliance on the First Lien Base Incremental Amount (or equivalent term) pursuant to the First Lien Credit Agreement (the “Base Incremental Amount”); provided that the Borrower may incur additional Incremental Term Loans (a “Ratio-Based Incremental Facility”), so long as (i) in the case of any Incremental Term Loans that rank pari passu in right of payment and senior in right of security with the Term Loans (a “Senior Lien Incremental Facility”), the First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, in each case, as if such Senior Lien Incremental Facility had been outstanding on the last day of such Test Period, shall not exceed 4.25 to 1.00, (ii) in the case of any Incremental Term Loans that rank pari passu in right of payment and security with the Term Loans (a “Pari Passu Secured Incremental Facility”), the Senior Secured Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, in each case, as if such Pari Passu Secured Incremental Facility had been outstanding on the last day of such Test Period, shall not exceed 5.25 to 1.00 and (iii) in the case of any Incremental Term Loans that rank junior in right of security with the Term Loans (a “Junior Lien Incremental Facility”) or are unsecured (an “Unsecured Incremental Facility”), the Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) and (b), as applicable, in each case, as if such Junior Lien Incremental Facility or Unsecured Incremental Facility had been outstanding on the last day of such four-quarter period, shall not exceed 6.75 to 1.00 (it being understood and agreed that (x) this clause (iii) shall not apply to a Junior Lien Incremental Facility or an Unsecured Incremental Facility the proceeds of which are used to refinance Indebtedness of Holdings or its Restricted Subsidiaries other than Junior Financing unless permitted by Sections 7.03 and 7.13) and (y) the Borrower shall be deemed to have utilized amounts available, if any, under the Ratio-Based Incremental Facility prior to utilization of the Base Incremental Amount); provided further that the aggregate principal amount of all Incremental Term Loans shall not exceed the amount otherwise set forth in this sentence based on the Ratio-Based Incremental Facility plus the Base Incremental Amount. Incremental Term Loans shall (a) if incurred under a Senior Lien Incremental Facility, a Junior Lien Incremental Facility and/or an Unsecured Incremental Facility, be extended under a separate facility (each, a “Separate Facility”) from the Facilities (which, in the case of a Senior Lien Incremental Facility, may be the First Lien Credit Agreement), (b) if incurred under a Senior
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Lien Incremental Facility or Pari Passu Secured Incremental Facility, be subject to the First Lien/Second Lien Intercreditor Agreement, (c) if incurred under a Pari Passu Secured Incremental Facility that is a Separate Facility or a Junior Lien Incremental Facility, be subject to an Intercreditor Agreement entered into with the representative of such providers of Incremental Term Loans in form and substance reasonably satisfactory to the Collateral Agent, (d) if incurred under a Junior Lien Incremental Facility or an Unsecured Incremental Facility, (1) not mature earlier than 91 days following the Maturity Date with respect to the Initial Term Loans and (2) not have a Weighted Average Life to Maturity that is shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans and (e) if incurred under a Pari Passu Secured Incremental Facility, except with respect to the Incremental Maturity Carveout Amount, (1) have a Maturity Date the same as or later (but not earlier) than the Maturity Date of the then-existing Term Loans, and (2) have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of then-existing Term Loans; and (f) have an Applicable Rate and, subject to clauses (d) and (e) above, amortization, as determined by the Borrower and the applicable new Lenders; provided, however, that, with respect to Incremental Term Loans incurred under a Pari Passu Secured Facility, (i) the interest rate margins for such Incremental Term Loans shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to the Initial Term Loans plus 75 basis points (unless the interest rate margins applicable to the Initial Term Loans are increased to the extent necessary to achieve the foregoing); provided that, this clause (i) shall only apply to broadly syndicated term loans incurred on or prior to the six month anniversary of the Closing Date (x) in reliance on the Base Incremental Amount or (y) as a Ratio-Based Incremental Facility and, in each case, that mature less than one year after the Initial Term Loan Maturity Date, (ii) solely for purposes of the foregoing clause (i), the interest rate margins applicable to any Initial Term Loans or any other Incremental Term Loans, respectively, shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower generally to the Lenders providing such Initial Term Loans or such Incremental Term Loans, as applicable, based on the shorter of (x) the Weighted Average Life to Maturity of such Initial Term Loans or such Incremental Term Loans, respectively, and (y) an assumed four year life to maturity, but shall be deemed to exclude any arrangement, structuring or other fees payable in connection with such Initial Term Loans or such Incremental Term Loans, as applicable, that are not shared with all Lenders providing such Initial Term Loans or such Incremental Term Loans, respectively, and (iii) if the lowest permissible LIBOR is greater than 0.00% or the lowest permissible Base Rate is greater than 1.00% for such Incremental Term Loans, the difference between such “floor” and 0.00%, in the case of LIBOR Incremental Term Loans, or 1.00%, in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of clause (i) above; provided that except as provided above, the terms and conditions applicable to Incremental Term Loans constituting an additional tranche of Term Loans may be materially different from those of the then existing Term Loans, including, without limitation, the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans and such other differences as are reasonably satisfactory to the Administrative Agent. Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans to the extent any such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, with the consent of the Borrower and the Administrative Agent, but without the consent of any other Loan Party, Agents or Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14. The Borrower will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
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(b)    This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
(c)    Notwithstanding anything to the contrary in this Agreement, the Lenders committing to provide Incremental Term Loans the proceeds of which are, substantially concurrently with the receipt thereof, to be used by the Borrower to finance in whole or in part a Permitted Acquisition or other Investment may agree to waive or modify the conditions to such borrowing of Incremental Term Loans set forth in Section 4.01.
Section 2.15     Extensions of Term Loans.
(a)    Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders of any Class of Term Loans with a like Maturity Date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Term Loans with the same Maturity Date) and on the same terms to each such Lender, the Borrower may from time to time extend the maturity date of any Term Loans of any Class and otherwise modify the terms of such Term Loans pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of such Term Loans (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’s Term Loans) (each, an “Extension”, and each group of Term Loans of any Class in each case as so extended, as well as the original Term Loans of such Class (in each case not so extended), being a “tranche”; any Extended Term Loans shall constitute a separate tranche of Term Loans from the tranche of Term Loans from which they were converted), so long as the following terms are satisfied: (i) no Default or Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders, (ii) [reserved], (iii) except as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (iv), (v) and (vi), be determined by the Borrower and set forth in the relevant Extension Offer), the Term Loans of any Term Lender (an “Extending Term Lender”) extended pursuant to any Extension (“Extended Term Loans”) shall have the same terms as the tranche of Term Loans subject to such Extension Offer, (iv) the final maturity date of any Extended Term Loans shall be no earlier than the then latest Maturity Date hereunder of the Class of Term Loans to which such Extended Term Loans relate and the amortization schedule applicable to each Class of Term Loans pursuant to Section 2.07(a) for periods prior to the Maturity Date of the Class of Term Loans to which such Extended Term Loans relate may not be increased, (v) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans extended thereby, (vi) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Extension Offer, (vii) if the aggregate principal amount of Term Loans (calculated on the face amount thereof) in respect of which Term Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans offered to be extended by the Borrower pursuant to such Extension Offer, then the Term Loans of such Term Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Term Lenders have accepted such Extension Offer, (viii) all documentation in respect of such Extension shall be consistent with the foregoing, and (ix) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower.
(b)    If at the time any Extension of Term Loans becomes effective, there will be Extended Term Loans which remain outstanding from a prior Extension, then if the “effective interest rate” (which, for this purpose, shall be reasonably determined by the Administrative Agent and shall take into account any interest rate floors or similar devices and be deemed to include (without duplication) all fees, including up front or similar fees or original issue discount (amortized over the shorter of (x) the life of such new Extended Term Loans and (y) the four years following the date of the respective Extension) payable to Lenders with such Extended Term Loans, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared with the relevant extending Lenders) in respect of the Extended Term Loans shall at any time (over the life of the Extended Term Loans) exceed by more than 0.50% the “effective interest rate” applicable to Term Loans which were extended pursuant to one or more prior Extensions (determined on the same basis as provided in the first parenthetical in this
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sentence), then the Applicable Rate applicable thereto shall be increased to the extent necessary so that at all times thereafter the Extended Term Loans made pursuant to previous Extensions do not receive less “effective interest rate” than are applicable to the Term Loans made (or extended) pursuant to such Extension.
(c)    With respect to all Extensions consummated by the Borrower pursuant to this Section 2.15, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.05 and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment, provided that the Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrower’s sole discretion and may be waived by the Borrower) of Term Loans of any or all applicable tranches be tendered. The Administrative Agent and the Lenders hereby consent to the Extensions and the other transactions contemplated by this Section 2.15 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans on the such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 2.05 and 2.13) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.15.
(d)    The Lenders hereby irrevocably authorize the Administrative Agent and Collateral Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of Term Loans so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.15. Notwithstanding the foregoing, each of the Administrative Agent and the Collateral Agent shall have the right (but not the obligation) to seek the advice or concurrence of the Required Lenders with respect to any matter contemplated by this Section 2.15(d) and, if either the Administrative Agent or the Collateral Agent seeks such advice or concurrence, it shall be permitted to enter into such amendments with the Borrower in accordance with any instructions actually received by such Required Lenders and shall also be entitled to refrain from entering into such amendments with the Borrower unless and until it shall have received such advice or concurrence; provided, however, that whether or not there has been a request by the Administrative Agent or the Collateral Agent for any such advice or concurrence, all such amendments entered into with the Borrower by the Administrative Agent or the Collateral Agent hereunder shall be binding and conclusive on the Lenders. Without limiting the foregoing, in connection with any Extensions the respective Loan Parties shall (at their expense) amend (and the Collateral Agent is hereby directed to amend) any Mortgage that has a maturity date prior to the then latest Maturity Date so that such maturity date is extended to the then latest Maturity Date (or such later date as may be advised by local counsel to the Collateral Agent).
(e)    In connection with any Extension, the Borrower shall provide the Administrative Agent at least 5 Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.15.
Section 2.16     Refinancing Amendments.
(a)    On one or more occasions after the Closing Date, the Borrower may obtain, from any Lender or any Additional Refinancing Lender, Credit Agreement Refinancing Indebtedness in respect of all or any portion of the Term Loans then outstanding under this Agreement (which for purposes of this Section 2.16(a) will be deemed to include any then outstanding Refinancing Term Loans or Incremental Term Loans), in the form of Refinancing Term Loans or Refinancing Term Commitments pursuant to a Refinancing Amendment.
(b)    The effectiveness of any Refinancing Amendment shall be subject to the satisfaction (or waiver in accordance with the terms of such Refinancing Amendment) on the date thereof of each of the conditions set forth in Section 4.01 and, to the extent reasonably requested by the
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Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Credit Agreement Refinancing Indebtedness is provided with the benefit of the applicable Loan Documents.
(c)    Each issuance of Credit Agreement Refinancing Indebtedness under Section 2.16(a) shall be in an aggregate principal amount that is (x) not less than $25,000,000 and (y) an integral multiple of $1,000,000 in excess thereof.
(d)    Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended pursuant to a Refinancing Amendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of the third paragraph of Section 10.01 (without the consent of the Required Lenders called for therein) and (iii) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.16, and the Required Lenders hereby expressly authorize the Administrative Agent to enter into any such Refinancing Amendment.
Section 2.17     Defaulting Lenders.
(a)    Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i)    Waivers and Amendments. That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 10.01.
(ii)    Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as reasonably determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made at a time when the conditions set forth in Section 4.01 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held)
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to pay amounts owed by a Defaulting Lender pursuant to this Section 2.17(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(b)    Defaulting Lender Cure. If the Borrower and the Administrative Agent agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders at par, whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties and subject to Section 10.20, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
ARTICLE III

Taxes, Increased Costs Protection and Illegality
Section 3.01     Taxes. (a) Unless required by applicable Laws (as determined in good faith by the applicable withholding agent), any and all payments made by or on account of any Loan Party under any Loan Document shall be made free and clear of and without deduction or withholding for Taxes. If the Loan Party or other applicable withholding agent shall be required by any Laws to withhold or deduct any Taxes or Other Taxes from or in respect of any sum payable under any Loan Document to any Agent or any Lender, (i) with respect to Indemnified Taxes and Other Taxes, the sum payable by such Loan Party shall be increased as necessary so that after making all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 3.01), each of such Agent and such Lender receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent shall make such deductions or withholdings, (iii) the applicable withholding agent shall pay the full amount deducted or withheld to the relevant taxation authority or other authority in accordance with applicable Laws, and (iv) within thirty (30) days after the date of such payment (or, if receipts or evidence are not available within thirty (30) days, as soon as possible thereafter), if the relevant Loan Party is the applicable withholding agent, shall furnish to such Agent or Lender (as the case may be) the original or a copy of a receipt evidencing payment thereof or other evidence acceptable to such Agent or Lender.
(b)    In addition, the Borrower agrees to pay any and all present or future stamp, court or documentary Taxes and any other property Taxes, or charges or levies of the same character, imposed by any Governmental Authority (the “Other Taxes”), which arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document, excluding any such Taxes that are imposed as a result of a Lender’s voluntary assignment in such Lender’s interest in the Loan hereunder, other than any such assignment that is a result of a transfer or assignment pursuant to Section 3.01(e) or otherwise at the request of the Borrower.
(c)    Each of the Loan Parties agrees to indemnify each Agent and each Lender for (i) the full amount of Indemnified Taxes and Other Taxes payable by such Agent or such Lender (whether or not such Taxes are legally imposed) and (ii) any reasonable expenses arising therefrom or with respect thereto; provided, however, that a Loan Party shall only be required to indemnify an Agent or Lender for Indemnified Taxes and Other Taxes pursuant to this Section 3.01(c) so long as such Taxes have accrued on or after the day which is 180 days prior to the date on which Agent or such Lender first made a written demand therefor. Such Agent or Lender, as the case may be, shall provide the relevant Loan Party with a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts. Such statement shall be conclusive absent manifest error.
(d)    Each Lender shall, at such times as are reasonably requested by the Borrower or the Administrative Agent, provide the Borrower and the Administrative Agent with any documentation
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prescribed by Law certifying as to any entitlement of such Lender to an exemption from, or reduction in, withholding tax with respect to any payments to be made to such Lender under the Loan Documents. Each such Lender shall, whenever a lapse in time or change in circumstances renders such documentation obsolete or inaccurate in any material respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) or promptly notify the Borrower and the Administrative Agent of its inability to do so. Unless the applicable withholding agent has received forms or other documents satisfactory to it indicating that payments under any Loan Document to or for a Lender are not subject to withholding tax or are subject to such Tax at a rate reduced by an applicable tax treaty, the Borrower, the Administrative Agent or other applicable withholding agent shall withhold amounts required to be withheld by applicable Law from such payments at the applicable statutory rate. Without limiting the foregoing:
(i)    Each Lender that is a United States person (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement two properly completed and duly signed original copies of Internal Revenue Service Form W-9 certifying that such Lender is exempt from federal backup withholding.
(ii)    Each Lender that is not a United States person (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent) whichever of the following is applicable:
(A)    two properly completed and duly signed original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (or any successor forms) claiming eligibility for the benefits of an income tax treaty to which the United States is a party, and such other documentation as required under the Code,
(B)    two properly completed and duly signed original copies of Internal Revenue Service Form W-8ECI (or any successor forms),
(C)    in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (A) a certificate substantially in the form of Exhibit I (any such certificate a “United States Tax Compliance Certificate”) and (B) two properly completed and duly signed original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable,
(D)    to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership, or is a Participant holding a participation granted by a participating Lender), Internal Revenue Service Form W-8IMY (or any successor forms) of the Lender, accompanied by a Form W-8ECI, W-8BEN, or W-8BEN-E, as applicable, United States Tax Compliance Certificate, Form W-9, Form W-8IMY or any other required information from each beneficial owner, as applicable (provided that, if one or more beneficial owners are claiming the portfolio interest exemption, the United States Tax Compliance Certificate may be provided by such Lender on behalf of such beneficial owner). Each Lender shall deliver to the Borrower and the Administrative Agent two further original copies of any previously delivered form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or inaccurate and promptly after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower or the Administrative Agent, or promptly notify the Borrower and the Administrative Agent that it is unable to do so. Each Lender shall promptly notify the Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered form or certification to the Borrower or the Administrative Agent, or
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(E)    two properly completed and duly signed original copies of any other form prescribed by applicable U.S. federal income tax laws (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a deduction in, United States federal withholding tax on any payments to such Lender under the Loan Documents.
Notwithstanding any other provision of this clause (d), a Lender shall not be required to deliver any form that such Lender is not legally able to deliver.
(e)    If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this paragraph (e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(f)    Any Lender claiming any additional amounts payable pursuant to this Section 3.01 shall, upon the reasonable request of the Borrower, use its reasonable efforts to change the jurisdiction of its Lending Office (or take any other measures reasonably requested by the Borrower) if such a change or other measures would reduce any such additional amounts (or any similar amount that may thereafter accrue) and would not, in the sole determination of such Lender, be inconsistent with the policies of such Lender and result in any unreimbursed cost or expense or be otherwise materially disadvantageous to such Lender.
(g)    If any Lender or the Administrative Agent determines, in its sole discretion, that it has received a refund in respect of any Indemnified Taxes or Other Taxes as to which indemnification or additional amounts have been paid to it by any Loan Party pursuant to this Section 3.01, it shall promptly remit such refund to the Loan Party, net of all out-of-pocket expenses of the Lender or the Administrative Agent, as the case may be and without interest (other than any interest paid by the relevant taxing authority with respect to such refund net of any Taxes payable by the Administrative Agent or Lender on such interest); provided that the Loan Party, upon the request of the Lender or the Administrative Agent, as the case may be, agrees promptly to return such refund (plus any penalties, interest or other charges imposed by the relevant taxing authority) to such party in the event such party is required to repay such refund to the relevant taxing authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the Lender or the Administrative Agent be required to pay any amount to a Loan Party pursuant to this paragraph (g) the payment of which would place the Lender or the Administrative Agent in a less favorable net after-Tax position than the Lender or the Administrative Agent would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This section shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to Taxes that it deems confidential) to the Borrower or any other person.
Section 3.02     Illegality. If any Lender determines that any Law enacted after the Closing Date has made it unlawful, or that any Governmental Authority has asserted after the Closing Date that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund LIBOR Loans, or to determine or charge interest rates based upon LIBOR, then, on written notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue LIBOR Loans or to convert Base Rate Loans to LIBOR Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all applicable LIBOR
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Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBOR Loans to such day, or promptly, if such Lender may not lawfully continue to maintain such LIBOR Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted and all amounts due, if any, in connection with such prepayment or conversion under Section 3.05. Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.
Section 3.03     Inability to Determine Rates. If the Administrative Agent or the Required Lenders determine that for any reason adequate and reasonable means do not exist for determining the applicable LIBOR for any requested Interest Period with respect to a proposed LIBOR Loan, or that LIBOR for any requested Interest Period with respect to a proposed LIBOR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, or that Dollar deposits are not being offered to banks in the London interbank eurodollar, or other applicable, market for the applicable amount and the Interest Period of such LIBOR Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain LIBOR Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, notwithstanding anything to the contrary contained herein, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of such LIBOR Loans or, failing that, will be deemed to have converted such request, if applicable, into a request for a Borrowing of Base Rate Loans in the amount specified therein.
Section 3.04     Increased Cost and Reduced Return; Capital Adequacy. (a) If any Lender reasonably determines that as a result of the introduction of or any change in or in the interpretation of any Law, in each case after the Closing Date, or such Lender’s compliance therewith, there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining any LIBOR Loans (or in the case of Taxes, any Loan), or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this Section 3.04(a) any such increased costs or reduction in amount resulting from (i) Indemnified Taxes or Other Taxes (which are covered by Section 3.01), or any Excluded Taxes or (ii) reserve requirements for which Lenders are compensated pursuant to the definition of “LIBOR” or otherwise contemplated by Section 3.04(c)) and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining the LIBOR Loan (or of maintaining its obligations to make any Loan), or to reduce the amount of any sum received or receivable by such Lender, then from time to time within fifteen (15) days after written demand by such Lender setting forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction.
(b)    If any Lender determines that the introduction of any Law regarding capital or liquidity adequacy or any change therein or in the interpretation thereof, in each case after the Closing Date, or compliance by such Lender (or its Lending Office) therewith, has the effect of reducing the rate of return on the capital or liquidity of such Lender or any corporation controlling such Lender as a consequence of such Lender’s obligations hereunder (taking into consideration its policies with respect to capital or liquidity adequacy and such Lender’s desired return on capital), then from time to time upon written demand of such Lender setting forth in reasonable detail the charge and the calculation of such reduced rate of return (with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such reduction within fifteen (15) days after receipt of such written demand.
(c)    The Borrower shall pay to each Lender, as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of any LIBOR Loans of the Borrower (other than those for which Lenders are compensated pursuant to the definition of “LIBOR”), such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error) which in each case shall be due and payable on each date on
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which interest is payable on such Loan, provided the Borrower shall have received at least fifteen (15) days’ prior written notice (with a copy to the Administrative Agent) of such additional interest or cost from such Lender. If a Lender fails to give written notice fifteen (15) days prior to the relevant Interest Payment Date, such additional interest or cost shall be due and payable fifteen (15) days from receipt of such written notice.
(d)    Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.04 shall not constitute a waiver of such Lender’s right to demand such compensation.
(e)    If any Lender requests compensation under this Section 3.04, then such Lender will, if requested by the Borrower and at the Borrower’s expense, use commercially reasonable efforts to designate another Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided further that nothing in this Section 3.04(e) shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section 3.04(a), (b), (c) or (d).
(f)    Notwithstanding anything in this Agreement to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or other regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a change after the Closing Date in a requirement of Law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 3.04).
Section 3.05     Funding Losses. Upon written demand of any Lender (with a copy to the Administrative Agent) from time to time, which demand shall set forth in reasonable detail the basis for requesting such amount, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense actually incurred by it as a result of:
(a)    any continuation, conversion, payment or prepayment of any LIBOR Loan of the Borrower on a day other than the last day of the Interest Period for such Loan; or
(b)    any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any LIBOR Loan of the Borrower on the date or in the amount notified by the Borrower;
including any loss or expense (excluding loss of anticipated profits) arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.
Section 3.06     Matters Applicable to All Requests for Compensation. (a) Any Agent or any Lender claiming compensation under this Article III shall deliver a certificate to the Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods.
(b)    With respect to any Lender’s claim for compensation under Section 3.01, 3.02, 3.03 or 3.04, the Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. If any Lender requests compensation by the Borrower under Section 3.04, the Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or continue from one Interest Period to another applicable LIBOR Loan, or, if applicable, to convert Base Rate Loans into LIBOR Loans, until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of Section 3.06(c) shall be
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applicable); provided that such suspension shall not affect the right of such Lender to receive the compensation so requested in accordance with the terms hereof.
(c)    If the obligation of any Lender to make or continue any LIBOR Loan, or to convert Base Rate Loans into LIBOR Loans shall be suspended pursuant to Section 3.06(b) hereof, such Lender’s applicable LIBOR Loans shall be automatically converted into Base Rate Loans (or, if such conversion is not possible, repaid) on the last day(s) of the then current Interest Period(s) for such LIBOR Loans (or, in the case of an immediate conversion required by Section 3.02, on such earlier date as required by Law) and, unless and until such Lender gives notice as provided below that the circumstances specified in Section 3.02, 3.03 or 3.04 hereof that gave rise to such conversion no longer exist:
(i)    to the extent that such Lender’s LIBOR Loans have been so converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s applicable LIBOR Loans shall be applied instead to its Base Rate Loans; and
(ii)    all Loans that would otherwise be made or continued from one Interest Period to another by such Lender as LIBOR Loans shall be made or continued instead as Base Rate Loans (if possible), and all Base Rate Loans of such Lender that would otherwise be converted into LIBOR Loans shall remain as Base Rate Loans.
(d)    If any Lender gives notice to the Borrower (with a copy to the Administrative Agent) that the circumstances specified in Section 3.02, 3.03 or 3.04 hereof that gave rise to the conversion of any of such Lender’s LIBOR Loans pursuant to this Section 3.06 no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when LIBOR Loans made by other Lenders under the applicable Facility are outstanding, if applicable, such Lender’s Base Rate Loans shall be automatically converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding LIBOR Loans under such Facility and by such Lender are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective Commitments for the applicable Facility.
Section 3.07     Replacement of Lenders Under Certain Circumstances. (a) If at any time (i) the Borrower becomes obligated to pay additional amounts or indemnity payments described in Section 3.01 or 3.04 as a result of any condition described in such Sections or any Lender ceases to make any LIBOR Loans as a result of any condition described in Section 3.02 or Section 3.04, (ii) any Lender becomes a Defaulting Lender, (iii) any Lender becomes a Non-Consenting Lender, (iv) a Lender rejects (or is deemed to reject) the Extension under Section 2.15(a) which Extension has been accepted under Section 2.15(a) by the Required Lenders, then the Borrower may, on three (3) Business Days’ prior written notice to the Administrative Agent and such Lender, (x) replace such Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Section 10.07(b) (with the assignment fee to be paid by the Borrower in such instance) all of its rights and obligations under this Agreement (in respect of any applicable Facility only in the case of clause (i) or, with respect to a Class vote, clause (iii)) to one or more Eligible Assignees; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender or other such Person; and provided, further that (A) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments and (B) in the case of any such assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable Eligible Assignees shall have agreed to, and shall be sufficient (together with all other consenting Lenders) to cause the adoption of, the applicable departure, waiver or amendment of the Loan Documents; or (y) terminate the Commitment of such Lender and repay all Obligations (other than contingent obligations not then due and payable) of the Borrower owing to such Lender relating to the Loans and participations held by such Lender as of such termination date; provided that in the case of any such termination of a Non-Consenting Lender such termination shall be sufficient (together with all other consenting Lenders or other Non-Consenting Lenders being terminated in connection with the adoption of the applicable departure, waiver or amendment of the Loan Documents) to cause the adoption of the applicable departure, waiver or
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amendment of the Loan Documents and such termination shall be in respect of any applicable facility only in the case of clause (i) or, with respect to a Class vote, clause (iii).
(b)    Any Lender being replaced pursuant to Section 3.07(a) above shall (i) execute and deliver an Assignment and Assumption with respect to such Lender’s applicable Commitment and outstanding Loans and (ii) deliver any Notes evidencing such Loans to the Borrower or Administrative Agent. Pursuant to such Assignment and Assumption, (A) the assignee Lender shall acquire all or a portion, as the case may be, of the assigning Lender’s Commitment and outstanding Loans, (B) all obligations of the Borrower owing to the assigning Lender relating to the Loans and Commitments so assigned shall be paid in full by the assignee Lender to such assigning Lender concurrently with such Assignment and Assumption and (C) upon such payment and, if so requested by the assignee Lender, delivery to the assignee Lender of the appropriate Note or Notes executed by the Borrower, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to constitute a Lender hereunder with respect to such assigned Loans and Commitments, except with respect to indemnification provisions under this Agreement, which shall survive as to such assigning Lender. In connection with any such replacement, if any such Non-Consenting Lender or Defaulting Lender does not execute and deliver to the Administrative Agent a duly executed Assignment and Assumption reflecting such replacement within five (5) Business Days of the date on which the assignee Lender executes and delivers such Assignment and Assumption to such Non-Consenting Lender or Defaulting Lender, then such Non-Consenting Lender or Defaulting Lender shall be deemed to have executed and delivered such Assignment and Assumption without any action on the part of the Non-Consenting Lender or Defaulting Lender.
(c)    [Reserved].
(d)    In the event that (i) the Borrower or the Administrative Agent has requested that the Lenders consent to a departure or waiver of any provisions of the Loan Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all affected Lenders in accordance with the terms of Section 10.01 or all the Lenders with respect to a certain Class of the Loans or all Lenders and (iii) the Required Lenders (or, in the case of a consent, waiver or amendment involving all affected Lenders of a certain Class or Classes, the Required Facility Lenders) have agreed to such consent, waiver or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a “Non-Consenting Lender.”
Section 3.08     Survival. All of the Borrower’s obligations under this Article III shall survive any assignment of rights by, or the replacement of, a Lender and termination of the Aggregate Commitments and repayment, satisfaction and discharge of all other Obligations hereunder.
ARTICLE IV

Conditions Precedent to Borrowings
Section 4.01     All Credit Events After the Closing Date.
The obligation of each Lender to honor any Committed Loan Notice (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of LIBOR Loans) after the Closing Date is subject to satisfaction of the following conditions precedent:
(i)    The representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall be true and correct in all material respects on and as of the date of such Borrowing with the same effect as though made on and as of such date, except (x) to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date and (y) any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects on and as of any such date.
(ii)    No Default or Event of Default shall exist or would result from such proposed Borrowing or from the application of the proceeds therefrom.
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(iii)    The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
Each Committed Loan Notice (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of LIBOR Loans) submitted by the Borrower after the Closing Date shall be deemed to be a representation and warranty that the conditions specified in Sections 4.01(i) and (ii) have been satisfied on and as of the date of the applicable Borrowing. Notwithstanding the foregoing, to the extent that the proceeds of any Incremental Term Loans are to be used to finance a Permitted Acquisition or Investment permitted hereunder, the only conditions precedent to the funding of such Incremental Term Loans shall be the conditions precedent in the related Incremental Amendment.
Section 4.02     Closing Date. The obligation of the Lenders on the Closing Date to fund the Initial Term Loans is subject to the satisfaction of only the following conditions on or before the Closing Date:
(a)    Loan Documents. The Administrative Agent will have received a copy of each of the following Loan Documents, in each case where applicable, executed and delivered by Holdings, the Borrower and each other Guarantor: (A) this Agreement; (B) the Security Agreement; (C) the Pledge Agreement, (D) the First Lien/Second Lien Intercreditor Agreement and (E) the Perfection Certificate.
(b)    Organization Documents; Incumbency; Resolutions; Good Standing Certificates. The Administrative Agent will have received:
(i)    Organization Documents. A copy of each Organization Document of Holdings, the Borrower and each Guarantor and, to the extent applicable, certified as of a recent date by the appropriate governmental official.
(ii)    Incumbency Certificate. A signature and incumbency certificate of the officers or other authorized representatives of Holdings, the Borrower and each Guarantor executing the Loan Documents referenced in Section 4.02(a).
(iii)    Resolutions. Resolutions of the board of directors or similar governing body of Holdings, the Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party or by which it or its assets may be bound as of the Closing Date, certified as of the Closing Date by its secretary or an assistant secretary (or any other officer with an equivalent role) as being in full force and effect without modification or amendment.
(iv)    Good Standing Certificates. A good standing certificate from the applicable Governmental Authority of the jurisdiction of incorporation, organization or formation of Holdings, the Borrower and each Guarantor.
(c)    Committed Loan Notice. The Administrative Agent will have received a fully executed and delivered Committed Loan Notice as required pursuant to Section 2.02.
(d)    Closing Date Certificate. The Administrative Agent will have received an executed certificate of a Responsible Officer of the Borrower, certifying to the satisfaction of the conditions set forth in Section 4.02(g) and (j).
(e)    Financial Statements. The Administrative Agent and the Lenders will have received (i) the audited balance sheet of (x) the Group Companies (as defined in the Acquisition Agreement) as of December 31, 2020 (other than those Group Companies (as defined in the Acquisition Agreement) that were subsidiaries of CyberScout, LLC as of such date), together with the related statements of income and cash flows for the period then ended and (y) CyberScout, LLC and its subsidiaries as of December 31, 2020, together with the related statements of income and cash flows for the period then ended, (ii) the unaudited balance sheet of the Group Companies (as defined in the
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Acquisition Agreement) as of the Balance Sheet Date (as defined in the Acquisition Agreement), together with the related unaudited statements of income and cash flows for the period ending on the Balance Sheet Date (as defined in the Acquisition Agreement) (the financial statements described in clauses (i) and (ii) collectively, the “Sontiq Financial Statements”), (iii) the Audited Financial Statements and (iv) the Unaudited Financial Statements.
(f)    No Material Adverse Effect. Except as disclosed on Schedule 3.7 to the Acquisition Agreement, or as contemplated by the Acquisition Agreement, since the Balance Sheet Date (as defined in the Acquisition Agreement), there has not been any event, condition, occurrence, contingency or development that has had or would reasonably be expected to have a Company Material Adverse Effect.
(g)    Acquisition.    The Acquisition shall have been consummated, or substantially simultaneously with the Initial Borrowing shall be consummated, in all material respects in accordance with the terms of the Acquisition Agreement.
(h)    Solvency. The Administrative Agent will have received a solvency certificate from the Borrower (executed on behalf of the Borrower by the chief financial officer or other officer with equivalent duties of the Borrower) certifying that, on the Closing Date after giving effect to the Transactions, Holdings and its Restricted Subsidiaries and the Borrower and its Restricted Subsidiaries, in each case, on a consolidated basis, are Solvent.
(i)    Refinancing. All obligations under the Sontiq Existing Debt, shall have been, or substantially concurrently with the closing of the Acquisition on the Closing Date shall be, refinanced, repaid, redeemed and/or terminated in their entirety and all commitments to lend and guarantees and security granted in connection therewith shall have been terminated and/or released or customary arrangements shall have been made for such termination and/or release.
(j)    Specified Representations.    The Specified Acquisition Agreement Representations shall be true and correct to the extent required by the definition thereof on and as of the Closing Date and the Specified Representations shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the Closing Date; provided that, in each case, to the extent that any such representation expressly refers to an earlier date, such representation shall be true and correct in all material respects as of such earlier date.
(k)    Personal Property Collateral. The Collateral Agent will have received:
(i)    Deliverables, Etc. In connection with the pledge of Equity Interests held by the Loan Parties, and the pledge of Indebtedness owing to the Loan Parties, in each case to the extent required under the Collateral Documents, Holdings, the Borrower and each applicable Guarantor will deliver, or cause to be delivered, to the Collateral Agent (or, if applicable, the applicable First Lien Administrative Agent in accordance with the First Lien/Second Lien Intercreditor Agreement), to the extent required under the Collateral Documents, and with respect to any certificated securities, an original stock certificate or other instruments representing such pledged Equity Interests or Indebtedness, together with customary blank stock or other equity transfer powers and instruments of transfer and irrevocable powers duly executed in blank.
(ii)    Lien Searches. The results of customary lien searches with regard to Holdings, the Borrower and each other Guarantor; and
(iii)    UCCs, etc. UCC financing statements in appropriate form for filing under the UCC, documents suitable for filing with the United States Patent and Trademark Office and United States Copyright Office and all other documents and instruments, in each case as necessary to establish and perfect the Collateral Agent’s second priority Lien in the Collateral other than foreign Intellectual Property (and subject to Permitted Liens), in each case, executed and delivered (if applicable, in proper form for filing) by the Borrower and the Guarantors;
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provided that, to the extent any Liens on the Collateral owned by the Target and its Subsidiaries have not attached or are not perfected on the Closing Date (other than to the extent that a Lien on such Collateral may be perfected by (A) the filing of a financing statement under the UCC or (B) the delivery of certificated securities representing equity of directly owned domestic Subsidiaries of the Loan Parties) after the use of commercially reasonable efforts to do so, such attachment or perfection will not constitute a condition precedent to the borrowing on the Closing Date, but will be required in accordance with Section 6.13.
(l)    Opinions of Counsel to Loan Parties. The Administrative Agent shall have received from (i) Simpson Thacher & Bartlett LLP, special counsel to the Loan Parties, (ii) Nelson Mullins Riley & Scarborough LLP, local counsel to the Loan Parties organized under the laws of the state of Georgia and (iii) Arnold Gallagher P.C., local counsel to the Loan Parties organized under the laws of the state of Oregon, an opinion addressed to the Administrative Agent and the Lenders and dated the Closing Date, which opinions shall be in form and substance reasonably satisfactory to the Administrative Agent.
(m)    Fees and Expenses. All costs, fees, expenses (including reasonable, documented, out-of-pocket legal fees and expenses of legal counsel for the Administrative Agent and the Arrangers) and other compensation payable in connection with the consummation of the Transactions and funding of the Initial Term Loans on the Closing Date to the Arrangers, the Administrative Agent and the Lenders will have been paid (or will concurrently be paid) to the extent then due; provided that an invoice of such expenses will have been presented to the Borrower no less than two (2) Business Days prior to the Closing Date.
(n)    “Know-Your-Customer.” The Administrative Agent will have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations including the PATRIOT Act at least three (3) Business Days prior to the Closing Date, to the extent requested from the Borrower at least ten (10) Business Days prior to the Closing Date. At least three (3) days prior to the Closing Date, if requested by the Administrative Agent and the Borrower qualifies as a “legal entity” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
For purposes of determining compliance with the conditions specified in this Section 4.02, (i) each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto and (ii) transactions occurring (or to occur) on the Closing Date in accordance with, and as expressly set forth in, the funds flow memorandum delivered to (and approved by) the Administrative Agent shall be deemed to occur and have occurred substantially simultaneously with the Initial Borrowing.
ARTICLE V

Representations and Warranties
Holdings, the Borrower and each of the Subsidiary Guarantors party hereto represent and warrant to the Agents and the Lenders at the time of each Borrowing that:
Section 5.01     Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each Restricted Subsidiary (a) is a Person duly organized or formed, validly existing and in good standing (where relevant) under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite organizational power and authority to (i) own or lease its assets and carry on its business as currently conducted and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and in good standing (where relevant) under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, (d) is in compliance with all Laws, orders, writs and injunctions and (e) has all
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requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted; except in the case of clause (a) (other than with respect to the Borrower), (b)(i) (other than with respect to the Borrower), (c), (d) or (e), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
Section 5.02     Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, and the consummation of the Transactions, are within such Loan Party’s corporate or other powers, (a) have been duly authorized by all necessary corporate or other organizational action, and (b) do not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than Permitted Liens), or require any payment to be made under (x) any Contractual Obligation to which such Person is a party or by which it or any of the properties of such Person or any of its Subsidiaries is bound or to which it may be subject or (y) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate any Law; except with respect to any conflict, breach or contravention or payment (but not creation of Liens) referred to in clause (b)(ii)(x) or (b)(iii), to the extent that such violation, conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect.
Section 5.03     Governmental Authorization; Other Consents. No material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the consummation of the Transactions, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (i) filings and registrations necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect (except to the extent not required to obtained, taken, given or made or in full force and effect pursuant to the Collateral and Guarantee Requirement) and (iii) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect.
Section 5.04     Binding Effect. (a) This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is a party thereto.
(b)    This Agreement and each other Loan Document constitute legal, valid and binding obligations of such Loan Party, enforceable against each Loan Party that is a party thereto in accordance with its terms, except as such enforceability may be limited by (i) Debtor Relief Laws and by general principles of equity, (ii) the need for filings and registrations necessary to create or perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties and (iii) the effect of foreign Laws, rules and regulations as they relate to pledges, if any, of Equity Interests in Foreign Subsidiaries and intercompany Indebtedness owed by Foreign Subsidiaries.
Section 5.05     Financial Statements; No Material Adverse Effect. (a) (i) The Audited Financial Statements fairly present in all material respects the consolidated financial condition of Holdings and its Subsidiaries as of the dates thereof and its consolidated results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein.
(ii)    The Unaudited Financial Statements fairly present in all material respects the consolidated financial condition of Holdings and its Subsidiaries as of the dates thereof and its results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein and subject to normal year-end audit adjustments and the absence of footnotes.
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(b)    The forecasts of income statements of Holdings and its Subsidiaries which have been furnished to the Administrative Agent prior to the Closing Date have been prepared in good faith on the basis of the assumptions stated therein, which assumptions were believed by Holdings to be reasonable at the time of preparation of such forecasts, it being understood that such forecasts are not to be viewed as facts or as a guarantee of performance or achievement of any particular results and that actual results may vary from such forecasts and that such variations may be material and that no assurance can be given that the projected results will be realized.
(c)    Since December 31, 2020, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
(d)    As of the Closing Date, neither Holdings nor any of its Subsidiaries has any Indebtedness or other obligations or liabilities, direct or contingent (other than (i) the Existing Indebtedness, (ii) obligations arising under the Loan Documents and the First Lien Facilities Documentation, (iii) liabilities incurred in the ordinary course of business and (iv) liabilities under the Acquisition Agreement) that, either individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect.
Section 5.06     Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of Holdings, threatened in writing or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against Holdings or any of its Restricted Subsidiaries or against any of their properties or revenues that have a reasonable likelihood of adverse determination and where such determination either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.07     Ownership of Property; Liens. (a) Holdings and each of its Restricted Subsidiaries has good record title to, or valid leasehold interests in, or easements or other limited property interests in, all Real Property necessary in the ordinary conduct of its business, free and clear of all Liens except as set forth on Schedule 5.07 hereto and except for minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes and Permitted Liens and except where the failure to have such title, interest, easement or other limited property interest could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(b)    As of the Closing Date, Schedule 5.07 contains a true and complete list of each Material Real Property owned by Holdings and the Subsidiaries as of the Closing Date.
Section 5.08     Environmental Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
(a)    each Loan Party and its properties are and have been in compliance with all Environmental Laws, which includes obtaining and maintaining all applicable Environmental Permits required under such Environmental Laws to carry on the business and operations of the Loan Parties;
(b)    the Loan Parties have not received any written notice that alleges any of them is in violation of or potentially liable under any Environmental Laws and none of the Loan Parties nor any of their properties is the subject of any claims, investigations, liens, demands or judicial, administrative or arbitral proceedings pending or, to the knowledge of the Borrower, threatened under any Environmental Law or to revoke or modify any Environmental Permit held by any of the Loan Parties;
(c)    there has been no release, discharge or disposal of Hazardous Materials on, at, under or from any property owned, leased or operated by any of the Loan Parties, or, to the knowledge of the Borrower, any property formerly owned, operated or leased by any Loan Party or arising out of the conduct of the Loan Parties that would reasonably be expected to require
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investigation, response or corrective action, or would reasonably be expected to result in the Borrower incurring any Environmental Liability, under Environmental Laws; and
(d)    there are no facts, circumstances or conditions arising out of or relating to the operations of the Loan Parties or any property owned, leased or operated by any of the Loan Parties or, to the knowledge of the Borrower, any property formerly owned, operated or leased by the Loan Parties or any of their predecessors in interest that would reasonably be expected to require investigation, response or corrective action, or would reasonably be expected to result in any of the Loan Parties incurring any Environmental Liability, under Environmental Laws.
Section 5.09     Taxes. Except as would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each of the Loan Parties and their Subsidiaries have filed all tax returns required to be filed, all such tax returns accurately reflect in all material respects all liabilities for Taxes of each Loan Party and their Subsidiaries, as applicable, and each of the Loan Parties and their Subsidiaries have paid all Taxes levied or imposed upon them or their properties, that are due and payable (including in their capacity as a withholding agent) and taking into account applicable extensions, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed Tax deficiency or assessment known to any Loan Parties against the Loan Parties that would, if made, individually or in the aggregate, have a Material Adverse Effect.
Section 5.10     ERISA Compliance. (a) Except as could not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Plan is in compliance with the applicable provisions of ERISA, the Code and other Federal or state Laws.
(b)    (i) No ERISA Event has occurred during the five year period prior to the date on which this representation is made or deemed made; (ii) no Loan Party, Restricted Subsidiary or ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iii) no Loan Party, Restricted Subsidiary or ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; (iv) if each Loan Party, each Restricted Subsidiary and each ERISA Affiliate were to withdraw in a complete withdrawal as of the date this assurance is deemed given, the aggregate withdrawal liability that would be incurred would not be in excess of $50,000; and (v) no Loan Party, Restricted Subsidiary or ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA, except, with respect to each of the foregoing clauses of this Section 5.10(b), as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(c)    There exists no Unfunded Pension Liability with respect to any Pension Plan, except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(d)    There are no actions, suits or claims pending against or involving a Plan (other than routine claims for benefits) or, to the knowledge of any Loan Party, any Restricted Subsidiary or any ERISA Affiliate, threatened, which could reasonably be expected to be asserted successfully against any Plan and, if so asserted successfully, could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
Section 5.11     Subsidiaries; Equity Interests. As of the Closing Date, no Loan Party has any Subsidiaries other than Immaterial Subsidiaries or those specifically disclosed in Schedule 5.11, and all of the outstanding Equity Interests owned by the Loan Parties (or a Subsidiary of any Loan Party) in such material Subsidiaries have been validly issued and are fully paid and all Equity Interests owned by a Loan Party (or a Subsidiary of any Loan Party) in such material Subsidiaries are owned free and clear of all Liens except (i) those created under the Collateral Documents and (ii) any Permitted Liens. As of the Closing Date, Schedule 5.11 (a) sets forth the name and jurisdiction of each Domestic Subsidiary that is a Loan Party and (b) sets forth the ownership interest of the Borrower and any other Subsidiary thereof in each Subsidiary, including the percentage of such ownership.
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Section 5.12     Margin Regulations; Investment Company Act. (a) The Borrower is not engaged nor will it engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Borrowings will be used for any purpose that violates Regulation U.
(b)    None of Holdings, the Borrower, any Person Controlling the Borrower, or any of its Restricted Subsidiaries is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
Section 5.13     Disclosure. (a) To the best of Holdings’ knowledge, no report, financial statement, certificate or other written information furnished by or on behalf of Holdings or the Borrower (other than projections, pro forma financial information, estimates, budgets, other forward-looking information and information of a general economic or industry nature) to any Agent or any Lender in connection with the transactions contemplated hereby (as modified or supplemented by other information so furnished) when taken as a whole, as of the time it was furnished, contained any misstatement of material fact or omitted as of such time to state any material fact necessary to make the statements therein (when taken as a whole), in light of the circumstances under which they were made, not materially misleading. With respect to projections, Holdings represents that such information was prepared in good faith based upon assumptions believed by Holdings to be reasonable at the time of preparation; it being understood that such projections are not to be viewed as facts or as a guarantee of performance or achievement of any particular results and that actual results may vary from actual results and that such variances may be material and that no assurance can be given that the projected results will be realized.
(b)     As of the Closing Date, with respect to any Beneficial Owner (as defined in the Beneficial Ownership Regulation) of the Borrower, the information included in the Beneficial Ownership Certification is true and correct to the best knowledge of the Borrower.
Section 5.14     Labor Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against Holdings or any of its Restricted Subsidiaries pending or, to the knowledge of Holdings, threatened; (b) hours worked by and payment made to employees of Holdings or any of its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Laws dealing with such matters; and (c) all payments due from Holdings or any of its Restricted Subsidiaries on account of employee health and welfare insurance have been paid or accrued as a liability on the books of the relevant party.
Section 5.15     Intellectual Property; Licenses, Etc. Except as, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, Holdings and its Restricted Subsidiaries own, license or possess the right to use all of the trademarks, service marks, trade names, domain names, copyrights, patents, patent rights, licenses, trade secrets, technology, software, know-how, proprietary information, databases, design rights and other intellectual property rights, including registrations and applications for registration of any of the foregoing (collectively, “IP Rights”) that are necessary for the operation of their respective businesses as currently conducted, and such IP Rights do not conflict with the rights of any Person, except to the extent such failure to own, license or possess or such conflicts, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. No product or processor method used or offered by any Loan Party or any of its Subsidiaries or the operation of their respective businesses as currently conducted infringes, misappropriates, dilutes or otherwise violates any IP Rights held by any Person, except for such claims which individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect. No claim or litigation (a) contesting the validity of, or any right, title or interest in any of the IP Rights used or held for use by any Loan Party or any of its Subsidiaries, or (b) alleging that the operation of the respective businesses of each Loan Party or any of its Subsidiaries as currently conducted infringes, misappropriates, dilutes or otherwise violates the IP Rights of any Person, has been asserted or is presently pending or, to the knowledge of Holdings and its Restricted Subsidiaries, is presently threatened against any Loan Party or any of its Subsidiaries, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
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Except pursuant to written licenses and other user agreements entered into by each Loan Party in the ordinary course of business, as of the Closing Date, all registrations listed in Section II(B) of the Perfection Certificate are valid and in full force and effect, except, in each individual case, to the extent that such a registration is not valid and in full force and effect could not reasonably be expected to have a Material Adverse Effect.
Section 5.16     Solvency. On the Closing Date after giving effect to the Transactions, Holdings and its Restricted Subsidiaries and the Borrower and its Restricted Subsidiaries, in each case, on a consolidated basis, are Solvent.
Section 5.17     Security Documents.
(a)    Valid Liens. Each Collateral Document delivered pursuant to Section 4.02 of this Agreement and Sections 4.03, 6.11 and 6.13 hereof will, upon execution and delivery thereof, be effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, the Collateral described therein to the extent intended to be created thereby, except as such enforceability may be limited by Debtor Relief Laws and (i) when financing statements and other filings in appropriate form are filed in the jurisdictions specified in Section I(A) of the Perfection Certificate, as supplemented from time to time after the date hereof, and (ii) upon the taking of possession or control by the Collateral Agent (or, if applicable, the First Lien Administrative Agent in accordance with the First Lien/Second Lien Intercreditor Agreement) of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent (or, if applicable, the First Lien Administrative Agent in accordance with the First Lien/Second Lien Intercreditor Agreement) to the extent possession or control by the Collateral Agent is required by the Security Agreement or the Pledge Agreement), the Liens created by the Collateral Documents shall constitute fully perfected Liens on, and security interests in (to the extent intended to be created thereby and to the extent such perfection is governed by the laws of the United States, any state thereof or the District of Columbia), all right, title and interest of the grantors in such Collateral to the extent perfection can be obtained by filing financing statements or such possession or control, in each case subject to no Liens other than Permitted Liens.
(b)    PTO Filing; Copyright Office Filing. When the Security Agreement or a short form thereof is properly filed in the United States Patent and Trademark Office and the United States Copyright Office, to the extent such filings may perfect such interests, the Liens created by such Security Agreement shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the grantors thereunder in Patents and Trademarks (each as defined in the Security Agreement) registered or applied for with the United States Patent and Trademark Office or Copyrights (as defined in such Security Agreement) registered or applied for with the United States Copyright Office, as the case may be, in each case free and clear of Liens other than Permitted Liens (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to establish a Lien on registered Patents, Trademarks and Copyrights registered or applied for by the grantors thereof after the Closing Date).
(c)    Mortgages. Upon recording thereof in the appropriate recording office, each Mortgage is effective to create, in favor of the Collateral Agent, for its benefit and the benefit of the Secured Parties, legal, valid and enforceable perfected second-priority Liens on, and security interest in, all of the Loan Parties’ right, title and interest in and to the Mortgaged Properties thereunder and the proceeds thereof, subject only to Permitted Liens, except as such enforceability may be limited by Debtor Relief Laws, and when the Mortgages are filed in the offices specified on Schedule 5.17(c) (or, in the case of any Mortgage executed and delivered after the date thereof in accordance with the provisions of Sections 6.11 and 6.13, when such Mortgage is filed in the offices specified in the local counsel opinion delivered with respect thereto in accordance with the provisions of Sections 6.11 and 6.13), the Mortgages shall constitute fully perfected second-priority Liens on, and security interests in, all right, title and interest of the Loan Parties in the Mortgaged Properties and the proceeds thereof, in each case prior and superior in right to any other Person, other than Liens permitted by hereunder. The Borrower represents and warrants that no property encumbered by a Mortgage is located in an area determined by the Federal Emergency Management Agency to have special flood hazards. If at any time in the future the Borrower becomes aware that any portion of a property encumbered by a Mortgage is located in an area determined
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by the Federal Emergency Management Agency as special flood hazard area, then the Borrower will promptly notify the Administrative Agent. Unless (i) the Borrower promptly obtains flood insurance coverage required pursuant to the National Flood Insurance Program as set forth in any Flood Insurance Laws, and takes such other measures relating to such special flood hazard area reasonably requested by the Administrative Agent and each Lender and (ii) the Borrower, the Administrative Agent and each affected Lender otherwise agree that the Mortgage can continue to be provided under Section 6.11, the Mortgage relating to such property which is in a special flood hazard area will be released pursuant to Section 9.11.
Notwithstanding anything herein (including this Section 5.17) or in any other Loan Document to the contrary, neither Holdings nor any other Loan Party makes any representation or warranty as to (A) the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security interest in any Equity Interests of or intercompany loans made to any Foreign Subsidiary, or as to the rights and remedies of the Agents or any Lender with respect thereto, under foreign Law, (B) the pledge or creation of any security interest, or the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security interest to the extent such pledge, security interest, perfection or priority is not required pursuant to the Collateral and Guarantee Requirement or the Collateral Documents or (C) on the Closing Date and until required pursuant to Section 6.13 hereof or Section 4.02(k), the pledge or creation of any security interest, or the effects of perfection or non-perfection, the priority or enforceability of any pledge or security interest to the extent not required on the Closing Date pursuant to Section 4.02(k).
Section 5.18     USA PATRIOT Act; OFAC; FCPA.
(a)    To the extent applicable, each of Holdings, the Borrower and any Restricted Subsidiary is in compliance, in all material respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto (collectively, “Sanctions”) and (ii) the USA Patriot Act.
(b)    None of Holdings, the Borrower, any Restricted Subsidiary nor, to the knowledge of the Borrower, any director or officer of Holdings, the Borrower or any Restricted Subsidiary is the target of Sanctions and the Borrower will not knowingly use the proceeds of the Loans or otherwise make available such proceeds to any Person for the purpose of financing the activities of any Person that is the target of Sanctions.
(c)    No part of the proceeds of the Loans will be used, directly or indirectly, to the knowledge of the Borrower, Holdings or any Restricted Subsidiary, or any director or officer of the Borrower, Holdings or any Restricted Subsidiary, by the Loan Parties or any Restricted Subsidiary, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, for the purpose of obtaining, retaining or directing business or obtaining any improper advantage in violation of the United States Foreign Corrupt Practices Act of 1977, as amended (“FCPA”).
ARTICLE VI

Affirmative Covenants
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than contingent obligations not then due and payable) hereunder which is accrued and payable shall remain unpaid or unsatisfied, then from and after the Closing Date, Holdings shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02 and 6.03) cause each of its Restricted Subsidiaries to:
Section 6.01     Financial Statements. (a) Deliver to the Administrative Agent for prompt further distribution to each Lender, within ninety (90) days after the end of each fiscal year, a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, stockholders’ equity and cash flows for such
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fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (it being agreed that Parent’s annual report on Form 10-K for such year, as filed with the SEC, will satisfy the Borrower’s obligation under this Section 6.01(a) with respect to such year including with respect to the requirement that such financial statements be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception, unless the Borrower determines that there is a material difference between the financial statements of Holdings and Parent);
(b)    Deliver to the Administrative Agent for prompt further distribution to each Lender, within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of Holdings, a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal quarter and the related consolidated statements of income or operations for such fiscal quarter and for the portion of the fiscal year then ended and consolidated statements of cash flows for such fiscal quarter and the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of Holdings as fairly presenting in all material respects the financial condition, results of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes (it being agreed that Parent’s quarterly report on Form 10-Q for such fiscal quarter, as filed with the SEC, will satisfy the Borrower’s obligation under this Section 6.01(b) with respect to such fiscal quarter including with respect to the requirement that such financial statements be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception, unless the Borrower determines that there is a material difference between the financial statements of Holdings and Parent);
(c)    [Reserved]; and
(d)    Deliver to the Administrative Agent with each set of consolidated financial statements referred to in Sections 6.01(a) and 6.01(b) above, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) (which may be in footnote form only) from such consolidated financial statements.
Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 6.01 shall be satisfied with respect to financial information of Holdings and the Restricted Subsidiaries by furnishing (A) the applicable financial statements of Holdings or Parent (or any direct or indirect parent thereof) or (B) Holdings’ or Parent’s Form 10-K or 10-Q, as applicable, filed with the SEC; provided, that with respect to clauses (A) and (B), (i) to the extent such information relates to Parent (or such parent), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Parent (or such parent) and its Subsidiaries on a consolidated basis, on the one hand, and the information relating to Holdings and the Subsidiaries on a consolidated basis, on the other hand, and (ii) to the extent such financial statements are in lieu of financial statements required to be provided under Section 6.01(a), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualifications or exceptions as to the scope of such audit.
Documents required to be delivered pursuant to Section 6.01 and Sections 6.02(c) and (d) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower (or Holdings or any other direct or indirect parent of the Borrower) posts such documents, or provides a link thereto on the website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent);
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provided that: (i) promptly upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent; provided, however, that if such Compliance Certificate is first delivered by electronic means, the date of such delivery by electronic means shall constitute the date of delivery for purposes of compliance with Section 6.02(a). Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents. In the event any financial statements delivered under Section 6.01(a) or (b) above shall be restated, Holdings and the Borrower shall deliver, promptly after such restated financial statements become available, revised Compliance Certificates with respect to the periods covered thereby that give effect to such restatement, signed by a Responsible Officer of each of Holdings and the Borrower.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC,” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws; provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.08; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and each Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall not be under any obligation to mark any Borrower Materials “PUBLIC.”
Section 6.02     Certificates; Other Information. Deliver to the Administrative Agent for prompt further distribution to each Lender:
(a)    no later than five (5) days after the delivery of the financial statements referred to in Section 6.01(a) and (b), commencing with the first fiscal quarter completed after the Closing Date, a duly completed Compliance Certificate signed by a Responsible Officer of Holdings;
(b)    [reserved];
(c)    promptly after the same are publicly available, copies of all annual, regular, periodic and special reports and registration statements which Holdings or any Restricted Subsidiary files with the SEC or with any Governmental Authority that may be substituted therefor (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered), exhibits to any registration statement and, if applicable, any registration statement on Form S-8) and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d)    promptly after the furnishing thereof, copies of any material requests or material notices received by any Loan Party (other than in the ordinary course of business) or material
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statements or material reports furnished to any holder of debt securities (other than in connection with any board observer rights) of any Loan Party or of any of its Restricted Subsidiaries pursuant to the terms of any First Lien Facilities Documentation, Junior Financing Documentation or Credit Agreement Refinancing Indebtedness (and, in each case, any Permitted Refinancing thereof), in each case in a principal amount in excess of the Threshold Amount and not otherwise required to be furnished to the Lenders pursuant to any clause of Section 6.01 or 6.02;
(e)    together with the delivery of each Compliance Certificate pursuant to Section 6.02(a), (i) in the case of annual Compliance Certificates only, a report setting forth the information required by sections describing the legal name and the jurisdiction of formation of each Loan Party and the location of the Chief Executive Office of each Loan Party of the Perfection Certificate or confirming that there has been no change in such information since the Closing Date or the date of the last such report, (ii) a description of each event, condition or circumstance during the last fiscal quarter covered by such Compliance Certificate requiring a mandatory prepayment under Section 2.05(b) and (iii) a list of each Subsidiary of Holdings that identifies each Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such Compliance Certificate (solely to the extent that there have been any changes in the identity of such Subsidiaries since the Closing Date or the most recent list provided); and
(f)    promptly, (I) such additional customary information regarding the business, legal, financial or corporate affairs of the Loan Parties or any of their respective Restricted Subsidiaries, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request or (II) information and documentation reasonably required by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act or other applicable anti-money laundering laws; provided that in no event shall the requirements set forth in this Section 6.02(f) require Holdings or any of it Restricted Subsidiaries to provide any such information which (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or (iii) is subject to attorney client or similar privilege or constitutes attorney work-product.
Section 6.03     Notices. Promptly after a Responsible Officer of Holdings or any other Loan Party has obtained knowledge thereof, notify the Administrative Agent:
(a)    of the occurrence of any Default;
(b)    of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect; and
(c)    of the filing or commencement of, or any written threat or written notice of intention of any person to file or commence, any action, suit, litigation or proceeding, whether at law or in equity by or before any Governmental Authority with respect to any Loan Document.
Each notice pursuant to this Section shall be accompanied by a written statement of a Responsible Officer of Holdings (x) that such notice is being delivered pursuant to Section 6.03(a), (b) or (c) (as applicable) and (y) setting forth details of the occurrence referred to therein and stating what action Holdings has taken and proposes to take with respect thereto.
Section 6.04     Payment of Obligations. Pay, discharge or otherwise satisfy as the same shall become due and payable in the normal conduct of its business, all its Taxes (whether or not shown on a Tax return), except, in each case, to the extent any such Tax is being contested in good faith and by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP or the failure to pay or discharge the same would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 6.05     Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization and (b) take all
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reasonable action to maintain all rights, privileges (including its good standing where applicable in the relevant jurisdiction), permits, licenses and franchises necessary in the normal conduct of its business, except, in the case of (a) or (b), (i) (other than with respect to the Borrower) to the extent that failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) pursuant to a transaction permitted by Section 7.04 or 7.05.
Section 6.06     Maintenance of Properties. Except if the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (a) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order, repair and condition, ordinary wear and tear excepted and fire, casualty or condemnation excepted, and (b) make all necessary renewals, replacements, modifications, improvements, upgrades, extensions and additions thereof or thereto in accordance with prudent industry practice and in the normal conduct of its business.
Section 6.07     Maintenance of Insurance.
(a)    Generally. Maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as Holdings and the Restricted Subsidiaries) as are customarily carried under similar circumstances by such other Persons.
(b)    Requirements of Insurance. Not later than ninety (90) days after the Closing Date (or the date any such insurance is obtained, in the case of insurance obtained after the Closing Date), the Borrower shall use commercially reasonable efforts to ensure that (i) all such insurance with respect to any Collateral shall provide that no cancellation, material reduction in amount or material change in coverage thereof shall be effective until at least 10 days (or, to the extent reasonably available, 30 days) after receipt by the Collateral Agent of written notice thereof (promptly after receipt, the Borrower shall deliver a copy of the policy (and to the extent any such policy is renewed, a renewal policy) or other evidence thereof to the Administrative Agent and the Collateral Agent, or insurance certificate with respect thereto) and (ii) all such insurance with respect to any Collateral shall name the Collateral Agent as additional insured on behalf of the Secured Parties (in the case of liability insurance) and loss payee (in the case of property insurance), as applicable.
(c)    Flood Insurance. With respect to each Mortgaged Property, obtain flood insurance in such total amount as the Administrative Agent shall reasonably request, if at any time the area in which any material improvements are located on any Mortgaged Property is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as amended from time to time.
Section 6.08     Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except if the failure to comply therewith could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 6.09     Books and Records. Maintain proper books of record and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied and which reflect all material financial transactions and matters involving the assets and business of Holdings or a Restricted Subsidiary, as the case may be (it being understood and agreed that Foreign Subsidiaries may maintain individual books and records in conformity with generally accepted accounting principles that are applicable in their respective countries of organization and that such maintenance shall not constitute a breach of the representations, warranties or covenants hereunder).
Section 6.10     Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom (other than (a)
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records of the Board of Directors of such Loan Party or such Subsidiary, (b) information restricted by a third party confidentiality agreement and (c) other information (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or (iii) that is subject to attorney client or similar privilege or constitutes attorney work-product), and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants (subject to such accountants’ customary policies and procedures), all at the reasonable expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided that, excluding any such visits and inspections during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of the Administrative Agent and the Lenders under this Section 6.10 and the Administrative Agent shall not exercise such rights more often than two (2) times during any calendar year and only one (1) such time shall be at the Borrower’s reasonable expense; provided, further that when an Event of Default exists, the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the reasonable expense of the Borrower at any time during normal business hours and upon reasonable advance notice. The Administrative Agent and the Lenders shall give the Borrower the opportunity to participate in any discussions with the Borrower’s independent public accountants. Notwithstanding anything to the contrary in this Section 6.10, none of the Borrower nor any Restricted Subsidiary shall be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or (iii) is subject to attorney client or similar privilege or constitutes attorney work-product.
Section 6.11     Additional Collateral; Additional Guarantors. At the Borrower’s expense, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a)    Upon (x) the formation or acquisition of any new direct or indirect wholly owned Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by Holdings, (y) any Excluded Subsidiary ceasing to constitute an Excluded Subsidiary or (z) the designation in accordance with Section 6.14 of any existing direct or indirect wholly owned Domestic Subsidiary (other than an Excluded Subsidiary) as a Restricted Subsidiary:
(i)    within forty-five (45) days after such formation, acquisition, cessation or designation, or such longer period as the Administrative Agent may agree in writing in its reasonable discretion:
(A)    cause each such Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent or the Collateral Agent (as appropriate) joinders to this Agreement as Guarantors, Security Agreement Supplements, Intellectual Property Security Agreements, and other security agreements and documents (including, with respect to such Mortgages, the documents listed in Section 6.13(b)), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent, subject to local law requirements, with the Mortgages, Security Agreement, Pledge Agreement, Intellectual Property Security Agreements and other security agreements in effect on the Closing Date), in each case granting second-priority Liens (subject to the First Lien/Second Lien Intercreditor Agreement and Permitted Liens) required by the Collateral and Guarantee Requirement;
(B)    cause each such Domestic Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement (and the parent of each such Domestic Subsidiary that is a Guarantor) to deliver any and all certificates representing Equity Interests (to the extent certificated) and intercompany notes (to the extent certificated) that are required to be pledged pursuant to the Collateral and
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Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank; and
(C)    take and cause such Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement and each direct or indirect parent of such Restricted Subsidiary to take whatever action (including the recording of Mortgages, the filing of UCC financing statements and delivery of stock and membership interest certificates) as may be necessary in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected Liens to the extent required by the Collateral and Guarantee Requirement or the Collateral Documents, and to otherwise comply with the requirements of the Collateral and Guarantee Requirement or the Collateral Documents;
(ii)    if reasonably requested by the Administrative Agent or the Collateral Agent, within forty-five (45) days after such request (or such longer period as the Administrative Agent may agree in writing in its reasonable discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the Lenders, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this Section 6.11(a) as the Administrative Agent may reasonably request;
(iii)    as promptly as practicable after the request therefor by the Administrative Agent or Collateral Agent, deliver to the Collateral Agent with respect to each Material Real Property, any existing title reports, abstracts or environmental assessment reports, to the extent available and in the possession or control of the Borrower; provided, however, that there shall be no obligation to deliver to the Administrative Agent any existing environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than Holdings or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained; and
(iv)    if reasonably requested by the Administrative Agent or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Administrative Agent may agree in writing in its reasonable discretion), deliver to the Collateral Agent any other items necessary from time to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement or the Collateral Documents, but not specifically covered by the preceding clauses (i), (ii) or (iii) or clause (b) below.
(b)    Not later than sixty (60) days after the acquisition by any Loan Party of Material Real Property as determined by the Borrower (acting reasonably and in good faith) (or such longer period as the Administrative Agent may agree in writing in its reasonable discretion) that is required to be provided as Collateral pursuant to the Collateral and Guarantee Requirement, which property would not be automatically subject to another Lien pursuant to pre-existing Collateral Documents, cause such property to be subject to a second-priority Lien and Mortgage (subject to the First Lien/Second Lien Intercreditor Agreement and the Permitted Liens) in favor of the Collateral Agent for the benefit of the Secured Parties and take, or cause the relevant Loan Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect or record such Lien, in each case to the extent required by, and subject to the limitations and exceptions of, the Collateral and Guarantee Requirement and to otherwise comply with the requirements of the Collateral and Guarantee Requirement.
(c)    Always ensuring that the Obligations are secured by a second-priority security interest (subject to the First Lien/Second Lien Intercreditor Agreement and Liens permitted under Section 7.01(c)) in all the Equity Interests of the Borrower.
Section 6.12     Compliance with Environmental Laws. Except, in each case, to the extent that the failure to do so could not reasonably be expected to have, individually or in the aggregate,
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a Material Adverse Effect: (a) comply, and take all reasonable actions to cause all lessees and other Persons operating or occupying its properties to comply with all applicable Environmental Laws and Environmental Permits; (b) obtain and renew all Environmental Permits necessary for its operations and properties; and (c) in each case to the extent the Loan Parties are required by Environmental Laws, conduct any investigation, remedial or other corrective action necessary to address Hazardous Materials at any property or facility in accordance with applicable Environmental Laws.
Section 6.13     Further Assurances and Post-Closing Conditions. (a) Within forty-five (45) days after the Closing Date (subject to extension by the Administrative Agent in its reasonable discretion), subject to clauses (b) and (c) below, deliver each Collateral Document required to satisfy the Collateral and Guarantee Requirement or required pursuant to the terms of any Collateral Document, in each case with respect to the Target, duly executed by the Target and each Loan Party required to be party thereto, together with all documents and instruments required to perfect the security interest or Lien of the Collateral Agent in the Collateral (if any) owned directly or indirectly by the Target free of any other pledges, security interests or mortgages, except Liens permitted under the Collateral and Guarantee Requirement and Permitted Liens, to the extent required pursuant to the Collateral and Guarantee Requirement or the Collateral Documents.
(b)    Within six months after the Closing Date (subject to extension by the Administrative Agent in its reasonable discretion), deliver the UK Security Agreement, duly executed by each Loan Party required to be party thereto, together with all documents and instruments required to perfect the security interest or Lien of the Collateral Agent in the Collateral (if any) free of any other pledges, security interests or mortgages, except Liens permitted under the Collateral and Guarantee Requirement and Permitted Liens, to the extent required pursuant to the UK Security Agreement.
(c)    Within six months after the Closing Date (subject to extension by the Administrative Agent in its reasonable discretion), the Administrative Agent shall have received each of the documents required to be delivered under clause (d) of the definition of “Collateral and Guarantee Requirement” with respect to each Mortgaged Property.
(d)    Promptly upon reasonable request by the Administrative Agent (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral, and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from time to time in order to carry out more effectively the purposes of the Collateral Documents, to the extent required pursuant to the Collateral and Guarantee Requirement or the Collateral Documents. If the Administrative Agent or the Collateral Agent reasonably determines that it is required by applicable Law to have appraisals prepared in respect of the Real Property of any Loan Party subject to a Mortgage constituting Collateral, the Borrower shall provide to the Administrative Agent appraisals that satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(e)    Within the time periods specified on Schedule 6.13 hereto, complete such undertakings as are set forth on Schedule 6.13 hereto.
Section 6.14     Designation of Subsidiaries. The Borrower may at any time on or after the Closing Date designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (ii) immediately after giving effect to such designation, the First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, in each case, as if such designation had occurred on the last day of such fiscal-quarter period, shall not exceed the level permitted under Section 7.11 of the First Lien Credit Agreement on such date (or, following the termination of the First Lien Credit Agreement, 5.50 to 1.00), and, as a condition precedent to the effectiveness of any such designation, the Borrower shall deliver to the Administrative Agent a certificate setting forth in reasonable detail the calculations demonstrating such compliance, (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of the First Lien Obligations, any Junior Financing, or any
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Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt, Permitted Unsecured Refinancing Debt or Permitted Refinancing of any of the foregoing in excess of the Threshold Amount, as applicable, and (iv) if a Restricted Subsidiary is being designated as an Unrestricted Subsidiary hereunder, the sum of (A) the fair market value of assets of such Subsidiary as of such date of designation (the “Designation Date”), plus (B) the aggregate fair market value of the assets of all Unrestricted Subsidiaries designated as Unrestricted Subsidiaries pursuant to this Section 6.14 as of the Designation Date (in each case measured as of the date of each such Unrestricted Subsidiary’s designation as an Unrestricted Subsidiary) shall not exceed 3.0% of the Adjusted Total Assets as of such Designation Date pro forma for such designation. The designation of any Subsidiary as an Unrestricted Subsidiary after the Closing Date shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a return on any Investment by the Borrower in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of such designation of the Borrower’s Investment in such Subsidiary. Notwithstanding the foregoing, neither the Borrower nor any direct or indirect parent of the Borrower that is a Subsidiary shall be permitted to be an Unrestricted Subsidiary.
Section 6.15     Maintenance of Ratings. The Borrower shall use commercially reasonable efforts to maintain a public corporate rating from S&P and a public corporate family rating from Moody’s, in each case in respect of the Borrower, and a public rating of the Facilities by each of S&P and Moody’s.
Section 6.16     Compliance with Sanctions. (a) Adopt and maintain policies and procedures designed to ensure that Borrower does not, directly or indirectly, (i) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 on Terrorist Financing effective September 24, 2001 (the “Executive Order”) or Sanctions, or (ii) engage in or conspire to engage in any transaction that violates, or attempts to violate, any of the material prohibitions set forth in any Executive Order or applicable Sanctions.
(b)    Repay the Loans exclusively with funds that are not directly or, to the knowledge of Borrower, indirectly derived from any unlawful activity such that the result of any such repayment would not cause the making of the Loans to be in material violation of any applicable Law.
(c)    (x) Use funds or properties of Holdings, the Borrower or any of the Restricted Subsidiaries to repay the Loans only to the extent it does not constitute, to the knowledge of the Borrower, property of, or is beneficially owned, to the knowledge of the Borrower, directly or indirectly by, any Person that is the target of Sanctions (an “Embargoed Person”) that is identified on (1) the list of Specially Designated Nationals and Blocked Persons maintained by OFAC and/or on any other similar list maintained by OFAC pursuant to any authorizing statute including, but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., the Trading with the Enemy Act, and any Executive Order or any applicable Law promulgated thereunder, with the result that the investment in Holdings, the Borrower or any of the Restricted Subsidiaries (whether directly or indirectly) is prohibited by any applicable Law, or the Loans made by the Lenders would be in violation of any applicable Law, or (2) the Executive Order, any related enabling legislation or (y) to the knowledge of the Borrower, any Embargoed Person to have any direct or indirect interest, in Holdings, the Borrower or any of the Restricted Subsidiaries, with the result that the investment in Holdings, the Borrowers or any of the Restricted Subsidiaries (whether directly or indirectly) is prohibited by any applicable Law or the Loans are in violation of any applicable Law.
ARTICLE VII

Negative Covenants
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder (other than contingent obligations not then due and owing) which is accrued and payable shall remain unpaid or unsatisfied, then from and after the Closing Date:
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Section 7.01     Liens. Neither Holdings nor the Restricted Subsidiaries shall, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
(a)    Liens pursuant to any Loan Document or Separate Facility Loan Document;
(b)    Liens (i) permitted under the First Lien Credit Agreement pursuant to Section 7.01(b) thereof as in effect on the Closing Date or (ii) existing on the Closing Date (other than pursuant to the First Lien Facilities Documentation); provided that, in the case of clause (b)(ii), any Lien securing Indebtedness in excess of (x) $3,125,000 individually or (y) $12,500,000 in the aggregate (when taken together with all other Liens securing obligations outstanding in reliance on this clause (b)(ii) that are not listed on Schedule 7.01(b)) shall only be permitted to the extent such Lien is listed on Schedule 7.01(b), and any modifications, replacements, renewals, refinancings or extensions thereof; provided that (i) the Lien does not extend to any additional property beyond such property subject to a Lien on the Closing Date, other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03, and (B) proceeds and products thereof, and (ii) the replacement, renewal, extension or refinancing of the obligations secured or benefited by such Liens (including fees and expenses associated with any such extensions, renewals and refinancing), to the extent constituting Indebtedness, is permitted by Section 7.03;
(c)    Liens for Taxes that are not overdue for a period of more than any applicable grace period related thereto or that are being contested in good faith and by appropriate actions, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP to the extent required by GAAP;
(d)    statutory or common law Liens of landlords, sublandlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens arising in the ordinary course of business that secure amounts not overdue for a period of more than sixty (60) days or if more than sixty (60) days overdue, that are being contested in good faith and by appropriate actions, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP to the extent required by GAAP;
(e)    (i) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance, deferred compensation arrangements and supplemental retirement plans and other social security legislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to Holdings or any of its Restricted Subsidiaries;
(f)    deposits and pledges to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, customs and appeal bonds, performance bonds, public or private utilities and other obligations of a like nature (including (i) those to secure health, safety and environmental obligations and (ii) letters of credit and bank guarantees required or requested by any Governmental Authority) incurred in the ordinary course of business;
(g)    easements, rights-of-way, restrictions (including zoning restrictions), encroachments, licenses, protrusions and other similar charges or encumbrances and minor title defects or irregularities affecting Real Property that do not in the aggregate materially interfere with the ordinary conduct of the business of Holdings and its Restricted Subsidiaries, taken as a whole, and any exceptions on the Mortgage Policies issued in connection with the Mortgaged Properties;
(h)    Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
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(i)    leases, licenses, subleases or sublicenses granted to others in the ordinary course of business (including licenses and sublicenses of intellectual property) which do not (i) interfere in any material respect with the business of Holdings and its Restricted Subsidiaries, taken as a whole, or (ii) secure any Indebtedness;
(j)    Liens (i) in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business or (ii) on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods in the ordinary course of business;
(k)    Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (ii) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes, (iii) in favor of a banking or other financial institution arising as a matter of Law or under customary general terms and conditions encumbering deposits, pooled deposits, sweep accounts or other funds maintained with a financial institution (including the right of setoff) and that are within the general parameters customary in the banking industry or arising pursuant to such banking institutions general terms and conditions, and (iv) that are contractual rights of setoff or rights of pledge relating to purchase orders and other agreements entered into with customers of Holdings or any of its Restricted Subsidiaries in the ordinary course of business;
(l)    Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.02(g) or (l) or, to the extent related to any of the foregoing, Section 7.02(p) to be applied against the purchase price for such Investment, and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(m)    Liens (i) in favor of Holdings, Borrower or a Restricted Subsidiary on assets of a Restricted Subsidiary or (ii) in favor of Holdings or any other Loan Party;
(n)    any interest or title of a lessor, sublessor, licensor or sublicensor under leases, subleases, licenses or sublicenses entered into by Holdings or any of its Restricted Subsidiaries in the ordinary course of business;
(o)    Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by Holdings or any of its Restricted Subsidiaries in the ordinary course of business permitted by this Agreement;
(p)    Liens deemed to exist in connection with Investments in repurchase agreements under Section 7.02;
(q)    in the case of any non-wholly owned Restricted Subsidiary, any put and call arrangements or restrictions on disposition related to its Equity Interests set forth in its organizational documents or any related joint venture or similar agreement;
(r)    Liens solely on any cash earnest money deposits made by Holdings or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;
(s)    ground leases in respect of Real Property on which facilities owned or leased by Holdings or any of its Restricted Subsidiaries are located;
(t)    Liens to secure Indebtedness permitted under Section 7.03(e); provided that (i) such Liens are created within 270 days of the acquisition, construction, repair, lease or
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improvement of the property subject to such Liens, (ii) such Liens do not at any time encumber property (except for replacements, additions and accessions to such property) other than the property financed by such Indebtedness and the proceeds and products thereof and customary security deposits and (iii) with respect to Capitalized Leases, such Liens do not at any time extend to or cover any assets (except for replacements, additions and accessions to such assets) other than the assets subject to such Capitalized Leases and the proceeds and products thereof and customary security deposits; provided that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;
(u)    Liens on property of any Restricted Subsidiary that is not a Loan Party securing Indebtedness of the applicable Subsidiary permitted under Section 7.03;
(v)    Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 6.14), in each case after the Closing Date (including Capitalized Leases); provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property subjected to a Lien securing Indebtedness (which Indebtedness constitutes Permitted Refinancing Indebtedness) and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), and (iii) (a) in the case of Liens securing Indebtedness for borrowed money, such Indebtedness secured thereby in reliance on this clause (v) does not exceed at the time of incurrence of any such Indebtedness 3.75% of Adjusted Total Assets determined at the time of such incurrence of Indebtedness and (b) the Indebtedness secured thereby is permitted under Section 7.03(g)(A) or constitutes Permitted Refinancing Indebtedness in respect thereof;
(w)    (i) zoning, building, entitlement and other land use regulations by Governmental Authorities with which the normal operation of the business complies, and (ii) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of Holdings and its Restricted Subsidiaries, taken as a whole;
(x)    Liens arising from precautionary Uniform Commercial Code financing statement or similar filings;
(y)    Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(z)    the modification, replacement, renewal or extension of any Lien permitted by clauses (t) and (v) of this Section 7.01; provided that (i) the Lien does not extend to any additional property, other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien, (B) proceeds and products thereof, and (C) any other Lien otherwise permissible by another clause in this Section 7.01 and (ii) the renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 7.03 (to the extent constituting Indebtedness);
(aa)    other Liens securing obligations in an aggregate principal amount outstanding at any time not to exceed the greater of (x) $93,750,000 and (y) 9.375% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(bb)    Liens on the Collateral securing obligations in respect of Indebtedness permitted under Section 7.03(o), so long as such obligations are subject at all times to the First Lien/Second Lien Intercreditor Agreement;
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(cc)    Liens on property subject to any Sale-Leaseback Transaction permitted hereunder and general intangibles related thereto;
(dd)    Liens consisting of contractual restrictions of the type described in the definition of Restricted Cash (excluding the proviso thereto), so long as such contractual restrictions are permitted under Section 7.09;
(ee)    Liens securing Swap Contracts, so long as (x) such Swap Contracts do not constitute Secured Hedge Agreements (as defined in the First Lien Credit Agreement) and (y) the value of the property securing such Swap Contracts does not at any time exceed the greater of (i) $12,500,000 and (ii) 1.25% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(ff)    Liens on Receivables Assets including intercompany notes and the Equity Interests of a Receivables Subsidiary, in each case incurred in connection with a Receivables Facility; and
(gg)    Liens on the Collateral securing obligations in respect of Permitted Pari Passu Refinancing Debt or Permitted Junior Refinancing Debt and any Permitted Refinancing of any of the foregoing.
Section 7.02     Investments. Neither Holdings nor the Restricted Subsidiaries shall directly or indirectly, make or hold any Investments, except:
(a)    Investments by Holdings or any of its Restricted Subsidiaries in assets that were Cash Equivalents when such Investment was made;
(b)    loans or advances to officers, directors, consultants and employees of any Loan Party (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes, (ii) in connection with such Person’s purchase of Equity Interests of Holdings or any direct or indirect parent thereof (provided that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity) and to permit the payment of Taxes by such Person with respect to such Equity Interests and (iii) for any other purposes not described in the foregoing clauses (i) and (ii); provided that the aggregate principal amount outstanding at any time under clause (iii) above shall not exceed the greater of (x) $3,125,000 and (y) 0.3125% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(c)    Investments (i) by Holdings or any Restricted Subsidiary in any Loan Party, (ii) by any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary that is not a Loan Party or any Loan Party, (iii) in the form of intercompany loans, advances or capital contributions by any Loan Party in any Restricted Subsidiary that is not a Loan Party (x) in the ordinary course of business or (y) otherwise not to exceed the Restricted Subsidiary Investment Basket Amount at any time outstanding; provided that the application of any portion of the Restricted Subsidiary Investment Basket Amount pursuant to this Section 7.02(c)(iii)(y) will result in a corresponding dollar-for-dollar reduction in the Restricted Subsidiary Investment Basket Amount available pursuant to Section 7.02(g)(vi) and Section 7.02(r)(i) and (iv) in the form of intercompany loans, advances or capital contributions by Holdings or any Restricted Subsidiary in any of their respective direct or indirect Restricted Subsidiaries in the ordinary course of business (including for cash pooling and working capital purposes);
(d)    Investments (i) consisting of advances to customers or extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and (ii) received in satisfaction or partial satisfaction thereof from
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financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(e)    Investments consisting of (x) transactions permitted under Sections 7.01, 7.03 (other than 7.03(d)), 7.04 (other than 7.04(d) and (e)) and 7.05 (other than 7.05(e)), (y) Restricted Payments permitted by Section 7.06 and (z) repayments or other acquisitions of Indebtedness of Holdings or any other Restricted Subsidiary not prohibited by Section 7.13;
(f)    Investments (i) permitted under the First Lien Credit Agreement pursuant to Section 7.02(f) thereof as in effect on the Closing Date, (ii) existing or contemplated on the Closing Date and set forth on Schedule 7.02(f) and any modification, replacement, renewal, reinvestment or extension thereof or (iii) existing on the Closing Date by Holdings or any Restricted Subsidiary in Holdings or any other Restricted Subsidiary and any modification, renewal or extension thereof; provided that the amount of any original Investment under this clause (f) is not increased except by the terms of such Investment as of the Closing Date or as otherwise permitted by Section 7.02;
(g)    any acquisition of all or substantially all the assets of, or all the Equity Interests (other than directors’ qualifying shares or any options for Equity Interests that cannot, as a matter of law, be cancelled, redeemed or otherwise extinguished without the express agreement of the holder thereof at or prior to acquisition) in, a Person or division or line of business of a Person (or any subsequent investment made in a Person, division or line of business previously acquired in a Permitted Acquisition), in a single transaction or series of related transactions, if immediately after giving effect thereto: (i) no Event of Default shall exist at the time elected by the Borrower pursuant to the LCT Election and no Event of Default pursuant to Section 8.01(a), (f) or (g) shall exist at the time of the consummation of such Permitted Acquisition; (ii) [reserved], (iii) at the time elected by the Borrower pursuant to the LCT Election, the First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, in each case, as if such acquisition or investment and any related transactions had occurred on the last day of such Test Period, shall not exceed the level permitted under Section 7.11 of the First Lien Credit Agreement on such date (or, following the termination of the First Lien Credit Agreement, 5.50 to 1.00); (iv) any acquired or newly formed Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness otherwise permitted by Section 7.03; (v) to the extent required by the Collateral and Guarantee Requirement, (A) the property, assets and businesses acquired in such purchase or other acquisition shall constitute Collateral and (B) any such newly created or acquired Subsidiary (other than an Excluded Subsidiary or an Unrestricted Subsidiary (it being understood that the acquisition of an Unrestricted Subsidiary as part of a Permitted Acquisition shall be deemed to be an Investment made in reliance on a provision of this Section 7.02 other than this clause (g)) shall become Guarantors, in each case, in accordance with Section 6.11; and (vi) the aggregate amount of such Investments incurred after the Closing Date by Loan Parties in assets that are not (or do not become) owned by a Domestic Subsidiary or in Equity Interests in Persons that constitute Foreign Subsidiaries upon consummation of such acquisition shall not exceed (1) the greater of (x) $1,562,500,000 and (y) 156.25% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available (the “Restricted Subsidiary Investment Basket Amount”); provided that the application of any portion of the Restricted Subsidiary Investment Basket Amount pursuant to this Section 7.02(g)(vi) will result in a corresponding dollar-for-dollar reduction in the Restricted Subsidiary Investment Basket Amount available pursuant to Section 7.02(c)(iii)(y) and Section 7.02(r)(i) plus (2) up to the full amount of the Joint Venture Basket Amount not otherwise utilized as permitted pursuant to Section 7.02(r)(i); provided that the application of any portion of the Joint Venture Basket Amount pursuant to this Section 7.02(g)(vi) will result in a corresponding dollar-for-dollar reduction in the Joint Venture Basket Amount available pursuant to Section 7.02(r)(i) (any such acquisition, a “Permitted Acquisition”);
(h)    Investments made in connection with the Transactions;
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(i)    Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers consistent with past practices;
(j)    Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(k)    loans and advances to Holdings and any other direct or indirect parent of the Borrower, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof) Restricted Payments permitted to be made to such parent in accordance with Section 7.06(f), (g), (h) or (i);
(l)    other Investments (including in connection with Permitted Acquisitions), in an aggregate amount outstanding pursuant to this clause (l) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) at any time not to exceed (x) the greater of (i) $62,500,000 and (ii) 6.25% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available (net of any return in respect thereof, including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) plus (y) the portion, if any, of the Available Additional Basket on the date of such election that the Borrower elects to apply to this subsection (y), such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Available Additional Basket immediately prior to such election and the amount thereof elected to be so applied, provided that no Investment may be made pursuant to this clause (l) (A) if an Event of Default pursuant to Sections 8.01(a), (f) and (g) has occurred and is continuing or would result therefrom or (B) in any Unrestricted Subsidiary for the purpose of making a Restricted Payment prohibited pursuant to Section 7.06;
(m)    advances of payroll payments to officers and employees and advances of fees and payments to directors and consultants, in each case, in the ordinary course of business;
(n)    Investments to the extent that payment for such Investments is made solely with Equity Interests of Holdings (or any direct or indirect parent of the Borrower);
(o)    Investments of a Restricted Subsidiary acquired after the Closing Date or of a corporation merged or amalgamated or consolidated into Holdings or merged, amalgamated or consolidated with a Restricted Subsidiary, in each case in accordance with Section 7.04 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation, do not constitute a material portion of the aggregate assets acquired by Holdings and its Restricted Subsidiaries in such transaction and were in existence on the date of such acquisition, merger or consolidation;
(p)    Investments made by any Restricted Subsidiary that is not a Loan Party to the extent such Investments are financed with the proceeds received by such Restricted Subsidiary from an Investment in such Restricted Subsidiary contemplated pursuant to Section 7.02(l) or permitted under Section 7.02(g)(vi), Section 7.02(r) or Section 7.02(x);
(q)    Guarantees by Holdings or any of its Restricted Subsidiaries of leases (other than Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r)    (i) (A) Investments in joint ventures and (B) purchases of minority interests in non-wholly-owned Subsidiaries; provided that the aggregate amount of such Investments with respect to clauses (A) and (B) incurred on or after the Closing Date shall not exceed (1) the greater of (x) $1,562,500,000 and (y) 156.25% of Consolidated EBITDA for the Test Period then
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most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available (the “Joint Venture Basket Amount”) plus (2) up to the greater of (x) $125,000,000 and (y) 12.5% of Consolidated EBITDA of the Restricted Subsidiary Investment Basket Amount not otherwise utilized as permitted pursuant to Section 7.02(c)(iii) and Section 7.02(g)(vi); provided that the application of any portion of the Restricted Subsidiary Investment Basket Amount pursuant to this Section 7.02(r)(i) will result in a corresponding dollar-for-dollar reduction in the Restricted Subsidiary Investment Basket Amount available pursuant to Section 7.02(c)(iii) and Section 7.02(g)(vi) and (ii) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(s)    Investments in deposit accounts and securities accounts opened in the ordinary course of business;
(t)    Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business;
(u)    Investments in any Person to which the Borrower or any Subsidiary outsources operational activities or otherwise related to the outsourcing of operational activities in the ordinary course of business and, with respect to any such Investment incurred on or after the Closing Date, in an aggregate amount not to exceed the greater of (x) $12,500,000 and (y) 1.25% of Consolidated EBITDA;
(v)    Investments in (or asset dispositions to) Restricted Subsidiaries that are not Loan Parties so long as any such Investment (or disposition) is part of a series of simultaneous Investments (and/or dispositions) by various Restricted Subsidiaries in other Restricted Subsidiaries (with each such Investment (or disposition) having an equal aggregate amount (or fair market value)) that results in the aggregate proceeds of the initial Investment (or disposition) being invested in one or more (i) Loan Parties and/or (ii) Restricted Subsidiaries that are not Loan Parties, so long as in the case of clause (ii), (A) the initial Investment (or disposition) was made by a Restricted Subsidiary that is not a Loan Party and (B) any Loan Party participating in such series of Investments (and/or dispositions) shall not have made an Investment (or disposition) in an amount in excess of the amount of proceeds such Loan Party received by way of an Investment (or disposition) by another Restricted Subsidiary in such Loan Party (except to the extent any such excess is permitted by, and reduces availability under, Section 7.02(c), (g), (l), (r), (u) and (x));
(w)    Investments relating to a Receivables Subsidiary that, in the good faith determination of the Borrower, are necessary or advisable to effect any Receivables Facility;
(x)     other Investments up to an unlimited aggregate amount outstanding pursuant to this clause (x) (valued at the time of the making thereof, and without giving effect to any write downs or write offs thereof) (net of any return in respect thereof, including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts); provided that, both immediately prior and after giving effect thereto, (1) no Event of Default pursuant to Sections 8.01(a), (f) or (g) shall exist or result therefrom, and (2) the Total Net Leverage Ratio (determined at the time elected by the Borrower pursuant to the LCT Election) on a Pro Forma Basis after giving effect to such Investment as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, shall be no greater than 5.75 to 1.00; provided, however, that notwithstanding the foregoing, if the Total Net Leverage Ratio (determined at the time elected by the Borrower pursuant to the LCT Election) on a Pro Forma Basis after giving effect to such Investment as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, shall be greater than 5.75 to 1.00 and equal to or less than 6.25 to 1.00, such other Investments shall be permitted under this clause (x), so long as the aggregate amount of such Investments incurred on or after the Closing Date does not exceed the greater of (A) Consolidated EBITDA for the Test Period then most recently ended for which financial statements were required to have
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been delivered, pursuant to Section 6.01(a) or (b), as applicable, and (B) the greater of (i) $500,000,000 and (ii) 50.0% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available; and
(y)    non-cash Investments in connection with any reorganization or similar activity of the Borrower and its Restricted Subsidiaries related to tax planning; provided that (1) both immediately prior and after giving effect thereto, no Event of Default shall exist or result therefrom and (2) the security interests of the Lenders in the Collateral, taken as a whole, would not be materially impaired.
Section 7.03     Indebtedness. Neither Holdings nor any of the Restricted Subsidiaries shall directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, except:
(a)    Indebtedness of any Loan Party under the Loan Documents or any Incremental Term Loans under Separate Facility Loan Documents (which, in the case of a Senior Lien Incremental Facility, may be the First Lien Credit Agreement);
(b)    (i) Indebtedness permitted under the First Lien Credit Agreement pursuant to Section 7.03(b)(i) thereof as in effect on the Closing Date, (ii) Indebtedness outstanding on the Closing Date and listed on Schedule 7.03(b) and any refinancing, extension or replacement thereof and (iii) intercompany Indebtedness outstanding on the Closing Date and any refinancing thereof (clauses (i) through (iii), collectively, the “Existing Indebtedness”); provided that (x) no such intercompany Indebtedness owed to a Loan Party shall be evidenced by a promissory note unless such promissory note is pledged to the Collateral Agent in accordance with the terms of the Pledge Agreement and (y) all such Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party shall be unsecured and subordinated to the Obligations pursuant to subordination terms substantially in the form of Exhibit O (but only to the extent permitted by law and not giving rise to any material adverse tax consequences);
(c)    Guarantees by Holdings and any Restricted Subsidiary in respect of Indebtedness of Holdings or any Restricted Subsidiary of Holdings otherwise permitted hereunder; provided that (A) no Guarantee of any First Lien Obligations or Junior Financing shall be permitted unless such guaranteeing party shall have also provided a Guarantee of the Obligations on the terms set forth herein and (B) if the Indebtedness being Guaranteed is subordinated to the Obligations, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(d)    Indebtedness of Holdings or any Restricted Subsidiary owing to any Loan Party or any other Restricted Subsidiary (or issued or transferred to any direct or indirect parent of a Loan Party which is substantially contemporaneously transferred to a Loan Party or any Restricted Subsidiary of a Loan Party) to the extent constituting an Investment permitted by Section 7.02; provided that (x) no such Indebtedness owed to a Loan Party shall be evidenced by a promissory note unless such promissory note is pledged to the Collateral Agent in accordance with the terms of the Pledge Agreement and (y) all such Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party shall be unsecured and subordinated to the Obligations pursuant to subordination terms substantially in the form of Exhibit O (but only to the extent permitted by law and not giving rise to any material adverse tax consequences);
(e)    (i) Attributable Indebtedness and other Indebtedness (including Capitalized Leases) financing an acquisition, construction, repair, replacement, lease or improvement of a fixed or capital asset incurred by Holdings or any Restricted Subsidiary prior to or within 270 days after the acquisition, construction, repair, replacement, lease or improvement of the applicable asset; provided that at the time of incurrence thereof and after giving pro forma effect thereto, the aggregate amount of Indebtedness at any time outstanding in reliance on this clause (e) shall not exceed the greater of (A) $93,750,000 and (B) 9.375% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available, determined
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at the time of such incurrence of Indebtedness (together with any Permitted Refinancings thereof), (ii) Attributable Indebtedness arising out of Sale-Leaseback Transactions permitted by Sections 7.05(k) and (m) and (iii) any Permitted Refinancing of any of the foregoing;
(f)    Indebtedness in respect of Swap Contracts designed to hedge against the Borrower’s or any Restricted Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(g)    Indebtedness of Holdings or any Restricted Subsidiary (A) assumed in connection with any Permitted Acquisition, provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, and any Permitted Refinancing thereof, or (B) incurred to finance a Permitted Acquisition and any Permitted Refinancing thereof; provided that (w) in the case of clauses (A) and (B), such Indebtedness and all Indebtedness resulting from a Permitted Refinancing thereof is unsecured (except for (I) Liens permitted by Section 7.01(v) securing Indebtedness (together with Permitted Refinancings thereof) incurred pursuant to clause (A), so long as such Indebtedness either does not constitute Indebtedness for borrowed money or (to the extent constituting Indebtedness for borrowed money) the aggregate amount of such Indebtedness outstanding at the time of incurrence thereof and calculated on a Pro Forma Basis does not exceed 3.75% of Adjusted Total Assets, (II) Liens permitted by Section 7.01(aa) securing Indebtedness incurred pursuant to clause (A), and (III) Liens securing Incremental Term Loans as and to the extent permitted by Section 2.14), (x) in the case of clauses (A) and (B), no Event of Default pursuant to Section 8.01(a), (f) or (g) shall exist both immediately prior and after giving effect thereto and no Event of Default shall exist at the time elected by the Borrower pursuant to the LCT Election and (y) in the case of any such incurred Indebtedness under clause (B), such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the date occurring six months after the final Maturity Date with respect to the Term Loans; provided, further, that at the time of incurrence thereof and after giving pro forma effect thereto, the aggregate amount of Indebtedness outstanding under clause (B) of this Section 7.03(g) by Restricted Subsidiaries that are not Loan Parties shall not exceed the greater of (x) $375,000,000 in the aggregate and (y) 37.5% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(h)    Indebtedness representing deferred compensation or similar obligations to employees of Holdings or any of its Restricted Subsidiaries incurred in the ordinary course of business;
(i)    Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any direct or indirect parent of the Borrower permitted by Section 7.06;
(j)    Indebtedness incurred by Holdings or any of its Restricted Subsidiaries in a Permitted Acquisition, any other Investment expressly permitted hereunder or any Disposition, in each case, constituting indemnification obligations or obligations in respect of purchase price (including customary earnouts) or other similar adjustments;
(k)    Cash Management Obligations (as defined in the First Lien Credit Agreement as in effect on the Closing Date) and other Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with deposit accounts or securities accounts in the ordinary course of business;
(l)    Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
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(m)    Indebtedness incurred by Holdings or any of its Restricted Subsidiaries in respect of letters of credit, bank guarantees, supporting obligations, bankers’ acceptances, performance bonds, surety bonds, statutory bonds, appeal bonds, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; provided that any reimbursement obligations in respect thereof are reimbursed within 30 days following the due date thereof;
(n)    obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by Holdings or any of its Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with past practice;
(o)    (i) Indebtedness incurred under the First Lien Facilities Documentation in an aggregate principal amount not to exceed $6,744,187,500.00, (ii) First Lien Incremental Facilities in an aggregate principal amount not to exceed the principal amount thereof permitted to be incurred under the First Lien Credit Agreement as in effect on the Closing Date (minus, in the case of any incurrence under the First Lien Credit Agreement in reliance on the First Lien Base Incremental Amount, the amount of any Incremental Term Loans and/or Indebtedness under Section 7.03(g)(B) incurred in reliance on the Base Incremental Amount) and (iii) any Permitted Refinancing of the foregoing (without duplicating fixed dollar amounts permitted under preceding clauses (i) and (ii) and, in each case, including, without duplication, Guarantees thereof by the Guarantors other than Holdings);
(p)    [reserved];
(q)    Indebtedness of the Loan Parties in an amount equal to the lesser of (x) 125.0% of the net cash proceeds received by Holdings since immediately after the Closing Date from the issue or sale of Equity Interests of Holdings or cash contributed to the capital of Holdings (in each case, other than proceeds of Disqualified Equity Interests or sales of Equity Interests to Holdings or any of its Subsidiaries) to the extent such net cash proceeds or cash have not been applied pursuant to Section 7.02(l), 7.06(g) or 7.13 and (y) the greater of (i) $93,750,000 and (ii) 9.375% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(r)    other Indebtedness of Holdings or any of its Restricted Subsidiaries, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of (i) $187,750,000 and (ii) 18.75% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(s)    Indebtedness consisting of obligations of the Borrower or any of its Restricted Subsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with the Transactions, and Permitted Acquisitions or any other Investment expressly permitted hereunder;
(t)    Indebtedness of Foreign Subsidiaries; provided that at the time of incurrence thereof and calculated on a Pro Forma Basis the aggregate principal amount of Indebtedness outstanding pursuant to this clause (t) and incurred on or after the Closing Date shall not exceed the greater of (i) $31,250,000 and (ii) 3.125% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available, which is attributable to the Foreign Subsidiaries;
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(u)    customary obligations in connection with sales, other dispositions and leases permitted under Section 7.05 (but not in respect of Indebtedness for borrowed money or Capitalized Leases) including indemnification obligations with respect to leases, and guarantees of collectability in respect of accounts receivable or notes receivable for up to face value;
(v)    obligations of Holdings in respect of Disqualified Equity Interests in an amount not to exceed at any time outstanding the greater of (i) $12,500,000 and (ii) 1.25% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements were required to have been delivered pursuant to Section 6.01(a) and (b), as applicable, or, if earlier, are internally available;
(w)    Indebtedness of any Loan Party supported by a Letter of Credit (as defined in the First Lien Credit Agreement) in a principal amount not to exceed the face amount of such Letter of Credit;
(x)    [reserved];
(y)    to the extent constituting Indebtedness, Holdings and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02;
(z)    all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (y) above;
(aa)    Credit Agreement Refinancing Indebtedness;
(bb)    [reserved]; and
(cc)    Permitted Unsecured Ratio Debt and any Permitted Refinancing thereof.
For purposes of determining compliance with this Section 7.03, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (z) above, the Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Loan Documents will at all times be deemed to be outstanding in reliance only on the exception in clause (a) of Section 7.03, (ii) the First Lien Facilities and other Indebtedness described in Section 7.03(o) will be deemed to be outstanding in reliance only on the exception in clause (o) of Section 7.03; (iii) Credit Agreement Refinancing Indebtedness will be deemed to be outstanding in reliance only on the exception in clause (aa) of Section 7.03 and (iv) [reserved]; and (v) Permitted Unsecured Ratio Debt will be deemed to be outstanding in reliance only on the exception in clause (cc) of this Section 7.03.
Section 7.04     Fundamental Changes. Neither Holdings nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a)    any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction in the United States); provided that the Borrower shall be the continuing or surviving Person or (ii) one or more other Restricted Subsidiaries; provided that when any Person that is a Loan Party is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person;
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(b)    (i) any Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c)    any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Holdings or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively;
(d)    so long as no Default or Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Company”), (A) the Successor Company shall be an entity organized or existing under the Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement, the Pledge Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e)    so long as no Event of Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that the continuing or surviving Person shall be a Restricted Subsidiary or the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement;
(f)    Holdings and the Restricted Subsidiaries may consummate the Acquisition, related transactions contemplated by the Acquisition Agreement (and documents related thereto) and the Transactions; and
(g)    so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Section 7.05     Dispositions. Neither Holdings nor any of the Restricted Subsidiaries shall, directly or indirectly, make any Disposition or enter into any agreement to make any Disposition
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(other than (i) as part of or in connection with the Transaction or (ii) if the consummation thereof is made expressly subject to a consent, waiver or amendment hereunder), except:
(a)    (i) Dispositions of obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions in the ordinary course of business of property no longer used or useful in the conduct of the business of Holdings or any of its Restricted Subsidiaries and (ii) Dispositions of property no longer used or useful in the conduct of the business of Holdings and its Restricted Subsidiaries outside the ordinary course of business;
(b)    Dispositions of inventory, goods held for sale in the ordinary course of business and immaterial assets (including allowing any registrations or any applications for registration of any intellectual property to lapse or go abandoned) in the ordinary course of business;
(c)    Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d)    Dispositions of property to Holdings or any Restricted Subsidiary; provided that if the transferor of such property is a Loan Party, (i) the transferee thereof must be a Loan Party or (ii) if such transaction constitutes an Investment, such transaction is permitted under Section 7.02;
(e)    to the extent constituting Dispositions, the granting of Permitted Liens, the making of Investments permitted by Section 7.02, mergers, consolidations and liquidations permitted by Section 7.04 (other than Section 7.04(g)) and Restricted Payments permitted by Section 7.06;
(f)    Dispositions made on the Closing Date to consummate the Transactions;
(g)    Dispositions of cash and Cash Equivalents;
(h)    leases, subleases, licenses or sublicenses (including the provision of software or the licensing of other intellectual property rights) and terminations thereof, in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;
(i)    transfers of property subject to Casualty Events;
(j)    Dispositions of property not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when no Default or Event of Default exists), no Default or Event of Default shall exist or would result from such Disposition, and (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $6,250,000, Holdings or any of its Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents (in each case, free and clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 7.01 and Liens permitted by Section 7.01(a), (e), (f), (k), (l), (p), (q) and (aa)); provided, however, that for the purposes of this clause (j)(ii), the following shall be deemed to be cash: (A) any liabilities (as shown on Holdings’ most recent balance sheet provided hereunder or in the footnotes thereto) of Holdings or such Restricted Subsidiary associated with the assets or Restricted Subsidiary sold in such Disposition that are assumed by the transferee with respect to the applicable Disposition and for which Holdings and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by Holdings or the applicable Restricted Subsidiary from such transferee that are converted by Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, and (C) any Designated Non-cash Consideration received by Holdings or such Restricted Subsidiary in such Disposition
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having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) (other than securities received and not yet liquidated pursuant to clause (B) that are at that time outstanding), not to exceed the greater of $218,750,000 and 21.875% of Consolidated EBITDA at the time of the receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(k)    Dispositions listed on Schedule 7.05(k);
(l)    Dispositions or discounts without recourse of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business;
(m)    Dispositions of property pursuant to Sale-Leaseback Transactions; provided that (i) the Net Proceeds of a Sale-Leaseback Transaction of the Borrower Corporate Headquarters (if any) shall be applied to prepay Term Loans in accordance with Section 2.05(b)(ii) (including, for the avoidance of doubt, reinvestment in accordance with the definition of “Net Proceeds”) (or, prior to the Discharge of Senior Obligations, to prepay First Lien Loans in accordance with Section 2.05(b)(ii) of the First Lien Credit Agreement) and (ii) the aggregate fair market value of all properties so Disposed of after the Closing Date (other than the Borrower Corporate Headquarters) shall not exceed the greater of (i) $31,250,000 and (ii) 3.12% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available;
(n)    any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater value or usefulness to the business of Holdings and its Subsidiaries as a whole, as determined in good faith by the management of the Borrower;
(o)    Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(p)    any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(q)    the unwinding of any Swap Contracts pursuant to its terms;
(r)    terminations of leases, subleases, licenses and sublicenses in the ordinary course of business;
(s)    sales of non-core assets acquired in connection with Permitted Acquisitions or other Investments;
(t)    sales of Receivables Assets, or participations therein, in connection with any Receivables Facility;
(u)    the transfer of Equity Interests of any Foreign Subsidiaries which are direct Subsidiaries of Loan Parties to any non-Loan Party, so long as 65.0% of the voting Equity Interests of such non-Loan Party (or the parent entity of such non-Loan Party which is directly owned by a Loan Party) are pledged to the Administrative Agent for the benefit of the Secured Parties; and
(v)    the transfer, via license or otherwise, by one or more Loan Parties to any non-Loan Party of all of the substantial rights in any IP Rights owned by a Loan Party which are used by one or more Foreign Subsidiaries outside of the United States to any non-Loan Party, provided that (w) the transaction is for fair market value, (x) the consideration received therefor may be in the form of Equity Interests, so long as at least 35% of the consideration is in the form of cash
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and/or an intercompany promissory note, which intercompany promissory note shall be pledged to the Administrative Agent for the benefit of the Secured Parties, (y) at a minimum, bare title to such IP Rights remains with a Loan Party and (z) 65.0% of the voting Equity Interests of such non-Loan Party (or its parent entity which is directly owned by a Loan Party) are pledged to the Administrative Agent for the benefit of the Secured Parties;
provided that any Disposition of any property pursuant to Section 7.05(j) or (m) shall be for no less than the fair market value of such property at the time of such Disposition. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan Party, such Collateral shall be sold or transferred free and clear of the Liens created by the Loan Documents (including the assets of any Subsidiary when the Equity Interests of such Subsidiary are being Disposed of as permitted hereunder), and the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Section 7.06     Restricted Payments.
Neither Holdings shall, nor shall Holdings permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment, except:
(a)    each Restricted Subsidiary may make Restricted Payments to the Borrower, and other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b)    Holdings and each Restricted Subsidiary may declare and make dividend payments or other Restricted Payments payable solely in Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person;
(c)    [reserved];
(d)    to the extent constituting Restricted Payments, Holdings and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than Section 7.02(e)), Section 7.04, Section 7.05 or Section 7.08 (other than Section 7.08(f));
(e)    repurchases of Equity Interests in Holdings (or any direct or indirect parent thereof) or any Restricted Subsidiary of Holdings deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f)    the Borrower and each Restricted Subsidiary may pay (or make Restricted Payments to allow Holdings or any other direct or indirect parent thereof to pay, which payment by Holdings is hereby permitted) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of Holdings or any other such direct or indirect parent thereof), including any Indebtedness permitted pursuant to Section 7.03(i), by any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or Holdings or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) on or after the Closing Date shall not exceed the greater of (x) $12,500,000 and (y) 1.25% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available (which shall
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increase to the greater of (x) $25,000,000 and (y) 2.5% of Consolidated EBITDA subsequent to the consummation of a Qualified IPO of the Borrower or any direct or indirect parent thereof, as the case may be) in any calendar year (with unused amounts in any calendar year being carried over to the next succeeding calendar year subject to a maximum (without giving effect to the following proviso) of the greater of (x) $25,000,000 and (y) 2.5% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available (which shall increase to the greater of (x) $50,000,000 and (y) 5.0% of Consolidated EBITDA subsequent to the consummation of a Qualified IPO of the Borrower or any direct or indirect parent thereof, as the case may be)); provided further that (I) such amount in any calendar year may be increased by an amount not to exceed:
(i)    to the extent contributed to Holdings, the Net Proceeds from the sale of Equity Interests of any of Holdings’ direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date; plus
(ii)    the cash proceeds of key man life insurance policies received by Holdings or its Restricted Subsidiaries; less
(iii)    the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(f);
and (II) such amount in any calendar year shall be decreased by the amount reallocated and previously applied to make prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings pursuant to Section 7.13(a)(iv)(A) in such calendar year;
(g)    if the First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, in each case, as if such Restricted Payment had been made on the last day of such Test Period, does not exceed the level permitted under Section 7.11 of the First Lien Credit Agreement on such date (or, following the termination of the First Lien Credit Agreement, 5.50 to 1.00), then Holdings may make Restricted Payments in an aggregate amount equal to the portion, if any, of the Available Additional Basket on such date that the Borrower elects to apply to this paragraph, such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Available Additional Basket immediately prior to such election and the amount thereof elected to be so applied; provided that with respect to any Restricted Payment made pursuant to this Section 7.06(g), (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to such Restricted Payment on a Pro Forma Basis, the Borrower could incur $1.00 of additional Indebtedness and maintain compliance with a Fixed Charge Coverage Ratio (calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable) of no less than 2.00:1.00;
(h)    the Borrower or any of its Restricted Subsidiaries may make Restricted Payments to Holdings or any direct or indirect parent of Holdings, an Affiliate (other than an Unrestricted Subsidiary) which is the common parent of a consolidated, combined or unitary group for tax purposes that includes Borrower or any of its Restricted Subsidiaries, as applicable:
(i)    to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are incurred in the ordinary course of business and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries so long as allocable to such entity in accordance with
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GAAP, Transaction Expenses and any indemnification claims made by directors or officers of such parent attributable to the ownership or operations of Holdings and its Restricted Subsidiaries;
(ii)    the proceeds of which shall be used to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence;
(iii)    the proceeds of which shall be used to pay federal, state and local income taxes, to the extent such income taxes are attributable to the income of the Borrower and its Restricted Subsidiaries and, to the extent of the amount actually received from its Unrestricted Subsidiaries, in amounts required to pay such taxes to the extent attributable to the income of such Unrestricted Subsidiaries; provided, that in each case, the amount of such payments with respect to any taxable period does not exceed the amount that the Borrower, its Restricted Subsidiaries and its Unrestricted Subsidiaries, as applicable, would be required to pay in respect of federal, state, and local taxes with respect to such taxable period were the Borrower, its Restricted Subsidiaries and its Unrestricted Subsidiaries, as applicable, to pay such taxes separately from any such parent entity; provided further, (1) in the case of any payment being made that is solely permitted as a result of this Section 7.06(h)(iii) with respect to a tax for which the Borrower and its Restricted Subsidiaries are members of the same consolidated, combined or similar income tax group (a “Tax Group”), then the amount of such payment permitted under this section shall not exceed the amount that the Borrower and its Restricted Subsidiaries would have been required to pay as a stand-alone Tax Group and (2) the amount of any payment permitted under this Section 7.06(h)(iii) shall be reduced by any portion of such income taxes directly paid to the relevant Governmental Authority by the Borrower or any of its Restricted Subsidiaries;
(iv)    the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the other Restricted Subsidiaries;
(v)    the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or investment permitted by this Agreement;
(vi)    [reserved];
(vii)    to enable Holdings to make payments pursuant to Sections 7.05(m), 7.06(g), 7.06(i) or 7.08(j); and
(viii)    to finance any Investment by Holdings permitted to be made pursuant to Section 7.02.
(i)    payments made or expected to be made by Holdings or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(j)    after a Qualified IPO, (i) any Restricted Payment by the Borrower or any other direct or indirect parent of the Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company and (ii) Restricted Payments of up to 6.0% per annum of the net proceeds received by (or contributed to) Holdings and its Restricted Subsidiaries
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from such Qualified IPO (less amounts reallocated and previously applied to make prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings pursuant to Section 7.13(a)(iv)(A));
(k)    notwithstanding anything to the contrary in any Loan Document, the Borrower may make regularly scheduled payments of interest on any Junior Financing, and may make any payments required by the terms of such Indebtedness in order to avoid the application of Section 163(e)(5) of the Code to such Indebtedness;
(l)    distributions or payments of Receivables Fees and purchase of any assets in connection with a Receivables Facility;
(m)    distributions in connection with a corporate dividend program not to exceed in any fiscal year the greater of (x) $125,000,000 and (y) 12.5% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available; and
(n)    Holdings and each Restricted Subsidiary may declare and make additional Restricted Payments up to an unlimited amount; provided that, both immediately prior and after giving effect thereto, (i) no Default or Event of Default shall exist or result therefrom, and (ii) the Total Net Leverage Ratio determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, as if such dividend had been paid on the last day of such Test Period, shall be no greater than 4.75 to 1.00.
Section 7.07     Change in Nature of Business. Holdings shall not, nor shall Holdings permit any of the Restricted Subsidiaries to, directly or indirectly, engage in any material line of business substantially different from those lines of business conducted by Holdings and the Restricted Subsidiaries on the Closing Date or any business reasonably related, complementary, synergistic or ancillary thereto (including related, complementary, synergistic or ancillary technologies) or reasonable extensions thereof.
Section 7.08     Transactions with Affiliates. Neither Holdings shall, nor shall Holdings permit any of the Restricted Subsidiaries to, directly or indirectly, enter into any transaction of any kind with any Affiliate of Holdings, whether or not in the ordinary course of business, other than (a) transactions among Holdings and its Restricted Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction, (b) on terms substantially as favorable to Holdings or such Restricted Subsidiary as would be obtainable by Holdings or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate, (c) the Transactions and the payment of fees and expenses (including Transaction Expenses) as part of or in connection with the Transactions, (d) the issuance of Equity Interests to any officer, director, employee or consultant of Holdings or any of its Restricted Subsidiaries in connection with the Transactions, (e) Restricted Payments permitted under Section 7.06, (f) loans and other transactions among Holdings and its Subsidiaries and joint ventures (to the extent any such Subsidiary that is not a Restricted Subsidiary or any such joint venture is only an Affiliate as a result of Investments by Holdings and its Restricted Subsidiaries in such Subsidiary or joint venture) to the extent otherwise permitted under this Article VII, (g) employment and severance arrangements between Holdings and its Restricted Subsidiaries and their respective officers and employees in the ordinary course of business and transactions pursuant to stock option plans and employee benefit plans and arrangements in the ordinary course of business, (h) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, officers, employees and consultants of Holdings and its Restricted Subsidiaries (or any direct or indirect parent of Holdings) in the ordinary course of business to the extent attributable to the ownership or operation of Holdings and its Restricted Subsidiaries, (i) transactions pursuant to agreements in existence on the Closing Date and set forth on Schedule 7.08 or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material respect, (j) so long as no Event of Default has occurred and is continuing, (x) the payment of management, consulting, monitoring and advisory fees and related expenses to the Permitted Holders in an amount not to exceed in the aggregate in any calendar year the greater of (x) $6,250,000 and (y) 0.625% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to
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Section 6.01(a) or (b), as applicable, or, if earlier, are internally available and (y) payments by Holdings or any of its Restricted Subsidiaries to any of the Permitted Holders made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection with acquisitions or divestitures which payments are approved by a majority of the Board of Directors of the Borrower in good faith, (k) payments by Holdings or any of its Subsidiaries pursuant to any tax sharing agreements with any direct or indirect parent of Holdings to the extent attributable to the ownership or operation of Holdings and the Subsidiaries, but only to the extent permitted by Section 7.06(h)(iii) and entering into any tax sharing agreements that would only require payments otherwise permitted by Section 7.06(h)(iii), (l) the issuance or transfer of Equity Interests (other than Disqualified Equity Interests) of Holdings to any Permitted Holder or to any former, current or future director, manager, officer, employee or consultant (or any Affiliate of any of the foregoing) of the Borrower, any of its Subsidiaries or any direct or indirect parent thereof, (m) transactions with customers, clients, joint venture partners, suppliers or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement that are fair to Holdings and the Restricted Subsidiaries, in the reasonable determination of the board of directors or the senior management of the Borrower, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party, (n) any payments required to be made pursuant to the Acquisition Agreement, (o) the Transactions, (p) the payment of reasonable out-of-pocket costs and expenses relating to registration rights and indemnities provided to shareholders pursuant to the Shareholder Agreement and (q) any transaction with a Receivables Subsidiary effected as part of a Receivables Facility, including sales of Receivables Assets, or participations therein.
Section 7.09     Burdensome Agreements. Holdings shall not, nor shall Holdings permit any of the Restricted Subsidiaries to, enter into or permit to exist any Contractual Obligation (other than this Agreement, any other Loan Document or any Separate Facility Loan Document) that limits the ability of (a) any Restricted Subsidiary of Holdings that is not a Guarantor to make Restricted Payments to Holdings or any Guarantor or (b) any Loan Party to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Lenders with respect to the Facilities and the Obligations or under the Loan Documents; provided that the foregoing clauses (a) and (b) shall not apply to Contractual Obligations which (i) (x) exist on the Closing Date and (to the extent not otherwise permitted by this Section 7.09) are listed on Schedule 7.09 hereto and (y) to the extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness, or any agreement evidencing any permitted modification, replacement, renewal, extension or refinancing of such Indebtedness so long as such modification, replacement, renewal, extension or refinancing is not (taken as a whole) materially less favorable to the Lenders, (ii) are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of Holdings, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of Holdings; provided, further that this clause (ii) shall not apply to Contractual Obligations that are binding on a Person that becomes a Restricted Subsidiary pursuant to Section 6.14, (iii) represent Indebtedness of a Restricted Subsidiary of the Borrower which is not a Loan Party which is permitted by Section 7.03, (iv) arise in connection with any Disposition permitted by Section 7.04 or 7.05 and relate solely to the assets or Person subject to such Disposition, (v) are customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 7.02 and applicable solely to such joint venture entered into in the ordinary course of business, (vi) are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.03 but solely to the extent any negative pledge relates to the property (and proceeds or products thereof) financed by such Indebtedness, (vii) are customary restrictions in leases, subleases, licenses, sublicenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto, (viii) comprise restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 7.03(e), (g) or (r) and to the extent that such restrictions apply only to the property or assets (and proceeds or products thereof) securing such Indebtedness or to the Restricted Subsidiaries incurring or guaranteeing such Indebtedness, (ix) are customary provisions restricting subletting, assignment or transfer of any lease governing a leasehold interest of Holdings or any Restricted Subsidiary, (x) are customary provisions restricting assignment, license or transfers of any agreement entered into in the ordinary course of business, (xi) are restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business, (xii) are customary restrictions contained in the First Lien Facilities Documentation or the documents governing any Permitted Junior
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Refinancing Debt, Permitted Pari Passu Refinancing Debt or Permitted Unsecured Refinancing Debt, or the documents governing any Permitted Refinancing Indebtedness in respect of any of the foregoing, (xiii) arise in connection with cash or other deposits permitted under Sections 7.01 and 7.02 and limited to such cash or deposit, (xiv) are restrictions regarding licensing or sublicensing by Holdings and its Restricted Subsidiaries of intellectual property in the ordinary course of business, (xv) are restrictions on cash earnest money deposits in favor of sellers in connection with acquisitions not prohibited hereunder or (xvi) are restrictions and conditions under the terms of the documentation governing any Receivables Facility that in the good faith determination of Holdings or the Borrower are necessary or advisable to effect such Receivables Facility.
Section 7.10     Use of Proceeds. The proceeds of the Initial Term Loans incurred pursuant to this Agreement shall be applied to finance the Transactions and to pay fees and expenses incurred in connection therewith.
Section 7.11     [Reserved].
Section 7.12     Accounting Changes. Holdings shall not make any change in its fiscal year; provided, however, that Holdings may, upon written notice to the Administrative Agent, change its fiscal year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, Holdings and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary to reflect such change in fiscal year.
Section 7.13     Prepayments, Etc. of Indebtedness. (a) Holdings shall not, nor shall Holdings permit any of the Restricted Subsidiaries to, directly or indirectly, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (it being understood that payments of regularly scheduled interest or AHYDO payments shall be permitted) any Indebtedness (other than any permitted intercompany Indebtedness) that is contractually subordinated in right of payment to the Obligations (collectively, “Junior Financing”) or make any payment in violation of any subordination terms of any Junior Financing Documentation, except (i) the refinancing or exchange thereof with the Net Proceeds of any Indebtedness constituting a Permitted Refinancing; provided that if such Indebtedness was originally incurred under Section 7.03(g), such Permitted Refinancing is permitted pursuant to Section 7.03(g), (ii) the conversion of any Junior Financing to Equity Interests (other than Disqualified Equity Interests) of Holdings or any of its direct or indirect parents, (iii) so long as no Event of Default has occurred and is continuing or would result therefrom, prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to their scheduled maturity in an aggregate amount not to exceed on or after the Closing Date the greater of (x) $31,250,000 and (y) 3.12% of Consolidated EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, or, if earlier, are internally available, plus, the portion, if any, of the Available Additional Basket on such date that the Borrower elects to apply to this paragraph, such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Available Additional Basket immediately prior to such election and the amount thereof elected to be so applied, (iv) additional prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to their scheduled maturity in an aggregate amount not to exceed the sum of (A) the Available RP Capacity Amount plus (B) an unlimited additional amount; provided that, solely in the case of clause (iv)(B), both immediately prior and after giving effect thereto, (x) no Default or Event of Default shall exist or result therefrom, and (y) the Total Net Leverage Ratio determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable, as if such prepayment, redemption, purchase, defeasance and other payment had been made on the last day of such Test Period, shall be no greater than 4.75 to 1.00 and (v) any Excluded Asset Sale Proceeds may be used to make prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to their scheduled maturity within 18 months of the receipt of such Excluded Asset Sale Proceeds.
(b)    Holdings shall not, nor shall it permit any of the Restricted Subsidiaries to, directly or indirectly, amend, modify or change in any manner materially adverse to the interests of the Lenders any term or condition of any Junior Financing Documentation (other than intercompany indebtedness) without the consent of the Administrative Agent (which consent shall not be unreasonably
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withheld, conditioned or delayed); provided, that nothing in this Section 7.13(b) shall prohibit Holdings and its Restricted Subsidiaries from refinancing, replacing, renewing or exchanging any such Junior Financing, to the extent otherwise permitted by Section 7.13(a).
Section 7.14     Permitted Activities. Holdings shall not engage in any material operating or business activities; provided that the following shall be permitted in any event: (i) its ownership of the Equity Interests of the Borrower and other Subsidiaries and activities incidental or reasonably related thereto, (ii) the maintenance of its legal existence (including the ability to incur fees, costs and expenses relating to such maintenance), (iii) the performance of its obligations with respect to the Loan Documents, the Separate Facility Loan Documents, the First Lien Facilities Documentation and any other Indebtedness, (iv) any public offering of its common stock or any other issuance or sale of its Equity Interests (and activities related to an entity being public) or making of any Restricted Payments or Investments permitted hereunder, (v) financing activities, including the issuance of securities, incurrence of debt, payment of dividends, making contributions to the capital of the Borrower and guaranteeing the obligations of the Borrower, (vi) participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings and the Borrower, (vii) holding any cash or property (but not operating any property), (viii) providing indemnification to officers, managers and directors and (ix) any activities incidental or reasonably related to the foregoing. Holdings shall not incur any consensual Liens on Equity Interests of the Borrower other than those for the benefit of the Obligations.
ARTICLE VIII

Events of Default and Remedies
Section 8.01     Events of Default. Any of the following from and after the Closing Date shall constitute an event of default (an “Event of Default”):
(a)    Non-Payment. Any Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, or (ii) within five (5) Business Days after the same becomes due, any interest on any Loan or any other amount payable hereunder or with respect to any other Loan Document; or
(b)    Specific Covenants. Holdings or the Borrower fails to perform or observe any term, covenant or agreement contained in any of Sections 6.03(a) or 6.05(a) (solely with respect to the Borrower) or Article VII; or
(c)    Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) days after notice thereof by the Administrative Agent or the Required Lenders to the Borrower; or
(d)    Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of Holdings or any other Loan Party herein, in any other Loan Document, or in any other report or certificate required to be delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or
(e)    Cross-Default and Cross-Acceleration. Any Loan Party or any Restricted Subsidiary (A) fails to make any payment in respect of any Indebtedness under the First Lien Credit Agreement at the final scheduled maturity thereof having an outstanding aggregate principal amount of not less than the Threshold Amount, (B) fails to observe or perform any other agreement or condition relating to any Indebtedness in respect of the First Lien Credit Agreement, or any other event occurs, the effect of which default or other event is to cause such Indebtedness to become due and payable prior to its stated maturity; (C) fails to make any payment beyond the applicable grace period with respect thereto, if any, (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness in respect of the First Lien Credit Agreement) having an outstanding aggregate principal amount of not less than the Threshold
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Amount, or (D) fails to observe or perform any other agreement or condition relating to any Indebtedness (other than Indebtedness hereunder and Indebtedness in respect of the First Lien Credit Agreement), or any other event occurs (other than, with respect to Indebtedness consisting of Swap Contracts, termination events or equivalent events pursuant to the terms of such Swap Contract), the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity; provided that this clause (e)(D) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness; provided further that this clause (e)(D) shall not apply if such failure is remedied or waived by the holders of such Indebtedness prior to acceleration of the Loans pursuant to Section 8.02; or
(f)    Insolvency Proceedings, Etc. Any Loan Party or, subject to Section 8.03, any Restricted Subsidiary institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or
(g)    Inability to Pay Debts; Attachment. (i) Any Loan Party or, subject to Section 8.03, any Restricted Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of Holdings and the Restricted Subsidiaries, taken as a whole, and is not released, vacated or fully bonded within sixty (60) days after its issue or levy; or
(h)    Judgments. There is entered against any Loan Party or any Restricted Subsidiary a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by (i) independent third party insurance as to which the insurer has been notified of such judgment or order and has not denied coverage or (ii) other third party indemnities from financially sound investment grade indemnifying parties (or other parties reasonably acceptable to the Administrative Agent)) and such judgment or order shall not have been satisfied, vacated, discharged or stayed or bonded pending an appeal for a period of sixty (60) consecutive days; or
(i)    Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder (including as a result of a transaction permitted under Section 7.04 or 7.05) or the satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in writing the validity or enforceability of any provision of any Loan Document; or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document (other than as a result of repayment in full of the Obligations and termination of the Aggregate Commitments), or purports in writing to revoke or rescind any Loan Document; or
(j)    Change of Control. There occurs any Change of Control; or
(k)    Collateral Documents. Any Collateral Document after delivery thereof pursuant to Sections 4.02, 6.11 or 6.13 hereof shall for any reason (other than pursuant to the terms thereof
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including as a result of a transaction not prohibited under this Agreement or as a result of acts or omissions by the Administrative Agent or Collateral Agent or any Lender) cease to create a valid and perfected Lien, with the priority required by the Collateral Documents on and security interest in any material portion of the Collateral purported to be covered thereby, subject to Permitted Liens, (i) except to the extent that (A) any such perfection or priority is not required pursuant to the Collateral and Guarantee Requirement,  (B) any such loss of perfection or priority results solely from (A) the  Administrative Agent or the Collateral Agent no longer having possession of certificates actually delivered to it representing securities pledged under the Collateral Documents or (B) a Uniform Commercial Code filing having lapsed because a Uniform Commercial Code continuation statement (or similar statements or filings in other jurisdictions) was not filed in a timely manner (and, in each case of clause (A) or (B), the Loan Parties take such action as the Administrative Agent or Collateral Agent may reasonably request to remedy such loss of perfection or priority) and (ii) except as to Collateral consisting of Real Property to the extent that such losses are covered by a lender’s title insurance policy and such insurer has not denied coverage; or
(l)    ERISA. (i) An ERISA Event occurs which has resulted or could reasonably be expected to result in liability of a Loan Party, a Restricted Subsidiary or any ERISA Affiliate in an aggregate amount which could reasonably be expected to result in a Material Adverse Effect, (ii) there is or arises an Unfunded Pension Liability (taking into account only Pension Plans with positive Unfunded Pension Liability) that could reasonably be expected to result in a Material Adverse Effect or (iii) a Loan Party, any Restricted Subsidiary or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount which could reasonably be expected to result in a Material Adverse Effect.
Section 8.02     Remedies upon Event of Default.
(a)    If any Event of Default occurs and is continuing (other than an Event of Default under Section 8.01(b)(ii) unless the conditions of the second proviso contained therein have been satisfied), the Administrative Agent may and, at the request of the Required Lenders, shall take any or all of the following actions:
(i)    declare the commitment of each Lender to make Loans to be terminated, whereupon such commitments and obligation shall be terminated;
(ii)    declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; and
(iii)    exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law;
provided that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable without further act of the Administrative Agent or any Lender.
(b)    [Reserved]
Section 8.03     Exclusion of Immaterial Subsidiaries. Solely for the purpose of determining whether a Default or Event of Default has occurred under clause (f) or (g) of Section 8.01, any reference in any such clause to any Restricted Subsidiary or Loan Party shall be deemed not to include any Restricted Subsidiary affected by any event or circumstances referred to in any such clause that did not, as of the last day of the most recent completed fiscal quarter of Holdings, have assets with a
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fair market value in excess of 5.0% of Adjusted Total Assets (it being agreed that all Restricted Subsidiaries affected by any event or circumstance referred to in any such clause shall be considered together, as a single consolidated Restricted Subsidiary, for purposes of determining whether the condition specified above is satisfied).
Section 8.04     Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable as set forth in the proviso to Section 8.02), any amounts received on account of the Secured Obligations shall, subject to the First Lien/Second Lien Intercreditor Agreement, be applied by the Administrative Agent in the following order (to the fullest extent permitted by mandatory provisions of applicable Law):
First, to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest, but including Attorney Costs payable under Section 10.04 and amounts payable under Article III) payable to the Administrative Agent or the Collateral Agent in its capacity as such;
Second, to payment of that portion of the Secured Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs payable under Section 10.04 and amounts payable under Article III), ratably among them in proportion to the amounts described in this clause Second payable to them;
Third, to payment of that portion of the Secured Obligations constituting accrued and unpaid interest and fees on the Loans and Commitments, ratably among the Secured Parties in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Secured Obligations constituting unpaid principal of the Loans, ratably among the Secured Parties in proportion to the respective amounts described in this clause Fourth held by them;
Fifth, to the payment of all other Secured Obligations of the Borrower that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Secured Obligations owing to the Administrative Agent and the other Secured Parties on such date; and
Last, the balance, if any, after all of the Secured Obligations have been paid in full, to the Borrower or as otherwise required by Law or the First Lien/Second Lien Intercreditor Agreement.
Notwithstanding the foregoing, no amounts received from any Guarantor shall be applied to any Excluded Swap Obligation of such Guarantor.
ARTICLE IX

Administrative Agent and Other Agents
Section 9.01     Appointment and Authorization of Agents. (a) The Lenders hereby irrevocably designate and appoint JPMorgan Chase Bank N.A., as Administrative Agent to act as specified herein and in the other Loan Documents. Each Lender hereby irrevocably authorizes, and each holder of any Note by the acceptance of such Note shall be deemed irrevocably to authorize, the Administrative Agent to take such action on its behalf under the provisions of this Agreement, the other Loan Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of the Administrative Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto. The Administrative Agent may perform any of its respective duties hereunder by or through its Agent-Related Persons.
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(b)    Each of the Secured Parties hereby irrevocably appoints and authorizes the Collateral Agent to act as the agent of (and to hold any security interest created by the Collateral Documents for and on behalf of or in trust for) such Secured Party for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent (and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to this Article IX for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Collateral Agent), shall be entitled to the benefits of all provisions of this Article IX (including Section 9.06, as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents) as if set forth in full herein with respect thereto.
Section 9.02     Nature of Duties. (a) No Agent-Related Person shall have any duties or responsibilities except those expressly set forth in this Agreement and in the other Loan Documents. No Agent-Related Person shall be liable for any action taken or omitted by it or them hereunder or under any other Loan Document or in connection herewith or therewith, unless caused by its or their gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). The duties of each Agent-Related Person shall be mechanical and administrative in nature; no Agent-Related Person shall have by reason of this Agreement or any other Loan Document a fiduciary relationship in respect of any Lender or the holder of any Note; and nothing in this Agreement or in any other Loan Document, expressed or implied, is intended to or shall be so construed as to impose upon any Agent-Related Person any obligations in respect of this Agreement or any other Loan Document except as expressly set forth herein or therein.
(b)    Notwithstanding any other provision of this Agreement or any provision of any other Loan Document, the Arrangers are named as such for recognition purposes only, and in their capacity as such shall have no powers, duties, responsibilities or liabilities with respect to this Agreement or the other Loan Documents or the transactions contemplated hereby and thereby. Without limitation of the foregoing, the Arrangers shall not, solely by reason of this Agreement or any other Loan Documents, have any fiduciary relationship in respect of any Lender or any other Person.
Section 9.03     Lack of Reliance on Agent-Related Persons. Independently and without reliance upon any Agent-Related Person, each Lender and the holder of each Note, to the extent it deems appropriate, has made and shall continue to make (i) its own independent investigation of the financial condition and affairs of Holdings and its Subsidiaries in connection with the making and the continuance of the Loans and the taking or not taking of any action in connection herewith and (ii) its own appraisal of the creditworthiness of Holdings and its Subsidiaries and, except as expressly provided in this Agreement, no Agent-Related Person shall have any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any Note with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter. No Agent-Related Person shall be responsible to any Lender or the holder of any Note for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of this Agreement or any other Loan Document or the financial condition of Holdings or any of its Subsidiaries or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Loan Document, or the financial condition of Holdings or any of its Subsidiaries or the existence or possible existence of any Default or Event of Default.
Section 9.04     Certain Rights of Agent-Related Persons. If any Agent-Related Person requests instructions from the Required Lenders (or where expressly required or permitted by the terms of this Agreement, a greater or other proportion of the Lenders) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, such Agent-Related Person shall be entitled to refrain from such act or taking such action unless and until such Agent-Related Person shall have received instructions from the Required Lenders (or where expressly required or permitted by the terms of this Agreement, a greater or other proportion of the Lenders); and such Agent-Related Person shall not incur liability to any Lender by reason of so refraining. Without limiting the foregoing, neither any Lender nor the holder of any Note shall have any right of action whatsoever against
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any Agent-Related Person as a result of such Agent-Related Person acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of the Required Lenders (or where expressly required or permitted by the terms of this Agreement, a greater or other proportion of the Lenders).
Section 9.05     Reliance. (a) Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that such Agent believed in good faith to be the proper Person, and, with respect to all legal matters pertaining to this Agreement and any other Loan Document and its duties hereunder and thereunder, upon advice of counsel selected by such Agent (which may include counsel to Holdings or its Subsidiaries).
(b)    For purposes of determining compliance with the conditions specified in Section 4.02 with respect to the Initial Borrowing or Section 4.01 hereof, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Section 9.06     Indemnification. To the extent an Agent-Related Person is not reimbursed and indemnified by the Borrower, and without relieving the Borrower of its obligation to do so, the Lenders will reimburse and indemnify such Agent-Related Person in proportion to their respective “percentage” as used in determining the Required Lenders (determined as if there were no Defaulting Lenders) for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by such Agent-Related Person in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from an Agent-Related Person’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
Section 9.07      Agents in their Individual Capacities. With respect to its obligation to make Loans under this Agreement, each Agent shall have the rights and powers specified herein for a “Lender” and may exercise the same rights and powers as though it were not performing the duties specified herein; and the term “Lender,” “Required Lenders,” “Required Facility Lenders” or any similar terms shall, unless the context clearly indicates otherwise, include each Agent in its respective individual capacities. Each Agent and its affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, investment banking, trust or other business with, or provide debt financing, equity capital or other services (including financial advisory services) to any Loan Party or any Affiliate of any Loan Party (or any Person engaged in a similar business with any Loan Party or any Affiliate thereof) as if they were not performing the duties specified herein, and may accept fees and other consideration from any Loan Party or any Affiliate of any Loan Party for services in connection with this Agreement and otherwise without having to account for the same to the Lenders.
Section 9.08     Holders. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes hereof unless and until a written notice of the assignment, transfer or endorsement thereof, as the case may be, shall have been filed with the Administrative Agent. Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is the holder of any Note shall be conclusive and binding on any subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any Note or Notes issued in exchange therefor.
Section 9.09     Resignation by the Agents. (a) Each of the Administrative Agent and the Collateral Agent may resign from the performance of all its respective functions and duties hereunder and/or under the other Loan Documents at any time by giving fifteen (15) Business Days’ prior written notice to the Lenders and, unless a Default or an Event of Default under Section 8.01(f) or (g) then exists,
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the Borrower. Such resignation shall take effect upon the appointment of a successor Administrative Agent or successor Collateral Agent, as the case may be, pursuant to clauses (b) and (c) below or as otherwise provided below.
(b)    Upon any such notice of resignation by the Administrative Agent or the Collateral Agent, the Required Lenders shall appoint a successor Administrative Agent or a successor Collateral Agent, as the case may be, hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Borrower, which acceptance shall not be unreasonably withheld or delayed (provided that the Borrower’s approval shall not be required if an Event of Default under Section 8.01(a) or a Default or Event of Default under Section 8.01(f) or (g) then exists).
(c)    If a successor Administrative Agent or a successor Collateral Agent, as the case may be, shall not have been so appointed within such fifteen (15) Business Day period, the Administrative Agent or the Collateral Agent, as the case may be, with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed, provided that the Borrower’s consent shall not be required if an Event of Default then exists), shall then appoint a successor Administrative Agent or a successor Collateral Agent, as the case may be, who shall serve as Administrative Agent or Collateral Agent, as the case may be, hereunder or thereunder until such time, if any, as the Required Lenders appoint a successor Administrative Agent or a successor Collateral Agent, as the case may be, as provided above.
(d)    If no successor Administrative Agent or Collateral Agent, as the case may be, has been appointed pursuant to clause (b) or (c) above by the twentieth (20th) Business Day after the date such notice of resignation was given by the Administrative Agent or the Collateral Agent, as the case may be, the Administrative Agent’s resignation or the Collateral Agent’s resignation, as the case may be, shall become effective and the Required Lenders shall thereafter perform all the duties of the Administrative Agent or the Collateral Agent, as the case may be, hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided above.
(e)    Upon a resignation of the Administrative Agent or the Collateral Agent pursuant to this Section 9.09, the Administrative Agent or the Collateral Agent, as the case may be, shall remain indemnified to the extent provided in this Agreement and the other Loan Documents and the provisions of this Article IX (and the analogous provisions of the other Loan Documents) shall continue in effect for the benefit of the Administrative Agent or the Collateral Agent, as the case may be, for all of its actions and inactions while serving as the Administrative Agent or the Collateral Agent, as the case may be.
Section 9.10     Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower or the Collateral Agent) shall be (to the fullest extent permitted by mandatory provisions of applicable Law) entitled and empowered, by intervention in such proceeding or otherwise:
(a)    to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Collateral Agent and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Collateral Agent and the Administrative Agent and their respective agents and counsel and all other amounts due to the Lenders, the Collateral Agent and the Administrative Agent under Sections 2.03(h) and (i), 2.09 and 10.04) allowed in such judicial proceeding; and
(b)    to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, curator, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
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Administrative Agent or the Collateral Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent or the Collateral Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Administrative Agent or the Collateral Agent under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
Section 9.11     Collateral and Guaranty Matters. (a) Each Lender authorizes and directs the Collateral Agent to enter into the Collateral Documents for the benefit of the Lenders and the other Secured Parties. Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders in accordance with the provisions of this Agreement or the Collateral Documents, and the exercise by the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time prior to the occurrence and continuance of an Event of Default, to take any action with respect to any Collateral or Collateral Documents which may be necessary to create, perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Collateral Documents.
(b)    The Lenders hereby authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon termination of the Aggregate Commitments and payment and satisfaction of all of the Obligations (other than contingent obligations not then due and payable) at any time arising under or in respect of this Agreement or the Loan Documents or the transactions contemplated hereby or thereby, (ii) constituting property being sold or otherwise disposed of (to Persons other than a Loan Party) upon the sale or other disposition thereof in compliance with Section 7.05, (iii) if approved, authorized or ratified in writing by the Required Lenders (or all of the Lenders hereunder, to the extent required by Section 10.01), (iv) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (e) below, or (v) as otherwise may be expressly provided in the relevant Collateral Documents. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 9.11.
(c)    The Collateral Agent shall have no obligation whatsoever to the Lenders or to any other Person to assure that the Collateral exists or is owned by any Loan Party or is cared for, protected or insured or that the Liens granted to the Collateral Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 9.11 or in any of the Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to the Lenders, except for its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(d)    The Collateral Agent is authorized to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document on any assets that are excluded from the Collateral.
(e)    The Lenders irrevocably agree that any Guarantor shall be automatically released from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary or becomes an Excluded Subsidiary (other than pursuant to (i) clause (a) of the definition thereof unless such Restricted
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Subsidiary ceases to be a Restricted Subsidiary or (ii) clause (b) of the definition thereof unless, in the case of this subclause (ii), the Borrower delivers a written request to the Administrative Agent for such release and no Default or Event of Default has occurred and is continuing at such time) as a result of a transaction or designation permitted hereunder; provided that no such release shall occur if such Guarantor continues to be a guarantor in respect of the First Lien Obligations or any Junior Financing.
(f)    (x) The Collateral Agent may, without any further consent of any Lender, enter into or amend the First Lien/Second Lien Intercreditor Agreement or any other Intercreditor Agreement with the collateral agent or other representatives of the holders of Indebtedness that is permitted to be secured by a Lien on the Collateral securing the Obligations that is permitted by Section 7.03, (y) the Collateral Agent may rely exclusively on a certificate of a Responsible Officer of the Borrower as to whether any such other Liens are permitted and (z) the First Lien/Second Lien Intercreditor Agreement and any other Intercreditor Agreement entered into by the Collateral Agent shall be binding on the Secured Parties. Each Lender and other Secured Party (a) understands, acknowledges and agrees that Liens have been created on the Collateral pursuant to the First Lien Facilities Documentation, which Liens shall be subject to the terms and conditions of the First Lien/Second Lien Intercreditor Agreement and (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the First Lien/Second Lien Intercreditor Agreement or any other Intercreditor Agreement (if entered into).
Upon request by the Administrative Agent or the Collateral Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s or the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.11. In each case as specified in this Section 9.11, the Administrative Agent or the Collateral Agent will (and each Lender irrevocably authorizes the Administrative Agent and the Collateral Agent to), at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as the Borrower may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to evidence the release of such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.11.
Section 9.12     Delivery of Information. No Agent shall be required to deliver to any Lender originals or copies of any documents, instruments, notices, communications or other information received by the Administrative Agent from any Loan Party, any Subsidiary, the Required Lenders, any Lender or any other Person under or in connection with this Agreement or any other Loan Document except (i) as specifically provided in this Agreement or any other Loan Document and (ii) as specifically requested from time to time in writing by any Lender with respect to a specific document, instrument, notice or other written communication received by and in the possession of such Agent at the time of receipt of such request and then only in accordance with such specific request.
Section 9.13     Appointment of Supplemental Agents. (a) It is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any Law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction. It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative Agent or the Collateral Agent deems that by reason of any present or future Law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, the Administrative Agent and the Collateral Agent are hereby authorized to appoint an additional individual or institution selected by the Administrative Agent or the Collateral Agent in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral agent, administrative sub-agent or administrative co-agent (any such additional individual or institution being referred to herein individually as a “Supplemental Agent” and collectively as “Supplemental Agents”).
(b)    In the event that the Collateral Agent appoints a Supplemental Agent with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Collateral Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Agent to the extent, and only to the extent, necessary to enable such Supplemental Agent to exercise such
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rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by such Supplemental Agent shall run to and be enforceable by either the Collateral Agent or such Supplemental Agent, and (ii) the provisions of this Article IX and of Sections 10.04 and 10.05 that refer to the Administrative Agent shall inure to the benefit of such Supplemental Agent and all references therein to the Collateral Agent shall be deemed to be references to the Collateral Agent and/or such Supplemental Agent, as the context may require.
(c)    Should any instrument in writing from any Loan Party be required by any Supplemental Agent so appointed by the Administrative Agent or the Collateral Agent for more fully and certainly vesting in and confirming to it or its such rights, powers, privileges and duties, such Loan Party shall execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent or the Collateral Agent. In case any Supplemental Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Agent.
Section 9.14     Withholding Tax Indemnity. To the extent required by any applicable Law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any other authority of the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrower pursuant to Section 3.01 and Section 3.04 and without limiting or expanding the obligation of the Borrower to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as Taxes or otherwise, together with all expenses incurred, including legal expenses and any other out-of-pocket expenses, whether or not such tax was correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. The agreements in this Section 9.14 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Agreement and the repayment, satisfaction or discharge of all other Obligations.
Section 9.15     Certain ERISA Matters.
(a)    Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, that at least one of the following is and will be true:
(i)    such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments or this Agreement,
(ii)    the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
(iii)    (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified
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Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement.
(b)    In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
Section 9.16     Erroneous Payments.
(a)    Each Lender hereby agrees with the Administrative Agent that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender under this Section 9.16(a) shall be conclusive, absent manifest error.
(b)    Each Lender hereby further agrees with the Administrative Agent that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment.  Each Lender agrees with the Administrative Agent that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c)    The Borrower and each other Loan Party hereby agrees that (i) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender that has received such
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Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (ii) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Payment is, and solely with respect to the amount of such Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making a payment to satisfy certain Obligations and is not otherwise repaid or returned to a Loan Party by the Administrative Agent, any Lender or any of their respective Affiliates, whether pursuant to a legal proceeding or otherwise.
(d)    Each party’s obligations under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
ARTICLE X

Miscellaneous
Section 10.01     Amendments, Etc. Except as otherwise set forth in this Agreement, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders, the Borrower and the Guarantors and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that, no such amendment, waiver or consent shall:
(a)    extend or increase the Commitment of any Lender without the written consent of each Lender holding such Commitment (it being understood that a waiver of any condition precedent or of any Default or Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender);
(b)    postpone any date scheduled for, or reduce or forgive the amount of, any payment of principal or interest under Section 2.07 or 2.08 without the written consent of each Lender directly affected thereby (it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest);
(c)    reduce or forgive the principal of, or the rate of interest specified herein on, any Loan or (subject to clause (iii) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document (or postpone the timing of payments of such fees or other amounts) without the written consent of each Lender directly affected thereby; provided that, only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate (including any incremental interest accrued as a result of the application of the Default Rate);
(d)    change any provision of this Section 10.01 or the definitions of “Required Lenders” or “Required Facility Lenders” without the written consent of each Lender directly adversely affected, Section 8.04 or, following an exercise of remedies pursuant to Section 8.02(a), the definition of “Pro Rata Share” or Section 2.12(a), 2.12(g) or 2.13 without the written consent of each Lender directly and adversely affected thereby; provided that modifications to Section 2.12(a), 2.12(g), 2.13 or 8.04 or the definition of “Pro Rata Share” in connection with any purchase of Term Loans by Holdings or the Borrower pursuant to Section 10.07(n) shall only require approval (to the extent such approval is otherwise required) of the Required Lenders;
(e)    other than in connection with a transaction permitted under Section 7.04 or 7.05, release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender;
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(f)    other than in connection with a transaction permitted under Section 7.04 or 7.05, release all or substantially all of the aggregate value of the Guarantees, without the written consent of each Lender; or
(g)    without the written consent of the relevant Required Facility Lenders adversely affected thereby, waive or modify any mandatory prepayment with respect to such Class of Loans or any rights in respect of Collateral in a manner different than any other Class of Loans;
and provided, further, that (i) [reserved]; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent or the Collateral Agent, as applicable, in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent or the Collateral Agent, as applicable, under this Agreement or any other Loan Document; (iii) Section 10.07(h) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification; (iv) [reserved]; and (v) no Lender consent is required to effect a Refinancing Amendment (except as expressly provided in Section 2.16) or to effect any amendment expressly contemplated by Section 7.12.
Notwithstanding the foregoing, no Lender consent is required to effect any amendment, modification or supplement to any intercreditor agreement or arrangement permitted under this Agreement or in any document pertaining to any Indebtedness permitted hereby that is permitted to be secured by the Collateral, including any Permitted Pari Passu Refinancing Debt or any Permitted Junior Refinancing Debt, for the purpose of adding the holders of such Indebtedness (or their Representative) as a party thereto and otherwise causing such Indebtedness to be subject thereto, in each case as contemplated by the terms of such intercreditor agreement or arrangement permitted under this Agreement, as applicable (it being understood that any such amendment or supplement may make such other changes to the applicable intercreditor agreement as, in the good faith determination of the Administrative Agent, are required to effectuate the foregoing and provided that such other changes are not adverse, in any material respect (taken as a whole), to the interests of the Lenders); provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent.
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, the Borrower and the Guarantors (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, Holdings, the Borrower and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans under a given Term Facility, (the “Refinanced Term Loans”) with a replacement term loan tranche denominated in Dollars (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount (or accreted value, if applicable) of such Replacement Term Loans shall not exceed the aggregate principal amount (or accreted value, if applicable) of such Refinanced Term Loans (plus any accrued interest, fees, expenses, original issue discount or other amounts paid), (b) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans, at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prior prepayments of the Refinanced Term Loans) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans, in effect immediately prior to such refinancing.
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Anything herein to the contrary notwithstanding, during such period as a Lender is a Defaulting Lender, to the fullest extent permitted by applicable law, such Lender will not be entitled to vote in respect of amendments, waivers and consents hereunder and the Commitment and the outstanding Loans or other extensions of credit of such Lender hereunder will not be taken into account in determining whether the Required Lenders, the Required Facility Lenders or all of the Lenders, as required, have approved any such amendment, waiver or consent (and the definitions of “Required Lenders” and “Required Facility Lenders” will automatically be deemed modified accordingly for the duration of such period); provided that any such amendment or waiver that would increase or extend the term of the Commitment of such Defaulting Lender, extend the date fixed for the payment of principal or interest owing to such Defaulting Lender hereunder, reduce the principal amount of any obligation owing to such Defaulting Lender, reduce the amount of or the rate or amount of interest on any amount owing to such Defaulting Lender or of any fee payable to such Defaulting Lender hereunder, require the consent of all Lenders or each directly and adversely affected Lender that by its terms materially and adversely affects any Defaulting Lender to a greater extent than other affected Lenders, or alter the terms of this proviso, will require the consent of such Defaulting Lender. In addition, to the extent any Defaulting Lender has defaulted on any amounts owing to the Borrower hereunder, the Borrower shall be entitled to offset any amounts the Borrower owes the Defaulting Lender with such unpaid amounts.
Notwithstanding anything to the contrary contained in this Section 10.01, Holdings, the Borrower and the Administrative Agent may without the input or consent of the Lenders, effect amendments to this Agreement and the other Loan Documents as may be necessary or appropriate in the opinion of the Administrative Agent to effect the provisions of Section 2.14 or 2.15.
Notwithstanding anything to the contrary contained in this Section 10.01, guarantees, collateral security documents and related documents executed by Subsidiaries in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be, together with this Agreement, amended, supplemented and waived with the consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any other Lender if such amendment, supplement or waiver is delivered in order (i) to comply with local Law or advice of local counsel, (ii) to cure ambiguities, omissions, mistakes or defects or (iii) to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan Documents.
Section 10.02     Notices and Other Communications; Facsimile Copies.
(a)    General. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or under any other Loan Document shall be in writing (including by facsimile transmission). All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)    if to Holdings, the Borrower or the Administrative Agent or the Collateral Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and
(ii)    if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to Holdings, the Borrower and the Administrative Agent or the Collateral Agent.
All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of Section 10.02(d)), when delivered; provided that notices and other
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communications to the Administrative Agent and the Collateral Agent pursuant to Article II shall not be effective until actually received by such Person. In no event shall a voice mail message be effective as a notice, communication or confirmation hereunder.
(b)    Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted and/or signed by facsimile or other electronic communication. The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually signed originals and shall be binding on all Loan Parties, the Agents and the Lenders. The words “execution,” “signed,” “signature,” and words of like import in this Agreement and each other Loan Document will be deemed to include electronic signatures or the keeping of records in electronic form, each of which will be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(c)    Reliance by Agents and Lenders. The Administrative Agent, the Collateral Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify each Agent-Related Person and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower in the absence of gross negligence, bad faith or willful misconduct as determined in a final and non-appealable judgment by a court of competent jurisdiction. All telephonic notices to the Administrative Agent or Collateral Agent may be recorded by the Administrative Agent or the Collateral Agent, and each of the parties hereto hereby consents to such recording.
(d)    Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. Each of the Administrative Agent, Holdings or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
Section 10.03     No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent or the Collateral Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.
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Section 10.04     Attorney Costs and Expenses. The Borrower agrees (a) if the Closing Date occurs, to pay or reimburse the Administrative Agent and the Collateral Agent for all reasonable out-of-pocket costs and expenses incurred in connection with the preparation, negotiation, syndication and execution of this Agreement and the other Loan Documents, and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby (including all Attorney Costs, which shall be limited to White & Case LLP (and one local counsel in each material jurisdiction and, in the event of a conflict of interest, one additional counsel of each type to the affected parties)) and (b) from and after the Closing Date, to pay or reimburse the Administrative Agent, the Collateral Agent and each Lender for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and including all respective Attorney Costs, which shall be limited to Attorney Costs of one counsel to the Administrative Agent and the Arrangers collectively and one counsel to the other Lenders (and one local counsel in each applicable jurisdiction and, in the event of any conflict of interest, one additional counsel of each type to the affected parties)). The foregoing costs and expenses shall include all reasonable search, filing, recording and title insurance charges and fees related thereto, and other reasonable out-of-pocket expenses incurred by any Agent. The agreements in this Section 10.04 shall survive the termination of the Aggregate Commitments and repayment of all other Obligations. All amounts due under this Section 10.04 shall be paid within fifteen (15) Business Days of receipt by the Borrower of an invoice relating thereto setting forth such expenses in reasonable detail; provided that, with respect to the Closing Date, all amounts due under this Section 10.04 shall be paid on the Closing Date solely to the extent invoiced to the Borrower within three (3) Business Days of the Closing Date. If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by the Administrative Agent in its sole discretion.
Section 10.05     Indemnification by the Borrower. Whether or not the transactions contemplated hereby are consummated, from and after the Closing Date, the Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, and directors, officers, employees, agents, trustees and attorneys-in-fact of each of the foregoing (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs which shall be limited to Attorney Costs of one counsel to the Administrative Agent and the Arrangers and one counsel to the other Lenders (and solely in the event of any actual conflict of interest, one additional counsel in each applicable material jurisdiction to the affected Persons, taken as a whole)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or the use or proposed use of the proceeds therefrom, or (c) any actual or alleged presence or Release of Hazardous Materials at, on, under or from any property or facility currently or formerly owned, leased or operated by the Loan Parties or any Subsidiary, or any Environmental Liability related in any way to any Loan Parties or any Subsidiary, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”) in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that, notwithstanding the foregoing, such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Indemnitee, as determined by the final non-appealable judgment of a court of competent jurisdiction, (y) a material breach of its obligations under the Loan Documents by such Indemnitee or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Indemnitee as determined by the final non-appealable judgment of a court of competent jurisdiction or (z)
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any dispute solely among Indemnitees other than claims against any Initial Lender in its capacity or in fulfilling its role as Administrative Agent or arranger or any other similar role hereunder and other than claims arising out of any act or omission on the part of the Loan Parties or their Subsidiaries. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or the Borrower or any Subsidiary have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date) except, in the case of the Borrower and its Subsidiaries, to the extent such damages would otherwise be subject to indemnification pursuant to the terms of this Section 10.05. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, any Subsidiary of any Loan Party, any Loan Party’s directors, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents are consummated. All amounts due under this Section 10.05 shall be paid within fifteen (15) Business Days after written demand therefor (including documentation reasonably supporting such request; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent or the Collateral Agent, the replacement of, or assignment of rights by, any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, any indemnification relating to Taxes, other than Taxes resulting from any non-Tax claim, shall be covered by Sections 3.01 and 3.04 and shall not be covered by this Section 10.05.
Section 10.06     Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to any Agent or any Lender, or any Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall, to the fullest extent possible under provisions of applicable Law, be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect.
Section 10.07     Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (except as permitted by Section 7.04) and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee and in the case of any Assignee that is Parent, Holdings or any of its Subsidiaries, pursuant to Section 10.07(n), (ii) by way of participation in accordance with the provisions of Section 10.07(e), (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.07(g) or (iv) to an SPC in accordance with the provisions of Section 10.07(h) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 10.07(e) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)    (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (“Assignees”) all or a portion of its rights and obligations under this
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Agreement (including all or a portion of its Commitment and the Loans with the prior written consent (such consent not to be unreasonably withheld) of:
(A)    the Borrower, provided that no consent of the Borrower shall be required for (i) an assignment of all or a portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund, (ii) [reserved] or (iii) if an Event of Default under Section 8.01(a), (f) or (g) has occurred and is continuing, any Assignee; provided, further that the Borrower shall be deemed to have consented to any assignment unless the Borrower objects thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; and
(B)    the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment (i) of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund or (ii) of all or any portion of the Loans made pursuant to Section 10.07(n).
Notwithstanding the foregoing or anything to the contrary set forth herein, (x) except pursuant to the provisions of Sections 2.05(c) and 10.07(n), no assignment of any Loans or Commitments may be made to Holdings, any Subsidiary of Holdings or any Competitor and (y) any assignment of any Loans or Commitments to the Sponsor shall also be subject to the requirements set forth in Section 10.07(k).
(ii)    Assignments shall be subject to the following additional conditions:
(A)    except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than an amount of $1,000,000, provided that such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;
(B)    the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that the Administrative Agent, in its sole discretion, may elect to waive such processing and recordation fee;
(C)    other than in the case of assignments pursuant to Section 10.07(n), the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and
(D)    on or before the date on which it becomes a party to this Agreement, the Assignee shall deliver to the Borrower and the Administrative Agent the forms or certifications, as applicable, described in Section 3.01(d), to the extent required thereby.
This paragraph (b) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis among such Facilities.
(c)    Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.07(d), from and after the effective date specified in each Assignment and Assumption, (i) (other than in connection with an assignment pursuant to Section 10.07(n)) the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and (ii) the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
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Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, and the surrender by the assigning Lender of its Note, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (c) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.07(e).
(d)    The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it, each notice of cancellation of any Loans delivered by the Borrower pursuant to Section 10.07(n) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related interest amounts) of the Loans, owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, any Agent and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(e)    Any Lender may at any time sell participations to any Person (other than a natural person, Holdings, any Subsidiary of Holdings or any Competitor) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Loan Parties, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that requires the affirmative vote of such Lender. Subject to Section 10.07(f), the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations of such Sections, including the requirement to provide the forms and certificates pursuant to and otherwise comply with Section 3.01(d)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(c) (it being understood that the documentation required under Section 3.01(d) shall be delivered to the participating Lender)). To the extent permitted by applicable Law, each Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender to the extent the Borrower has received notice of such participation; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. The Participant Register shall be available for inspection by the Borrower and any Agent, at any reasonable time and from time to time upon reasonable notice. The Loan Parties and the Sponsor (by its acquisition of a participation in any Lender’s rights and/or obligations under this Agreement) hereby agree that if a case under Title 11 of the United States Code is commenced against any Loan Party, to the extent that the Sponsor would have the right to direct any Participant with respect to any vote with respect to any plan of reorganization with respect to any Loan Party (or to directly vote on such plan of reorganization) as a result of any participation taken by the Sponsor pursuant to this Section 10.07(e), such Loan Party shall seek (and the Sponsor shall consent) to provide that the vote of the Sponsor (in its capacity as a Participant) with respect to any plan of reorganization of such Loan Party shall not be counted except that the Sponsor’s vote (in its capacity as a Participant) may be counted to the extent any such plan of reorganization proposes to treat the
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participation in any Obligations held by the Sponsor in a manner that is less favorable in any material respect to the Sponsor than the proposed treatment of similar Obligations held by Lenders or Participants that are not Affiliates of the Borrower. The Sponsor hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as the Sponsor’s attorney-in-fact, with full authority in the place and stead of the Sponsor and in the name of the Sponsor, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this paragraph.
(f)    A Participant shall not be entitled to receive any greater payment under Section 3.01, 3.04 or 3.05 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent.
(g)    Any Lender may, without the consent of the Borrower or the Administrative Agent, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h)    Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. Each party hereto hereby agrees that (i) an SPC shall be entitled to the benefit of Sections 3.01, 3.04 and 3.05 (subject to the requirements and the limitations of such Sections, including the requirement to provide the forms and certificates pursuant to and otherwise comply with Section 3.01(d)), but neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement, unless the grant to the SPC was made with the prior written consent of the Borrower, not to be unreasonably withheld or delayed (for the avoidance of doubt, the Borrower shall have reasonable basis for withholding consent if an exercise by SPC immediately after the grant would result in materially increased indemnification obligation to the Borrower at such time or material additional costs), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Borrower and the Administrative Agent and with the payment of a processing fee of $3,500, assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.
(i)    Notwithstanding anything to the contrary contained herein, without the consent of the Borrower or the Administrative Agent, (1) any Lender may in accordance with applicable Law create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it and (2) any Lender that is a Fund may create a security interest in all or any portion of the Loans owing to it and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 10.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such
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trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.
(j)    [Reserved].
(k)    (i) Notwithstanding anything else to the contrary contained in this Agreement, any Lender may assign all or a portion of its Term Loans to the Sponsor in accordance with Section 10.07(b); provided that:
(A)    no Default or Event of Default has occurred or is continuing or would result therefrom;
(B)    the assigning Lender and the Sponsor shall execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit M hereto (an “Affiliated Lender Assignment and Assumption”) in lieu of an Assignment and Assumption;
(C)    [reserved]; and
(D)    no Term Loan may be assigned to the Sponsor pursuant to this Section 10.07(k), if after giving effect to such assignment, the Sponsor in the aggregate would own in excess of 15.0% of all Term Loans then outstanding.
(ii)    Notwithstanding anything to the contrary in this Agreement, the Sponsor shall not have any right to (i) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Loan Parties are not invited, (ii) receive any information or material prepared by Administrative Agent or any Lender or any communication by or among Administrative Agent and/or one or more Lenders, except to the extent such information or materials have been made available to any Loan Party or its representatives (and in any case, other than the right to receive notices of prepayments and other administrative notices in respect of its Loans required to be delivered to Lenders pursuant to Article II), or (iii) make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against Administrative Agent, the Collateral Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents
(l)    Notwithstanding anything in Section 10.01 or the definition of “Required Lenders” or “Required Facility Lenders” to the contrary, for purposes of determining whether the Required Lenders or the Required Facility Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document, or (iii) directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document all Term Loans held by the Sponsor shall be deemed to be not outstanding for all purposes of calculating whether the Required Lenders, have taken any actions.
Additionally, the Loan Parties and the Sponsor hereby agree that if a case under Title 11 of the United States Code is commenced against any Loan Party, such Loan Party shall seek (and the Sponsor shall consent) to provide that the vote of the Sponsor (in its capacity as a Lender) with respect to any plan of reorganization of such Loan Party shall not be counted except that the Sponsor’s vote (in its capacity as a Lender) may be counted to the extent any such plan of reorganization proposes to treat the Obligations held by the Sponsor in a manner that is less favorable in any material respect to the Sponsor than the proposed treatment of similar Obligations held by Lenders that are not Affiliates of the Borrower. The Sponsor hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as the Sponsor’s attorney-in-fact, with full authority in the place and stead of the Sponsor and in the name of the Sponsor, from time to time in the Administrative Agent’s discretion to take any action
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and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this paragraph.
(m)    By purchasing any participation or assignment pursuant to this Section 10.07 after the Closing Date, each Participant or Lender shall be deemed to represent that it is not a Competitor (which representation may be conclusively relied upon by the participating or assigning Lender in consummating such participation or assignment).
(n)    Any Lender may, so long as no Event of Default has occurred and is continuing, at any time, without any consent, assign all or a portion of its rights and obligations with respect to Term Loans under this Agreement to Parent, Holdings or the Borrower through (x) Dutch auctions open to all Lenders on a pro rata basis in accordance with procedures of the type described in Section 2.05(c) or (y) notwithstanding Sections 2.12 and 2.13 or any other provision in this Agreement, open market purchase on a non-pro rata basis, in each case subject to the following:
(i)    if Parent or Holdings is the assignee, upon such assignment, transfer or contribution, such entity shall automatically be deemed to have contributed the principal amount of such Term Loans, plus all accrued and unpaid interest thereon, to the Borrower as common equity;
(ii)    if the Borrower or a Subsidiary thereof is the assignee (including through contribution or transfers set forth in clause (i) above), (a) the principal amount of such Term Loans, along with all accrued and unpaid interest thereon, so contributed, assigned or transferred to the Borrower shall be deemed automatically cancelled and extinguished on the date of such contribution, assignment or transfer, (b) the aggregate outstanding principal amount of Term Loans of the remaining Lenders shall reflect such cancellation and extinguishment of the Term Loans then held by the Borrower and (c) the Borrower shall promptly provide notice to the Administrative Agent of such contribution, assignment or transfer of such Term Loans, and the Administrative Agent, upon receipt of such notice, shall reflect the cancellation of the applicable Term Loans in the Register; and
(iii)    purchases of Term Loans pursuant to this Section 10.07(n) may not be funded with the proceeds of Revolving Credit Loans.
Each Lender participating in any assignment to Parent, Holdings or the Borrower acknowledges and agrees that in connection with such assignment, (1) Parent, Holdings or the Borrower then may have, and later may come into possession of Excluded Information, (2) such Lender has independently and, without reliance on Parent, Holdings, the Borrower or any of their Subsidiaries, the Administrative Agent or any other Agent-Related Persons, made its own analysis and determination to participate in such assignment notwithstanding such Lender’s lack of knowledge of the Excluded Information, (3) none of Parent, Holdings, the Borrower or their respective Subsidiaries, the Administrative Agent or any other Agent-Related Persons shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against Parent, Holdings, the Borrower and their respective Subsidiaries, the Administrative Agent and any other Agent-Related Persons, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information and (4) that the Excluded Information may not be available to the Administrative Agent or the other Lenders.
The aggregate outstanding principal amount of the Term Loans of the applicable Class shall be deemed reduced by the full par value of the aggregate principal amount of the Term Loans purchased by, or contributed to (in each case, and subsequently cancelled hereunder), Parent, Holdings or its Subsidiaries pursuant to this Section 10.07(n).
Any purchase of Term Loans pursuant to this Section 10.07(n) shall not constitute voluntary or mandatory payment or prepayment under this Agreement.
Section 10.08     Confidentiality. Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information, except that Information may be disclosed (a) to its
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Affiliates and its and its Affiliates’ managers, administrators, directors, officers, employees, trustees, partners, investors, investment advisors and agents, including accountants, legal counsel and other advisors (other than Excluded Affiliates) solely for evaluating the Transaction and negotiating, making available, syndicating, evaluation and administering this Agreement (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential and such Agent or the respective Lender, as the case may be, shall be liable for any breach thereof); (b) to the extent requested by any Governmental Authority or self regulatory authority having or asserting jurisdiction over such Person (including any Governmental Authority regulating any Lender or its Affiliates); (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process (in which case you agree, to the extent permitted by applicable law, to inform us promptly thereof prior to such disclosure so that a protective order or other appropriate remedy may be sought); (d) to any other party to this Agreement; (e) subject to an agreement containing provisions substantially the same as those of this Section 10.08 (or as may otherwise be reasonably acceptable to the Borrower and allowing the Borrower to rely on and be a third party beneficiary of such agreement), to any pledgee referred to in Section 10.07(g), counterparty to a Swap Contract, Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in any of its rights or obligations under this Agreement; (f) with the written consent of the Borrower; (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 10.08 or becomes available to the Administrative Agent, any Arranger, any Lender, or any of their respective Affiliates on a non-confidential basis from a source other than a Loan Party or the Sponsor or their respective related parties (so long as such source is not known to the Administrative Agent, such Arranger, such Lender, or any of their respective Affiliates to be bound by confidentiality obligations to any Loan Party); (h) to any Governmental Authority or examiner (including the National Association of Insurance Commissioners or any other similar organization) regulating any Lender; (i) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to Loan Parties and their Subsidiaries received by it from such Lender) or to the CUSIP Service Bureau or any similar organization; or (j) in connection with the exercise of any remedies hereunder, under any other Loan Document or the enforcement of its rights hereunder or thereunder. In addition, the Agents and the Lenders may disclose the existence of this Agreement and publicly available information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Borrowings. For the purposes of this Section 10.08, “Information” means all information received from the Loan Parties relating to any Loan Party, its Affiliates or its Affiliates’ directors, managers, officers, employees, trustees, investment advisors or agents, relating to Holdings, the Borrower or any of their Subsidiaries or its business, other than any such information that is publicly available to any Agent, or any Lender prior to disclosure by any Loan Party other than as a result of a breach of this Section 10.08.
Section 10.09     Setoff. In addition to any rights and remedies of the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, each Lender and its Affiliates (and the Collateral Agent, in respect of any unpaid fees, costs and expenses payable hereunder) is authorized at any time and from time to time, without prior notice to the Borrower, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and each of its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, but excluding any trust, payroll, tax withholding, employee benefits or other fiduciary accounts) at any time held by, and other Indebtedness at any time owing by, such Lender and its Affiliates or the Collateral Agent to or for the credit or the account of the respective Loan Parties and their Subsidiaries against any and all Obligations owing to such Lender and its Affiliates or the Collateral Agent hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness; provided, however, that to the extent prohibited by applicable law as described in the definition of “Excluded Swap Obligation,” no amounts received from, or set off with respect to, any Guarantor shall be applied to any Excluded Swap Obligations of such Guarantor. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The
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rights of the Administrative Agent, the Collateral Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, the Collateral Agent and such Lender may have at Law.
Section 10.10     Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
Section 10.11     Counterparts. This Agreement and each other Loan Document may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or electronic mail of an executed counterpart of a signature page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document. The Agents may also require that any such documents and signatures delivered by telecopier or electronic mail be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier or electronic mail.
Section 10.12     Integration; Termination. This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Agents or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.
Section 10.13     Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default at the time of any Borrowing, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.
Section 10.14     Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.14, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
Section 10.15     Governing Law. THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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ANY LEGAL ACTION OR PROCEEDING ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH LOAN PARTY, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS IN THE MANNER PROVIDED FOR NOTICES (OTHER THAN TELECOPIER) IN SECTION 10.02. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
Section 10.16     Waiver of Right to Trial by Jury. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.16 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 10.17     Binding Effect. This Agreement shall become effective when it shall have been executed and delivered by the Loan Parties and the Administrative Agent shall have been notified by each Lender that each such Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Loan Parties, each Agent and each Lender and their respective successors and assigns, in each case in accordance with Section 10.07 (if applicable) and except that no Loan Party shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders except as permitted by Section 7.04.
Section 10.18     USA Patriot Act. Each Lender that is subject to the USA Patriot Act or the Beneficial Ownership Regulation and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name, address and tax identification number of the Borrower and other information regarding the Borrower that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the USA Patriot Act or the Beneficial Ownership Regulation. This notice is given in accordance with the requirements of the USA Patriot Act and the Beneficial Ownership Regulation and is effective as to the Lenders and the Administrative Agent.
Section 10.19     No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby, each Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that (i) the facilities provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction
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between the Borrower and its Affiliates, on the one hand, and the Agents, the Arrangers and the Lenders, on the other hand, and the Borrower is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof), (ii) in connection with the process leading to such transaction, each of the Agents, the Arrangers and the Lenders is and has been acting solely as a principal and except as expressly agreed in writing by the relevant parties, is not the financial advisor, agent or fiduciary, for the Borrower or any of its Affiliates, stockholders, creditors or employees or any other Person, (iii) none of the Agents, the Arrangers or the Lenders has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower with respect to any of the transactions contemplated hereby or the process leading thereto except as expressly agreed in writing by the relevant parties, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether any Agent or Lender has advised or is currently advising the Borrower or any of its Affiliates on other matters) and none of the Agents, the Arrangers or the Lenders has any obligation to the Borrower or any of its Affiliates with respect to the financing transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents, (iv) the Agents, the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from, and may conflict with, those of the Borrower and its Affiliates, and none of the Agents, the Arrangers or the Lenders has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship and (v) the Agents, the Arrangers and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate.
Section 10.20     Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)    the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b)    the effects of any Bail-in Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.
Section 10.21     Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of
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the United States or any other state of the United States), in the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
ARTICLE XI

Guarantee
Section 11.01     The Guarantee. Each Guarantor hereby jointly and severally with the other Guarantors guarantees, as a primary obligor and not as a surety to each Secured Party and their respective permitted successors and assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of and interest (including any interest, fees, costs or charges that would accrue but for the provisions of (i) Title 11 of the United States Code after any bankruptcy or insolvency petition under Title 11 of the United States Code and (ii) any other Debtor Relief Laws) on the Loans made by the Lenders to, and the Notes, if any, held by each Lender of, the Borrower, and all other Obligations from time to time owing to the Secured Parties by any Loan Party under any Loan Document, in each case strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”); provided that, for purposes of determining any Obligations of any Guarantor under this Agreement, the definition of “Guaranteed Obligations” shall not create any guarantee by any Guarantor of any Excluded Swap Obligations of such Guarantor. The Guarantors hereby jointly and severally agree that if the Borrower or other Guarantor(s) shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
Section 11.02     Obligations Unconditional. The obligations of the Guarantors under Section 11.01 shall constitute a guaranty of payment and to the fullest extent permitted by applicable Law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of the Borrower under this Agreement, the Notes, if any, or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Guarantor (except for payment in full). Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantors hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above:
(i)    at any time or from time to time, without notice to the Guarantors, to the extent permitted by Law, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;
144

(ii)    any of the acts mentioned in any of the provisions of this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein shall be done or omitted;
(iii)    the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be amended in any respect, or any right under the Loan Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations or except as permitted pursuant to Section 11.09, any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;
(iv)    any Lien or security interest granted to, or in favor of, any Lender or Agent as security for any of the Guaranteed Obligations shall fail to be perfected; or
(v)    the release of any other Guarantor pursuant to Section 11.09 or otherwise.
To the extent permitted by applicable Law, the Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that any Secured Party exhaust any right, power or remedy or proceed against the Borrower under this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein, or against any other person under any other guarantee of, or security for, any of the Guaranteed Obligations. The Guarantors waive, to the extent permitted by Law, any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by any Secured Party upon this Guarantee or acceptance of this Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between the Borrower and the Secured Parties shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee. This Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment without regard to any right of offset with respect to the Guaranteed Obligations at any time or from time to time held by Secured Parties, and the obligations and liabilities of the Guarantors hereunder shall not be conditioned or contingent upon the pursuit by the Secured Parties or any other person at any time of any right or remedy against the Borrower or against any other person which may be or become liable in respect of all or any part of the Guaranteed Obligations or against any collateral security or guarantee therefor or right of offset with respect thereto. This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Lenders, and their respective permitted successors and assigns, notwithstanding that from time to time during the term of this Agreement there may be no Guaranteed Obligations outstanding.
Section 11.03     Reinstatement. The obligations of the Guarantors under this Article XI shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or other Loan Party in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.
Section 11.04     Subrogation; Subordination. Each Guarantor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations (other than contingent obligations not then due and payable) and the expiration and termination of the Commitments of the Lenders under this Agreement it shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 11.01, whether by subrogation or otherwise, against the Borrower or any other Guarantor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations. Any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party permitted pursuant to Section 7.03(b)(ii) or 7.03(d) shall be subordinated to such Loan Party’s Obligations pursuant to subordination terms substantially in the form of Exhibit O.
Section 11.05     Remedies. The Guarantors jointly and severally agree that, as between the Guarantors and the Lenders, the obligations of the Borrower under this Agreement and the Notes, if any, may be declared to be forthwith due and payable as provided in Section 8.02 (and shall be
145

deemed to have become automatically due and payable in the circumstances provided in Section 8.02) for purposes of Section 11.01, notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Guarantors for purposes of Section 11.01.
Section 11.06     Instrument for the Payment of Money. Each Guarantor hereby acknowledges that the guarantee in this Article XI constitutes an instrument for the payment of money, and consents and agrees that any Lender or Agent, at its sole option, in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
Section 11.07     Continuing Guarantee. The guarantee in this Article XI is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising.
Section 11.08     General Limitation on Guarantee Obligations. In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other Law affecting the rights of creditors generally, if the obligations of any Guarantor under Section 11.01 would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 11.01, then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Guarantor, any Loan Party or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 11.10) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
Section 11.09     Release of Guarantors. If, in compliance with the terms and provisions of the Loan Documents, (i) Equity Interests of any Subsidiary Guarantor (a “Transferred Guarantor”) are sold or otherwise transferred, following which transfer such Subsidiary Guarantor ceases to be a Subsidiary or (ii) any Subsidiary Guarantor is designated as an Unrestricted Subsidiary in accordance with Section 6.14, such Transferred Guarantor or Unrestricted Subsidiary shall, upon the consummation of such sale, transfer or designation, be automatically released from its obligations under this Agreement (including under Section 10.05 hereof) and the other Loan Documents and, so long as the Borrower shall have provided the Agents such certifications or documents as any Agent shall reasonably request, the Collateral Agent shall take such actions as are necessary to effect the releases described in this Section 11.09; provided that no such release shall occur if such Subsidiary Guarantor continues to be a guarantor in respect of any Permitted Pari Passu Refinancing Debt, any Permitted Junior Refinancing Debt, any Permitted Unsecured Refinancing Debt, any other Junior Financing or any Permitted Refinancing in respect of any of the foregoing.
When all Commitments hereunder have terminated, and all Loans or other Obligations hereunder which are accrued and payable have been paid or satisfied, this Agreement and the Guarantees made herein shall terminate with respect to all Obligations, except with respect to Obligations that expressly survive such repayment pursuant to the terms of this Agreement.
Section 11.10     Right of Contribution. Each Guarantor hereby agrees that to the extent that a Subsidiary Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Subsidiary Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment. Each Subsidiary Guarantor’s right of contribution shall be subject to the terms and conditions of Section 11.04. The provisions of this Section 11.10 shall in no respect limit the obligations and liabilities of any Subsidiary Guarantor to the Administrative Agent, and the Lenders, and each Subsidiary Guarantor shall remain liable to the Administrative Agent, and the Lenders for the full amount guaranteed by such Subsidiary Guarantor hereunder.
[Signature Pages Follow]
146

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
TRANSUNION INTERMEDIATE HOLDINGS, INC.,
By: /s/ Rachel Mantz            
Name:    Rachel Mantz
Title:    Senior Vice President, Corporate Secretary
TRANS UNION LLC,
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Deputy
General Counsel and Corporate
Secretary
TRANSUNION GLOBAL HOLDINGS LLC
By: /s/ Rachel Mantz            
Name:    Rachel Mantz
Title:    Vice President, Secretary
TRANSUNION INTERACTIVE, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
TRANSUNION RENTAL SCREENING SOLUTIONS, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary

[Signature page to Second Lien Credit Agreement]


VISIONARY SYSTEMS, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
TRANSUNION TELEDATA LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
DIVERSIFIED DATA DEVELOPMENT CORPORATION
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
TRANSUNION FINANCING CORPORATION
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
TRANSUNION RISK AND ALTERNATIVE DATA SOLUTIONS, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
TRANSUNION HEALTHCARE, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary

[Signature page to Second Lien Credit Agreement]


eBUREAU, LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
FACTORTRUST, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
IOVATION INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
SIGNAL DIGITAL, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
TRU OPTIK DATA CORP.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary
FT HOLDINGS, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Vice President, Secretary

[Signature page to Second Lien Credit Agreement]


AERIAL ULTIMATE HOLDINGS CORP.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
AERIAL INTERMEDIATE HOLDINGS CORP.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
AERIAL ACQUISITION CORP.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
NEUSTAR, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
ADMINISTRATIVE SERVICES, LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
AGGREGATE KNOWLEDGE, LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary

[Signature page to Second Lien Credit Agreement]


DATA SOLUTION SERVICES, LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
LSSI DATA CORP.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:    Senior Vice President, Secretary
MARKETSHARE HOLDINGS, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary
MARKETSHARE ACQUISITION CORPORATION
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary
MARKETSHARE PARTNERS, LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary
NEUSTAR INTERNATIONAL SERVICES, INC.
By: /s/ Rachel Mantz            
Name:    Rachel Mantz
Title:     Senior Vice President, Secretary

[Signature page to Second Lien Credit Agreement]


NEUSTAR INFORMATION SERVICES, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary
NEUSTAR DATA SERVICES, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary
NEUSTAR IP INTELLIGENCE, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary
TRUSTID, INC.
By: /s/ Rachel Mantz            
Name:    Rachel Mantz
Title:     Senior Vice President, Secretary
EZS PARENT, INC.
By: /s/ Rachel Mantz            
Name:    Rachel Mantz
Title:    Senior Vice President, Secretary
EZSHIELD GROUP PARENT, LLC
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary

[Signature page to Second Lien Credit Agreement]


SONTIQ, INC.
By: /s/ Rachel Mantz            
Name:     Rachel Mantz
Title:     Senior Vice President, Secretary


[Signature page to Second Lien Credit Agreement]


JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, Collateral Agent and Lender
By:/s/ Peter B. Thauer
Name:Peter B. Thauer
Title:Managing Director

[Signature page to Second Lien Credit Agreement]
Exhibit 10.22
TRANSUNION
AMENDED AND RESTATED 2015 OMNIBUS INCENTIVE PLAN
GRANT NOTICE
RESTRICTED STOCK UNITS
TransUnion (the “Company”), pursuant to the TransUnion Amended and Restated 2015 Omnibus Incentive Plan (the “Plan”), hereby grants to the Participant identified below an award of Restricted Stock Units that are contingent upon the Participant’s continued employment (the “Restricted Stock Units”) in such numbers as set forth below. Any reference hereunder to an “Award” shall mean, collectively or individually, Restricted Stock Units. Awards are subject to all of the terms and conditions as set forth herein, in the Award Agreement (attached hereto), and


        2
in the Plan, all of which are incorporated herein in their entirety. Capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Plan.
Participant:#ParticipantName#
Date of Grant:
Number of Restricted Stock Units:
#GrantDate#
#QuantityGranted#
Dividend Equivalents:The holder of an outstanding Award shall be entitled to be paid dividend equivalent payments (in respect of the payment by the Company of dividends on shares of Common Stock) either in cash or, at the sole discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of such dividends. Such dividend equivalents shall be subject to the vesting of the applicable Award to which the dividend equivalent relates and shall be payable at the same time as such applicable Award is settled. If such Award is forfeited without vesting, the Participant shall have no right to such dividend equivalent payments.
Vesting Schedule:Except as otherwise provided below, 33% of the Restricted Stock Units will become vested if and only if the Participant remains continuously employed by the Company Group through August 25, 2023; 33% of the Restricted Stock Units will become vested if and only if the Participant remains continuously employed by the Company Group through August 25, 2024; and 34% of the Restricted Stock Units will become vested if and only if the Participant remains continuously employed by the Company Group through August 25, 2024.



1.Vesting of Restricted Stock Units. Except as provided otherwise in Sections 2 and 3 below, Restricted Stock Units will become vested if and only if the Participant remains continuously employed by the Company Group during the vesting schedule specified above.
2.Termination of Employment. If the Participant’s employment with the Company Group terminates for any reason while any Award remains outstanding and eligible to vest, the Participant shall forfeit all unvested Awards (and, as a result, shall forfeit all shares of

        3
Common Stock, or cash, and any related dividend equivalents that may otherwise have been delivered or paid pursuant to such Award); provided, however, that
(a)if termination results from Participant’s Disability or death, then the Restricted Stock Units granted hereunder will vest immediately in full on the date of such termination (and, as a result, Participant shall be entitled to all shares of Common Stock, or cash, and any related dividend equivalents that may otherwise have been delivered or paid in connection with such Restricted Stock Units); and
(b)if termination results from the Participant’s Retirement and the Participant timely executes a general release and waiver of claims in a form and manner determined by the Company in its sole discretion, then with respect to any Award that was granted in a calendar year prior to the calendar year of Retirement, a prorated portion of the Restricted Stock Units, based on the number of full and partial months worked during the vesting period beginning on the date of grant and ending on the final vesting date (the “Proration Factor”), will vest immediately (and, as a result, Participant shall be entitled to all shares of Common Stock, or cash, and any related dividend equivalents that may otherwise have been delivered or paid in connection with such Restricted Stock Units). The number of prorated Restricted Stock Units that vest in connection with a Retirement shall be calculated by (i) multiplying the number of Restricted Stock Units granted by the Proration Factor and then (ii) subtracting any previously vested Restricted Stock Units.
3.Change in Control. If a Change in Control occurs, the following provisions shall apply with respect to the vesting of the Awards:
(a)To the extent the successor entity in the Change in Control does not assume the Awards or substitute the Awards with an equivalent award on terms that are no less favorable to the Participant as compared to the Award, the Restricted Stock Units granted hereunder will vest immediately in full upon the effective date of the Change in Control (and, as a result, Participant shall be entitled to all shares of Common Stock, or cash, and any related dividend equivalents that may otherwise have been delivered or paid in connection with such Restricted Stock Units); and
(b)To the extent the successor entity in the Change in Control assumes the Awards or substitutes the Awards with an equivalent award on terms that are no less favorable to the Participant as compared to the Award, a “Qualifying Termination” (as such term is used in Section 12(c) of the Plan) shall mean a Triggering Event occurring prior to the second anniversary of the effective date of such Change in Control, and the Restricted Stock Units granted hereunder will vest immediately in full upon a Triggering Event (and, as a result, Participant shall be entitled to all shares of Common Stock, or cash, and any related dividend equivalents

        4
that may otherwise have been delivered or paid in connection with such Restricted Stock Units).
4.Definitions. For the purposes of this Grant Notice:
(a)“Constructive Termination” means the occurrence of any one or more of the following events without the Participant's written consent: (i) with respect to any Participant holding the title of Director or above, any reduction in position, overall responsibilities, level of authority, title or level of reporting; (ii) a reduction in the Participant’s base compensation and annual incentive compensation opportunity, measured in the aggregate, which is not the result of a uniformly applied adjustment across all similarly situated personnel within the Company; or (iii) a requirement that the Participant's location of employment be relocated by more than fifty (50) miles from the Participant’s then-current location, provided, that any such event shall constitute a Constructive Termination only if the Participant gives written notice to the Committee within ten (10) days of the later of its occurrence or Executive’s knowledge thereof, the circumstances giving rise to the Constructive Termination are not cured within thirty (30) business days of such notice, and the Participant resigns from employment within sixty (60) days following such failure to cure. In the event that the Participant is a party to an employment, severance, retention or other similar agreement with the Company (or a successor entity) that defines a termination on account of “Constructive Termination,” “Good Reason” or “Breach of Agreement” (or a term having similar meaning), such definition shall apply as the definition of “Constructive Termination” for purposes hereof in lieu of the foregoing.
(b)“Retirement” means termination of employment with the Company Group (for any reason other than Disability, death or Cause) at a time when (i) the Participant has attained the age of 55, (ii) the sum of the Participant’s age plus completed years of service with the Company Group is at least 65, (iii) the Participant has completed at least five (5) years of service with the Company Group, and (iv) the Participant does not have an offer for and has not accepted employment with any other for profit business on financial terms and conditions substantially similar to those provided by the Company prior to the Vesting Date; provided, however, that unless the Committee agrees otherwise, no termination of employment shall be a Retirement unless the Participant has provided at least sixty (60) days’ advance written notice of the Participant’s intent to retire.
(c) “Triggering Event” means (i) the Participant’s employment with the Company Group is terminated by the Company Group for any reason other than on account of death, Disability or Cause or (ii) the occurrence of a Constructive Termination.

*    *    *


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THE UNDERSIGNED PARTICIPANT ACKNOWLEDGES RECEIPT OF THIS GRANT NOTICE WITH RESPECT TO RESTRICTED STOCK UNITS, THE AWARD AGREEMENT AND THE PLAN, AND, AS AN EXPRESS CONDITION TO THE GRANT OF AWARDS HEREUNDER, AGREES TO BE BOUND BY THE TERMS OF THIS GRANT NOTICE, THE AWARD AGREEMENT AND THE PLAN.

To the extent that the Company has established, either itself or through a third-party plan administrator, the ability to accept this award electronically, such acceptance shall constitute the Participant’s signature hereof.

TRANSUNION


PARTICIPANT
    
By: Susan Muigai
Title: Executive Vice President, Chief Human Resources Officer




#Signature#

#AcceptanceDate#


        6

TRANSUNION
AMENDED AND RESTATED 2015 OMNIBUS INCENTIVE PLAN
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS
Pursuant to the Grant Notice with respect to Restricted Stock Units or Performance Share Units (the “Grant Notice”) delivered to the Participant (as defined in the Grant Notice), and subject to the terms of this Award Agreement (including any addenda or exhibits) (this “Award Agreement”) and the TransUnion Amended and Restated 2015 Omnibus Incentive Plan (the “Plan”), TransUnion (the “Company”) and the Participant agree as follows. Capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Plan.
1.Grant of Restricted Stock Units or Performance Share Units. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Participant the number of Restricted Stock Units (“Restricted Stock Units”) or Performance Share Units (“Performance Share Units”) provided in the Grant Notice (with each Restricted Stock Unit and each Performance Share Unit representing an unfunded, unsecured right to receive one share of Common Stock upon vesting). Any reference hereunder to an “Award” shall mean, collectively or individually, Restricted Stock Units or Performance Share Units, as applicable. The Company may make one or more additional grants of Awards to the Participant under this Award Agreement by providing the Participant with a new Grant Notice, which may also include any terms and conditions differing from this Award Agreement to the extent provided therein. The Company reserves all rights with respect to the granting of additional Awards hereunder and makes no implied promise to grant additional Awards.
2.Vesting. Subject to the conditions contained herein and in the Plan, the Awards shall vest and the restrictions on such Awards shall lapse as provided in the Grant Notice.
3.Settlement of Awards. The provisions of Section 9(d) of the Plan are incorporated herein by reference and made a part hereof.
4.Treatment of Awards Upon Termination. Except as provided in the Grant Notice, the provisions of Section 9(c)(ii) of the Plan are incorporated herein by reference and made a part hereof.
5.Noncompetition. Participant acknowledges and agrees with the Company that Participant’s services to the Company are unique in nature and that the Company would be irreparably damaged if Participant were to provide similar services to any person or entity competing with the Company. Participant accordingly covenants and agrees with the Company that during the period commencing with the date of this Award Agreement and ending, on (i) if termination of the Participant’s employment results from the Participant’s Retirement, the later of (A) the conclusion of any Performance Period (as set forth in the Grant Notice) and (B) the

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first anniversary of Participant’s Termination, or (ii) otherwise, the first anniversary of Participant’s Termination (the “Noncompetition Period”), Participant shall not, directly or indirectly, either for himself or for any other individual, corporation, partnership, joint venture or other entity, participate in any Competitive Business (including, without limitation, any division, group or franchise of a larger organization). For purposes of this Award Agreement, the term “participate in” (with the term “participating in” having a correlative meaning with the foregoing) shall include, without limitation, having any direct or indirect interest in any corporation, partnership, joint venture or other entity, whether as a sole proprietor, owner, stockholder, partner, joint venturer, creditor or otherwise, or rendering any direct or indirect service or assistance to any individual, corporation, partnership, joint venture or other business entity (whether as a director, officer, manager, supervisor, employee, agent, consultant or otherwise). The foregoing restrictions on the Participant are not applicable (i) if the Participant’s employment with the Company Group is terminated by the Company without Cause, and (ii) to any passive investment made by the Participant in any public entity that is or includes a Competitive Business, provided such investment is not greater than 3% of market value of such public entity.
6.Nonsolicitation. Participant further covenants and agrees that during the Noncompetition Period, Participant shall not, directly or indirectly (i) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company and any such employee, (ii) hire directly or through another entity any person who is then an employee of the Company or was an employee of the Company within six months preceding the date of such attempted hiring, (iii) induce or attempt to induce any customer or client of the Company to (A) cease doing business with the Company or (B) acquire any Competitive Service from any person or entity other than the Company or its Affiliates or (iv) in any way interfere with the relationship between any such customer or client and the Company.
7.Geographic Scope. The provisions of Section 5 and Section 6 shall apply, while Participant is employed, to countries in which the Company conducts business during the period from the date of this Award Agreement to the date of Termination and, with respect to portions of the Noncompetition Period following the date of Termination, to the countries in which (i) the Company conducted business at Termination or (ii) at the time of Participant’s Termination, the Company had approved plans to conduct business within the following 12 months.
8.Nondisparagement. Participant shall not, directly or indirectly, disparage the Company and/or communicate, either in writing or orally, any statement that bears negatively on the Company’s reputation, services, products, principals, customers, policies, adherence to the law (unless otherwise required by law), shareholders, officers, directors, officials, executives, employees, agents, representatives, business or other legitimate interests of the Company.
9.Acknowledgments. Participant acknowledges that the restrictions contained in this Award Agreement do not preclude Participant from earning a livelihood, nor

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do they unreasonably impose limitations on Participant’s ability to earn a living. Participant agrees and acknowledges that the potential harm to the Company resulting from the non-enforcement of Section 5, Section 6, or Section 8 outweighs any potential harm to Participant of the enforcement of such provisions by injunction or otherwise. Participant acknowledges that Participant has carefully read this Award Agreement and has given careful consideration to the restraints imposed upon Participant by this Award Agreement and is in full agreement regarding their necessity for the reasonable and proper protection of the business goodwill and competitive positions of the Company now existing or to be developed in the future and that each and every restraint imposed by this Award Agreement is reasonable with respect to subject matter, time period and geographical area. The Company agrees that it will provide notice of any purported violations of this Award Agreement by Participant, as well as an opportunity during the 30 days thereafter to cure the purported violations; provided that the violations are not willful violations and can reasonably be cured within 30 days. Notwithstanding the foregoing or anything else to the contrary contained herein, in the event that the Participant is a party to an employment, retention, severance or other similar agreement with the Company (or a successor entity) that contains provisions that conflict with Section 5, Section 6, Section 8, or the applicable definitions, the corresponding provisions of such employment, retention, severance or other similar agreement shall apply and control.
10.Certain Definitions. For purposes of this Award Agreement, the following definitions will apply:
(a)“Company” as used in this Award Agreement with reference to employment shall include the Company and its subsidiaries.
(b)“Competitive Business” means any business or person that has operations that generates a significant portion of its annual revenues from any line of business, product or service that competes with, or is meant to compete with, any Company Group line of business, product or service offered by the Company Group as of the date of termination or planned to be offered by the Company Group within the 12 months following termination, including, but not limited to, the following: LiveRamp Holdings, Inc.; The Dun & Bradstreet Corporation; Equifax, Inc.; Experian Group Limited; Fair Isaac Corporation; Reed Elsevier/LexisNexis; Verisk Analytics, Inc.; and Thomson Reuters Corporation.
(c)“Competitive Service” means any product or service that competes with, or is meant to compete with, any product or service provided by the Company as (i) offered by the Company as of Participant’s Termination, or (ii) at the time of Participant’s Termination, planned to be offered by the Company within the next 12 months. 
(d)“Participant,” when used under circumstances where the provision should logically be construed to apply to the executors, the administrators, or the person

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or persons to whom the Awards may be transferred in accordance with the Plan, shall be deemed to include such person or persons.
11.Non-Transferability. The Awards are not transferable by the Participant except to Permitted Transferees in accordance with Section 14(b) of the Plan. Except as otherwise provided herein, no assignment or transfer of the Awards, or of the rights represented thereby, whether voluntary or involuntary, by operation of law or otherwise, shall vest in the assignee or transferee any interest or right herein whatsoever, but immediately upon such assignment or transfer the Awards shall terminate and become of no further effect.
12.Rights as Stockholder; Additional Agreements. The Participant or a permitted transferee of the Awards shall have no rights as a stockholder with respect to any share of Common Stock underlying an Award unless and until the Participant shall have become the holder of record or the beneficial owner of such Common Stock and, subject to Section 12 of the Plan, no adjustment shall be made for dividends or distributions or other rights in respect of such share of Common Stock for which the record date is prior to the date upon which the Participant shall become the holder of record or the beneficial owner thereof. The Company reserves the right to impose other requirements on the Participant’s participation in the Plan, the Awards, or settlement of the Awards, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
13.Tax Withholding. The provisions of Section 14(d) of the Plan are incorporated herein by reference and made a part hereof; provided, that the Committee may allow a withholding of shares in excess of the minimum required statutory liability if the Committee determines that such excess withholding would not result in adverse accounting consequences.
14.Clawback/Repayment. All Awards shall be subject to reduction, cancellation, forfeiture or recoupment to the extent necessary to comply with (1) any clawback, forfeiture or other similar policy adopted by the Board or the Committee and as in effect from time to time, and (2) applicable law, including, but not limited to, the applicable rules and regulations of the Securities and Exchange Commission and the NYSE or any other securities exchange or inter-dealer quotation system on which the Common Stock is listed or quoted. In addition, if the Participant receives any amount in excess of the amount that the Participant should have otherwise received under the terms of the Awards for any reason (including, without limitation, by reason of a financial restatement, mistake in calculations or other administrative error), the Committee may provide that the Participant shall be required to repay any such excess amount to the Company.
15.Detrimental Activity. Notwithstanding anything to the contrary contained in the Plan, the Grant Notice or this Award Agreement, if the Participant has engaged or engages in any Detrimental Activity, the Committee may, in its sole discretion, (1) cancel any or all of the Awards, and (2) require the Participant to forfeit any amount or gain realized

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due to the vesting of such Awards, and to repay any such amount or gain promptly to the Company.
16.Protected Rights. Participant understands that nothing contained in this Award Agreement limits Participant’s ability to report possible violations of law or regulation to, or file a charge or complaint with, the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Department of Justice, the Congress, any Inspector General, or any other federal, state or local governmental agency or commission (“Government Agencies”). Participant further understands that this Award Agreement does not limit Participant’s ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company. Nothing in this Award Agreement shall limit Participant’s ability under applicable United States federal law to (i) disclose in confidence trade secrets to federal, state, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law or (ii) disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure.
17.Notice. Every notice or other communication relating to this Award Agreement between the Company and the Participant shall be in writing, and shall be mailed, transmitted or delivered to the party for whom it is intended at such physical or electronic (e-mail) address as may from time to time be designated by such party in a notice mailed or delivered to the other party as herein provided; provided that, unless and until some other address be so designated, all notices or communications by the Participant to the Company shall be mailed, transmitted or delivered to the Company at its principal executive office, to the attention of the Company Secretary, and all notices or communications by the Company to the Participant may be given to the Participant personally or may be mailed or transmitted to the Participant at the Participant’s last known address or e-mail address, as reflected in the Company’s records. Notwithstanding the above, all notices and communications between the Participant and any third-party plan administrator shall be mailed, delivered, transmitted or sent in accordance with the procedures established by such third-party plan administrator and communicated to the Participant from time to time.
18.No Right to Continued Service. This Award Agreement does not confer upon the Participant any right to continue as an employee or service provider to the Company.
19.Binding Effect. This Award Agreement shall be binding upon the heirs, executors, administrators and successors of the parties hereto, and each member of the Company Group, and each of their respective Affiliates, shall have the right to enforce Section 5, Section 6, and Section 8 hereof.
20.Waiver and Amendments. Except as otherwise set forth in Section 13 of the Plan, any waiver, alteration, amendment or modification of any of the terms of this Award Agreement shall be valid only if made in writing and signed by the parties hereto; provided, however, that any such waiver, alteration, amendment or modification may be consented to on

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the Company’s behalf by the Committee. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.
21.Severability. Participant understands and agrees that the provisions of this Agreement are severable so that in the event that any part or potion of any of the Agreement, or the Sections contained herein, shall be held to be void, unenforceable or contrary to public policy, the remaining portion of the Agreement or Section shall remain in full force and effect.
22.Governing Law. This Award Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Notwithstanding anything contained in this Award Agreement, the Grant Notice or the Plan to the contrary, if any suit or claim is instituted by the Participant or the Company relating to this Award Agreement, the Grant Notice or the Plan, the Participant hereby submits to the exclusive jurisdiction of and venue in the courts of Delaware.
23.Plan. The terms and provisions of the Plan are incorporated herein by reference. In the event of a conflict or inconsistency between the terms and provisions of the Plan and the provisions of this Award Agreement, the Plan shall govern and control.
24.Section 409A. It is intended that the Awards granted hereunder shall be exempt from Section 409A of the Code pursuant to the “short-term deferral” rule applicable to such section, as set forth in the regulations or other guidance published by the Internal Revenue Service thereunder. The certification by the Compensation Committee and payment with respect to the Awards will occur between January 1 and March 15 of the calendar year following the end of the Performance Period. The Company does not guarantee any particular tax effect with respect to the Awards.
*    *    *


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AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN BRAZIL

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in Brazil, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Notice of Private Offering. It is intended that the grant of Restricted Stock Units or Performance Share Units by the Company to the Participant under the Award Agreement shall not constitute a “public offering” in Brazil, as defined in CVM Ruling No. 400 of the Brazilian Securities Exchange Commission (CVM), dated December 29, 2003 and, therefore, prior registration with the relevant securities authorities in Brazil is not required.

Labor Law Policy and Acknowledgement. By accepting this Award of Restricted Stock Units or Performance Share Units, the Participant acknowledges and agrees that (i) the benefits provided under the Grant Notice, Award Agreement and the Plan are the result of commercial transactions unrelated to the Participant’s employment; (ii) the Grant Notice, Award Agreement and the Plan are not a part of the terms and conditions of the Participant’s employment; and (iii) the income from the vesting of the Restricted Stock Units and Performance Share Units, if any, is not part of the Participant’s remuneration from employment.

Compliance with Applicable Law. By accepting the Award of Restricted Stock Units or Performance Share Units, the Participant agrees to comply with applicable Brazilian tax laws and to pay any and all applicable taxes associated with the vesting of the Restricted Stock Units or Performance Share Units, the receipt of dividends and/or the sale of shares of Common Stock acquired upon vesting and settlement of the Restricted Stock Units or Performance Share Units.


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AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN CANADA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in Canada, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Terms and Conditions

1.Restricted Stock Units and Performance Share Units Settled in Cash or Shares Acquired in the Open Market Only. Notwithstanding anything to the contrary in the Plan, the Grant Notice or the Award Agreement, I understand that any Restricted Stock Units or Performance Share Units granted to me shall be paid in cash or by delivery of previously issued shares of the Company acquired in the open market.

2.Settlement Date. Notwithstanding anything to the contrary in the Plan, the Grant Notice or the Award Agreement, any Restricted Stock Units or Performance Share Units will be settled no later than December 31 of the calendar year in which the vesting occurs.
The following provision will apply to residents of Quebec only:

3.Language Consent. The parties acknowledge that it is their express wish that this agreement, as well as all documents, notices, and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.

Les parties reconnaissent avoir exigé la rédaction en anglais de cette convention, ainsi que de tous documents, avis et procédures judiciaires, exécutés, donnés ou intentés en vertu de, ou liés directement ou indirectement à la présente convention.

Notifications

Additional Restrictions on Resale. In addition to the restrictions on resale and transfer noted in the Plan and the Award Agreement, securities granted or purchased under the Plan may be subject to certain restrictions on resale imposed by Canadian provincial securities laws. You are encouraged to seek legal advice prior to any resale of such securities. In general, Participants resident in Canada may resell their securities in transactions carried out on exchanges outside of Canada.


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AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN COLOMBIA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in Colombia, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Labor Law Policy and Acknowledgement. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges that pursuant to Article 128 of the Colombia Labor Code, equity awards granted pursuant to the Plan, the Grant Notice and the Award Agreement and any other related benefits do not constitute a component of “salary” for any purposes.

Exchange Control Information. Investments in assets located outside of Colombia (including Common Stock received following the vesting of Restricted Stock Units and Performance Share Units) are subject to registration by the Participant with the Central Bank of Colombia (Banco de la República) if the aggregate value of such investments is US$500,000 or more as of December 31 of the applicable calendar year. Further, upon the sale of any Common Stock that a Participant has registered with the Central Bank, the Participant must cancel the registration by March 31 of the following year. The Participant may be subject to fines for failure to cancel such registration with the Central Bank.


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AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN HONG KONG

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in Hong Kong, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

WARNING: The contents of this document have not been reviewed by any regulatory authority in Hong Kong. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of this document, you should obtain independent professional advice.

The Award Agreement, including this Addendum, the Grant Notice, the Plan and other incidental communication materials, have not been prepared in accordance with and are not intended to constitute a “prospectus” for a public offering of securities under the applicable securities legislation in Hong Kong. The Restricted Stock Units and Performance Share Units are intended only for the personal use of each eligible employee of the Company or any Subsidiary and may not be distributed to any other person.




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AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN INDIA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in India, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Labor Law Policy and Acknowledgement. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges that equity awards granted pursuant to the Plan, the Grant Notice and the Award Agreement and any other related benefits awards under the Plan are discretionary and are not to be considered in valuing employment benefits or severance payable in the event of the Participant’s termination of employment.

Data Privacy. By accepting the award of Restricted Stock Units or Performance Share Units:

(1)The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of his or her personal data as described in the Award Agreement by and among, as applicable, the Company and any of its Subsidiaries for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan.

(2)The Participant understands that the Company and any Subsidiary may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address and telephone number, date of birth, identification number (e.g., resident registration number), salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Restricted Stock Units and Performance Share Units or any other entitlement to shares awarded, canceled, vested, unvested or outstanding in the Participant’s favor (“Data”), for the purpose of implementing, administering and managing the Plan.

(3)The Participant understands that Data may be transferred to a third-party stock plan service provider, as may be selected by the Company from time to time, which may assist in the implementation, administration and management of the Plan. The Participant understand that the recipients of the Data may be located in the United States or elsewhere, and that the recipient country (e.g. the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Participant authorizes the Company, the third-party stock plan service provider and other possible recipients which may assist the Company (presently or in the future) with implementing,

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administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares of Common Stock received upon vesting of the Restricted Stock Units and Performance Share Units may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participant’s participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting his or her local human resources representative. Further, the Participant understands that he or she is providing the consents herein on a purely voluntary basis. If the Participant does not consent, or if he or she later seeks to revoke consent, the Participant’s employment status or service with the Participant’s employer will not be adversely affected; the only consequence of refusing or withdrawing consent is that the Company would not be able to grant Restricted Stock Units or Performance Share Units or other equity awards to the Participant or administer or maintain such awards.


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AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN IRELAND

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in Ireland, having entered into this Agreement as of the date of grant specified above (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

WARNING: The contents of this document have not been reviewed by any regulatory authority in Ireland. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of this document, you should obtain independent professional advice.

Income Tax, Pay Related Social Insurance and Universal Social Charge: Where the Participant is tax resident in Ireland on the vesting date and/or is a director of any Irish member of the Company Group, the Participant hereby agrees to indemnify the Company and any Affiliate in respect of any Irish income tax, employee Pay Related Social Insurance (PRSI) (but, for the avoidance of doubt, not employer PRSI), Universal Social Charge and any other relevant statutory deductions, withholdings or payments that the Company and/or any Affiliate is required to make or pay on as a matter of Irish law in relation to any Award under the Plan and agrees (without limitation) that Section 14(d) of the Plan shall apply in respect of the collection of such taxes and the satisfaction of the obligations of the Company or any Affiliate in respect of the same.

Employment Law Policy and Acknowledgement. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges that (i) equity awards granted pursuant to the Plan, the Grant Notice and the Award Agreement and any other related benefits awards under the Plan are discretionary, (ii) the Plan, the Grant Notice and the Award Agreement are not a part of the terms and conditions of the Participant’s employment; and (iii) the income from the vesting of the Restricted Stock Units and Performance Share Units, if any, is not part of the Participant’s remuneration from employment and is not to be considered in valuing employment benefits or severance payable in the event of the Participant’s termination of employment.

Enforceable Restrictions. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges and agrees that it is intended that the restrictions contained in Section 5 and 6 of the Award Agreement are fully enforceable. Having regard to this intention, if a Court of competent jurisdiction determines that these restrictions are not enforceable (in whole or in part), the Participant acknowledges and agrees that each outstanding

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and unvested Award of Restricted Stock Units and Performance Share Units granted to such Participant shall immediately terminate and be forfeited without any consideration.

Data Protection. By entering into this Agreement, the Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the participant’s personal data as described in this agreement and any other award grant materials by and among, as applicable, the Company and any Affiliate for the exclusive purpose of implementing, administering and managing the participant’s participation in the plan.
By entering into this Agreement, the Participant acknowledges that his or her personal data will be processed and disclosed as follows: by the Company, or any Affiliate employing the Participant as they are required to collect, process and utilise the personal information or other relevant information pertaining to the Participant for purposes directly relevant to the Award granted to the Participant, and to disclose or transfer such information to other Affiliates and, if necessary, a third party (including any broker, registrar or administrator) for the purpose of administering the Plan; by the Company or any Affiliate employing the Participant and any such third party so that they may utilise such information for the purpose of administering the Plan, provided that such information shall be kept confidential and shall not be used by any of them for any purposes not related to the administration of the Plan; by the Company or any Affiliate employing the Participant and any such third party (any of which may be located in the EU or outside of the EU) so that they may transfer the personal information or other relevant information pertaining to the Participant in the EU or outside of the EU for the purpose of administering the Plan (in which case the transfer shall be governed by “model contract clauses” or equivalent measures required under EU data protection laws); and by and to any future purchaser of the Company or any Affiliate employing the Participant, or any future purchaser of their respective undertakings or any parts thereof, for the purpose of administering the Plan and/or confirming the Participant’s entitlement to an Award and/or any Common Stock where such entitlement is relevant to Award.

By entering into this Agreement, the Participant acknowledges that the purposes described in this Agreement are necessary for the performance of the Plan or are otherwise necessary for the legitimate interests of the Company or any Affiliate employing the Participant in connection with the administration of the Plan. Should the Participant exercise any data subject rights in relation to his or her personal data, such as the right of objection or erasure, the Participant acknowledges that it may no longer be possible to administer the Plan in respect of the Participant. In that case the Awards may lapse and shall not be capable of vesting and the Participant shall be deemed to have waived (without any right to compensation) any right to Common Stock which are being held on his behalf.
The Participant shall be provided with the information regarding the following by the Company, the Board or any Affiliate employing the Participant to the extent that they are acting as controllers of the Participant’s personal data (save where the Participant already has the information): the purpose of the collection and use of the personal information or other relevant information pertaining to the Participant; the information to be collected and used; the period and method of retention and use of the personal information or other relevant information pertaining

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to the Participant; details of any third parties to whom their information is disclosed or transferred including the purpose of such disclosure or transfer and, where applicable, the safeguards applied to any transfers of data outside of the EU; the rights of the Participant in respect of access to, rectification and deletion of their information and any related disadvantages; where applicable, the contact details of the Data Protection Officer of the relevant controller; and the right to complain to the relevant data protection supervisory authority.


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AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN LITHUANIA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in Lithuania, having entered into this Agreement as of the date of grant specified above (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

WARNING: The contents of this document have not been reviewed by any regulatory authority in Lithuania. You are advised to exercise caution in relation to the offer.

Notice of Private Offering: This Agreement, including this Addendum, the Grant Notice, the Plan and other incidental communication materials do not constitute an offer or constitute any part of an offer to the public under the Law on Securities of the Republic of Lithuania (the “Law on Securities”) or otherwise. Accordingly, such documents and communications do not, and are not intended to, constitute a prospectus under the Law on Securities and have not been registered with the Bank of Lithuania. The Participant acknowledges that the Participant has been advised to exercise caution in relation to the offer and, if in doubt about any of the contents of this document, that the Participant should obtain independent professional advice.

Data privacy: By accepting the award of Restricted Stock Units or Performance Share Units:

(1)The Participant hereby explicitly and unambiguously acknowledges to the collection, use, processing and transfer, in electronic or other form, of his or her personal data as described in the Agreement by and among, as applicable, the Company and any of its Subsidiaries for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan on the basis of necessity to perform the Agreement.

(2)The Participant understands that the Company and any Subsidiary may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address and telephone number, e-mail address, date of birth, social security number or equivalent, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Restricted Stock Units and Performance Share Units or any other entitlement to shares awarded, canceled, vested, unvested or outstanding in the Participant’s favor and any other personal information which could identify the Participant and is necessary for the administration of the Plan (“Data”), for the purpose of implementing, administering and managing the Plan.

(3)The Participant understands that Data may be transferred to a third-party stock plan service provider, as may be selected by the Company from time to time, which may assist

        22
in the implementation, administration and management of the Plan. The Participant understand that the recipients of the Data may be located in the United States or elsewhere, and that the recipient country (e.g. the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. If data is transferred to third countries which do not ensure an adequate level of data protection, the data will be transferred only on the basis of additional safeguards such as standard data protection clauses adopted by the European Commission. The Participant may contact his or her local human resources representative to obtain a copy of the applicable safeguards. The Company may also share anonymised information with other third parties, but only where the information cannot realistically be identified as relating to the Participant. The Participant authorizes the Company, the third-party stock plan service provider and other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares of Common Stock received upon vesting of the Restricted Stock Units and Performance Share Units may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participant’s participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, request restriction of processing, or, in certain cases, request erasure of personal data, require any necessary amendments to Data or request data to be transferred to the Participant or to another controller in a machine readable format by contacting in writing his or her local human resources representative.

(4)The Participant understands that he or she accepts this Agreement on a purely voluntary basis. If Participant does not choose to participate in the Plan, his or her employment status or service with the Employer will not be adversely affected.










        23
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN MEXICO

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 (“TransUnion”) and the above named employee who resides in Mexico, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Labor Matters and Acknowledgement. The Participant acknowledges that the award is being granted by the Company on behalf of his or her employer a subsidiary within the Company Group. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges and agrees that this award does not form part of the Participant’s employment or service agreement with the Company or any of its subsidiaries and does not amend or supplement any such agreement. The Participant hereby acknowledges and agrees that his or her participation in the Plan does not create a labor relationship with any other company within the Company Group different from his or her current employer. Participation in the Plan does not entitle the Participant to future benefits or payments of a similar nature or value and does not entitle the Participant to any compensation in the event that the Participant loses his or her rights under the Plan as a result of termination of employment. Benefits or payments that the Participant may receive or be eligible for under the Plan will not be taken into consideration in determining the amount of any future benefits, payments or other entitlements that may be due to the Participant (including in cases of termination of employment).

The Participant hereby acknowledges and certifies that (i) the Participant is fully aware of and understands the terms and conditions of the Plan, the Grant Notice and the Award Agreement, (ii) the Participant completely and voluntarily agrees to such terms and conditions, (iii) the Participant has been furnished with all relevant information and materials on the Company’s operations and financial condition, (iv) the Participant has read and understood such information and materials, and (v) such information and materials are sufficient and have enabled the Participant to make an informed decision to invest in the shares offered.

Data Privacy Notice. By accepting the award of Restricted Stock Units or Performance Share Units:

(1)The Participant hereby explicitly and unambiguously consents to the collection, use, treatment, and transfer, in electronic or other form, of his or her personal data as described in the Award Agreement by and among, as applicable, the Company and any of

        24
its subsidiaries for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan.

(2)The Participant understands that the Company and any subsidiary may collect, hold and treat the following personal information about the Participant: name, home address and telephone number, date of birth, identification number (e.g., resident registration number), salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Restricted Stock Units and Performance Share Units or any other entitlement to shares awarded, canceled, vested, unvested or outstanding in the Participant’s favor (“Data”), for the purpose of implementing, administering and managing the Plan.

(3)The Participant understands that Data may be transferred to a third-party stock plan service provider, as may be selected by the Company from time to time, which may assist in the implementation, administration and management of the Plan. The Participant understands that the recipients of the Data may be located in the United States or elsewhere, and that the recipient country (e.g. the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Participant authorizes the Company, the third-party stock plan service provider and other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain, treat and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares of Common Stock received upon vesting of the Restricted Stock Units and Performance Share Units may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participant’s participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments or corrections to Data or refuse or withdraw the consents herein, in any case without cost, by contacting the person responsible for the treatment of Data identified below. Further, the Participant understands that he or she is providing the consents herein on a purely voluntary basis. If the Participant does not consent, or if he or she later seeks to revoke consent, the Participant’s employment status or service with the Participant’s employer will not be adversely affected; the only consequence of refusing or withdrawing consent is that the Company would not be able

        25
to grant Restricted Stock Units or Performance Share Units or other equity awards to the Participant or administer or maintain such awards.

(4)Address and identity of the person responsible for the treatment of Data: TransUnion, c/o Director, Corporate Systems, 555 West Adams Street, Chicago, Illinois 60661.

(5)The Participant may exercise the rights described hereinabove by submitting a request duly signed and addressed to the area of privacy personal data of the Company to the Company’s corporate headquarters, or to the following e-mail address: HRSysHelp@transunion.com. The request must be accompanied by the necessary documents to prove the identity of the Participant through official ID, as well as an e-mail address to receive notifications and decisions, or another means to receive the notifications, as well as any other documents deemed necessary. The Company will issue a decision within the twenty (20) business days from the date the request was submitted. If the request is granted, the decision will be effective within the fifteen (15) business days following the date the decision is notified. If appropriate, the Company will attach the necessary documents with the information or personal data in its possession. The abovementioned terms may be extended for an equal period under appropriate circumstances. For more information please contact the area of privacy of personal data by sending an email to HRSysHelp@transunion.com.

The Company reserves the right to amend at any time this privacy policy notice, and notify the Participant through e-mail of such amendments. All amended terms will automatically take effect 10 days after the Company provides notice of the amendments.


        26
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN PHILIPPINES

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the Philippines, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Labor Law Policy and Acknowledgement. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges and agrees that this award does not form part of the Participant’s employment or service agreement with the Company or any of its subsidiaries and does not amend or supplement any such agreement. Participation in the Plan does not entitle the Participant to future benefits or payments of a similar nature or value and does not entitle the Participant to any compensation in the event that the Participant loses his or her rights under the Plan as a result of termination of employment. Benefits or payments that the Participant may receive or be eligible for under the Plan will not be taken into consideration in determining the amount of any future benefits, payments or other entitlements that may be due to the Participant (including in cases of termination of employment).

The Participant hereby acknowledges and certifies that (i) the Participant is fully aware of and understands the terms and conditions of the Plan, the Grant Notice and the Award Agreement, (ii) the Participant completely and voluntarily agrees to such terms and conditions, (iii) the Participant has been furnished with all relevant information and materials on the Company’s operations and financial condition, (iv) the Participant has read and understood such information and materials, and (v) such information and materials are sufficient and have enabled the Participant to make an informed decision to invest in the shares offered.

Data Privacy. By accepting the award of Restricted Stock Units or Performance Share Units:

(1)The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of his or her personal data as described in the Award Agreement by and among, as applicable, the Company and any of its subsidiaries for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan.

(2)The Participant understands that the Company and any subsidiary may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address and telephone number, date of birth, identification number (e.g., resident registration number), salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Restricted Stock Units and Performance

        27
Share Units or any other entitlement to shares awarded, canceled, vested, unvested or outstanding in the Participant’s favor (“Data”), for the purpose of implementing, administering and managing the Plan.

(3)The Participant understands that Data may be transferred to a third-party stock plan service provider, as may be selected by the Company from time to time, which may assist in the implementation, administration and management of the Plan. The Participant understands that the recipients of the Data may be located in the United States or elsewhere, and that the recipient country (e.g. the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Participant authorizes the Company, the third-party stock plan service provider and other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares of Common Stock received upon vesting of the Restricted Stock Units and Performance Share Units may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participant’s participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting his or her local human resources representative. Further, the Participant understands that he or she is providing the consents herein on a purely voluntary basis. If the Participant does not consent, or if he or she later seeks to revoke consent, the Participant’s employment status or service with the Participant’s employer will not be adversely affected; the only consequence of refusing or withdrawing consent is that the Company would not be able to grant Restricted Stock Units or Performance Share Units or other equity awards to the Participant or administer or maintain such awards.
Securities Notice. THE SECURITIES BEING OFFERED OR SOLD HEREIN HAVE NOT BEEN REGISTERED WITH THE PHILIPPINE SECURITIES AND EXCHANGE COMMISSION UNDER THE PHILIPPINE SECURITIES REGULATION CODE. ANY FUTURE OFFER OR SALE THEREOF IN THE PHILIPPINES IS SUBJECT TO REGISTRATION REQUIREMENTS UNDER THE PHILIPPINE SECURITIES REGULATION CODE UNLESS SUCH OFFER OR SALE QUALIFIES AS AN EXEMPT TRANSACTION.


        28
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN SOUTH AFRICA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in South Africa, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Notice of Private Offering. The information contained in the Plan, the Grant Notice and the Award Agreement is strictly private and confidential and for the attention of the addressee only. Any offer or invitation contained herein is open for acceptance by the addressee only and, as such, does not constitute an offer to the public as envisaged in Chapter 4 of the South African Companies Act, 2008.


        29
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN THE UNITED KINGDOM

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the United Kingdom, having entered into this Agreement as of the date of grant specified above (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

WARNING: The contents of this document have not been reviewed by any regulatory authority in the United Kingdom. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of this document, you should obtain independent professional advice.

Notice of Private Offering. The Award Agreement, including this Addendum, the Grant Notice, the Plan and other incidental communication materials do not constitute an offer or constitute any part of an offer to the public within the meaning of sections 85 and 102B of the Financial Services and Markets Act 2000 (as amended) (“FSMA”) or otherwise. Accordingly such documents and communications do not, and are not intended to, constitute a prospectus within the meaning of section 85 of FSMA and have not been drawn up in accordance with the Prospectus Rules or approved by or filed with the Financial Conduct Authority or any other competent authority.

Income Taxes and National Insurance Contributions.  The Participant hereby agrees to indemnify the Company and any member of the Company Group in respect of any income tax or employees' (but not employers') Class 1 National Insurance Contributions in relation to any Award under the Plan and agrees (without limitation) that Section 14(d) of the Plan shall apply in respect of the collection such taxes and the satisfaction of the obligations of the Company or any member of the Company group in respect of the same.

Eligible Persons.  Notwithstanding anything to the contrary contained in the Plan, all employees, including employees employed on part-time or temporary basis, who provide services in the United Kingdom and are employed by a Group Company domiciled in the United Kingdom shall be treated as Eligible Persons under Section 6 of the Plan.

Employment Law Policy and Acknowledgement. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges that (i) equity awards granted pursuant to the Plan, the Grant Notice and the Award Agreement and any other related benefits awards under the Plan are discretionary, (ii) the Plan, the Grant Notice and the Award Agreement are not a part of the terms and conditions of the Participant’s employment; and (iii) the income from the vesting of the Restricted Stock Units and Performance Share Units, if any, is not part of

        30
the Participant’s remuneration from employment and is not to be considered in valuing employment benefits or severance payable in the event of the Participant’s termination of employment.

Data Privacy. By accepting the award of Restricted Stock Units or Performance Share Units:

(1)The Participant hereby explicitly and unambiguously consents to the collection, use, processing and transfer, in electronic or other form, of his or her personal data as described in the Award Agreement by and among, as applicable, the Company and any of its Subsidiaries for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan.

(2)The Participant understands that the Company and any Subsidiary may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address and telephone number, e-mail address, date of birth, social security number or equivalent, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Restricted Stock Units and Performance Share Units or any other entitlement to shares awarded, canceled, vested, unvested or outstanding in the Participant’s favor and any other personal information which could identify the Participant and is necessary for the administration of the Plan (“Data”), for the purpose of implementing, administering and managing the Plan.

(3)The Participant understands that Data may be transferred to a third-party stock plan service provider, as may be selected by the Company from time to time, which may assist in the implementation, administration and management of the Plan. The Participant understand that the recipients of the Data may be located in the United States or elsewhere, and that the recipient country (e.g. the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Participant authorizes the Company, the third-party stock plan service provider and other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares of Common Stock received upon vesting of the Restricted Stock Units and Performance Share Units may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participant’s participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting his or her local human resources representative. Further, the Participant understands that he or she is providing the consents herein on a

        31
purely voluntary basis. If the Participant does not consent, or if he or she later seeks to revoke consent, the Participant’s employment status or service with the Participant’s employer will not be adversely affected; the only consequence of refusing or withdrawing consent is that the Company would not be able to grant Restricted Stock Units or Performance Share Units or other equity awards to the Participant or administer or maintain such awards.


        32
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN CALIFORNIA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the State of California, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Section 5, Noncompetition. Section 5 of the Award Agreement is amended to provide that the Noncompetition Period will commence on the date of the Award Agreement and end on the date of Participant’s Termination.
Section 6, Nonsolicitation, is replaced with the following. Participant further covenants and agrees that during the period commencing with the date of this Award Agreement and ending, on (i) if termination of the Participant’s employment results from the Participant’s Retirement, the later of (A) the conclusion of any Performance Period (as set forth in the Grant Notice) and (B) the first anniversary of Participant’s Termination, or (ii) otherwise, the first anniversary of Participant’s Termination (the “Nonsolicitation Period”), Participant shall not, directly or indirectly (i) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company and any such employee, (ii) use Company trade secrets to induce or attempt to induce any customer or client of the Company to (A) cease doing business with the Company or (B) acquire any Competitive Service from any person or entity other than the Company or its Affiliates or (iii) use Company trade secrets to in any way interfere with the relationship between any such customer or client and the Company.
Section 7, Geographic Scope. Section 7 of the Award Agreement is amended to replace the reference to “Noncompetition Period” with “Nonsolicitation Period”.
Section 8, Nondisparagement is replaced with the following. Except as otherwise allowed by law, including by California Government Code Section 12964.5, Participant shall not, directly or indirectly, disparage the Company and/or communicate, either in writing or orally, any statement that bears negatively on the Company’s reputation, services, products, principals, customers, policies, adherence to the law (unless otherwise required by law), shareholders, officers, directors, officials, executives, employees, agents, representatives, business or other legitimate interests of the Company.
Section 22, Governing Law. Section 22 of the Award Agreement is amended to substitute “California” for “Delaware” with respect to governing law and jurisdiction.


        33
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN OKLAHOMA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the State of Oklahoma, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Section 5, Noncompetition. Section 5 of the Award Agreement shall not apply to Participant.
Section 6, Nonsolicitation. Sections 6(iii) and 6(iv) of the Award Agreement is amended to apply only to those customers and clients of the Company with whom Participant, or persons supervised by Participant, had material business-related contact during the twelve (12) month period preceding Participant’s Termination or about which Participant had access to confidential information during the twelve (12) month period preceding Participant’s Termination.

34

AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN OREGON

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the State of Oregon, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Section 5, Noncompetition. Section 5 of the Award Agreement is amended such that the Noncompetition Period shall not extend beyond eighteen (18) months following Participant’s Termination.



        35
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN WASHINGTON

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the State of Washington, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Section 5, Noncompetition. Section 5 of the Award Agreement shall only apply if Participant’s annualized salary exceeds the compensation requirements of the Restrictions on Noncompetition Covenants Bill 5478 as codified in the Revised Code of Washington, Title 49. In addition, Section 5 of the Award Agreement is amended such that the Noncompetition Period shall not extend beyond eighteen (18) months following Participant’s Termination.

Section 22, Governing Law. Section 22 of the Award Agreement is amended to substitute “Washington” for “Delaware” with respect to governing law and jurisdiction.



        36
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN WISCONSIN

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the State of Wisconsin, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Section 5, Noncompetition. Section 5 of the Award Agreement is amended to limit the noncompetition covenant to situations in which Participant is performing services that are the same as or similar in function or purpose to the services Participant performed for the Company during the twelve (12) month period preceding Participant’s Termination.
Section 6, Nonsolicitation. Section 6 of the Award Agreement is amended to delete Section 6(ii). In addition, Section 6(i) of the Award Agreement is replaced with the following: “induce or attempt to induce any employee of the Company that is in a Sensitive Position to leave the employment of the Company on behalf of or for the benefit of a Competitive Business, or knowingly assist a Competitive Business to hire such an employee away from the Company”. For purposes of Section 6(i) (as amended hereby) an employee in a “Sensitive Position” refers to an employee of the Company who is in a management, supervisory, sales, technology, research and development or similar role where the employee is provided confidential information of the Company or is involved in business dealings with the Company’s customers.




        Exhibit 10.23
TRANSUNION
AMENDED AND RESTATED 2015 OMNIBUS INCENTIVE PLAN
GRANT NOTICE

PERFORMANCE SHARE UNITS
TransUnion (the “Company”), pursuant to the TransUnion Amended and Restated 2015 Omnibus Incentive Plan (the “Plan”), hereby grants to the Participant identified below an award of Restricted Stock Units that are contingent upon the Participant’s continued employment and satisfaction of Performance Goals (the “Performance Share Units”) in such numbers as set forth below. Any reference hereunder to an “Award” shall mean, collectively or individually, Performance Share Units. Awards are subject to all of the terms and conditions as set forth herein, in the Award Agreement (attached hereto), and in the Plan, all of which are incorporated herein in their entirety. Capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Plan.
Participant:#ParticipantName#
Date of Grant:
Number of Performance Share Units:
#GrantDate#
#QuantityGranted#
Performance Period for Performance Share Units:January 1, 2022 to December 31, 2024
Vesting Date:
Dividend Equivalents:
February 25, 2025
The holder of an outstanding Award shall be entitled to be paid dividend equivalent payments (in respect of the payment by the Company of dividends on shares of Common Stock) either in cash or, at the sole discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of such dividends. Such dividend equivalents shall be subject to the vesting of the applicable Award to which the dividend equivalent relates and shall be payable at the same time as such applicable Award is settled and then only with respect to the applicable number of Performance Share Units that are earned. If such Award is forfeited without vesting, the Participant shall have no right to such dividend equivalent payments.

Vesting Schedule:







        2

Vesting Schedule:

1.Vesting of Performance Share Units. The extent to which the Performance Components are satisfied and the number of Performance Share Units that become vested shall be calculated with respect to each Performance Component as identified below. All determinations with respect to each Performance Component shall be made by the Committee in its sole discretion and, in the absence of manifest error, such determinations shall be binding and conclusive (except as required by applicable law). The applicable Performance Components shall not be achieved and the Performance Share Units shall not vest (i) until the Committee certifies that such Performance Components have been met and (ii) except as provided otherwise in Sections 2 and 3 below, unless the Participant has remained continuously employed by the Company Group through the vesting date specified above (the “Vesting Date”).
(a)Revenue CAGR Performance Component. The total number of Performance Share Units that become vested based on the achievement of cumulative revenue compound annual growth rate (“Revenue CAGR”) performance levels shall be equal to (x) the total number of Performance Share Units multiplied by (y) a Performance Component relative weighting factor equal to 20%, multiplied by (z) the applicable Achievement Percentage, determined as follows, and rounded down to the nearest whole Performance Share Unit:
Level of AchievementCumulative 3-year Revenue CAGRPercentage of Award Earned
Below ThresholdLess than %0%
Threshold%50%
Target%100%
Maximum%200%

(b)Relative Total Shareholder Return Position Performance Component. The total number of Performance Share Units that become vested based on the achievement of relative total shareholder return position (“Relative Total Shareholder Return”) performance levels shall be equal to (x) the total number of Performance Share Units multiplied by (y) a Performance Component relative weighting factor equal to 50%, multiplied by (z) the applicable Achievement Percentage, determined as follows, and rounded down to the nearest whole Performance Share Unit:
Level of AchievementRelative TSR Percentile RankPercentage of Award Earned
Below Threshold
Less than 25th Percentile
0%
Threshold
25th Percentile
50%
Target
50th Percentile
100%
Maximum
80th Percentile and above
200%


        3


The Committee shall determine (i) the Total Shareholder Return for the Company for the Performance Period, (ii) the Total Shareholder Return for each Peer Group Member for the Performance Period, and (iii) the Relative TSR Percentile Rank for the Company. Notwithstanding anything to the contrary herein, if the Total Shareholder Return for the Company is negative over the Performance Period, then the Achievement Percentage in respect of the Company’s Relative Total Shareholder Return Position shall not exceed 100%.

(c)Adjusted EBITDA CAGR Performance Component. The total number of Performance Share Units that become vested based on the achievement of cumulative Adjusted EBITDA compound annual growth rate (“Adjusted EBITDA CAGR”) performance levels shall be equal to (x) the total number of Performance Share Units multiplied by (y) a Performance Component relative weighting factor equal to 30%, multiplied by (z) the applicable Achievement Percentage, determined as follows, and rounded down to the nearest whole Performance Share Unit:
Level of AchievementCumulative 3-year Adjusted EBITDA CAGRPercentage of Award Earned
Below ThresholdLess than %0%
Threshold%50%
Target%100%
Maximum%200%

(d)With respect to Adjusted EBITDA CAGR and Revenue CAGR, the cumulative compound annual growth rate shall be determined using Adjusted EBITDA or Revenue, as applicable, for the 2021 fiscal year (the “Base Year”) as the initial measurement amount, and cumulative Adjusted EBITDA or cumulative Revenue, as applicable, over the Performance Period as the final measurement amount.
2.Termination of Employment. If the Participant’s employment with the Company Group terminates for any reason while any Award remains outstanding and eligible to vest, the Participant shall forfeit all unvested Awards (and, as a result, shall forfeit all shares of Common Stock, or cash, and any related dividend equivalents that may otherwise have been delivered or paid pursuant to such Award); provided, however, that
(a)if termination results from Participant’s Disability or death, the Performance Share Units granted hereunder will vest immediately at the “Target” level of performance on the date of such termination or the certified performance if known on the date of such termination (and, as a result, Participant shall be entitled to all shares of Common Stock, or cash, and any related dividend equivalents that may otherwise have been delivered or paid in connection with such Performance Share Units); and


        4
(b)if termination results from the Participant’s Retirement and the Participant timely executes a general release and waiver of claims in a form and manner determined by the Company in its sole discretion, then with respect to any Award that was granted in a calendar year prior to the calendar year of Retirement a prorated portion of the Performance Share Units, based on the number of full and partial months the Participant participates during the Performance Period for the Performance Share Units specified above, will remain outstanding and will vest in accordance with the terms and provisions hereof in the same manner as if the Participant’s employment had continued through the Vesting Date in accordance with the terms of Section 1, to the extent that such conditions to vesting other than continued employment have been met and Performance Components satisfied (and, as a result, Participant shall be entitled to a prorated portion of the shares of Common Stock, or cash, and any related dividend equivalents that may otherwise have been delivered or paid in connection with such Performance Share Units).
3.Change in Control. If a Change in Control occurs, the following provisions shall apply with respect to the vesting of the Awards:
(a)To the extent the successor entity in the Change in Control does not assume the Awards or substitute the Awards with an equivalent award on terms that are no less favorable to the Participant as compared to the Award and the Change in Control occurs prior to the Committee’s certification of the achievement of the Performance Components as provided under Section 1 herein, then the Performance Share Units granted hereunder will vest immediately upon the effective date of the Change in Control based on the achievement (or deemed achievement) of the Performance Components, as follows: (x) the Relative Total Shareholder Return Performance Component will be measured and the corresponding Level of Achievement determined as of the effective date of the Change in Control, and (y) the Revenue CAGR and Adjusted EBITDA CAGR Performance Components shall be deemed achieved at the “Target” Level of Achievement (and, as a result, Participant shall be entitled to all shares of Common Stock, or cash, and any related dividend equivalents that may otherwise have been delivered or paid in connection with such Performance Share Units).
(b)To the extent the successor entity in the Change in Control assumes the Awards or substitutes the Awards with an equivalent award on terms that are no less favorable to the Participant as compared to the Award, a “Qualifying Termination” (as such term is used in Section 12(c) of the Plan) shall mean a Triggering Event occurring prior to the second anniversary of the effective date of such Change in Control, and the Change in Control occurs prior to the Committee’s certification of the achievement of the Performance Components, the Performance Share Units granted hereunder will vest immediately upon a Triggering Event based on the achievement (or deemed achievement) of the Performance Components at the levels determined in accordance with clauses (x) and (y) of Section 3(a) above (and, as a result, Participant shall be entitled to all shares of Common Stock, or cash, and any


        5
related dividend equivalents that may otherwise have been delivered or paid in connection with such Performance Share Units).
4.Definitions. For the purposes of this Grant Notice:
(a)“Achievement Percentage” means the “Percentage of Award Earned” specified with respect to the “Below Threshold,” “Threshold,” “Target” and “Maximum” levels for each Performance Component, or a percentage determined using linear interpolation if actual performance falls between any two levels (and rounded to the nearest whole percentage point and, if equally between two percentage points, rounded up). In the event that actual performance does not meet the “Threshold” level for any Performance Component, as applicable, the “Achievement Percentage” with respect to such Performance Component shall be zero. The Committee shall have the discretion pursuant Section 11(d) of the Plan to make equitable adjustments to the Performance Components to account for certain events including, but not limited to, acquisitions or divestitures, acquisition of new technologies, or resolution of legal disputes.
(b)“Adjusted EBITDA” means adjusted earnings before interest, taxes, depreciation and amortization, as reported in the Company’s Form 10-Ks and Form 10-Qs as filed with the Securities and Exchange Commission with such adjustments as are recommended by management and approved by the Committee for items that are infrequent in occurrence and/or unusual in nature and consistent with similar adjustments made for purposes of annual bonus compensation including, currency fluctuation and inorganic growth.
(c)“Constructive Termination” means the occurrence of any one or more of the following events without the Participant's written consent: (i) with respect to any Participant holding the title of Director or above, any reduction in position, overall responsibilities, level of authority, title or level of reporting; (ii) a reduction in the Participant’s base compensation and annual incentive compensation opportunity, measured in the aggregate, which is not the result of a uniformly applied adjustment across all similarly situated personnel within the Company; or (iii) a requirement that the Participant's location of employment be relocated by more than fifty (50) miles from the Participant’s then-current location, provided, that any such event shall constitute a Constructive Termination only if the Participant gives written notice to the Committee within ten (10) days of the later of its occurrence or Executive’s knowledge thereof, the circumstances giving rise to the Constructive Termination are not cured within thirty (30) business days of such notice, and the Participant resigns from employment within sixty (60) days following such failure to cure. In the event that the Participant is a party to an employment, severance, retention or other similar agreement with the Company (or a successor entity) that defines a termination on account of “Constructive Termination,” “Good Reason” or “Breach of Agreement” (or a term having similar meaning), such definition shall apply as the definition of “Constructive Termination” for purposes hereof in lieu of the foregoing.


        6
(d)“Revenue” means adjusted revenue (or revenue if no adjusted revenue is disclosed) as reported in the Company’s Form 10-Ks and Form 10-Qs as filed with the Securities and Exchange Commission with such adjustments as are recommended by management and approved by the Committee for items that are infrequent in occurrence and/or unusual and consistent with similar adjustments made for purposes of annual bonus compensation, including currency fluctuation and inorganic growth.
(e)“Peer Group Members” means all of the Russell 3000 Commercial and Professional Services companies, including the Company, on the date that is 20 trading days prior to the commencement of the Performance Period, with the following modifications: (i) except as provided in clause (ii) below, only those entities that continue to trade throughout the Performance Period without interruption on a National Exchange shall be included; and (ii) any such entity that files for bankruptcy (“Bankrupt Peer”) during the Performance Period shall continue to be included.
(f)“Relative TSR Percentile Rank” means the percentile performance of the Company as compared to the Peer Group Members. Relative TSR Percentile Rank is determined by ranking the Company and all other Peer Group Members according to their respective Total Shareholder Return for the Performance Period. The ranking is in order from minimum to maximum, with the lowest performing entity assigned a rank of one. Peer Group Members with the same Total Shareholder Return (calculated to four decimal places) will share the same rank and subsequent rankings will reflect the number of Peer Group Members sharing preceding rankings. The Company’s ranking is then divided by the total number of Peer Group Members to get the Company’s Relative TSR Percentile Rank.
(g)“Retirement” means termination of employment with the Company Group (for any reason other than Disability, death or Cause) at a time when (i) the Participant has attained the age of 55, (ii) the sum of the Participant’s age plus completed years of service with the Company Group is at least 65, (iii) the Participant has completed at least five (5) years of service with the Company Group, and (iv) the Participant does not have an offer for and has not accepted employment with any other for profit business on financial terms and conditions substantially similar to those provided by the Company prior to the Vesting Date; provided, however, that unless the Committee agrees otherwise, no termination of employment shall be a Retirement unless the Participant has provided at least sixty (60) days’ advance written notice of the Participant’s intent to retire.
(h)“Performance Components” means the Performance Criteria applicable to an Award.
(i)“Total Shareholder Return” of either the Company or a Peer Group Member means the result of dividing (1) the sum of the cumulative value of an entity’s dividends for the Performance Period, plus the entity’s Ending Price, minus the Beginning Price, by (2) the Beginning Price, calculated to four decimal places. For


        7
purposes of determining the cumulative value of an entity’s dividends during the Performance Period, it will be assumed that all dividends declared and paid with respect to a particular entity during the Performance Period were reinvested in such entity at the ex-dividend date, using the closing price on such date. The aggregate shares, or fractional shares thereof, that will be assumed to be purchased as part of the reinvestment calculation will be multiplied by the Ending Price to determine the cumulative value of an entity’s dividends for the Performance Period. For these purposes:
(i)“Price” is the principal stock exchange or quotation system closing prices on the date in question;
(ii)“Beginning Price” is the average Price for the period of 20 trading days immediately preceding the first day of the Performance Period; provided, however, that if the applicable common stock has not been trading for a full 20 trading day period prior to the applicable measurement date, the average closing price shall be determined based on such shorter number of days that such common stock has been trading as of such measurement date;
(iii)“Ending Price” is the average Price for the period of 20 trading days immediately preceding and including the final day of the Performance Period; and
(iv)any Bankrupt Peer and any Peer Group Member that (A) merges with or is acquired by another Peer Group Member, or (B) is acquired by a company who is not a Peer Group Member shall have a Total Shareholder Return of negative one hundred percent (-100%);
in each case, with such adjustments as are necessary, in the judgment of the Committee to equitably calculate Total Shareholder Return in light of any stock splits, reverse stock splits, stock dividends, and other extraordinary transactions or other changes in the capital structure of the Company or the Peer Group Member, as applicable.
(j)“Triggering Event” means (i) the Participant’s employment with the Company Group is terminated by the Company Group for any reason other than on account of death, Disability or Cause or (ii) the occurrence of a Constructive Termination.
*    *    *


        8
THE UNDERSIGNED PARTICIPANT ACKNOWLEDGES RECEIPT OF THIS GRANT NOTICE WITH RESPECT TO PERFORMANCE SHARE UNITS, THE AWARD AGREEMENT AND THE PLAN, AND, AS AN EXPRESS CONDITION TO THE GRANT OF AWARDS HEREUNDER, AGREES TO BE BOUND BY THE TERMS OF THIS GRANT NOTICE, THE AWARD AGREEMENT AND THE PLAN.

To the extent that the Company has established, either itself or through a third-party plan administrator, the ability to accept this award electronically, such acceptance shall constitute the Participant’s signature hereof.
TRANSUNION


PARTICIPANT
    
By: Susan Muigai
Title: Executive Vice President, Chief Human Resources Officer




#Signature#

#AcceptanceDate#




        9
TRANSUNION
AMENDED AND RESTATED 2015 OMNIBUS INCENTIVE PLAN
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS
Pursuant to the Grant Notice with respect to Restricted Stock Units or Performance Share Units (the “Grant Notice”) delivered to the Participant (as defined in the Grant Notice), and subject to the terms of this Award Agreement (including any addenda or exhibits) (this “Award Agreement”) and the TransUnion Amended and Restated 2015 Omnibus Incentive Plan (the “Plan”), TransUnion (the “Company”) and the Participant agree as follows. Capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Plan.
1.Grant of Restricted Stock Units or Performance Share Units. Subject to the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Participant the number of Restricted Stock Units (“Restricted Stock Units”) or Performance Share Units (“Performance Share Units”) provided in the Grant Notice (with each Restricted Stock Unit and each Performance Share Unit representing an unfunded, unsecured right to receive one share of Common Stock upon vesting). Any reference hereunder to an “Award” shall mean, collectively or individually, Restricted Stock Units or Performance Share Units, as applicable. The Company may make one or more additional grants of Awards to the Participant under this Award Agreement by providing the Participant with a new Grant Notice, which may also include any terms and conditions differing from this Award Agreement to the extent provided therein. The Company reserves all rights with respect to the granting of additional Awards hereunder and makes no implied promise to grant additional Awards.
2.Vesting. Subject to the conditions contained herein and in the Plan, the Awards shall vest and the restrictions on such Awards shall lapse as provided in the Grant Notice.
3.Settlement of Awards. The provisions of Section 9(d) of the Plan are incorporated herein by reference and made a part hereof.
4.Treatment of Awards Upon Termination. Except as provided in the Grant Notice, the provisions of Section 9(c)(ii) of the Plan are incorporated herein by reference and made a part hereof.
5.Noncompetition. Participant acknowledges and agrees with the Company that Participant’s services to the Company are unique in nature and that the Company would be irreparably damaged if Participant were to provide similar services to any person or entity competing with the Company. Participant accordingly covenants and agrees with the Company that during the period commencing with the date of this Award Agreement and ending, on (i) if termination of the Participant’s employment results from the Participant’s Retirement, the later of (A) the conclusion of any Performance Period (as set forth in the Grant Notice) and (B) the first anniversary of Participant’s Termination, or (ii) otherwise, the first anniversary of Participant’s Termination (the “Noncompetition Period”), Participant shall not, directly or


        10
indirectly, either for himself or for any other individual, corporation, partnership, joint venture or other entity, participate in any Competitive Business (including, without limitation, any division, group or franchise of a larger organization). For purposes of this Award Agreement, the term “participate in” (with the term “participating in” having a correlative meaning with the foregoing) shall include, without limitation, having any direct or indirect interest in any corporation, partnership, joint venture or other entity, whether as a sole proprietor, owner, stockholder, partner, joint venturer, creditor or otherwise, or rendering any direct or indirect service or assistance to any individual, corporation, partnership, joint venture or other business entity (whether as a director, officer, manager, supervisor, employee, agent, consultant or otherwise). The foregoing restrictions on the Participant are not applicable (i) if the Participant’s employment with the Company Group is terminated by the Company without Cause, and (ii) to any passive investment made by the Participant in any public entity that is or includes a Competitive Business, provided such investment is not greater than 3% of market value of such public entity.
6.Nonsolicitation. Participant further covenants and agrees that during the Noncompetition Period, Participant shall not, directly or indirectly (i) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company and any such employee, (ii) hire directly or through another entity any person who is then an employee of the Company or was an employee of the Company within six months preceding the date of such attempted hiring, (iii) induce or attempt to induce any customer or client of the Company to (A) cease doing business with the Company or (B) acquire any Competitive Service from any person or entity other than the Company or its Affiliates or (iv) in any way interfere with the relationship between any such customer or client and the Company.
7.Geographic Scope. The provisions of Section 5 and Section 6 shall apply, while Participant is employed, to countries in which the Company conducts business during the period from the date of this Award Agreement to the date of Termination and, with respect to portions of the Noncompetition Period following the date of Termination, to the countries in which (i) the Company conducted business at Termination or (ii) at the time of Participant’s Termination, the Company had approved plans to conduct business within the following 12 months.
8.Nondisparagement. Participant shall not, directly or indirectly, disparage the Company and/or communicate, either in writing or orally, any statement that bears negatively on the Company’s reputation, services, products, principals, customers, policies, adherence to the law (unless otherwise required by law), shareholders, officers, directors, officials, executives, employees, agents, representatives, business or other legitimate interests of the Company.
9.Acknowledgments. Participant acknowledges that the restrictions contained in this Award Agreement do not preclude Participant from earning a livelihood, nor do they unreasonably impose limitations on Participant’s ability to earn a living. Participant agrees and acknowledges that the potential harm to the Company resulting from the non-enforcement of Section 5, Section 6, or Section 8 outweighs any potential harm to Participant of


        11
the enforcement of such provisions by injunction or otherwise. Participant acknowledges that Participant has carefully read this Award Agreement and has given careful consideration to the restraints imposed upon Participant by this Award Agreement and is in full agreement regarding their necessity for the reasonable and proper protection of the business goodwill and competitive positions of the Company now existing or to be developed in the future and that each and every restraint imposed by this Award Agreement is reasonable with respect to subject matter, time period and geographical area. The Company agrees that it will provide notice of any purported violations of this Award Agreement by Participant, as well as an opportunity during the 30 days thereafter to cure the purported violations; provided that the violations are not willful violations and can reasonably be cured within 30 days. Notwithstanding the foregoing or anything else to the contrary contained herein, in the event that the Participant is a party to an employment, retention, severance or other similar agreement with the Company (or a successor entity) that contains provisions that conflict with Section 5, Section 6, Section 8, or the applicable definitions, the corresponding provisions of such employment, retention, severance or other similar agreement shall apply and control.
10.Certain Definitions. For purposes of this Award Agreement, the following definitions will apply:
(a)“Company” as used in this Award Agreement with reference to employment shall include the Company and its subsidiaries.
(b)“Competitive Business” means any business or person that has operations that generates a significant portion of its annual revenues from any line of business, product or service that competes with, or is meant to compete with, any Company Group line of business, product or service offered by the Company Group as of the date of termination or planned to be offered by the Company Group within the 12 months following termination, including, but not limited to, the following: LiveRamp Holdings, Inc.; The Dun & Bradstreet Corporation; Equifax, Inc.; Experian Group Limited; Fair Isaac Corporation; Reed Elsevier/LexisNexis; Verisk Analytics, Inc.; and Thomson Reuters Corporation.
(c)“Competitive Service” means any product or service that competes with, or is meant to compete with, any product or service provided by the Company as (i) offered by the Company as of Participant’s Termination, or (ii) at the time of Participant’s Termination, planned to be offered by the Company within the next 12 months. 
(d)“Participant,” when used under circumstances where the provision should logically be construed to apply to the executors, the administrators, or the person or persons to whom the Awards may be transferred in accordance with the Plan, shall be deemed to include such person or persons.
11.Non-Transferability. The Awards are not transferable by the Participant except to Permitted Transferees in accordance with Section 14(b) of the Plan. Except as otherwise provided herein, no assignment or transfer of the Awards, or of the rights represented


        12
thereby, whether voluntary or involuntary, by operation of law or otherwise, shall vest in the assignee or transferee any interest or right herein whatsoever, but immediately upon such assignment or transfer the Awards shall terminate and become of no further effect.
12.Rights as Stockholder; Additional Agreements. The Participant or a permitted transferee of the Awards shall have no rights as a stockholder with respect to any share of Common Stock underlying an Award unless and until the Participant shall have become the holder of record or the beneficial owner of such Common Stock and, subject to Section 12 of the Plan, no adjustment shall be made for dividends or distributions or other rights in respect of such share of Common Stock for which the record date is prior to the date upon which the Participant shall become the holder of record or the beneficial owner thereof. The Company reserves the right to impose other requirements on the Participant’s participation in the Plan, the Awards, or settlement of the Awards, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
13.Tax Withholding. The provisions of Section 14(d) of the Plan are incorporated herein by reference and made a part hereof; provided, that the Committee may allow a withholding of shares in excess of the minimum required statutory liability if the Committee determines that such excess withholding would not result in adverse accounting consequences.
14.Clawback/Repayment. All Awards shall be subject to reduction, cancellation, forfeiture or recoupment to the extent necessary to comply with (1) any clawback, forfeiture or other similar policy adopted by the Board or the Committee and as in effect from time to time, and (2) applicable law, including, but not limited to, the applicable rules and regulations of the Securities and Exchange Commission and the NYSE or any other securities exchange or inter-dealer quotation system on which the Common Stock is listed or quoted. In addition, if the Participant receives any amount in excess of the amount that the Participant should have otherwise received under the terms of the Awards for any reason (including, without limitation, by reason of a financial restatement, mistake in calculations or other administrative error), the Committee may provide that the Participant shall be required to repay any such excess amount to the Company.
15.Detrimental Activity. Notwithstanding anything to the contrary contained in the Plan, the Grant Notice or this Award Agreement, if the Participant has engaged or engages in any Detrimental Activity, the Committee may, in its sole discretion, (1) cancel any or all of the Awards, and (2) require the Participant to forfeit any amount or gain realized due to the vesting of such Awards, and to repay any such amount or gain promptly to the Company.
16.Protected Rights. Participant understands that nothing contained in this Award Agreement limits Participant’s ability to report possible violations of law or regulation to, or file a charge or complaint with, the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Department of Justice, the Congress, any Inspector


        13
General, or any other federal, state or local governmental agency or commission (“Government Agencies”). Participant further understands that this Award Agreement does not limit Participant’s ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company. Nothing in this Award Agreement shall limit Participant’s ability under applicable United States federal law to (i) disclose in confidence trade secrets to federal, state, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law or (ii) disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure.
17.Notice. Every notice or other communication relating to this Award Agreement between the Company and the Participant shall be in writing, and shall be mailed, transmitted or delivered to the party for whom it is intended at such physical or electronic (e-mail) address as may from time to time be designated by such party in a notice mailed or delivered to the other party as herein provided; provided that, unless and until some other address be so designated, all notices or communications by the Participant to the Company shall be mailed, transmitted or delivered to the Company at its principal executive office, to the attention of the Company Secretary, and all notices or communications by the Company to the Participant may be given to the Participant personally or may be mailed or transmitted to the Participant at the Participant’s last known address or e-mail address, as reflected in the Company’s records. Notwithstanding the above, all notices and communications between the Participant and any third-party plan administrator shall be mailed, delivered, transmitted or sent in accordance with the procedures established by such third-party plan administrator and communicated to the Participant from time to time.
18.No Right to Continued Service. This Award Agreement does not confer upon the Participant any right to continue as an employee or service provider to the Company.
19.Binding Effect. This Award Agreement shall be binding upon the heirs, executors, administrators and successors of the parties hereto, and each member of the Company Group, and each of their respective Affiliates, shall have the right to enforce Section 5, Section 6, and Section 8 hereof.
20.Waiver and Amendments. Except as otherwise set forth in Section 13 of the Plan, any waiver, alteration, amendment or modification of any of the terms of this Award Agreement shall be valid only if made in writing and signed by the parties hereto; provided, however, that any such waiver, alteration, amendment or modification may be consented to on the Company’s behalf by the Committee. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.
21.Severability. Participant understands and agrees that the provisions of this Agreement are severable so that in the event that any part or potion of any of the Agreement, or the Sections contained herein, shall be held to be void, unenforceable or contrary


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to public policy, the remaining portion of the Agreement or Section shall remain in full force and effect.
22.Governing Law. This Award Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Notwithstanding anything contained in this Award Agreement, the Grant Notice or the Plan to the contrary, if any suit or claim is instituted by the Participant or the Company relating to this Award Agreement, the Grant Notice or the Plan, the Participant hereby submits to the exclusive jurisdiction of and venue in the courts of Delaware.
23.Plan. The terms and provisions of the Plan are incorporated herein by reference. In the event of a conflict or inconsistency between the terms and provisions of the Plan and the provisions of this Award Agreement, the Plan shall govern and control.
24.Section 409A. It is intended that the Awards granted hereunder shall be exempt from Section 409A of the Code pursuant to the “short-term deferral” rule applicable to such section, as set forth in the regulations or other guidance published by the Internal Revenue Service thereunder. The certification by the Compensation Committee and payment with respect to the Awards will occur between January 1 and March 15 of the calendar year following the end of the Performance Period. The Company does not guarantee any particular tax effect with respect to the Awards.
*    *    *



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AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN BRAZIL

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in Brazil, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Notice of Private Offering. It is intended that the grant of Restricted Stock Units or Performance Share Units by the Company to the Participant under the Award Agreement shall not constitute a “public offering” in Brazil, as defined in CVM Ruling No. 400 of the Brazilian Securities Exchange Commission (CVM), dated December 29, 2003 and, therefore, prior registration with the relevant securities authorities in Brazil is not required.

Labor Law Policy and Acknowledgement. By accepting this Award of Restricted Stock Units or Performance Share Units, the Participant acknowledges and agrees that (i) the benefits provided under the Grant Notice, Award Agreement and the Plan are the result of commercial transactions unrelated to the Participant’s employment; (ii) the Grant Notice, Award Agreement and the Plan are not a part of the terms and conditions of the Participant’s employment; and (iii) the income from the vesting of the Restricted Stock Units and Performance Share Units, if any, is not part of the Participant’s remuneration from employment.

Compliance with Applicable Law. By accepting the Award of Restricted Stock Units or Performance Share Units, the Participant agrees to comply with applicable Brazilian tax laws and to pay any and all applicable taxes associated with the vesting of the Restricted Stock Units or Performance Share Units, the receipt of dividends and/or the sale of shares of Common Stock acquired upon vesting and settlement of the Restricted Stock Units or Performance Share Units.



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AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN CANADA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in Canada, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Terms and Conditions

1.Restricted Stock Units and Performance Share Units Settled in Cash or Shares Acquired in the Open Market Only. Notwithstanding anything to the contrary in the Plan, the Grant Notice or the Award Agreement, I understand that any Restricted Stock Units or Performance Share Units granted to me shall be paid in cash or by delivery of previously issued shares of the Company acquired in the open market.

2.Settlement Date. Notwithstanding anything to the contrary in the Plan, the Grant Notice or the Award Agreement, any Restricted Stock Units or Performance Share Units will be settled no later than December 31 of the calendar year in which the vesting occurs.
The following provision will apply to residents of Quebec only:

3.Language Consent. The parties acknowledge that it is their express wish that this agreement, as well as all documents, notices, and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.

Les parties reconnaissent avoir exigé la rédaction en anglais de cette convention, ainsi que de tous documents, avis et procédures judiciaires, exécutés, donnés ou intentés en vertu de, ou liés directement ou indirectement à la présente convention.

Notifications

Additional Restrictions on Resale. In addition to the restrictions on resale and transfer noted in the Plan and the Award Agreement, securities granted or purchased under the Plan may be subject to certain restrictions on resale imposed by Canadian provincial securities laws. You are encouraged to seek legal advice prior to any resale of such securities. In general, Participants resident in Canada may resell their securities in transactions carried out on exchanges outside of Canada.



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AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN COLOMBIA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in Colombia, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Labor Law Policy and Acknowledgement. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges that pursuant to Article 128 of the Colombia Labor Code, equity awards granted pursuant to the Plan, the Grant Notice and the Award Agreement and any other related benefits do not constitute a component of “salary” for any purposes.

Exchange Control Information. Investments in assets located outside of Colombia (including Common Stock received following the vesting of Restricted Stock Units and Performance Share Units) are subject to registration by the Participant with the Central Bank of Colombia (Banco de la República) if the aggregate value of such investments is US$500,000 or more as of December 31 of the applicable calendar year. Further, upon the sale of any Common Stock that a Participant has registered with the Central Bank, the Participant must cancel the registration by March 31 of the following year. The Participant may be subject to fines for failure to cancel such registration with the Central Bank.



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AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN HONG KONG

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in Hong Kong, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

WARNING: The contents of this document have not been reviewed by any regulatory authority in Hong Kong. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of this document, you should obtain independent professional advice.

The Award Agreement, including this Addendum, the Grant Notice, the Plan and other incidental communication materials, have not been prepared in accordance with and are not intended to constitute a “prospectus” for a public offering of securities under the applicable securities legislation in Hong Kong. The Restricted Stock Units and Performance Share Units are intended only for the personal use of each eligible employee of the Company or any Subsidiary and may not be distributed to any other person.





        19
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN INDIA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in India, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Labor Law Policy and Acknowledgement. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges that equity awards granted pursuant to the Plan, the Grant Notice and the Award Agreement and any other related benefits awards under the Plan are discretionary and are not to be considered in valuing employment benefits or severance payable in the event of the Participant’s termination of employment.

Data Privacy. By accepting the award of Restricted Stock Units or Performance Share Units:

(1)The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of his or her personal data as described in the Award Agreement by and among, as applicable, the Company and any of its Subsidiaries for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan.

(2)The Participant understands that the Company and any Subsidiary may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address and telephone number, date of birth, identification number (e.g., resident registration number), salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Restricted Stock Units and Performance Share Units or any other entitlement to shares awarded, canceled, vested, unvested or outstanding in the Participant’s favor (“Data”), for the purpose of implementing, administering and managing the Plan.

(3)The Participant understands that Data may be transferred to a third-party stock plan service provider, as may be selected by the Company from time to time, which may assist in the implementation, administration and management of the Plan. The Participant understand that the recipients of the Data may be located in the United States or elsewhere, and that the recipient country (e.g. the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Participant authorizes the Company, the third-party stock plan service provider and other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data,


        20
in electronic or other form, for the sole purpose of implementing, administering and managing the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares of Common Stock received upon vesting of the Restricted Stock Units and Performance Share Units may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participant’s participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting his or her local human resources representative. Further, the Participant understands that he or she is providing the consents herein on a purely voluntary basis. If the Participant does not consent, or if he or she later seeks to revoke consent, the Participant’s employment status or service with the Participant’s employer will not be adversely affected; the only consequence of refusing or withdrawing consent is that the Company would not be able to grant Restricted Stock Units or Performance Share Units or other equity awards to the Participant or administer or maintain such awards.



        21
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN IRELAND

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in Ireland, having entered into this Agreement as of the date of grant specified above (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

WARNING: The contents of this document have not been reviewed by any regulatory authority in Ireland. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of this document, you should obtain independent professional advice.

Income Tax, Pay Related Social Insurance and Universal Social Charge: Where the Participant is tax resident in Ireland on the vesting date and/or is a director of any Irish member of the Company Group, the Participant hereby agrees to indemnify the Company and any Affiliate in respect of any Irish income tax, employee Pay Related Social Insurance (PRSI) (but, for the avoidance of doubt, not employer PRSI), Universal Social Charge and any other relevant statutory deductions, withholdings or payments that the Company and/or any Affiliate is required to make or pay on as a matter of Irish law in relation to any Award under the Plan and agrees (without limitation) that Section 14(d) of the Plan shall apply in respect of the collection of such taxes and the satisfaction of the obligations of the Company or any Affiliate in respect of the same.

Employment Law Policy and Acknowledgement. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges that (i) equity awards granted pursuant to the Plan, the Grant Notice and the Award Agreement and any other related benefits awards under the Plan are discretionary, (ii) the Plan, the Grant Notice and the Award Agreement are not a part of the terms and conditions of the Participant’s employment; and (iii) the income from the vesting of the Restricted Stock Units and Performance Share Units, if any, is not part of the Participant’s remuneration from employment and is not to be considered in valuing employment benefits or severance payable in the event of the Participant’s termination of employment.

Enforceable Restrictions. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges and agrees that it is intended that the restrictions contained in Section 5 and 6 of the Award Agreement are fully enforceable. Having regard to this intention, if a Court of competent jurisdiction determines that these restrictions are not enforceable (in whole or in part), the Participant acknowledges and agrees that each outstanding and unvested Award of Restricted Stock Units and Performance Share Units granted to such Participant shall immediately terminate and be forfeited without any consideration.



        22
Data Protection. By entering into this Agreement, the Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the participant’s personal data as described in this agreement and any other award grant materials by and among, as applicable, the Company and any Affiliate for the exclusive purpose of implementing, administering and managing the participant’s participation in the plan.
By entering into this Agreement, the Participant acknowledges that his or her personal data will be processed and disclosed as follows: by the Company, or any Affiliate employing the Participant as they are required to collect, process and utilise the personal information or other relevant information pertaining to the Participant for purposes directly relevant to the Award granted to the Participant, and to disclose or transfer such information to other Affiliates and, if necessary, a third party (including any broker, registrar or administrator) for the purpose of administering the Plan; by the Company or any Affiliate employing the Participant and any such third party so that they may utilise such information for the purpose of administering the Plan, provided that such information shall be kept confidential and shall not be used by any of them for any purposes not related to the administration of the Plan; by the Company or any Affiliate employing the Participant and any such third party (any of which may be located in the EU or outside of the EU) so that they may transfer the personal information or other relevant information pertaining to the Participant in the EU or outside of the EU for the purpose of administering the Plan (in which case the transfer shall be governed by “model contract clauses” or equivalent measures required under EU data protection laws); and by and to any future purchaser of the Company or any Affiliate employing the Participant, or any future purchaser of their respective undertakings or any parts thereof, for the purpose of administering the Plan and/or confirming the Participant’s entitlement to an Award and/or any Common Stock where such entitlement is relevant to Award.

By entering into this Agreement, the Participant acknowledges that the purposes described in this Agreement are necessary for the performance of the Plan or are otherwise necessary for the legitimate interests of the Company or any Affiliate employing the Participant in connection with the administration of the Plan. Should the Participant exercise any data subject rights in relation to his or her personal data, such as the right of objection or erasure, the Participant acknowledges that it may no longer be possible to administer the Plan in respect of the Participant. In that case the Awards may lapse and shall not be capable of vesting and the Participant shall be deemed to have waived (without any right to compensation) any right to Common Stock which are being held on his behalf.
The Participant shall be provided with the information regarding the following by the Company, the Board or any Affiliate employing the Participant to the extent that they are acting as controllers of the Participant’s personal data (save where the Participant already has the information): the purpose of the collection and use of the personal information or other relevant information pertaining to the Participant; the information to be collected and used; the period and method of retention and use of the personal information or other relevant information pertaining to the Participant; details of any third parties to whom their information is disclosed or transferred including the purpose of such disclosure or transfer and, where applicable, the safeguards applied to any transfers of data outside of the EU; the rights of the Participant in respect of access to, rectification and deletion of their information and any related disadvantages;


        23
where applicable, the contact details of the Data Protection Officer of the relevant controller; and the right to complain to the relevant data protection supervisory authority.



        24
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN LITHUANIA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in Lithuania, having entered into this Agreement as of the date of grant specified above (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

WARNING: The contents of this document have not been reviewed by any regulatory authority in Lithuania. You are advised to exercise caution in relation to the offer.

Notice of Private Offering: This Agreement, including this Addendum, the Grant Notice, the Plan and other incidental communication materials do not constitute an offer or constitute any part of an offer to the public under the Law on Securities of the Republic of Lithuania (the “Law on Securities”) or otherwise. Accordingly, such documents and communications do not, and are not intended to, constitute a prospectus under the Law on Securities and have not been registered with the Bank of Lithuania. The Participant acknowledges that the Participant has been advised to exercise caution in relation to the offer and, if in doubt about any of the contents of this document, that the Participant should obtain independent professional advice.

Data privacy: By accepting the award of Restricted Stock Units or Performance Share Units:

(1)The Participant hereby explicitly and unambiguously acknowledges to the collection, use, processing and transfer, in electronic or other form, of his or her personal data as described in the Agreement by and among, as applicable, the Company and any of its Subsidiaries for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan on the basis of necessity to perform the Agreement.

(2)The Participant understands that the Company and any Subsidiary may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address and telephone number, e-mail address, date of birth, social security number or equivalent, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Restricted Stock Units and Performance Share Units or any other entitlement to shares awarded, canceled, vested, unvested or outstanding in the Participant’s favor and any other personal information which could identify the Participant and is necessary for the administration of the Plan (“Data”), for the purpose of implementing, administering and managing the Plan.

(3)The Participant understands that Data may be transferred to a third-party stock plan service provider, as may be selected by the Company from time to time, which may assist in the implementation, administration and management of the Plan. The Participant


        25
understand that the recipients of the Data may be located in the United States or elsewhere, and that the recipient country (e.g. the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. If data is transferred to third countries which do not ensure an adequate level of data protection, the data will be transferred only on the basis of additional safeguards such as standard data protection clauses adopted by the European Commission. The Participant may contact his or her local human resources representative to obtain a copy of the applicable safeguards. The Company may also share anonymised information with other third parties, but only where the information cannot realistically be identified as relating to the Participant. The Participant authorizes the Company, the third-party stock plan service provider and other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares of Common Stock received upon vesting of the Restricted Stock Units and Performance Share Units may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participant’s participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, request restriction of processing, or, in certain cases, request erasure of personal data, require any necessary amendments to Data or request data to be transferred to the Participant or to another controller in a machine readable format by contacting in writing his or her local human resources representative.

(4)The Participant understands that he or she accepts this Agreement on a purely voluntary basis. If Participant does not choose to participate in the Plan, his or her employment status or service with the Employer will not be adversely affected.
















        26
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN MEXICO

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 (“TransUnion”) and the above named employee who resides in Mexico, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Labor Matters and Acknowledgement. The Participant acknowledges that the award is being granted by the Company on behalf of his or her employer a subsidiary within the Company Group. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges and agrees that this award does not form part of the Participant’s employment or service agreement with the Company or any of its subsidiaries and does not amend or supplement any such agreement. The Participant hereby acknowledges and agrees that his or her participation in the Plan does not create a labor relationship with any other company within the Company Group different from his or her current employer. Participation in the Plan does not entitle the Participant to future benefits or payments of a similar nature or value and does not entitle the Participant to any compensation in the event that the Participant loses his or her rights under the Plan as a result of termination of employment. Benefits or payments that the Participant may receive or be eligible for under the Plan will not be taken into consideration in determining the amount of any future benefits, payments or other entitlements that may be due to the Participant (including in cases of termination of employment).

The Participant hereby acknowledges and certifies that (i) the Participant is fully aware of and understands the terms and conditions of the Plan, the Grant Notice and the Award Agreement, (ii) the Participant completely and voluntarily agrees to such terms and conditions, (iii) the Participant has been furnished with all relevant information and materials on the Company’s operations and financial condition, (iv) the Participant has read and understood such information and materials, and (v) such information and materials are sufficient and have enabled the Participant to make an informed decision to invest in the shares offered.

Data Privacy Notice. By accepting the award of Restricted Stock Units or Performance Share Units:

(1)The Participant hereby explicitly and unambiguously consents to the collection, use, treatment, and transfer, in electronic or other form, of his or her personal data as described in the Award Agreement by and among, as applicable, the Company and any of its subsidiaries for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan.

(2)The Participant understands that the Company and any subsidiary may collect, hold and treat the following personal information about the Participant: name, home address and


        27
telephone number, date of birth, identification number (e.g., resident registration number), salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Restricted Stock Units and Performance Share Units or any other entitlement to shares awarded, canceled, vested, unvested or outstanding in the Participant’s favor (“Data”), for the purpose of implementing, administering and managing the Plan.

(3)The Participant understands that Data may be transferred to a third-party stock plan service provider, as may be selected by the Company from time to time, which may assist in the implementation, administration and management of the Plan. The Participant understands that the recipients of the Data may be located in the United States or elsewhere, and that the recipient country (e.g. the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Participant authorizes the Company, the third-party stock plan service provider and other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain, treat and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares of Common Stock received upon vesting of the Restricted Stock Units and Performance Share Units may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participant’s participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments or corrections to Data or refuse or withdraw the consents herein, in any case without cost, by contacting the person responsible for the treatment of Data identified below. Further, the Participant understands that he or she is providing the consents herein on a purely voluntary basis. If the Participant does not consent, or if he or she later seeks to revoke consent, the Participant’s employment status or service with the Participant’s employer will not be adversely affected; the only consequence of refusing or withdrawing consent is that the Company would not be able to grant Restricted Stock Units or Performance Share Units or other equity awards to the Participant or administer or maintain such awards.

(4)Address and identity of the person responsible for the treatment of Data: TransUnion, c/o Director, Corporate Systems, 555 West Adams Street, Chicago, Illinois 60661.

(5)The Participant may exercise the rights described hereinabove by submitting a request duly signed and addressed to the area of privacy personal data of the Company to the Company’s corporate headquarters, or to the following e-mail address: HRSysHelp@transunion.com. The request must be accompanied by the necessary documents to prove the identity of the Participant through official ID, as well as an e-mail address to receive notifications and decisions, or another means to receive the


        28
notifications, as well as any other documents deemed necessary. The Company will issue a decision within the twenty (20) business days from the date the request was submitted. If the request is granted, the decision will be effective within the fifteen (15) business days following the date the decision is notified. If appropriate, the Company will attach the necessary documents with the information or personal data in its possession. The abovementioned terms may be extended for an equal period under appropriate circumstances. For more information please contact the area of privacy of personal data by sending an email to HRSysHelp@transunion.com.

The Company reserves the right to amend at any time this privacy policy notice, and notify the Participant through e-mail of such amendments. All amended terms will automatically take effect 10 days after the Company provides notice of the amendments.




        29
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN PHILIPPINES

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the Philippines, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Labor Law Policy and Acknowledgement. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges and agrees that this award does not form part of the Participant’s employment or service agreement with the Company or any of its subsidiaries and does not amend or supplement any such agreement. Participation in the Plan does not entitle the Participant to future benefits or payments of a similar nature or value and does not entitle the Participant to any compensation in the event that the Participant loses his or her rights under the Plan as a result of termination of employment. Benefits or payments that the Participant may receive or be eligible for under the Plan will not be taken into consideration in determining the amount of any future benefits, payments or other entitlements that may be due to the Participant (including in cases of termination of employment).

The Participant hereby acknowledges and certifies that (i) the Participant is fully aware of and understands the terms and conditions of the Plan, the Grant Notice and the Award Agreement, (ii) the Participant completely and voluntarily agrees to such terms and conditions, (iii) the Participant has been furnished with all relevant information and materials on the Company’s operations and financial condition, (iv) the Participant has read and understood such information and materials, and (v) such information and materials are sufficient and have enabled the Participant to make an informed decision to invest in the shares offered.

Data Privacy. By accepting the award of Restricted Stock Units or Performance Share Units:

(1)The Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of his or her personal data as described in the Award Agreement by and among, as applicable, the Company and any of its subsidiaries for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan.

(2)The Participant understands that the Company and any subsidiary may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address and telephone number, date of birth, identification number (e.g., resident registration number), salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Restricted Stock Units and Performance Share Units or any other entitlement to shares awarded, canceled, vested, unvested or


        30
outstanding in the Participant’s favor (“Data”), for the purpose of implementing, administering and managing the Plan.

(3)The Participant understands that Data may be transferred to a third-party stock plan service provider, as may be selected by the Company from time to time, which may assist in the implementation, administration and management of the Plan. The Participant understands that the recipients of the Data may be located in the United States or elsewhere, and that the recipient country (e.g. the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Participant authorizes the Company, the third-party stock plan service provider and other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares of Common Stock received upon vesting of the Restricted Stock Units and Performance Share Units may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participant’s participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting his or her local human resources representative. Further, the Participant understands that he or she is providing the consents herein on a purely voluntary basis. If the Participant does not consent, or if he or she later seeks to revoke consent, the Participant’s employment status or service with the Participant’s employer will not be adversely affected; the only consequence of refusing or withdrawing consent is that the Company would not be able to grant Restricted Stock Units or Performance Share Units or other equity awards to the Participant or administer or maintain such awards.
Securities Notice. THE SECURITIES BEING OFFERED OR SOLD HEREIN HAVE NOT BEEN REGISTERED WITH THE PHILIPPINE SECURITIES AND EXCHANGE COMMISSION UNDER THE PHILIPPINE SECURITIES REGULATION CODE. ANY FUTURE OFFER OR SALE THEREOF IN THE PHILIPPINES IS SUBJECT TO REGISTRATION REQUIREMENTS UNDER THE PHILIPPINE SECURITIES REGULATION CODE UNLESS SUCH OFFER OR SALE QUALIFIES AS AN EXEMPT TRANSACTION.



        31
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN SOUTH AFRICA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in South Africa, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Notice of Private Offering. The information contained in the Plan, the Grant Notice and the Award Agreement is strictly private and confidential and for the attention of the addressee only. Any offer or invitation contained herein is open for acceptance by the addressee only and, as such, does not constitute an offer to the public as envisaged in Chapter 4 of the South African Companies Act, 2008.



        32
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN THE UNITED KINGDOM

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the United Kingdom, having entered into this Agreement as of the date of grant specified above (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

WARNING: The contents of this document have not been reviewed by any regulatory authority in the United Kingdom. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of this document, you should obtain independent professional advice.

Notice of Private Offering. The Award Agreement, including this Addendum, the Grant Notice, the Plan and other incidental communication materials do not constitute an offer or constitute any part of an offer to the public within the meaning of sections 85 and 102B of the Financial Services and Markets Act 2000 (as amended) (“FSMA”) or otherwise. Accordingly such documents and communications do not, and are not intended to, constitute a prospectus within the meaning of section 85 of FSMA and have not been drawn up in accordance with the Prospectus Rules or approved by or filed with the Financial Conduct Authority or any other competent authority.

Income Taxes and National Insurance Contributions.  The Participant hereby agrees to indemnify the Company and any member of the Company Group in respect of any income tax or employees' (but not employers') Class 1 National Insurance Contributions in relation to any Award under the Plan and agrees (without limitation) that Section 14(d) of the Plan shall apply in respect of the collection such taxes and the satisfaction of the obligations of the Company or any member of the Company group in respect of the same.

Eligible Persons.  Notwithstanding anything to the contrary contained in the Plan, all employees, including employees employed on part-time or temporary basis, who provide services in the United Kingdom and are employed by a Group Company domiciled in the United Kingdom shall be treated as Eligible Persons under Section 6 of the Plan.

Employment Law Policy and Acknowledgement. By accepting the award of Restricted Stock Units or Performance Share Units, the Participant acknowledges that (i) equity awards granted pursuant to the Plan, the Grant Notice and the Award Agreement and any other related benefits awards under the Plan are discretionary, (ii) the Plan, the Grant Notice and the Award Agreement are not a part of the terms and conditions of the Participant’s employment; and (iii) the income from the vesting of the Restricted Stock Units and Performance Share Units, if any, is not part of the Participant’s remuneration from employment and is not to be considered in valuing


        33
employment benefits or severance payable in the event of the Participant’s termination of employment.

Data Privacy. By accepting the award of Restricted Stock Units or Performance Share Units:

(1)The Participant hereby explicitly and unambiguously consents to the collection, use, processing and transfer, in electronic or other form, of his or her personal data as described in the Award Agreement by and among, as applicable, the Company and any of its Subsidiaries for the exclusive purpose of implementing, administering and managing the Participant’s participation in the Plan.

(2)The Participant understands that the Company and any Subsidiary may hold certain personal information about the Participant, including, but not limited to, the Participant’s name, home address and telephone number, e-mail address, date of birth, social security number or equivalent, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Restricted Stock Units and Performance Share Units or any other entitlement to shares awarded, canceled, vested, unvested or outstanding in the Participant’s favor and any other personal information which could identify the Participant and is necessary for the administration of the Plan (“Data”), for the purpose of implementing, administering and managing the Plan.

(3)The Participant understands that Data may be transferred to a third-party stock plan service provider, as may be selected by the Company from time to time, which may assist in the implementation, administration and management of the Plan. The Participant understand that the recipients of the Data may be located in the United States or elsewhere, and that the recipient country (e.g. the United States) may have different data privacy laws and protections than the Participant’s country. The Participant understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. The Participant authorizes the Company, the third-party stock plan service provider and other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares of Common Stock received upon vesting of the Restricted Stock Units and Performance Share Units may be deposited. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participant’s participation in the Plan. The Participant understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting his or her local human resources representative. Further, the Participant understands that he or she is providing the consents herein on a purely voluntary basis. If the Participant does not consent, or if he or she later seeks to revoke consent, the Participant’s employment status or service with the Participant’s


        34
employer will not be adversely affected; the only consequence of refusing or withdrawing consent is that the Company would not be able to grant Restricted Stock Units or Performance Share Units or other equity awards to the Participant or administer or maintain such awards.



        35
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN CALIFORNIA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the State of California, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Section 5, Noncompetition. Section 5 of the Award Agreement is amended to provide that the Noncompetition Period will commence on the date of the Award Agreement and end on the date of Participant’s Termination.
Section 6, Nonsolicitation, is replaced with the following. Participant further covenants and agrees that during the period commencing with the date of this Award Agreement and ending, on (i) if termination of the Participant’s employment results from the Participant’s Retirement, the later of (A) the conclusion of any Performance Period (as set forth in the Grant Notice) and (B) the first anniversary of Participant’s Termination, or (ii) otherwise, the first anniversary of Participant’s Termination (the “Nonsolicitation Period”), Participant shall not, directly or indirectly (i) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company and any such employee, (ii) use Company trade secrets to induce or attempt to induce any customer or client of the Company to (A) cease doing business with the Company or (B) acquire any Competitive Service from any person or entity other than the Company or its Affiliates or (iii) use Company trade secrets to in any way interfere with the relationship between any such customer or client and the Company.
Section 7, Geographic Scope. Section 7 of the Award Agreement is amended to replace the reference to “Noncompetition Period” with “Nonsolicitation Period”.
Section 8, Nondisparagement is replaced with the following. Except as otherwise allowed by law, including by California Government Code Section 12964.5, Participant shall not, directly or indirectly, disparage the Company and/or communicate, either in writing or orally, any statement that bears negatively on the Company’s reputation, services, products, principals, customers, policies, adherence to the law (unless otherwise required by law), shareholders, officers, directors, officials, executives, employees, agents, representatives, business or other legitimate interests of the Company.
Section 22, Governing Law. Section 22 of the Award Agreement is amended to substitute “California” for “Delaware” with respect to governing law and jurisdiction.



        36
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN OKLAHOMA

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the State of Oklahoma, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Section 5, Noncompetition. Section 5 of the Award Agreement shall not apply to Participant.
Section 6, Nonsolicitation. Sections 6(iii) and 6(iv) of the Award Agreement is amended to apply only to those customers and clients of the Company with whom Participant, or persons supervised by Participant, had material business-related contact during the twelve (12) month period preceding Participant’s Termination or about which Participant had access to confidential information during the twelve (12) month period preceding Participant’s Termination.



        37
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN OREGON

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the State of Oregon, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Section 5, Noncompetition. Section 5 of the Award Agreement is amended such that the Noncompetition Period shall not extend beyond eighteen (18) months following Participant’s Termination.



        38
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN WASHINGTON

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the State of Washington, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Section 5, Noncompetition. Section 5 of the Award Agreement shall only apply if Participant’s annualized salary exceeds the compensation requirements of the Restrictions on Noncompetition Covenants Bill 5478 as codified in the Revised Code of Washington, Title 49. In addition, Section 5 of the Award Agreement is amended such that the Noncompetition Period shall not extend beyond eighteen (18) months following Participant’s Termination.

Section 22, Governing Law. Section 22 of the Award Agreement is amended to substitute “Washington” for “Delaware” with respect to governing law and jurisdiction.



        39
AWARD AGREEMENT WITH RESPECT TO
RESTRICTED STOCK UNITS AND PERFORMANCE SHARE UNITS

ADDENDUM FOR PARTICIPANTS RESIDING IN WISCONSIN

TransUnion, a Delaware corporation with its principal place of business at 555 West Adams, Chicago, IL 60661 ("TransUnion") and the above named employee who resides in the State of Wisconsin, having entered into this Agreement as of the date of grant (“the Agreement”) hereby agree to and do amend the Agreement as follows. In all other respects, and except as expressly modified herein, all other terms and conditions of the Agreement shall remain in full force and effect.

Section 5, Noncompetition. Section 5 of the Award Agreement is amended to limit the noncompetition covenant to situations in which Participant is performing services that are the same as or similar in function or purpose to the services Participant performed for the Company during the twelve (12) month period preceding Participant’s Termination.
Section 6, Nonsolicitation. Section 6 of the Award Agreement is amended to delete Section 6(ii). In addition, Section 6(i) of the Award Agreement is replaced with the following: “induce or attempt to induce any employee of the Company that is in a Sensitive Position to leave the employment of the Company on behalf of or for the benefit of a Competitive Business, or knowingly assist a Competitive Business to hire such an employee away from the Company”. For purposes of Section 6(i) (as amended hereby) an employee in a “Sensitive Position” refers to an employee of the Company who is in a management, supervisory, sales, technology, research and development or similar role where the employee is provided confidential information of the Company or is involved in business dealings with the Company’s customers.




Exhibit 21
LIST OF SUBSIDIARIES
SubsidiaryJurisdiction of Organization
Credit Bureau of Carmel & Pebble Beach, Inc.CA
TransUnion Intermediate Holdings, Inc.DE
TransUnion Risk and Alternative Data Solutions, Inc.DE
TransUnion Digital LLCDE
Trans Union LLCDE
Trans Union International, Inc.DE
TransUnion International Holdings LLCDE
TransUnion Exchange LLCDE
TransUnion Rental Screening Solutions, Inc.DE
Credit Retriever LLCDE
Verifacts LLCDE
INSDEC LLCDE
Trans Union Consumer Solutions LLCDE
Trans Union Content Solutions LLCDE
TransUnion Global Holdings LLCDE
TransUnion Interactive, Inc.DE
Trans Union Real Estate Services, Inc.DE
TransUnion Financing CorporationDE
TransUnion Risk Advisory, Inc.DE
L2C, Inc.DE
Link Marketing, Inc.DE
Link2credit, Inc.DE
Drivers History Information Sales LLCDE
TransUnion Data Solutions LLCDE
eBureau, LLCDE
IS Resources, Inc.DE
FT Holdings, Inc.DE
FactorTrust, Inc.DE
iovation, Inc.DE
TruSignal, Inc.DE
Tru Optik Data Corp.DE
Signal Digital, Inc.DE
Signal Digital LLCDE
TransUnion Gaming Services Holdings, LLCDE
TransUnion Gaming Services LLCDE
Aerial Ultimate Holdings Corp.DE
Aerial Intermediate Holdings Corp.DE
Aerial Acquisition Corp.DE
Neustar, Inc.DE
Neustar Information Services, Inc.DE
Neustar Data Services, Inc.DE
TRUSTID, Inc.DE


Neustar NGM Services, LLCDE
Neustar IP Intelligence, Inc.DE
MarketShare Holdings, Inc.DE
MarketShare Acquisition CorporationDE
MarketShare Partners, LLCDE
JovianData, Inc.DE
MarketShare Partners Asia, LLCDE
Aggregate Knowledge LLCDE
LSSi Data Corp.DE
Datasnap.io, Inc.DE
Administrative Services, LLCDE
Data Solutions Services, LLCDE
Neustar International Services, Inc.DE
EZS Parent, Inc.DE
EZShield Group Parent, LLCDE
Sontiq, Inc.DE
Visionary Systems, Inc.GA
Worthknowing, Inc.GA
Decision Systems, Inc.GA
DSET CorporationGA
Source USA Insurance Agency, Inc.IL
TransUnion Marketing Solutions, Inc.IL
Driver’s History Inc.NJ
Datalink Services, Inc.NV
TransUnion Intelligence LLCNV
TransUnion Teledata LLCOR
Title Insurance Services CorporationSC
CyberScout Pty Ltd.Australia
Credit Reference Bureau Africa (Pty) Ltd.Botswana
TransUnion (Proprietary) Ltd.Botswana
TransUnion Brasil Sistemas em Informatica Ltda.Brazil
Neustar Brasil Tecnologia E Marketing Ltda.Brazil
Trans Union of Canada, Inc.Canada
CyberScout Inc.Canada
Trans Union Chile, S.A.Chile
TransUnion Soluciones de Informacion Chile SAChile
TransUnion Information Technology (Beijing) Co., Ltd.China
CIFIN S.A.S.Colombia
Trans Union Costa Rica, S.A.Costa Rica
Neustar Costa Rica LimitadaCosta Rica
Amacai de Costa Rica, S.A.Costa Rica
TransUnion Holding Cyprus Ltd.Cyprus
Centro de Informacion y Estudios Estrategicos Empresariales S.A.Dominican Rep.
TransUnion S.A.Dominican Rep.
Centro de Operaciones y Servicios de Informacion Estrategica, S.A.Dominican Rep.


TransUnion El Salvador, S.A. de C.V.El Salvador
TransUnion Eswatini (Pty) Ltd.Eswatini
Neustar GmbHGermany
Trans Union Guatemala, S.A.Guatemala
Soluciones de Informatica de Centroamerica (SICE), S.A.Guatemala
Trans Union Honduras-Buro de Credito, S.A.Honduras
TransUnion LimitedHong Kong
TransUnion Asia Ltd.Hong Kong
TransUnion Credit Information Services LimitedHong Kong
Credit Information Services LimitedHong Kong
Neustar Hong Kong Ltd.Hong Kong
Neustar Data Infotech (India) Private LimitedIndia
Neustar Technology and Data Services Private LimitedIndia
Trans Union Software Services Private LimitedIndia
TransUnion CIBIL LimitedIndia
TransUnion Global Technology Center LLPIndia
Trustev LimitedIreland
CyberScout Ventures Ltd.Ireland
MarketShare KKJapan
TransUnion Kenya LimitedKenya
Credit Reference Bureau (Holdings) LimitedKenya
Regional Data Systems LimitedKenya
Credit Information Systems Company LimitedKenya
Credit Reference Bureau Africa Ltd.Kenya
TransUnion Baltics UABLithuania
TransUnion Ltd.Malawi
CyberScout Sdn Bhd.Malaysia
TransUnion (Mauritius) LimitedMauritius
STS Vail Beheeren Administracion S. DE. R.L. DE C.V.Mexico
TransUnion Reverse Exchange S de R.L. de C.V.Mexico
TransUnion Soluciones de Informacion, S de R.L de C.V.Mexico
TransUnion Credit Bureau Namibia (Pty) Ltd.Namibia
Vail Systemen Groep, B.V.Netherlands
TransUnion Netherlands I, B.V.Netherlands
TransUnion Netherlands II, B.V.Netherlands
Neustar IP Intelligence, B.V.Netherlands
Trans Union Nicaragua, S.A.Nicaragua
Trans Union Central America, S.A.Panama
TransUnion Information Solutions, Inc.Philippines
Trans Union de Puerto Rico, Inc.Puerto Rico
TransUnion Rwanda LimitedRwanda
TransUnion Africa Holdings (Pty) Ltd.South Africa
TransUnion Credit Bureau (Pty) Ltd.South Africa
TransUnion Africa (Pty) Ltd.South Africa
TransUnion Analytic and Decision Services (Pty) Ltd.South Africa


TransUnion Auto Information Solutions (Pty) Ltd.South Africa
Autolocator (Pty) Ltd.South Africa
TransUnion Global Capability Centre Africa (Pty) Ltd.South Africa
Callcredit Spain S.L.USpain
Confirma Sistemas de Informacion S.L.Spain
CyberScout Ptd Ltd.Taiwan
Credit Reference Bureau Africa Ltd.Tanzania
Collection Africa Ltd.Tanzania
Credit Reporting Services LimitedTrinidad & Tobago
Callcredit Marketing Ltd.United Kingdom
Crown Acquisition BidCo, Ltd.United Kingdom
DecisionMetrics LimitedUnited Kingdom
iovation, Ltd.United Kingdom
Signal (UK) LimitedUnited Kingdom
TransUnion Global Holdings LPUnited Kingdom
TransUnion Information Group, LimitedUnited Kingdom
TransUnion International UK LimitedUnited Kingdom
TransUnion UK Holdings Ltd.United Kingdom
Vail Holdings UK Ltd.United Kingdom
Neustar Technologies LimitedUnited Kingdom
MarketShare Partners EMEA, Ltd.United Kingdom
CyberScout Ltd.United Kingdom
Credit Reference Bureau Africa Ltd.Zambia
Exhibit 23.1


CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 (Registration Nos. 333-248694, 333-236476, 333-207090, and 333-205239) of TransUnion of our report dated February 22, 2022 relating to the financial statements and financial statement schedules and the effectiveness of internal control over financial reporting, which appears in this Form 10-K.

/s/ PricewaterhouseCoopers LLP
Chicago, Illinois
February 22, 2022
    

Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the following Registration Statements:

1.Registration Statement (Form S-8 No. 333-248694 ) pertaining to the TransUnion Amended and Restated 2015 Omnibus Incentive Plan.
2.Registration Statement (Form S-8 No. 333-236476 ) pertaining to the TransUnion 2015 Omnibus Incentive Plan.
3.Registration Statement (Form S-8 No. 333-207090) pertaining to the TransUnion Holding Company, Inc. 2012 Management Equity Plan of TransUnion, and
4.Registration Statement (Form S-8 No. 333-205239) pertaining to the TransUnion 2015 Omnibus Incentive Plan and the TransUnion 2015 Employee Stock Purchase Plan;

of our report dated February 18, 2020 (except for Note 3, as to which the date is and February 22, 2022), with respect to the consolidated financial statements and schedules of TransUnion included in this Annual Report (Form 10-K) for the year ended December 31, 2019.



/s/Ernst & Young LLP
Chicago, Illinois
February 22, 2022

Exhibit 31.1
CERTIFICATION
I, Christopher A. Cartwright, certify that:
1. I have reviewed this report on Form 10-K of TransUnion;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent function):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: February 22, 2022

                                /s/ Christopher A. Cartwright
                                Name: Christopher A. Cartwright
                                Title: Chief Executive Officer
 

Exhibit 31.2
CERTIFICATION
I, Todd M. Cello, certify that:
1. I have reviewed this report on Form 10-K of TransUnion;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent function):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: February 22, 2022
 

                                /s/ Todd M. Cello
                                Name: Todd M. Cello
                                Title: Chief Financial Officer

Exhibit 32
Certification of CEO and CFO Pursuant to
18 U.S.C. Section 1350,
as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Annual Report on Form 10-K of TransUnion for the period ended December 31, 2021, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Christopher A. Cartwright, as Chief Executive Officer of the Company, and Todd M. Cello, as Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to their knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of TransUnion.
 
February 22, 2022


/s/ Christopher A. Cartwright
Name: Christopher A. Cartwright
Title: Chief Executive Officer


/s/ Todd M. Cello
Name: Todd M. Cello
Title: Chief Financial Officer

This certification accompanies this Form 10-K and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, or otherwise subject to the liability of that Section.